Contested land tenure reform in South Africa: experiences from Namaqualand

Abstract

In South Africa the distribution of land rights remains a major manifestation and cause of injustice, only slowly affected by the constitutionally mandated programme of land restitution, redistribution and tenure reform. The Transformation of Certain Rural Areas Act 94, 1998 (Trancraa) is the first post-apartheid legislation to reform ‘communal’ land tenure. It applies to 23 former ‘coloured rural areas’ and was introduced in six areas in Namaqualand in the Northern Cape Province during 2001–2. In a different, contested process a Communal Land Rights Bill for the former ‘homelands’ was published in August 2002, adopted by Cabinet in 2003 and signed into law in July 2004. While the Communal Land Rights Act relies on ‘traditional councils’ with a majority of non-elected members, Trancraa was enacted in the context of the 1997 White Paper of South African Land Policy and focused on community choice and the role of municipalities. The consultative process in Namaqualand was driven by civil society organisations and community actors, but did not include the training, finance and development support needed to transform rural relations among people affected by unemployment, land scarcity and weak local organisations. To promote procedural and substantive justice, tenure reform must honour the human rights of equality, redress and land development support articulated in land policy and the Constitution.