UNTITLED: SECURING LAND TENURE IN URBAN AND RURAL SOUTH AFRICA T H - - PowerPoint PPT Presentation

T H E P R O P E RT Y E D I F I C E A N D A LT E R N AT I V E S

UNTITLED:

SECURING LAND TENURE IN URBAN AND RURAL SOUTH AFRICA

PROGRAMME

SOCIAL TENURES

SOCIAL TENURES : OVERVIEW

• The relationships through which most South Africans

gain access to land are complex, multi-layered, diverse and poorly understood. Key factors shaping access are:

• Social values that underpin claims of access
• Diverse norms that limit what people are allowed to do with their

land and houses

• Degrees to which usage is exclusive or shared
• Local institutional arrangements that mediate access to, use of

and disposal of land and houses

• How access and control are socially, politically and legally

constructed.

• Why worry? Constitutional right; big investment in

regularisation; rapid “default” back to social tenures.

SOCIAL TENURES : CHARACTERISTICS

• Key organising principles
• Local oversight v national register and cadastre
• Social recognition v legal recognition
• Processes are paramount v rule-bound procedures
• Flexibility v fixed points, precision accuracy, bureaucratic order
• Limits of the local
• Gender discrimination, abuse by local power brokers
• Recourse where local channels are absent
• Underlying triggers to claims and contestations
• Thus: Official recognition and mediation support is key to

securing rights in social tenures .... Just as it is in mediating rights in the deeds registry system.

THE EDIFICE

THE PROPERTY EDIFICE 1

• In contrast to social tenures, the formal

property structure is held together by the cadastral system

• Cadastral system as currently constructed

comprises surveyed boundaries and corresponding Title Deeds

• Only property that conforms to the cadastre

can be registered in Deeds Registry; and as a result recognised as ‘ownership’

• In other words, legal recognition in DR

requires property to be ‘registerable’

THE PROPERTY EDIFICE 4

• Property registration has major ramifications
• It is a complex system aligned with a range of

laws and regulations regarding:

• Mortgage
• Inheritance and succession
• Property Taxation
• Planning
• Municipal Rates and Services
• Thus registered property is linked to cadastre as

a “package”  alienable property owned by identifiable owner(s), singular, plural, corporate

• inextricably tied to market economy & servicing

THE PROPERTY EDIFICE 2

• To meet these standards of registerability 

adhere to laws and regulations relating to:

• Spatial measurement by land surveyors
• Discrete parcels
• Layout planning in urban contexts
• Identification of owners on Title Deeds (TDs)
• TDs prepared and transferred by property

conveyancers

• Off-register tenures (customary, communal and

‘informal’) are unregisterable i.t.o. these criteria

• Conversion to standards not straightforward
• Parcel survey + singular owner identification +

expense = problem for social tenures

THE PROPERTY EDIFICE 3

• Converting locally/socially regulated tenures to

registerable tenure requires major trade-offs and abandonment of key features of local control, e.g.:

• Locally regulated access
• Access and succession by family or lineage
• Use rights that transcend lineal boundaries or land

parcels

• Rights (ownership) locally validated, in contrast to

property transfers by private conveyancers

• Conversion to title has occurred but evidence shows

thereafter most owners do not conform to registration:

• customary norms persist
• transfers not registered but witnessed + affidavits
• titles ‘lapse’ with every generation

THE PROPERTY EDIFICE 5

To summarise in conclusion:

• Social tenures do not fit formal institutional

requirements of national/formal property law:

• Deeds Registry: owner identification & alienability
• Surveyor General’s rules of survey measurement

within cm accuracy into land perimeter parcels

• Succession law: pre-selected heirs by will or by

state regulation of intestate successors

• In its current construction, cadastre is

impenetrable by social tenures hence:

‘the Edifice!’

CASE STUDY 1

WHO REALLY OWNS THE LAND AT EKUTHULENI?

DOES QWABE OWN THE QWABE LAND?

DOES BIYELA OWN NZUZA’S MADUMBI FIELD?

WHO IS HLABISA, THE OWNER?

HOW FIXED IS A BOUNDARY?

WHAT IS SECURE TENURE WITHOUT VISIBILITY?

CASE STUDY 2

RABULA AND FINGO VILLAGE, E CAPE

• Urban and rural sites in EC with historic freehold

title, land parcelled by survey 1860s (150 years)

• Title Deeds issued; grazing land held in common
• Over successive generations, rights maintained

by family members and not updated in the Deeds Registry records, but paper titles revered

• The outside surveyed boundaries are

maintained

• In Rabula the inside arable boundaries are

allocated to family members generationally

• In Rabula, commonage subject to tension in the

community which comprises TDs and non TDs

RABULA 1

RABULA 2

FINGO VILLAGE

RABULA AND FINGO VILLAGE 2

• Titles lose currency in the registration
• ffice fast but the paper titles are highly

valued by the owners as long as family name is there, need not be current name

• Current name can even be a problem as

the owner may alienate the family land

• Thus owners only update titles when

state law insists on ‘titles adjustment’

• Straight after ‘updating’ titles lose

currency once more

RABULA AND FINGO VILLAGE 3

• New titles in RDP housing context going same

way and titles losing currency fast

• Sales are locally witnessed, e.g. by headmen,

police or civics using affidavits

• Reasons for the mismatches are not understood

by government

• Official interpretation is that title holders should be

encouraged by:

• ‘educating’ them to maintain their titles
• lowering the transfer fees to the state
• registering the husband and wife on the TDs

COMMUNAL LAND TENURE BILL

CONCLUSION

CONCLUSION & ALTERNATIVES 1

The basic tenets emerging from the book/ LEAP work:

• Registration cannot recognise layered social rights held by

families or lineages over successive generations, and which combine with community rights and governance

• Registration cannot recognise the highly contingent

characteristics of social tenure relationships

• Work from the ground up, with what is there and where

people ‘are at’; see problem through eyes of land holders, understand what they actually do and see; grasp the logic

• f local processes of access, use and governance
• Use this as basis of analysis for understanding disjuncture

between customary systems and ‘western’ models

• Reconstruct institutional arrangements based on
• rganising principles that inform local practices: what are

the underlying triggers to claims and contestations?

CONCLUSION & ALTERNATIVES 2

• Begin to apply adaptive and innovative approaches in local

projects to inform direction of future change

• Non-conventional approaches/adaptations, e.g. working with

locals spatial and oral evidence and written records

• Helps to fill some of the gaps to make rights holders more

visible to municipalities

• BUT ALSO reveals missing links in the institutional machinery

and disconnection from the cadastre

• ITERATIVE PROCESSES: adaptations provide seeds and

ideas for more fundamental changes to whole property system since they SHOW UP what is missing in the LA architecture

• E.g. Geo-referenced records for farmworkers in KZN, informal

settlement in CT and in communal situations

.

LAND RECORD INFORMAL SETTLEMENT

CONCLUSION & ALTERNATIVES 4

ONE set of recommendations to govt as alternative to CLTB

• Enact a Land Records Act giving full legal recognition to

all social tenures, urban and rural

• This would entail developing a comprehensive Land

Administration infrastructure for all social tenures, urban and rural

• This system to be set up to allow rights to be recorded,

adjudicated and mediated

• Land registers at the local (municipal) level held in a

digital system that can be managed locally but which co-

• rdinates with national Deeds Registry
• Recourse to Land Ombud to ensure state adheres to legal

principles, administrative justice and guard against abuse

• Strengthen existing protective laws: a range of rights

based laws but they lack enforcement

SUMMARY, CONCLUSION & ALTERNATIVES 3

• Aim  achieve full legal status and administrative support

akin to the support provided to Deeds System

• Incorporate alternative forms of evidence in land records,

not standard evidence on Title Deeds in Deeds Registry:

• range of spatial units, not only co-ordinates / linear boundaries
• range of evidence showing use and access rights
• holding land and succession in line with kinship/ social relationships
• That would entail greater flexibility in both the spatial and

textual (property ownership) details of cadastral system:

• And recourse where local channels cannot resolve local

problems or disputes, or settle claims and contestations

• Test principles against Constitutional values & principles

e.g. rights, gender and administrative equity