What People Want
Chris WILLIAMS-WYNN, South Africa
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Chris Williams-Wynn
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1)
This paper was presented at the FIG Working Week in
Sofia, Bulgaria, 17-21 May 2015. Land administration in South Africa is
an interesting study because it consists of a dual system that has
promoted investment in areas where private property rights were
permitted, but relegated the Traditional Communities into poverty and
disinvestment. The paper shows that the concept of ownership, land
rights and title deeds goes much further than the ability to buy and
sell property.
SUMMARY
Notwithstanding the minority of authors that disagree, most research
has shown that private property rights provide far greater incentive for
an individual to create wealth and preserve the value of his/her assets
than State or communal ownership does. In South Africa, policies of
separate development and restrictions placed on capital expenditure
imposed on the lands occupied by the indigenous people during the
colonial era prevented the state from implementing the Cadastre in the
communal areas of the country. The status quo persists to this day,
which has resulted in a dual system that promoted investment in areas
where private property rights were permitted, but relegated the
Traditional Communities into poverty and disinvestment.
By observing the layout of rural communities, it is evident that
people have made an effort to define the boundaries of their land rights
through the erection of fences, hedges, stones and other visible
features. In this study, therefore, the representative sample of
community members provided a broad indication of what people living in
Traditional Communities across South Africa wanted in terms of land
rights. The results were twofold:
- Firstly, members of traditional communities were seldom
interested in land as a marketable commodity: community members
perceive themselves as the current custodians of land belonging to
their ancestors, the living and the members of the community still
to be born. This is supported by findings of other researchers such
as in Goodwin (2014, pp.9–10).
- Secondly, members of a traditional community primarily want
identity. They want to be identified with the land they occupy.
Each one wants documented evidence that links him or her to the land
that he or she was born to share. Each person wants proof that
indicates: “this is our land, my land; we belong, I belong!”
Settlement Patterns of a Rural Village on Communal Land near Mount
Frere, Eastern Cape
Photo: Mark Williams-Wynn
INTRODUCTION
The Government of South Africa recognises 12 monarchs and 774 other
Traditional Leaders (Department of Provincial and Local Government,
2002, p.39). Traditional Communities have been allocated approximately
15.5 million hectares of communal land for occupation under these
Traditional Authorities, which equates to 13% of the country. It is
estimated that there are 15 million people (between 30% and 40% of the
South African population) who either live in these Traditional
Communities (Department of Land Affairs, July 2004, p.12) or perceive
the communal area to be their “home” (Goodwin, 2014, p.2). Apartheid
settlement patterns in South Africa have resulted in extra-legal
“rurbanisation”, where less-formal urbanisation has taken place in rural
confines. Lack of infrastructure (including legal structures) and
resources in these rural areas has resulted in suffering, need and
dependency (FIG, August 2004, p.14).
Seldom is this land occupation recorded in any form of land right,
even outside the formal land administration system. The lack of legal
recognition of ownership of the land that these communities have
occupied for generations may have resulted in unwillingness of members
of those communities to invest time, effort or capital into the land
they call their own. It certainly cannot be viewed as a capital asset.
Yet, well-defined boundaries of fences or hedges, which surround many
homesteads in these communal areas, indicate an informal yet recognised
exclusivity and right of use. The South African Government’s own
Accelerated and Shared Growth Initiative (ASGISA, 2006, p.14) recognises
that land remains an unusable or “dead” asset until land tenure is
instituted and formalised. Property rights are one of the
market-supporting institutions missing in the communal areas and,
because they are a missing component of the infrastructure that promotes
economic development, they limit private-sector investment
opportunities. Therefore, one of the keys to local investment in
communal areas is the creation of tenure security for the people who
have occupied their family allotments for generations.
Hedges identifying homestead boundaries on Communal Land near
Mbazwana, KwaZulu-Natal
Photograph: Justin Williams-Wynn
In support of this contention, Heitger (Winter 2004, p.384) argues
that the promotion of economic development without well-defined private
property rights (as was attempted in the Soviet Union) turned out to be
“very costly in terms of life, personal liberty and economic
prosperity”. Zirker (Summer 2005, p.127), writing about inequities in
ownership in Brazil, notes that ownership is a privilege of the elite
and that landlessness is the lot of the masses, and voices the demand
for a re-evaluation of the distribution of property ownership.
Further, and particularly in Western countries, the owner of a land
right can use his or her title deed as security with a financial
institution in order to raise a loan (Blair et al, 2005, pp.50–52).
Land rights have worked in the West, and they have worked in South
Africa: through the generation of active capital from formal property
rights, many South Africans have realised their dreams of improved
economic security. Conversely, those who do not have anything but
insecure tenure perceive that the Traditional Community provides them
with little more than some form of social security (Goodwin, 2014,
pp.5–6).
Section 25 of the South African Constitution (Republic of South
Africa, 1996) clearly states that: “no law may permit arbitrary
deprivation of property”? The Constitution further places an obligation
on Parliament to ensure, through the enactment of legislation, that all
people and communities are provided with secure tenure. It therefore
seems illogical (at least to the researcher) that the South African land
administration system still retains what Mamdani (Fall/Winter 2002,
p.53) refers to as the “bifurcated legal structure” created by the
colonial practice and apartheid laws of the former regime.
Fences separating a homestead from a communal tap near Mseleni,
KwaZulu-Natal
Photograph: Justin Williams-Wynn
THE DEMAND FOR PRIVATE PROPERTY RIGHTS
The Land Summit meetings held throughout South Africa during the
middle of 2005 indicated overwhelmingly that the people of South Africa
want to own land. One reason, as Nonyana twice states in her article on
resolving tenure disputes in rural communities (Nonyana, June 2004, p.3,
7), is that “Land ownership is associated with power.” Mobumbela, in
discussion with authors Kayser and Adhikari (2004, p.330) declares that
“when it came to the question of land, people were prepared to die.”
These perspectives are understood in the context of property rights
being, according to Zirker (Summer 2005, pp.129–130), a “legal,
equitable, or moral title or claim to the possession of property” and
the “enjoyment of its privileges … [free] from interference by others,
particularly the government”.
de Soto’s hypothesis of why capitalism has failed everywhere except
in the West (de Soto, 2001, p.55) argues that the reason for its success
is that only in the West is property easily tradable and transferable.
Hanlon (September 2004, p.612–614), however, questions whether it is
exclusively the western-type freehold title as proposed by de Soto that
increases efficiency in the land market? Instead, he suggests that the
World Bank’s policy (i.e., Deininger, 2003) dismisses de Soto’s
hypothesis. Nevertheless, de Soto’s record of historical fact still
stands: the United States was no better off in the 19th century than is
Africa today (de Soto 2001, pp.15–16). Their pioneers were seldom more
than adventurers and fortune-seekers; yet, once the United States
government of the day had recognised the claims of the settlers as
legitimate land rights, the new owners had a greater incentive to invest
in their land, which has supported the US in becoming the economic power
it is today (Deininger, 2003, p.27).
The same is evident in South Africa. All that the Afrikaner people
had left after the ravages of the Anglo-Boer wars was their land
rights. What the British had not confiscated, they had burnt or
destroyed. Yet, within a few decades, admittedly with the support of
discriminatory legislative measures, much wealth was re-established from
the land. Conversely, in Traditional Community Areas, where still no
land rights are formally documented even after 20 years of democracy,
people largely remain in abject poverty. Ralikontsane (2001, p.69)
argues that secure land rights are a necessary component of an effective
land administration system and Kifle, Hussain and Mekonnen (June 2002,
p.16) propose that good governance seeks to “create an enabling
environment for the private sector—by ensuring respect for property
rights and by creating legal and judicial systems that enforce
contractual obligations and create a level field for private
enterprise.” Another argument given by Blair et al. (2005, p.231) is
that “effectively enforced property rights are important for reducing
investment costs and risks…”
Amidst much ideological opposition, the United States inculcated the
concept of private property rights into the Third World during the
1960’s and 1970’s through its foreign policy influence. The reasons for
the promotion of land rights into the Third World were many, including
the policy of undermining socialist ideologies and the means by which
their investments in African territories could be protected from
nationalisation and state intervention. Over the years, these policies
have evolved and, currently, the global community perceives that the
primary objective of any land policy should be sustainable development
(FIG, August 2004, p.16). Therefore, much of the historic opposition to
property rights (as epitomised by countries such as Cuba and Nicaragua)
is currently weakening and, according to Zirker (2005, p.126), even the
Chinese Communist party has recently announced that “private property
rights ‘legally acquired’ are inviolable.”
Fences defining boundaries on Communal Land near Qunu, Eastern Cape
Photo: Mark Williams-Wynn
THE ARGUMENT AGAINST PRIVATE PROPERTY RIGHTS
Nevertheless, there are some dissenting voices to the clamour
for property rights. Zirker (2005, p.126) argues that property rights
are essentially a Western capitalist concept and this is supported by de
Soto’s hypothesis of why capitalism has failed everywhere except in the
West (de Soto, 2001, p.55). A reason given for the success of
capitalism in the West is because capitalism works best where property
is easily tradable and transferable (PLAAS Policy Brief, October 2005).
However, in a market economy, the poor are the most vulnerable and often
their only means of generating capital is through the sale of their
property. Even though they may own the land that they occupy, they do
not have the means to secure credit and they seldom have the capacity to
repay a loan. The PLAAS policy brief therefore argues that individual
ownership actually decreases the security of tenure of many occupants.
This position is supported by reference to a study carried out in an
economic housing development in Joe Slovo Park, Cape Town. Hence, PLAAS
believe that the property market promotes capitalism at the expense of
livelihood security of the poor.
In another investigation into communal land rights, this time in
Mexico, Munoz-Pina (October 2003, p.130), cautions that the cost of
privatisation can exceed the expected benefits. Firstly, there is a
scarcity of willing buyers of land in communal areas and, secondly, the
actual realisable land value is still very limited. Even with economies
of scale, the values of land parcels are unlikely to warrant the
expenditure and, further, the benefit would be spread unevenly,
depending on where the demand is. Also, Munoz-Pina is concerned that
community life, which provides “other advantages such as information
sharing, mutual insurance and political clout” – i.e., collective action
– would be destroyed. Amin and Thrift (in Harrison, 1994, pp.84–85)
also have negative perceptions when they consider that: “… efforts to
regenerate the local economy through locally regulated ventures … run
the risk of doing little more than legitimising a false belief in the
possibility of achieving solutions for what are global problems beyond
local control …” They continue: “Somewhat bleakly then, we are forced
to conclude that the majority of localities may need to abandon the
illusion of the possibility of self-sustaining growth and accept the
constraints laid down by the process of increasingly integrated global
development.”
Fences and hedges defining boundaries on Communal Land near Tsolo,
Eastern Cape
Photo: Mark Williams-Wynn
Are these truly justifiable reasons to oppose private property
rights? It is common knowledge that there are huge variances in the
monetary value of property, depending on its location and its useful
resources. However, the author supports the contention of Azhar
(October 1993, p.118) that land has no value at all to the occupant
until he or she has the right to own and to trade it and to harvest the
resources it provides. Even so, much of the value of the land is
determined by the land market, which is not concerned about the
livelihood security of the occupant, especially where the occupant is
very poor! In all three cases – that of PLAAS, Munoz-Pina, and Amin and
Thrift, therefore, very valid concerns are raised, but their concerns
should be matters to protect against when creating land rights, rather
than being reasons not to issue private property rights.
BENEFITS OF TENURE SECURITY
This research needed, therefore, to look beyond the market value and
tradability of land. UN-Habitat’s document entitled “Global Campaign
for Secure Tenure” (1999, p.7) advocates secure tenure because the body
believes that it ensures there is progressive and sustained improvement
in the living conditions of the beneficiaries. Further, the provision
of secure tenure advances the fulfilment of Target 11 of Goal 7 of the
Millennium Development Goals – “to achieve a significant improvement in
the lives of at least 100 million slum dwellers by the year 2020”
through increasing the “proportion of people with secure tenure” (i.e.,
Indicator 31) (UN-Habitat, 2003, p.26). Subsequent to the Millennium
Development Goals, the United Nations established an Open Working Group
(OWG) of Sustainable Development Goals to define agreed goals for the
post-2015 Agenda. The OWG has developed 17 goals with 169 targets.
Proposed Goal 1, target 4, reads: “By 2030, ensure that all men and
women, in particular the poor and the vulnerable, have equal rights to
economic resources, as well as access to basic services, ownership and
control over land and other forms of property, inheritance, natural
resources, appropriate new technology and financial services, including
microfinance” (Open Working Group, 2014, p.7).
While UN-Habitat literature referred to above may have had its focus
on urban areas, it is important to note that urbanisation of many
Traditional Community areas is taking place, especially where they are
in closer proximity to existing metropolitan areas. These are
highlighted in the research by Mogale, Mabin and Durand-Lasserve (April
2003). Secondly, if the lack of security of tenure is a limiting factor
in urban areas, how much more so in the rural parts of the Traditional
Community areas, where occupants have very little other than a tenuous
right to build a homestead and whose livelihood is gleaned from a
communal share in the land? For this reason, the Public Service
Commission Report (2003, p.10) highlights the fact that any tenure
system should exist primarily as a protection for the poor, who have no
other mechanism to defend their occupational rights, and, as PLAAS
(October 2005) emphasises, not as a marketable commodity.
More than leaving the poor at the mercies of the capitalist market,
this formal recognition of occupation provides legal protection, and
hence diminishes the fear of forced eviction (UN-Habitat, 2003, p.28);
it provides the right holder with “status and citizenship” (ibid, p.7)
and it provides equal rights for all, as it provides a mechanism to
overcome discriminatory practices (ibid, p.32). Secure tenure is also
one of the most important catalysts for, firstly, attracting large-scale
capital necessary for comprehensive slum upgrading and, secondly, to
encourage the urban poor themselves to invest in their own dwelling and
communities (ibid, p.28).
There are other benefits that this research has also considered.
Deininger (2003, p.27), on behalf of the World Bank, supports the notion
that land tenure is beneficial with his argument that legitimate land
rights provide an incentive to invest. People are more likely to sink
personal time and effort (and not just financial investment) into
something when they know that they will enjoy the benefit thereof. In
addition, Wood (May 2002, p.30) asserts that, “The best way to moderate
inequality is to spread the ownership of productive assets more
widely.” Wood (ibid, p.21) also argues that the institution of private
property rights reduces the risk in non-commercial investment. Further,
Durang and Tanner (2004, pp.1–9), in their paper on “Access to land and
other natural resources for local communities in Mozambique”, give the
following benefits of security of tenure, based on their research:
- it places resources in the hands of the people;
- it gives people the ability to invest and respond to market
dynamics;
- it provides an incentive to invest scarce resources in the
protection and conservation of the land and its natural resources;
- it gives to the people who sacrifice time and effort the right
to reap the benefit;
- it protects the right to the exclusion of others;
- it provides a public de facto resource inventory;
- it involves the communities as stakeholders in any new
development initiated by external parties; and
- it limits the ability of outsiders (especially government
officials) to allocate rights without community support – hence
placing a check on corruption and rent-seeking activities.
Enemark et al (2014, p.14) summarises all of the above by concluding
that: “Sound land administration systems deliver a range of benefits to
society in terms of: support of governance and the rule of law;
alleviation of poverty; security of tenure; support of formal land
markets; security of credit; support for land and property taxation;
protection of state lands; management of land disputes; and improvement
of land use planning and implementation.” All these examples provide
substantial support to the suggestion that secure tenure is beneficial
to those afforded it, but in particular to poorer people. The arguments
therefore swing in favour of clearly documented and identifiable land
rights that provide secure tenure for the people.
RESULTS OF INSECURITY
On the other hand, people deprived of secure tenure have no means of
securing their assets and are therefore held in the grips of poverty.
Wood (May 2002, p.30) argues that, “In a land-abundant developing
region, the most obvious asset is land itself. The extremely unequal
distribution of land in colonial times was a root cause of Latin
America’s chronic income inequality”. Moreover, the World Bank
Investment Climate Surveys (World Bank, 2005, p.43) indicate that,
firstly, cost, secondly, access to finance and, thirdly, access to land
are three constraints that have had a negative impact on private sector
activity. Further, “… although significant improvements have been made
in the provision of services, the poor remain deprived of many public
[facilities] necessary for entrepreneurial activities (such as property
rights, public safety and infrastructure), and incur high costs in time
and expense when trying to obtain these” (Gantsha, Orkin and Kimaryo,
2005, p.51). Until this happens, the traditional areas will remain
within the realms of the informal economy, excluded from information,
development, business services and access to credit. Simply put, people
are less likely to invest in their property if it is not theirs!
Yet, land rights alone do not generate wealth (Braithwaite, 2007,
p.9). Demanding expenses of agricultural activities and the
unpredictability of external forces such as drought and floods have sunk
many aspirant farmers. Knowledge, skills and capital are all essential
additives to reduce the risk of failure, and these are scarce amongst
the poor. Nevertheless, without secure property rights, there is even
less chance of success.
RESEARCH FINDINGS
While the author is convinced of the benefits of the security
afforded to people by a land tenure system, it still needed to be
determined if this is what people who occupy land with insecure forms of
tenure actually want. Therefore, the author, with assistance from a
team of fieldworkers, interviewed individuals who either lived
permanently in a Traditional Community or considered a communal area to
be their “home”. Leedy and Ormrod (2005, p.207) suggest that, for a
large population, a sample size of 400 should be adequate. (Estimates
mentioned earlier suggest that the communal areas have a population of
around 15 million) In this research, a total of 717 responses were
received, which is considered to be representative of all members of
Traditional Communities of South Africa. In addition, several
photographs, taken by the author and his family during journeys made
through the Traditional Communities in the Eastern Cape, Free State,
KwaZulu-Natal and Mpumalanga, add external observation that complement
the findings of the research. The photographs provide widespread
observational evidence of the existence of informal land tenure rights
where none are documented in a formal land administration system.
The research ascertained whether land rights are wanted, through
seeking answers to the research question: “Why would Community
Authorities and members want to convert their de facto land occupation
into de jure land tenure, i.e., what are the perceived advantages?”.
The questionnaire endeavoured to gain further insight to the answer
through a second question: “If your family obtains a title deed to their
land allocation, what would this mean to your family?” The author made
some attempt during the capturing process to group these responses, yet
still came up with around 100 different types of answer. There were,
however, a few broad patterns and these are shown as 21 different
categories in Figure 1 below.
Of the 717 respondents, 15 respondents answered “don’t know” and a
further 97 respondents left the question unanswered. This makes up 112
of 717, or 16% of the total. A further 158 respondents (22% of the
total number of respondents) gave answers that suggested a lack of
understanding of the question, as they gave answers such as “happy” and
“yes”! It is noted that some discussion in groups took place over the
questions, as there were often several similar or identical answers from
the same community. While this may have detracted from personal
opinions, it would certainly bode well for the future of land rights if
people have already started to foster a common thinking towards their
creation. Even when the answers indicated a lack of understanding, as
shown through testing the responses further on in this research, there
is an overwhelming indication of the expectation that benefit will
result from receiving a title deed.
Figure 1: Reasons given for wanting de jure Land Tenure
Figure 2 demonstrates that 75% of all respondents gave an answer that
indicated positive sentiments toward receiving their own land rights. A
further 6% declared their interest in the concept. This is compared
with less than 7% of respondents who indicated that they are against
receiving their own land rights. The actual figures have been
summarised in the table below. Notwithstanding that 81% of respondents
indicated interest in obtaining a visible record for the land that they
occupy, a large proportion of these provided no evidence to show that
they understood the concept of land rights.
Most importantly, there were four issues that the answers
highlighted. Firstly, 17% (123 respondents) saw the demarcation and
record of land rights as some form of proof, assurance or confirmation
of ownership. Secondly, 193 respondents (27%) recognised the title deed
as providing ownership to the land that they occupy. This may be an
unintentional difference, but there is nevertheless a clear distinction
(at least in the author’s mind). The first group suggested a belief
that their occupation is tantamount to ownership of the land, and need
the documentary evidence to prove it, whereas the second group seem to
have recognised that their occupation is not ownership, but the public
record would confer ownership. These two groups combined represented
316 respondents, or 44% of 717.
The third issue that is highlighted is that only 20 of the
respondents (2,8%) stated outright that they did not want title deeds or
gave negative connotations to the concept of title deeds – such as
“oppression”, “expenses” and “the end of tribal land”. This is a small
minority, but, of course, it cannot be ignored or deemed
inconsequential. Lastly, only one respondent commented on the notion of
a land market and another respondent mentioned that it would provide
access to loan finance – often the key reasons given in the West for the
institution of land rights.
Figure 2: Interest of Community Members in receiving their own land
rights
This research shows, therefore, that the overwhelming majority of the
respondents, all of whom are members of traditional communities, desire
the conversion of their de facto land occupation rights into de jure
land tenure rights.
CONCLUSION
The results are therefore conclusive – there is an informal
allocation and demarcation of land rights in Traditional Community Areas
that can be brought into a public registry of property rights, which is
currently based on diagrams and title deeds. This research, therefore,
advocates that a key to the economic prosperity of South Africa is an
effective legal infrastructure of property rights and land
administration in communal areas that promotes the security of tenure.
At the XXIII Fédération Internationale des Géomètres (FIG) Congress
held in Munchen; Germany from 8th – 13th October 2006, Hans-Erik
Wilberg, Executive Director of the Swedish Lantmäteriet, commented that:
“Land is one of the most valuable assets and an important base for the
development of the wealth of a nation. Good land administration is
essential for the development of an effective land market and a secure
financial sector and will provide a basis for land management and land
taxation. To unlock that wealth, a nation must develop a framework of
land and property laws, effective public institutions, secured
procedures and processes and an effective information system”.
In addition to this, a good land administration system also provides
proof to the owners of their inviolable rights, protection to the owners
against unjustifiable loss, the right to the exclusion of others to
utilise the land and its resources, the right to succession of heirs,
and a unique address. But most important of all, it provides the owner
of that right an identity – a place of belonging and of self-worth! The
concept of ownership, land rights and title deeds goes much further than
the ability to buy and sell property. Some of the answers given by
people excited to receive title to the land they occupy are that it
provides visible evidence, it gives security of title, and it brings
permanence, protection and pride. Do people want land rights? The
people have spoken, and the answer is overwhelmingly: “Yes”! “Amandla
ngawethu![1]” [1] ”Amandla
ngawethu” is an isiXhosa phrase meaning “the power is ours”.
Fences defining land allocations on Communal Land near eNkambeni,
Mpumalanga
Photo: Mark Williams-Wynn
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BIOGRAPHICAL NOTES
Chris Williams-Wynn grew up in the Eastern Cape, South Africa, and
went to school at St Andrew’s College in Grahamstown. After school, he
completed a BSc (Honours) degree in Land Surveying from what is now the
University of KwaZulu-Natal and has more recently completed his Masters
in Public and Development Management at the University of the
Witwatersrand.
He is a Registered Professional Land Surveyor, a Registered Sectional
Titles Practitioner, a Registered Township Planner and a Disability
Rights Activist. Having worked for 17 years in the private sector, he
moved into the government sector due to his deteriorating physical
ability. Mr. Williams-Wynn was appointed the Surveyor-General:
KwaZulu-Natal on 1st May 1998, and transferred at his own request to
establish the Office of the Surveyor-General: Eastern Cape on 1st July
2010.
Mr. Williams-Wynn travels extensively throughout South Africa and
occasionally internationally, as he is an advisor to several Government
institutions on land issues, with particular interest in legislation
affecting development approvals. He serves on the Townships Board, the
Land Use Regulations Board and the Spatial Planning and Land Use
Management Steering Committee. One of his main passions is to see
people in the Traditional Communities also benefit from the Land Rights
system of the country.
Outside of his survey career, Mr. Williams-Wynn is interested in
environmental conservation, with special interests in birds and trees.
This interest has benefited his knowledge concerning coastal public
property and the legal position of boundaries adjoining the high water
mark of the sea, rivers and estuaries. He is also a Society Steward of
the Methodist Church and an active Rotarian. He is married to Glenda, a
Natural Sciences Graduate, currently working as a Conservation Ecology
Research Assistant and they live in Kidd’s Beach.
CONTACTS
Mr. Chris Williams-Wynn
Surveyor-General: Eastern Cape, Department of Rural Development and Land
Reform
Private Bag X 9086, East London, 5200
East London, Eastern Cape
SOUTH AFRICA
Tel. +27 43 783 1424
Fax. +27 43 726 4279
Email: Chris.WilliamsWynn[at]drdlr.gov.za
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