African indigenous land rights in a private ownership paradigm

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WJ du Plessis*

1 Introduction

Section 25(6) of the Constitution of the Republic of South Africa, 1996 entitles persons or communities "whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices" to tenure which is legally secure. Section 25(9) commands parliament to enact legislation to provide for such tenure security. The subsequent White Paper on Land1 highlighted some principles with regard to the security of tenure, and made specific reference to tenure security in the former homelands,2 where African indigenous land tenure3 was held in trust by the government that issued permits to black people in these homelands.4 The idea is that tenure reform must move towards rights and away from the permits that were in place during apartheid. The aim is also to unify the system of land rights and to get rid of the second-class system for black people that was developed during apartheid. There was also a call in the White Paper that people should be allowed to choose the tenure system appropriate to their circumstances (that would include group and individual rights, or a combination of these), provided that the system adheres to the Constitution's commitment to basic human rights and equality. A rights based approach was proposed for this - one that also recognises the de facto rights in law.5

The problem, however, is how to recognise and secure tenure rights. Should tenure be secured in the private ownership paradigm, or should indigenous forms of land tenure be fully recognised and thus protected.6 Due to the domination of private property in the officially recognised laws of South Africa before the advent of constitutional democracy, the inclination is towards protection in the private ownership paradigm. The success of such an approach is questionable, and in the recent case of Tongoane v National Minister for Agriculture and Land Affairs7 the Constitutional Court declared the Communal Land Rights Act,8 which was meant to be the legislation securing indigenous land rights, unconstitutional.9 The problem therefore remains: how do we secure indigenous land rights?

This contribution does not purport to provide an answer to this complex question. Rather, it investigates whether or not the African indigenous land tenure system can be analysed within the framework of the commons. It aims to investigate whether the framework of the commons can provide different insights, or perhaps a different vocabulary, whereby indigenous land tenure can be secured in the current ownership paradigm10 without African indigenous land tenure losing its unique character.

This article will do this by first looking at pre-colonial land tenure to investigate the root of contemporary indigenous land holdings and the characteristics of such tenure. Thereafter it will discuss the development of indigenous land tenure and the colonial and private property right influences on tenure, and the linguistic problems that developed in describing African indigenous land tenure. A brief overview of the commons will follow, after which the applicability and the usefulness of the discourse of the commons for African indigenous land tenure will be assessed. The conclusion will discuss the possible usefulness of the framework of the commons for securing land rights.

The background with which the indigenous land rights section of this contribution should be understood requires a brief explanation of what the commons entails.11 In the commons framework property rights are divided in two main groups: use rights (that is the access to a resource, withdrawal from a resource or exploitation of a resource for economic benefit) and control or decision-making rights (rights to management, exclusion and alienation). In the commons model, several individuals or groups can have different rights over the same resource. This means that even if the state, for instance, has the control rights over a resource, a community can have the use rights, and different segments of the community can have different use rights.12 The framework of the commons allows for multiple rights in the same resource to be acknowledged and protected, and provides an organisational framework on how such rights and the conflict between the users of the rights can be managed. The framework of the commons recognises communities' own ability to organise themselves and the various rights in the resource without relying on the traditional property law model of ownership. The term was popularised in the late 1960s when Hardin advocated that allowing individuals free and unlimited access to a form of commons would lead to a tragedy. The tragedy lies in the individuals' seeking to maximise their gains and exploit the commons, since they gain directly by exploiting, but share the costs of such exploitation amongst the other users. The solution to this, according to Hardin, is privatisation and regulation.13

2 The history of African land tenure

2.1 Pre-colonial African indigenous land tenure

In pre-colonial times the indigenous peoples of South Africa had abundant land, with farming and herding being the predominant economic activities.14 Environmental factors such as rainfall, topography, soil and the availability of water influenced the economy of the indigenous peoples. In KwaZulu-Natal this meant that the patterns of residence and political authority were largely limited to independent homesteads.15 The existence of these independent homesteads resulted in a relatively decentralised structure of political authority, with every unit having access to abundant resources allowing for a self-sufficient existence.16 On the Highveld the situation was different. The sparse water and harsh climate meant that homesteads were concentrated around whatever water was available, and also meant that political authority was centralised and concentrated in villages which comprised of up to a thousand inhabitants. Due to the climate, agriculture was difficult and risky and therefore not intended to create wealth. The focus was on livestock, the farming of which was less risky and labour intensive.17

Cattle were most valued and often used in ceremonies and celebrations to establish or re-confirm social relations.18 Despite the exchange of cattle and other products there were no regular traders and marketplaces. Material possessions had more social and ritual importance than economic value.19

Cousins elaborates on the communal land rights system, emphasising the political and social embeddedness of land rights.20 He sketches a picture of pre-colonial land tenure, when "[l]and tenure was both 'communal'21 and 'individual', and can be seen as 'a system of complementary interests held simultaneously'".22 He then proceeds to sketch how colonial rule changed it.23 This often entailed the colonial state's trying to retain a form of "communal" land tenure that might suit its interests.24

The concept of "ownership" was therefore limited in pre-colonial South Africa and more often embedded in status relationships. Put differently, African indigenous law in property was more concerned with people's obligations towards one another in respect of property than with the rights of people in property. The relationships between people were more important than an individual's ability to assert his or her interest in property against the world. Entitlements to property were more in the form of obligations resulting from family relationships than a means to exclude people from the use of certain property.25 Property in pre-colonial Africa can thus be said to have been "embedded" in social relationships rather than giving rise to an individual's exclusive claim over it as private property.26

In 1989 Okoth-Ogendo remarked that studies on African indigenous land tenure are mostly descriptive, without much regard to the theories that underlie such systems.27 This influenced the discussion on land reform in that the descriptive analysis was always done within the theoretical framework of Roman law, with a predominance of the doctrine of ownership, rather than the property itself becoming the focal point.28 It may therefore be useful to investigate African indigenous land rights in the theoretical framework of the commons.

2.2 African indigenous land tenure today

2.2.1 Introduction: the language barrier of the common law

African indigenous law had limited scope to develop at its own pace and based on its own principles, as the colonial conquest introduced a market economy and African indigenous law was, at least officially and as far as property was concerned, replaced by common law.29 Common law brought with it a new vocabulary that made it difficult, if not impossible, to interpret African indigenous law land tenure.30 The concept of "ownership" is particularly problematic, as is the idea that before "ownership" all things were held in common with everybody having equal rights to the same thing,31 or belonged to nobody. Bennett asserts that "[i]t is more likely that, before the concept of individual ownership emerged, only rights of use were protected".32 This implies that for short periods of time, while a resource was in use, other people could be excluded, and protection was needed for short terms only. The need for longer-term protection arose only with the move from a nomadic lifestyle to a more settled lifestyle.33 With the settlement of people on land and the cultivation of such land and the herding of cattle, resources became more scarce. With the increased scarcity of resources, the need for the regulation of access and the protection of rights arose.34 The control of land therefore became a monetary advantage, and competition to control it grew.35

With the introduction of commerce, an exchange value had to be attached to a commodity, and in this context ownership provided the answer to securing the property.36 With ownership came the idea of "absoluteness", which implied that one person could hold all of the entitlement in a certain property and dispose of it at free will.37 This differs remarkably from the pre-colonial era where different interests in the same property could vest in different holders,38 and where furthermore these interests are flexible and ever changing.39

The colonists assumed that the language of ownership was universally applicable and also assumed that the concept of "ownership" was applicable only to "civilized" societies. The colonists also "assumed that land must have an owner, even where rights had never been defined".40 The fact that "ownership" was a strange concept to indigenous groups meant that the government could appropriate this "unowned" land.41 If a dispute arose between Africans about land, common law was used to resolve the dispute instead of the court's developing African indigenous law to fill such gaps.42 Some people attempted to overcome the problem of indigenous land tenure and its incompatibility with the notion of "ownership" by stating that land was "common to all people"43 and "communal",44 or that communities as "corporate entities" should make the decisions regarding access to and the use of land.45

However, the use of the term "communal" is problematic.46 Bennett47 sums up the problem by stating that the popular use of the word "suggest[s] that groups of people, who are closely bound together by common interests and values, share land for purposes of subsistence" rather than the more unobjectionable idea that all members of the community have equal claims to land, that "membership of a political community is the basis of an individual's entitlement to land" or that an individual is not free to dispose of land at will.48 The idea that land is farmed collectively and that the produce is then shared is erroneous.49 The legal concept "communal" is also confusing. On the one hand it can mean that a right is held by a group jointly (one property, inseparable title), while on the other hand it can mean that it is held by a group in common (one property, separate but with the same title in land). The latter term is useful only insofar as the right to pasture and natural resources is concerned, but not as far as African indigenous tenure is concerned. 50

Likewise the term "trust" was also used in an attempt to describe African indigenous tenure. This means that the bare title vests in the indigenous group, with the chief as the trustee, and "usufructuary" rights being granted to the individuals that enjoy beneficial occupation. The use of the word "trust" is also problematic, since the "usufructuary" rights granted to an individual do not amply describe the interest in African indigenous law, nor do these people have a remedy against the traditional leader as trustee, as they would have under trust law.51

Okoth-Ogendo regards the insistence on using common law concepts to explain and define African indigenous land tenure as "more than just an intellectual error" and part of the bigger design of the colonial authorities to justify expropriation of land, as land in this framework is regarded as "dead capital".52 One of the consequences of this is that tenure insecurity is the reality in most areas of land held under African indigenous law, as is evident in South Africa.53 This is not because African indigenous law property systems are inherently insecure, but rather due to "the dislocation of these systems from the social and institutional context that defines and sustains them" and the application of the indigenous law in the colonial legal framework.54 How should African indigenous land tenure be understood, then? This question will be answered by looking at the characteristics of African indigenous law land tenure before providing an alternative vocabulary for understanding African indigenous land tenure.

2.2.2 The characteristics of indigenous law land tenure today

The previous paragraphs argued that customary law cannot be described in common law concepts, since the concepts used are culturally specific and foreign to indigenous law.55 Bennett instead uses the words "right", "power" and "interest" to describe African indigenous land tenure.56 He bases this on Allott's analytical scheme, which first seeks to identify the status of the interest holder,57 secondly to look at the content of the interest,58 and lastly to look at the uses of particular land in order to determine what rights and powers can be exercised over the land.59 When one uses this scheme, one can understand that it is possible for two or more interest holders to simultaneously exercise rights and powers on the same piece of land. "Allott's scheme", Bennett states "frees us from the ownership paradigm"60 where tenure seems to be "a system of complementary interests held simultaneously".61

Okoth-Ogenda reconceptualises indigenous land rights systems by debunking the myth that indigenous land rights systems are necessarily "communal" in nature, that "ownership" is collective and that the community as an entity makes collective decisions about access to and the use of land.62 He offers a different understanding of indigenous land right systems. For him, the social order (ie how people relate to each other rather than an individual to his property) creates "reciprocal rights and obligations that binds together, and vests power in the community members over land".63 To determine who will be granted access to, or exercise control over, land and the resources, one needs to look at these rights and obligations and the performances that arise from them. This will leave only two distinct questions unanswered: who may have access to the land (and what type of access)64 and who may control and manage the land resources on behalf of those who have access to it?65

In African indigenous law land tenure, land structures social relations.66 Okoth-Ogendo describes the structure as an "inverted pyramid", where the tip is the family, the middle is the clan lineage, and the base is the community.67 It is one's standing in the group that provides access to land, and social relations are therefore more important than a relationship with the land itself.68 One's situation is determined not only by present-day social relations but also by a connection with the past,69 as it is believed that the ancestors are attached to the land.70 The fact that those who control the land have a transgenerational obligation to preserve the land also means that the ability to alienate the land from people outside the group is limited.71

The control of access to land should be viewed in the context of social relations.72 Since traditional leaders derive their legitimacy from the founding fathers and are seen as a direct channel to communicate with the ancestors, they have certain powers with regard to the land.73 They have power to allot the land, to regulate the use of common resources, and expropriate and confiscate land in certain circumstances.

When the chief allots land, he not only allocates land to families but also dedicates certain lands for grazing and agricultural use.74 Such decisions are not made collectively but they are made with reference to the common values of each level of the pyramid as discussed above.75 Even though the scarcity of land means that the chief's role in allocating land is diminishing, he still plays an important role in confirming the transfer of land that takes place in practice. In doing so he has a duty to "act like a father" in making sure that the land is distributed fairly between households.76 The allocation of land was traditionally free, while today it is common to offer some form of payment as a thank-offering.77

Traditionally, exercising the power to regulate the resources entails that the chief decide when and how these resources are used. When formulating the rules pertaining to access, he must exercise his discretion for the public good.78 In the 19th century the colonial powers tried to and in some instances succeeded in breaking down the chiefly power, replacing the chief with (white) magistrates. The lack of the recognition of African indigenous law in the formal structures introduced by the magistrates helped play a role in undermining the chiefly powers.79 The apartheid laws and structures broke chiefly power down even further, often grouping people together that had no historical ties with one another, and appointing traditional leaders who would advance the apartheid government's policies.80 African indigenous systems of land tenure "managed" by the chiefs were replaced by government regulations that only allowed for quitrent (where annual rent was paid to the state) and permission to occupy was granted by the state.81

As an individual you also have certain rights and duties with regard to the land. You have a right of avail,82 that is, to receive land to build houses coupled with access to the commonage;83 and you have a right to residential sites and arable fields and grazing.84 The right of avail is restricted to the extent that access to land is dependent on an affiliation with the ward where the land is situated.85 The right to residential sites and arable fields usually implies that a member of the community will have two plots – one for housing and one for farming. The holder of both these plots will have exclusive rights over the land and is protected from trespass, but the rights are restricted to the extent that the uses of the plots are restricted to the cultivation of crops for domestic consumption.86 Members may also graze their stock on the commonage. As far as the commonage is concerned, no individual may claim exclusive use of the land.87 Again, access to the commonage is based on socially-defined membership that is reinforced and managed within the group, based on the reciprocal obligations of the members in the social hierarchy.88

The rights in these lands can also be taken away.89 Since land cannot be inherited rights are also lost at the death of the holder.90 Traditionally land could not be alienated by sale. The pre-colonial concept of land was that it is god-given and cannot be appropriated. With colonialism came a real estate market, the common law concept of ownership, property law and contract. Land is also a scarce resource, and individuals are more inclined to assert exclusive rights over the land. The ability to alienate African indigenous land is furthermore restricted by the Upgrading of Land Tenure Rights Act.91 The fact that it could not be alienated by sale and acquired only through membership of a group is an indication that property has more of a social function than a transition of wealth.

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