Seeking tenure security: an analysis of the Communal Land Tenure Bill and its purported promise to give effect to section 25(6) of the Constitution.

Abstract

Since the demise of apartheid, land reform has been one of the greatest challenges facing the democratic dispensation. Section 25(6) of the Constitution provides that “a person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.” There is currently no comprehensive legislation which gives effect to this right, despite various laws providing for some level of protection for security of tenure to a certain extent, such as the Interim Protection of Informal Land Rights Act 62 of 1997. One of the reasons for the delay in passing such legislation is the debate around the type of entity which should be selected to administer land which is communally held, and the role of traditional leaders. Traditional leaders were bolstered by the apartheid regime and have in some instances abused their powers relating to communities residing on communal land. The previous attempt to enact legislation to give effect to section 25(9) was challenged on the basis that it allowed traditional councils to assume the role of land administration committees, which could have resulted in the security of tenure of communities being diminished. In 2017 the Department of Rural Development and Land Reform published the Communal Land Tenure Bill in order to give effect to section 25(6) of the Constitution. The intended purpose of the CLTB is to provide for the transfer of communal land to communities. This dissertation will analyse the communal landholding entities proposed in the CLTB to administer communal land, particularly communal property associations and traditional councils, in an attempt to assess whether these entities would constitute a viable legal vehicle to give effect to section 25(6) the Constitution and allow for democratic decision-making relating to land use and allocation.