Tenure reform is mandated by section 25(6) of the Constitution, which reads “a person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled to the extent provided by an act of parliament, either to tenure which is legally secure or to comparable redress.”Tenure reform has been seen as comprising two main area of work, security of tenure for people living on farms and improving tenure security for those living in communal areas, largely the former Bantustans.
The main achievement of the tenure reform programme has been to pass a number of pieces of legislation that begin to regulate people’s occupation of and eviction from other peoples land. The most important pieces of legislation are the Extension of Security of Tenure Act (62 of 1997), the Land Reform (Labour Tenants) Act (3 of 1996) and the Prevention of Illegal Eviction and Occupation of Land Act (19 of 1998). Aside from the labour tenants in Mpumalanga and Kwa-Zulu Natal the most important of these for most farm dwellers is the Extension of Security of Tenure Act commonly known as ESTA. These acts have brought new rights to many, but they have considerable weaknesses especially in the area of providing long-term tenure security.
ESTA sets out a procedure to be followed in order to evict people from the land, making it fairly difficult to legally evict people, but by no means impossible. Even long-term occupiers who have the strongest rights can still be evicted under circumstances where they are found to have breached sections of the Act or there is a fundamental breach of the relationship with the owner. The biggest weakness has been the failure of the Act to move farm dwellers out of an inferior tenancy arrangement to a situation of having their own land. Section 4 of ESTA empowers the Minister to appropriate funds for “on-site and off site developments.” However the provisions of section 4 make it very difficult to force an on-site settlement where the owner is unwilling and there is no right in the legislation for a farm dweller to claim security of tenure if the government is failing to provide it for them.
By the end of 1999 only nine projects giving secure tenure under section 4 of ESTA had been approved. In most cases these involved people moving off the farms where they had been occupiers. In the Limpopo (Formerly Northern) Province with the second largest number of farm workers of any province there has been no ESTA section 4 settlement since the Act was promulgated four years ago. At the end of 2001 there were also no staff in the Department of Land Affairs office in the Province focussed on dealing with implementation of ESTA or any other tenure rights.
The issue of tenure reform in communal areas has become bogged down in unresolved national debates on the role and powers of traditional leaders. It would appear that the government is following the route of many other post independence African states in not dismantling the bifurcated state. The indications from some statements of the Minister for Agriculture and Land Affairs concerning the transfer of land to traditional authorities and the paper presented by the Director for tenure reform, Dr Sipho Sibanda, indicate a shift towards strengthening the hand of chiefs in a reconstituted decentralised despotism under the ANC government.
Perhaps the government actually finds it in their interest to leave the issue of traditional leaders to some extent unresolved so that they can maintain their broad base of electoral support, including rural youth and women while also being able to keep the chiefs on their side with concessions at key points. An example of this was the granting of 20% of seats in rural municipalities to traditional leaders just prior to the last local government elections. If this is the strategy it is a dangerous game as neither the traditional leaders nor the broader rural population will be willing to accept this for too long. For now there is no post apartheid legislation to address the tenure situation on communal land and no clarity on government policy in this regard