UNTITLED: SECURING LAND TENURE IN URBAN AND RURAL SOUTH AFRICA 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
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 office 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: o ‘educating’ them to maintain their titles o lowering the transfer fees to the state o 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 of 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 organising 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- ordinates 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
Recommend
More recommend
