Unpacking the various forms of land ownership

December 2015

South Africa’s land ownership has taken various forms since the Dutch East India Company established the Cape Colony in 1652. The property laws that govern the ownership of land changed from this beginning and became heavily influenced by English property law and principles as the British slowly assumed control from 1795 to 1806 in the Cape Colony. Britain was pronounced the owner of the Cape Colony at the Congress of Vienna in 1815.

This event led to the descendants of the early Dutch settlers moving into the interior of South Africa and interacting with the black tribes of South Africa. This intrusion lead to wars over territory but also many forms of co-operative and mutually beneficial use of land and land sharing arrangements within the traditional forms of tribal laws governing the use and access to land in various tribal land areas at that time.

The discovery of diamonds in 1867 and gold in 1886 led to the British South Africa Company being given a Royal Charter to further seek out and exploit other suitable mining areas in South Africa. As would be expected the conflicts over land became more intense as the rich mineral wealth of South Africa was discovered.

The battle of land rights between all the role-players in South Africa is too complex to go into with this article. In brief after the “Boer War” ended in 1901, the rapid changes of land possession and ownership of many settlers from many nationalities and the land controlled by original black tribes of South Africa caused an almost permanent disruption of any “fair” or “entitled” or historic right to the land previous held by the role-players mentioned.

In 1910 the Union of South Africa “united” the post Boer War and Afrikaans communities but excluded black, Indian and coloured South Africans from political involvement. The Land
Act of 1913 reserved 92% of South Africa’s territories for whites and only 8% for blacks. This area was enlarged to about 13,6% by the Native and Land act of 1936. There were further numerous amendments to each act promulgated as well as acts governing the Homelands.

The election of the ANC government in 1994, with Mr Nelson Mandela, as president, started the deconstruction through legislation of the “unfair” and inequitable distribution of land ownership prior to 1994.

We can fast forward to the 1997 White Paper on Land Policy which was set up to achieve the main objectives of redressing the apartheid era, nurture national reconciliation and stability to support economic growth, to improve welfare and to relieve poverty. The new constitution supports the regulation and protection of property, mandates the reform of land law, and gives equal recognition to common and customary law principles.

The various land reform and redistribution programmes that have been instituted are described in brief below.

Land tenure

The change in government policies in terms of land ownership also had to address the problem of legal access or the right to use land for individual and group substance level farming activities and to group, family or single owner/managers who wanted to farm on a commercial scale.

These concepts have resulted in a number of land tenure arrangements in the grain farming sector which has helped in facilitating the access to the practical use of land for agricultural purposes.

Communal land
The former homeland areas cover 13% of South Africa which is in the region of 18 million ha (only a portion of this is arable land however). This land is owned by the government but managed through the tribal authority. Much of this system of tenure is to be seen in Mpumalanga, KwaZulu-Natal and the Eastern Cape. This system of tenure is usually characterised by a “permission to occupy” document which at this stage does not have any legal status although it is common in the former homeland areas. Many farmers in these areas will refer to this as “own land” although technically it is not own land.

Commonage land
Farm land that is owned by a local municipality is known as Commonage land. It is land that should be available to the local community for farming purposes. In South Africa there are two different types of commonage land – that which was owned by the municipality before 1994 (which can be leased to anyone, and that which was purchased after 1994 which should be hired to PDI individuals in an attempt to give more land access to town dwellers. Urban dwellers who want to use the commonage land should approach the local municipality for a lease agreement (maximum length of the agreement is 9 years and 11 months).

Own land
This land is owned by the individual or legal entity (Sole Proprietor, Partnership, Property Trust, CC, Cooperative, Pty Ltd Company to name a few examples). The owner of the land in this case has a title deed to the property.

Land Reform Programmes

Settlement Land Acquisition Grant (SLAG)
This was the first form of land reform that was introduced after 1994. In this system, each household could access a grant of R15 000 from the Department of Land Affairs for the purpose of acquiring agricultural land. Unfortunately in order to reach the purchase price of the farm, many unrelated families were often grouped into one legal entity and the farm was bought for them altogether.

Land Redistribution for Agricultural Development (LRAD)
This system of land reform was introduced after SLAG and was an improvement as the grant was for individual members of a household (R25 000 per person for all members over 18). This resulted in many family groups being registered in a Trust and gaining title to land.

Proactive Land Acquisition System (PLAS)
Currently no land that is bought for redistribution is being transferred to the ownership of the beneficiaries – it is being leased to the beneficiaries for a period (which is currently a period of five years). This system is supposed to give a potential beneficiary an opportunity to use the land and learn the skills of farming. If the beneficiary is successful during this period then he/she will get an extended lease agreement of 30 years.

Leased land
Within the above examples of each different system various forms of short or long term leases further complicate the agreements or arrangements entered into between individual farmers or groups between private and government owned properties. In many instances there is a backlog, which the government is trying to address, of actually issuing titles to various parcels of land to groups or individuals.

Conclusion

Make sure that you understand the terms of any agreement or arrangement entered into for the use of land for agricultural purposes whether as an individual or as a group. Have all the arrangements written and signed by the role-players involved.

Article submitted by a retired farmer.

Publication: December 2015

Section: Pula/Imvula