By Sifiso Ntombela
In 2007, Professor Shadrack Gutto characterised land as a finite and indispensable asset that defines a people’s identity and provides human dignity. He avows that land is an integral component of national sovereignty and a basis for national cohesion.
He articulated the words when he was asked to determine how much of the South African land was owned by foreign nationals. His research found that foreign natural persons owned about 3% of the country’s land, with a high proportion of coastal and game farmland.
Parallel to the question of land ownership by foreign nationals is the question of how much of the country’s land is owned by black people.
Wandile Sihlobo and Johan Kirsten have attempted to assist with this question and estimated that approximately 25% of the country’s land is owned by black persons, a figure that was noted by President Cyril Ramaphosa in his 2024 State of the National address.
Against the two aforementioned studies, the land audit published by the government through the then-Department of Rural Development and Land Reform in 2017 could not ascertain how much land was owned by black people and foreign nationals. Its failure to accurately report on land ownership patterns was attributed to policy and legislation constraints that deterred the government from recording crucial land parameters such as land owners’ race and nationality.
Cognisant of the shortcoming in land policy when Ramaphosa took over the highest office on land in 2018, he appointed the Inter-Ministerial Committee (IMC) in July 2018. Among many tasks, the IMC was mandated to look at the land question and fast-track the review of deeds registration legislation so the government could have accurate records and statistics on land ownership patterns.
As the sixth administration government comes to its harvest, it is prudent to look at how the IMC has fared in reviewing and putting in place legislation that is key to producing accurate and important statistics on land ownership in the country.
First, the right and protection to land is enshrined in the Constitution of South Africa. Section 25 subsection 6 outlines that “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”. Moreover, subsection 9 of section 25 commits that Parliament must enact the legislation referred to in subsection 6.
In South Africa, land ownership and rights are registered at the Deeds Office administered under the Deeds Registries Act of 1937. South Africa recognised different land tenures beyond the freehold title.
The Sectional Tille Act of 1986 is another important piece of legislation when it comes to registration and tenure. As it can be deduced, the legislations pre-date the Constitution of South Africa which was promulgated in 1996. As a result, parameters such as electronic registration of land rights, recordal of race and the nationality of land owners are not provided for in the legislations. Moreover, rights on communal land are not adequately covered.
As part of closing the gap in legislation, the Department of Agriculture, Land Reform and Rural Development (Dalrrd), under the leadership of Minister Thoko Didiza supporting the work of the IMC headed by the Deputy President of South Africa, has made great strides in the past five years to modernise and strengthen land policy and legislation framework.
In 2019, the Dalrrd, through the parliamentary process, successfully passed the Electronic Deeds Registration System Act 19 of 2019. This allowed the government to shift from registering land rights manually and move to an electronic register. An electronic deeds registration will allow the Chief Registrar of Deeds to develop the electronic deeds registration system for the preparation, lodgement, registration, execution and storing of deeds and documents.
The promulgation of Act 19 of 2019 necessitated the amendment of the Deeds Registries Act of 1937 to provide for processes relating to the preparation, lodgement, registration and execution of deeds and documents to be conducted electronically.
Subsequently, the Deeds Registries Amendment Bill (Drab) was introduced into Parliament in November 2022. Drab proposes certain amendments to the Deeds Registries Act of 1937 (Act No. 47 of 1937). Drab, among others, seeks to introduce a mechanism that can be used for the recordal of land tenure rights lawfully issued by the government.
Drab also seeks to amend the Act of 1937 to enable the minister to make regulations for the collection, for statistical purposes, of personal information relating to race, gender, nationality and citizenship of landowners and holders of rights in land in South Africa.
The review of legislation will ensure that public land audits are accurate and are used as a base to inform the land reform programme and other government initiatives.
The equal focus has also been channelled to tenure security on communal land. The Communal Land Bill is under development. It is legislation that gives effect to the commitment of the government to divest its ownership of communal land and transfer land it holds in trust to traditional communities occupying the land.
The objective of the Communal Land Bill is to ensure the communal land is transferred and registered in the name of a person or community occupying such land, and also create a dispute resolution mechanism on matters relating to communal land rights.
The Communal Land Bill further addresses the shortcomings of the Communal Land Rights Act of 2004, which was challenged because it conferred powers to administer communal land on traditional councils which violates section 9 of the Constitution.
Sifiso Ntombela (PhD) is an agricultural economist. He serves as the special adviser to Minister Thoko Didiza, in the Department of Agriculture, Land Reform and Rural Development. He is also an elected president of the Agricultural Economics Association of Southern Africa.
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