Established in 1982 as a programme of the Black Sash, the Transvaal Rural Action Committee opposed the Apartheid regime's policy of forced removals of black communities to homeland areas and isolated townships. Since the unbanning of the liberation movements and the establishment of a new democratic state TRAC has worked with rural communities including farm dwellers and residents of state land in the former homelands to secure their land rights and access to development resources. The following inputs are based on actual experiences of TRAC-MP staff in the Province of Mpumalanga over the past few years. TRAC-MP is grateful for the opportunity to present these experiences to portfolio committee on agriculture and land affairs and hopes that this presentation contributes positively to the ongoing process or securing land rights for occupants of state land and the democratization of our society.


TRAC-MP's Experience of Land Rights in Former Homeland Areas.

Over the past six years whilst operating in the Province of Mpumalanga TRAC-MP has identified a number of critical challenges regarding the provision of security of tenure of residents of state land under tribal jurisdiction. These Homeland areas remain the most underdeveloped, marginalized and impoverished regions of the country and in terms of TRAC-MP's analysis the unresolved tenure arrangements are the single most important obstacle towards the development of these areas and the improvement of the lives of the millions of residents occupying state land under tribal jurisdiction. The following presents some of the most distressing features of TRAC-MP's experience of these areas:

The capacity of the Department of Land Affairs. Both in terms of number of staff and the skills of the staff this Department remains completed under resourced to facilitate significant delivery in terms of tenure upgrading of these homeland areas. Typically applications for the vesting of State land take over two years to be processed by the DLA. In cases where abuses of tenure rights have occurred by either tribal authorities or other structures - the DLA has not been able to address these abuses by protecting the rights of the vulnerable. In one instance where a local authority (Mbombela Municipality) expropriated residential lands without compensation the DLA failed to intervene, sanction such behaviour or provide any support to the residents who lost substantial property. In other instances where Tribal Authorities abused the rights of residents such as in Buffelspruit (Nkomazi) with the women crop farmers, the DLA and the Provincial Government's solution was to remove the women and promote the interests of the tribal authority. In essence there is a lack of political will on behalf of the DLA to sanction such conduct and challenge human rights abuses and exploitation of poor and vulnerable people on state land. This lack of capacity, resources and political will continues unabated.



In terms of the above situation in the Province it is clear that there needs to be substantial legislation and resources committed by the state to protect the rights of occupants of the former homeland areas. The objectives as set out in the Bill are to be supported and respected. However an analysis of the contents of the Bill reveals that it will not address these stated objectives and furthermore provides opportunities for continued undemocratic and corrupt practices in the administration of lands under tribal jurisdiction.


The extensive powers conferred on the Minister. With all due respect to the person, it is unlikely that the Minister would be in a position to have extensive knowledge of the land, tenure and old and new order rights in each area where a Board will be instituted. Thus the Minister would have to rely on statements from Officials in making final decisions on Boards and on awarding of land. It is unlikely that opposing opinions and conflicting interests would be pointed out to the Minister by Officials concerned with delivery and their own positions. In such instances it is possible that the Constitutional Rights of excluded groups would be ignored without any further recourse.

· The lack of capacity by the state to monitor the functioning of these committees. Currently the DLA is failing hopelessly in all aspects of Land Reform. Its limited staff and resources are thinly spread. The additional responsibilities and bureaucratic processes outlined in the Bill will further drain this capacity and increase programme failure across all DLA programmes. The DLA has in the past displayed an inability to intervene successfully in cases of corrupt land practices and abuse of tenure rights - there is no likelihood that the will be able to prevent the Committees from carrying our such deeds in the future. Public participation would be the most likely manner of ensuring accountability and fair practice. Unfortunately there is no provision for this in the Bill.



TRAC-MP implores portfolio committee consider the following.

Have effective public consultation on the contents of this Bill in its new format. There are significant changes that were made recently that need proper consultation.

The Constitutionality of certain clauses, especially the power of the Minister, in the Bill needs to be reviewed and tested. This requires time and resources the value of this process now is that it will prevent lengthy litigation in the future.

Enshrine the principles of gender equality, democracy and public participation in the Bill rather than making the tribal authorities the automatic choice as Land Allocation Committees. Greater space for public debate, participation and decision-making needs to be built into the Bill to protect the interests of the public.

Specific attention needs to be given to the rights of women, 30% is not equality and the nomination of representatives should again be democratic not based on the recommendations of the existing tribal authority. Specific principles should be included in the Bill making it compulsory for all previous rights vested in a male head of household to be transferred into co ownership. This is essential to avoid the formalization of gender discrimination by merely upgrading the rights conferred to males.

A process of recognizing all occupational rights not just those as defined in the Bill (five years prior to 1997) should be undertaken as a first step. This would in effect be a significant cut off date that could act as a benchmark against further arbitrary allocations by tribal authorities and protect the rights of those who have occupied land since 1992 (all of which seem at risk right now).

Distinguish between residential rights that should be conferred on a household or individual to the communal rights shared by residents. There should be different procedures for investigation and upgrading these two sets of rights. Residential rights if properly obtained should not be influenced by outside parties. Communal rights should recognize different degrees of rights to communal land, e.g. exclusive use by one family for cropping, grazing rights and harvesting rights. The process of compensation for loss of rights (comparable redress) should also not be limited to market value of the property which in most cases does not exist or is significantly distorted in these areas. Rather the Bill should prescribe comparable redress to include replacement costs of various infrastructure and natural resources.



In conclusion TRAC-MP is encouraged that after eight years of Land Reform the state is beginning to develop legislation that could provide lasting solutions to the problems besetting the millions of South Africans trapped in the former homeland areas. It is also encouraging that the state wants to devolve power to locally based institutions. However the Constitutional Rights to Democracy, gender equality and security of tenure are not guaranteed in this version of the Bill and therefore believe that wider consultations, closer scrutiny of the Constitutionally of the Bill and a carefully study of the systems and procedures outlined in the Bill needs to be undertaken to ensure that they will work in practice. In essence therefore it is believed that we have not achieved the ideal Act that will adequately address the needs and rights of poor rural communities. We should not sacrifice their heritage and rights for political expediency and therefore give the needs of these people the attention they so deserve.