Responsible Governance of Land in South Africa: Turning Talk into Action

by Laurel Oettle, published 2nd February 2017.

The third National Workshop to improve the governance of tenure in South Africa with the “Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security” (the VGGTs or Voluntary Guidelines) got underway yesterday in Durban, and will run for a further two days. I was fortunate enough to be asked to present on the status of the VGGT implementation in South African by civil society organisations, which gave me a chance to reflect and share my a few of my thoughts.

My first direct engagement with the VGGTs was in September 2015, when I joined the Food and Agricultural Organisation of the United Nations (FAO) learning programme on gender and land. My interest piqued by my desire to learn more tools to address gender inequality, particularly in my current context of grappling with the complexities of land tenure, I jumped at the opportunity. I made many new friends across civil society, government, academic institution, social movements and organised agriculture, and we engaged actively with understanding the VGGTs, identifying tools to increase women’s equitable access to land, and seeing how we could use this knowledge in our work. This was followed in May 2016 by the second National VGGT workshop, which focused on capacity assessment. Dr Ruth Hall from the Institute for Poverty, Land and Agrarian Studies (PLAAS) wrote an excellent summary of the some of the key outcomes of the workshop whilst sharing her own perspectives on land governance in South Africa, which can be read here.

I have thoroughly enjoyed engaging in multiple civil society spaces since I joined the Association For Rural Advancement (AFRA) in 2015, from local right through to National and International partnerships. These range from the Tshintsha Amakhaya civil society alliance for land and food justice in South Africa, to the newly established Land Governance Transformation Network, and the International Land Coalition. Within all these spaces, I have heard increasing awareness of and knowledge about the VGGTs, but not yet a high degree of resonance with existing work and practical application. So, within an action-oriented sector ultimately concerned with the lived daily reality of the most marginalised and vulnerable in our country, the burning question seems to be:

How do we use this theoretical framework in action-oriented ways to see real change?

In order to begin answering this question, I would like to share one way in which, within AFRA, we have begun to try and do this: our Pathways Project. Pathways is a multi-year, European Union funded initiative that draws directly on the VGGTs, which state that governments should:

• Recognize and respect all legitimate tenure right holders and their rights;
• Take reasonable measures to identify, record and respect legitimate tenure right holders and their rights, whether formally recorded or not
• Meet the duties associated with tenure rights.

The section in the VGGTs on the Administration of Tenure provide a good starting point for a discussion of what an appropriate land administration system for complex tenure arrangements on South Africa’s farms should consider.

Pathways aims to facilitate consensus between landowners, farm dwellers and government around how to settle the rights of farm dwellers (ESTA occupiers and labour tenants) to secure tenure and access to services. Some of the key aspects of the project will include:

• The development of new incremental tenure options;
• Using ‘processual’ methodology: incremental but rigorous development of legal principles that can form the basis for constructing a legally recognised statutory property system for currently off-register rights;
• Addressing opportunities and gaps around spatial planning and land administration

Whilst working through the Land Administration section in the VGGTs – which cover a wide range of issues, including dispute resolution, taxation, valuation, planning and land use, and records and registration – in the context of Pathways, the one thing that stood out for us as an important gap that we would need to fill in is land adjudication.

So, what exactly is land adjudication? It can be described as “A process of developing mechanisms for weighing up the relative strength of rights according to various criteria that become accepted into law.” It is a concept that is widely misunderstood, and is often thought of in the same frame as dispute resolution, from which it is distinct.

The development of a rights adjudication framework a critical foundation to develop a fully-fledged land administration system for administering off-register rights. AFRA decided to begin to move forward on this by bringing Rosalie Kingwill on board to start mapping out some principles and processes to build an adjudication system for ESTA and Labour tenant rights-holders. We will share this document when it is complete in order to share knowledge and open up further discussions around a broader adjudication system for other rights holders in South Africa, and use Pathways to test and enhance the concepts in with farm dwellers.

Another initiative closely aligned to the VGGTs, and partly deriving initial energy and focus from the Pathway Project, has been the establishment of a Land Governance Transformation Network (LGTN). In the second half of 2016, organisations and individual researchers from across both rural and urban land sectors with a common interest to collaborate and develop transformative land governance alternatives in support of social and informal tenure systems in South Africa came together to discuss collaboration, and the LGTN – is open to organisations and individual researchers and practitioners who are active in this sphere and share the same principles – was formed.

Pathways Project, with its focus on farm dweller land rights, is just one piece nationally around non-registered land rights, including:

• IPILRA rights-holders in communal areas;
• TRANCRAA rights-holders in former coloured reserves in the Cape;
• CPA rights-holders on land reform farms;
• Shack dwellers in informal settlements on the edges of towns and cities;
• PIE-protected occupiers of inner-city buildings abandoned by their owners.

This work is the focus of the LGTN, which will reflect on the principles and guidance around off-registered rights and Land Administration in the VGGTs, and seeks to organise periodic sessions and learning journeys with different government departments with involvement in land administration in order to:

• present case studies;
• develop an argument for change;
• develop shared values and principles informing the development and articulation of land governance systems;
• pilot a prototype land recordal system;
• prioritise research to identify opportunities to amend existing laws and policies to integrate the inclusion of a new land administration system.

Where to now with the VGGTs?

The workshop this week will map out a way forward for the VGGTs in South Africa. One of the key points for discussion is the establishment of a multi-stakeholder platform – an idea that has been raised at both the previous National workshops. There will be multiple challenges to work through to turn this concept into a reality, and into a vehicle that can lead to real action and change.

Can this platform, anchored in the VGGTs, help us develop a National Engagement Strategy for South Africa around the fair governance of land, fisheries and forests? Can it become a consultative platform with a medium to long term perspective, in order to create a force that increases possibilities for political change around the promotion of people centred land governance at the country level? I certainly hope it can.