LAND GOVERNANCE IN SOUTH AFRICA Opportunities Challenges Scoping

LAND GOVERNANCE IN SOUTH AFRICA: Opportunities & Challenges Scoping Study J. Chakwizira 1, P. Zamchiya 2, C. C. Ntshimbi 3 University of Venda 1, james. chakwizira@univen. ac. za 1; Univeristy of Western Cape, pres 1 zamchiya@gmail. com 2, Univeristy of Pretoria, csnzed@gmail. com 9/4/2021 1

Population Dynamics and Settlement Characteristics Opportunities & Challenges: Rapid urbanization and concomitant infrastructure & service delivery challenges for informal settlements; peripheral urban development (land fragmentation and splintering) – perpetuating spatial inequalities Youthful population dividend & the entrepreneurship dimension 9/4/2021 2

Population Spatial Change Representation in South Africa (1996 - 2011) Opportunities and Challenges: Vast Western and Central Karoo (Northern Cape Area) – new energy projects e. g. Solar Farms Dense Rural Former Homelands: Challenge of Traditional land use systems (parallel) and how to integrate in formal systems Opportunity: SPLUMA (2013) introduces wall to wall schemes; service level agreements with local municipalities 9/4/2021 3

National Land Use Challenges & Opportunities: Preservation of Productive Agricultural Land – for food security, job creation and wealth development Climate Change & implications for Water Scarcity & Management in Extended Geographical Areas Opportunity: Integrated Urban-Rural Interdependencies 9/4/2021 4

Institutional Framework on Land Governance and Administration in South Africa Opportunity: Inter-governmental and sectoral integration Integrated, inclusive and sustainable development One governance approach for land integration and management Challenges Coordination & management of sectoral plans Silo mentality Land use and management challenges – outsourcing of Consultants Funding constraints 9/4/2021 5

Traditional Council areas in South Africa Province Eastern Cape Traditional Area (km 2) Total Area (km 2) % Area Households in Traditional areas Total Households % Traditional Households 38 819 169 311 23% 771 983 1 686 635 46% 1 318 130 012 1% 73 912 823 155 9% 41 18 182 0% 38 485 3 908 771 1% Kwa. Zulu Natal 32 536 94 467 34% 951 067 2 539 218 37% Limpopo 32 602 130 171 25% 1 055 043 1 417 74% 6 542 76 584 9% 490 911 1 075 276 46% 18 806 106 502 18% 477 129 1 061 869 45% Northern Cape 9 847 378 355 3% 51 438 301 261 17% Western Cape - 131 522 0% - 1 633 860 - 140 511 1 235 106 11% 3 909 968 14 447 762 27% Free State Gauteng Mpumalanga North West Grand Total Opportunity: Innovation in land use management systems that address matters in rural provinces (e. g. Kwa. Zulu-Natal, Limpopo, North West, Mpumalanga, Eastern Cape) Challenges: Resistance to SPLUMA by Traditional Leaders (on-going debate to address the matters) 9/4/2021 6

Traditional Spatial Footprint in South Africa Opportunity: Wall to Wall LUS (Municipalities have until 2020 to have approved LUS) Municipalities financial base weak – pilots and supports from Former DRDLR and now Department of Agriculture, Land Reform and Rural Development of progressive SPLUMBs for Provinces in South Africa 9/4/2021 7

Traditional Areas in South Africa Limpopo Northwe st KZN Eastern Cape 9/4/2021 Challenges: Rural areas are not the same – in terms of spatial form and structure Land Tenure History viz NW – have titled land; KZN – Inyonyama Trust (own titled land) No one fit size all solution Opportunity Local based solutions through consultation Use SPLUMA to transition to better land use systems 8

LIMPOPO SPLUMB – A Case Study (Opportunity to Resolve Traditional Leadership Role in Land Use Planning and Management) 9/4/2021 9

Land Regime Tenure Issues in South Africa: Opportunity More than 90% of individual properties in urban and rural areas are formally registered. This does not necessarily mean the final certificate or title has been issued; it may mean rights are recorded unambiguously in the land administration system, with few disputes over the recorded information More than 45% of land registered to physical persons is registered in the name of women. More than 80% of property holders liable for land/property tax are listed on the tax roll. The amount of property taxes collected exceeds the cost of staff in charge of collection by a factor of more than five. The existing legal framework recognises rights held by 70% - 90% of both the urban and the rural population, either through customary or statutory tenure regimes. 9/4/2021 10

Land Regime Tenure Issues in South Africa : Challenges • The tenure of most groups in rural areas is formally recognized (Traditional customary law – PTO certificates), but the means for them to gain legal representation or organise themselves are not regulated. • Where people lose rights as a result of land use change outside the expropriation process, compensation in cash or in kind is paid such that they have comparable assets, but cannot continue to maintain prior social and economic status. • There are regulations regarding urban and rural land use, ownership and transferability that are justified on the basis of overall public interest, but they are not enforced. • Group tenure in informal urban areas is not formally recognised, but groups can gain legal representation under other Municipal Informal Settlements By-laws. • The law provides opportunities for those holding land under customary, group or collective tenures to individualise land ownership (full or partial use). • Procedures are not affordable or clear, leading to widespread application by discretion or failure to apply procedures even when those affected desire to do so. • Non-documentary forms of evidence are used to obtain recognition of a claim to property along with other documents when other forms of evidence are not available. • They have less credibility than the required documents e. g. cannot use this as a collateral. 9/4/2021 11

Land Regime Tenure Issues in South Africa: Challenges The requirements formalising housing in urban areas are not clear, straightforward or affordable, but many applicants from informal areas are managing to satisfy the criteria. Land policies incorporate some equity objectives, but these are not regularly and meaningfully monitored – SPLUMA spatial norms and standards (spatial justice; spatial efficiency; spatial resilience; spatial economy & good governance) The implementation of land policy is not fully costed and/or there are serious inadequacies in implementing the policy in at least one area of budget, resources or institutional capacity or locational decision – RDP houses located in cheap outlying areas perpetrating apartheid geography. Land Reporting Systems inadequate: Land institutions report on land policy implementation, but in a way that does not allow meaningful tracking of progress across different areas, or it is done sporadically. 9/4/2021 12

Expropriation highlights in South Africa The wording of the LGAF dimensions, and the associated underlying assumption in the management of expropriated land, confirm that this land should remain a state asset. However, in South Africa, where historical redress is required, land is expropriated and/ or public land is developed for housing purposes with ownership being transferred to an individual owner. The land restitution process also requires the expropriation of land, which is then transferred to individual or group owners. Unlike the situation in other African countries, expropriations are not taking place in South Africa to facilitate unscrupulous private gain (theory). Rather, this occurs overwhelmingly within the public interest in a unique context. This is notwithstanding the major challenges being experienced in the land restitution programme such as delays in implementation, project failure and corruption. 9/4/2021 13

Expropriation highlights in South Africa There are, however, delays in converting the expropriated land to its destined use, which are commonly linked to the expropriation process itself. However, this differs in rural and urban areas, since land use conversion occurs more speedily in urban areas – conversion of abandoned public buildings. In South Africa, expropriation is a difficult option for the acquisition of land. Often there is the public perception that compensation offered by the state is insufficient. The rate of compensation may vary depending on the location. In addition, the efficiency and effectiveness of different authorities may impact on price. There are cases of land price fixing or inflation where property owners benefit unfairly from the expropriation process. 9/4/2021 14

Expropriation highlights in South Africa: Challenges • The legal system for appealing expropriations is well developed in South Africa. • However, there are obstacles to the system, which hinder the ability of the poor and vulnerable to gain access. • Environmental and social impact studies often lack credibility. • Many households have been required to relocate without adequate compensation. • It is still early days to comment how land expropriation without compensation will exactly play out in South Africa although fears of the next Zimbabwe land reform programme have been expressed by critics. 9/4/2021 15

Land dispute resolution matters in South Africa • Land disputes in the formal court system are less than 10% of the total court cases. • Institutions for providing a first-instance of conflict resolution are accessible at the local level in less than half of communities, but where these are not available, informal institutions perform this function in a way that is locally recognised. • There is an informal or community-based system that resolves disputes in a manner that is not always equitable. • Decisions made by this system have limited or no recognition in the formal judicial or administrative dispute resolution system. • There are parallel avenues for dispute resolution and cases can be pursued in parallel through different channels, but sharing of evidence and rulings may occur on an ad hoc basis. 9/4/2021 16

Land dispute resolution matters in South Africa • A process and mechanism exist to appeal rulings on land cases, but costs are high and the process takes a long time. • A decision in a land-related conflict is reached in the first-instance court within a year for less than 50% of cases. • The share of long-standing land conflicts is greater than 20% of the total pending land dispute court cases. • Dispute resolution and conflict management relate to conflicts and disputes around land issues such as planning, ownership and tenure. • Generally, South Africa performs well with regard to conflict resolution in the formal legal system, but has made little or no progress in speeding up this process, with the result that some cases have been unresolved for more than five years. • The appeals process is expensive and lengthy. 9/4/2021 17

The principles and processes for different kinds of land valuation and taxation • In respect of Tax collection efficiency South Africa scores relatively well in terms of tax collection efficiency. • The Municipal Property Rates Act (MPRA) ensures that all property holders who are liable for rates are listed on the tax roll. However, in the amendment bill under way, new provisions are likely to be enacted that require a municipality to list all properties, including those subjected to exemptions, reductions and rebates. • Currently, municipalities assess all of their properties. • However, the application of a municipality’s indigent policy results in the collection of between 70% and 80% of the property rates of assessed properties. In most cases, the collection rate of households billed by municipalities is over 90%. • If property owners liable for rates fail to pay, the municipality is able to attach the property. • In South Africa, those municipalities with established structures and a history of managing a valuation roll and the associated collection of rates are better placed to recover the cost of administration. • In the metropolitan municipalities and the large, well-established local municipalities, the rates collected exceed a factor of more than five when compared with the cost of staff in charge of the collection. However, low-capacity municipalities find it difficult to recoup the cost of the general valuations roll. 9/4/2021 18

Overview of land Information Systems in South Africa • More than 90% of records for privately held land registered in the registry are readily identifiable in maps in the registry or cadastre. • The records in the registry can be searched by both the rights holder name and land parcel. • Copies or extracts of documents recording property rights can be obtained by anyone who pays the necessary formal fee, if any. • Copies or extracts of documents recording rights in property can generally be obtained within one day of request. • More than 90% of the ownership information in the registry/cadastre is up to date. • The total fees collected by the registry exceed the total registry operating costs. Total operating costs include all non-capital investment costs (i. e. salaries and wages, materials, transportation, etc. ) associated with registry operation. Registry operating costs do not include long-term capital investment or associated depreciation expenses. • A clear schedule of fees for different services is publicly accessible and receipts are issued for all transactions. • Mechanisms exist to detect and deal with illegal staff behaviour in all registry offices, but cases are not systematically or promptly dealt with. • The cost for registering a property transfer varies from 2% to less than 5% of the property value 9/4/2021 19

Recommendations • Development of appropriate monitoring tools and indicators for land reform, redistribution and restitution processes: Appropriate baseline indicators should be developed for monitoring the implementation of the land reform, redistribution, and restitution processes. • Land tenure and insecurity matters in South Africa: In South Africa, land tenure security is a problem for four categories of land rights-holders (i. e. Farm labourers and their families living on privately owned land, People living on former mission stations – the so-called ‘coloured rural areas’, People living in situations of insecure tenure in urban areas, such as informal settlements and backyard dwellings, and People living under customary tenure systems in the rural areas of the former Bantustans, – the so-called “communal areas”) and this needs to be addressed for better land governance, growth and development prospects in the country: 9/4/2021 20

Recommendations • Development and implementation of an incremental inclusive tenure and rights system that incorporate rural residents and informal settlements in South Africa: The vast majority of rural residents do not have registered land rights, and informality is an issue in urban areas. Systems and fast-track procedures should be developed to address the backlog in RDP registration and transfer, as there approximately one million RDP housing units which are yet to be registered and transferred to the identified beneficiaries. • Developing a robust land information and management system to resolve informality in urban settlements: Addressing urban informality in existing settlements requires a better understanding of how plots and houses are acquired. One option is to develop an incremental tenure approach for urban informal settlement dwellers, and to roll out a support strategy for municipalities for the implementation of this approach. 9/4/2021 21

Recommendations • Revisiting the strategic land location and allocation of low income housing to service the needs of low income earners: With respect to planning of residential areas, there has been increasing concern about the location of state-funded low-income housing projects and falling production rates with implications regarding spatial transformation. • Capacity building and Training for the Implementation of the Spatial Planning, Land Use and Management Act, 2013: Overall, more effective land use management tools should be developed for both rural and urban areas and their inter-linkages. Given the difficulty for small and rural municipalities to attract qualified planners a strategy for the capacitation could be developed. 9/4/2021 22

Recommendations • Sustainable management of public land concessions including the need to address the land grab phenomena: With respect to the management of public land concessions, the allocation of mining licenses is another key concern. Contracts and conditions need to be made public, and public officials should be accountable for these negotiations. • Land dispute and conflict resolution systems and procedure improvement: More effective use can be made of informal dispute resolution mechanisms to speed up conflict resolution. 9/4/2021 23

KEY LAND GOVERNANCE DIALOGUE MATTERS Land reform, redistribution & Restitution Futures: How to proceed in a manner that will not harm the economy and future sustainability of agriculture sector; Re-Inventing Land Ownership & Release Mechanisms: How to innovate on land ownership and release especially to address the urban and rural interdependencies as well as the periurban and urban geographies that extend beyond the municipal gazetted boundaries; Sustainable land use Planning & Management: Finding the right balance in using land as a tool for socio-economic development and transformation for both urban and rural areas in an inclusive, integrated and sustainable manner; and Capacity Building & Training: Developing a cadre of land use planning and management experts who can assist in policy (re)making, development, implementation, monitoring and review 9/4/2021 24

Thank You Observations, Comments & Inputs 9/4/2021 25