Governance against the Law: customary and statutory perceptions of tenure security in South-Africa

This paper is about how different perceptions of tenure security in South Africa influence different approaches to governance of land. The governance of communal land tenure arrangements is especially hotly debated. Communal tenure insecurity affects millions of South Africans. The State is constitutionally mandated to effect legislation that will address this situation. The Communal Land Rights Act 11 of 2004 was signed into law to create a land administration system to regulate communal land tenure. The Act aimed to provide security of tenure by providing self-regulation to communities through corporatisation and the formalisation of land rights by means of registration. Community governance structures would also be incorporated in to local government structures. The Act, however, did not provide for adequate consultation measures with communities, current community practises of governance and state support. Governance of land rights imposed by the State clashed with the horizontal governance of communities. Four communities challenged the constitutionality of these measures in the Constitutional Court

. They argued that the effects of the legislation would leave them in a worse position than was the case under the repressive apartheid regime. The Court subsequently declared the Act unconstitutional on substantive and procedural grounds. Thus, after a more than a decade of democracy in South Africa almost one third of the population still suffers from legal tenure insecurity without support from the state. State intervention in local land governance structures failed to accommodate local realities on the ground. Instead, communities are calling for alternatives that recognise their own attempts, at grass-roots level, to achieve tenure security. Adequate interaction between the state and private actors in the governance of land tenure is sorely needed. Current attempts to rectify this situation are limited to political promises with no clear policy framework.