By Lauren Royston and Maanda Makwarela
It has taken a very long time for land reform to be taken seriously on South Africa’s urban policy agenda. We should understand why. In this article we offer a response to this question and, drawing on two just-released publications, provide a set of recommendations for how an urban land reform programme should look. In a time of crisis, when the ramifications of this neglect are suddenly being realised by the powers that be, it is more important than ever to advocate long lasting and robust solutions.
The primary reason for the silence on urban land reform goes to the heart of why the poorest and most vulnerable members of our society are most affected in times of crisis – power, poverty and inequality. Relations to land are fundamentally social in nature. Only if you are affluent are these relations distant and impersonal – the Deeds Registry which records your rights, a title deed or contract which proves your claim to reside where you live, professionals such as conveyancers and estate agents whom you do not need to know but whom you must have the ability to pay, a purchaser who is a stranger to you whose credibility is verified by a bank, and so on. Water and sanitation are provided to your address. Refuse is collected. Your environmental safety and comfort are regulated by land use rules. Your property exists in the land information system of your municipality. Emergency vehicles can locate you in times of crime, fire, illness or death.
Approximately 60% of people living in South Africa do not have the benefits that access to the formal property system is meant to confer. For the majority of people therefore, your rights and claims are not recorded, the evidence you possess (an affidavit, proof of residence from a councillor or your bank if you are in the banking system) may be deemed valid locally but it is not formally recognised as a record of your rights and claims, transfers are witnessed locally by your neighbours and your access is vetted by community leadership with whom you may or may not have standing and who are more or less accountable and democratic in nature. These local arrangements exist alongside the formal system of property. They are widespread. Our policies do not even possess the language to describe these “off-register” arrangements which people have made in the absence of private sector delivery and inadequate state provision.
Without recognition, access to water, sanitation and refuse removal, are constrained because municipal systems of billing, taxation and land use cannot “see” you. As a result, you lack the protections that the system confers: against eviction (whether market, state or familial); locally unwanted land uses; environmentally unsound services which threaten your health and safety; crime, violence and abuse; fire and, as we now anticipate, disease. Without a recognised address, your access to the economy is curtailed. You cannot, or find it difficult to, comply with financial regulations.
Urban land reform must deliver safe, secure access to the majority of people. It must also provide the benefits we commonly associate with recognised property access and the opportunities that an urban location is meant to open. The rights enshrined in our Constitution are the place to start: access to land on an equitable basis (Section 25), legally secure tenure (25), the progressive realisation of the right of access to adequate housing (26[1&2]) and protection against arbitrary evictions (26).
In the short term, existing measures should be better used, and in some cases adapted or amended, to implement urban land reform. Because urban land reform cuts across several sectors (another reason for its neglect), these measures are located in the planning and human settlement sectors, to name just two.
Some examples of the short term actions are that Municipal Integrated Development Plans (IDPs) must set targets for, and monitor achievement of, equitable land access; IDPs should also project likely relocations and proactively provide for them; planning tribunals should manage development and land use rights progressively by assessing applications for their contribution to urban land reform as a matter of course; informal settlements should be zoned and incremental development areas should be established. The designation of informal settlements as incremental development areas and the recognition of informal settlement land use has a number of benefits including regulating living conditions for the benefit of the many and progressively upgrading and improving tenure security. The provision of basic services, local land records (official occupation letters, residential cards, occupancy registers, enumerations) and block layouts are some examples of mechanisms that improve tenure security.
Taking a look at urban land reform in the human settlements sector, both the private sector and the state have a role to play. Social housing must be expanded and its “down-market reach” extended using value capture financing mechanisms and inclusionary housing requirements. In existing rental stock, curbing unfair rental practices, including unreasonable rental costs, should be regulated in the still outstanding Rental Act norms and standards. The Community Residential Unit Programme should be resuscitated for provision of new public rental housing. The title deed backlog in state subsidised housing needs to be addressed, not only by rectifying outdated deeds and ensuring that unissued deeds reach property owners, but also by a more systemic review of the fundamental problems associated with the registered ownership model of subsidised housing than has been conducted to date. The Upgrading of Informal Settlements Programme should be implemented at scale, according to its intentions for participative, incremental development.
Taking a longer term look at what action is required to give effect to the urban land reform provisions in the Constitution, two key areas of law reform need attention, in line with recommendations in the Presidential Advisory Panel and High-Level Panel reports a Land Redistribution Framework Act to give effect to equitable access and a Land Administration Act to secure tenure for the majority of people who live off-register, among other things.
As urban land transverses several line functions an “Office of Equitable Access” should be established within the Presidency with responsibility for the Land Redistribution Framework Act, and for monitoring and evaluating the performance of key sector departments accountable for the range of multi-sector programmes or measures which constitute urban land reform. An immediate task of the Office should be to convene a multi-sector consultation on the proposed Act, with both urban and rural inputs. This act should, at minimum, define “equitable access”, develop principles for land redistribution and identify the measures (existing and new) required to give effect to equitable access.
A Land Administration Act should enable the development of alternative systems of record keeping for off-register rights: enumerating rights, adjudicating rights, developing new systems of evidence to validate rights and developing systems of dispute resolution.
A third area of legal reform is required as well, which concerns the Interim Protection of Informal Land Rights Act (IPILRA). Its urban application should be clarified and it should be made permanent legislation.
Carefully selected urban equitable access test cases should be identified with stakeholders in government, civil society and the private sector to operationalise key aspects of urban land redistribution under the authority of the Office of Equitable Access and the relevant sector departments. Land records test cases should be developed that contribute to building land records legislation from the bottom up and confer more secure tenure in the meantime. More inclusive land use zoning, to legalise informal settlement land use, should also be tested.
As crisis measures are planned and implemented, an opportunity also exists to ensure that those people most affected are never again ignored, invisibilised or unrecognised because they are poor.
This article was written by SERI staff members Lauren Royston (Senior Associate) and Maanda Makwarela (Senior Researcher) with the support of the Nelson Mandela Foundation.