The contested status of ‘communal land tenure’ in South Africa

Abstract

Twenty years have passed since the Bantustans were reintegrated into South Africa. Yet for the 17 million people still living in these former homelands, the struggle for full recognition of their land rights persists. The post-1994 government refers to the former homelands as ‘communal areas’ (Communal Land Tenure Policy 2013). For most people living in these areas, their rights to land are uncertain and vulnerable. The right to security of land tenure – that is, the legal and practical ability to defend one’s ownership, occupation, use of and access to land from interference by others – is enshrined in Section 25(6) of the Constitution. The Constitution further prescribes that the government should enact a law to provide for the realisation of the right to security of tenure in Section 25(9). Land tenure reform is one of the three main areas of the government’s land reform programme – the other two are land redistribution (related to Section 25(2), (3) and (4)), which involves tackling the unequal distribution of land in the country resulting from the apartheid era, and restitution (Section 25(7)), which is about restoring land to or providing equivalent compensation to people who were dispossessed of rights to land as a result of racially discriminatory laws or practices.