Putting Justice into Practice: Communal Land Tenure in Ebenhaeser, South Africa, 2012-2017

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Abstract 

Following the 1994 transition from racial apartheid to democracy, South Africa’s government aimed to provide tenure security for the estimated 16 million black South Africans living in communal areas. But the lack of a clear legal framework applicable to most communal areas meant that progress was slow. In contrast, a viable legal framework did exist to guide tenure reform in smaller communal areas formerly known as “coloured reserves,” where a series of apartheid laws had settled people of mixed race. In 2009, land reform Minister Gugile Nkwiti designated one such area—Ebenhaeser, on the country’s west coast—as a rural “flagship” project. The aim was both to transfer land held in trust by the government to Ebenhaeser community members and to settle a restitution claim. Provincial officials from Nkwinti’s ministry, working with private consultants, organized a communal association to serve as landowner. They helped negotiate an agreement with white farmers to return land that had originally belonged to coloured residents. The community also developed a land administration plan that would pave the way for Ebenhaeser’s residents to become the legal owners of their communal territory.

Lessons Learned

  • A legal framework to guide tenure reform in communal areas is vital. The lack of a law to guide the process in the former homelands made it nearly impossible to make any progress in those regions.
  • In many of the communal areas of South Africa, the key question is whether traditional leaders should become legal landholding entities. Despite the lack of capacity that hampered many CPAs, Ebenhaeser’s experience offers an alternative to granting legal ownership to traditional leaders.
  • A strong, high-level project steering committee was critical for driving implementation. The project required cooperation between a range of different stakeholders. And the creation of a central venue encouraged that collaboration.
  • Providing communities with financial and human resources support after they obtain ownership over communal lands is crucial. Documentation proving they were landowners was not enough to immediately enable the Ebenhaeser CPA to use its land productively or access credit.

 

Leon Schreiber drafted this case study with Professor Grenville Barnes of the University of Florida-Gainesville based on interviews they conducted in the Western Cape, Gauteng, and Eastern Cape provinces of South Africa, in March 2017. Case published May 2017.

Keywords 
communal land tenure
land reform
property rights
land administration
rural development
land restitution
tenure reform
Focus Area(s): 
Property Rights & Land
Critical Tasks: 
Action plans
Common pool resources & public goods
Competition
Consensus building
Extending services to insecure or remote areas
Land registration
Priority setting
Property rights
Resource protection & enforcement
Core Challenge: 
Principal-agent problem (delegation)
Country of Reform: 
South Africa
Type: 
Case Studies
Author: 
Leon Schreiber