The land question in smallholder development in South Africa - Institutional Constraints to Small Farmer Development in Southern Africa - page 194

Land tenure reform
The third key component of the land reform programme is the reform of land tenure systems
in the communal areas to enhance the accessibility of land within the former independent
homelands where traditional systems of land tenure were in force previously and largely
prevail today. It is necessary once again to delineate the specific areas of the country where
the 'independent homeland administrations' were established during the apartheid era.
Parts of four of the present nine provinces were affected. These include the Eastern Cape,
Limpopo, Kwazulu-Natal, and North-West provinces. According to the old administrative
structure, these areas were known as the Ciskei, Transkei, and Kwazulu. Today, agricultural
production still occurs in areas designated 'communal areas'.
The past practices featured control by the traditional power élite which administered the
allocation of land to the members of the community ( Jeppe, 1980). As has been noted
earlier, the communal tenure system in the South African communal areas mirrored the
practices in other parts of Africa where the traditional authorities remain the trustees in
land matters and wield considerable powers. What has changed in South Africa, though, is
that the powers of the traditional authorities have been scaled down or officially eliminated
without a corresponding and clear modern governance arrangement to replace them. This
has meant a considerable degree of confusion, while opportunities for corrupt manipulation
of the process still exist for the traditional leaders. According to Lyne et al. (1997) and
Lyne and Darroch (2003), the main problem has been the increasing unpredictability of
the whole system. It is understandable that where clear rules and guidelines are absent,
the scope for arbitrariness will be high. In a system characterized by land scarcity due to
inequitable sharing of a limited supply of land within the former homeland area, economic
opportunities are severely limited for those whose livelihoods depend almost exclusively
on the agricultural sector. The highly constrained land rental market due to uncertainties
as to whether those who rent will eventually return land to original owners is another
consequence of the imprecise system of rules on land ownership and distribution within
the former independent homelands of the country.
In order to protect the residents of these former homelands against the abusive and corrupt
practices of the traditional leaders, an interim law was passed in 1996. This law is referred to
as the Interim Protection of Informal Land Rights Act 31 of 1996. But ultimately, the need
is for the people to have ownership of the land by legal changes that introduce more secure
land rights in these communal areas. The progress in this regard seems to have now come
in the form of the recently enacted Communal Land Rights Act (CLARA) of 2004. The
main emphasis of the new Act is to facilitate the transfer of communal land to tribes as well
as to individuals and communities. While this is no doubt a welcome improvement on the
current situation of landlessness among many residents of the former homelands, it is not
surprising that a number of groups will find that this threatens their existing privileges and