The CLRA recognised only one level of land administration, the traditional council, which would act as the land administration com-mittee for a ‘traditional community’. Yet the literature on communal land tenure in South Africa reveals that decision-making in relation to land, including the allocation of plots, occurs mainly at the local level. These
decisions are often only approved or ratified at higher levels such as the chieftaincy (Cous-ins 2008b: 123-126). This is clearly not true in all cases, largely because the centralisation of power in the office of the chief in the colonial and apartheid eras, which created the ‘decen-tralised despotism’ of indirect rule (Mamdani 1996), has created many opportunities for op-portunists.
As described in many parts of this report, most day-to-day land administration in Msin-ga takes place at the local level. Prospective neighbours and traditional leadership figures such as the Induna, as well as the ibandla, play significant roles, and the key unit of social and political organisation is the isigodi. The layered or nested character of land adminis-tration in Msinga emerges very clearly from a description of how the land tenure system works in practice.
Nestedness, however, does not preclude the emergence of tensions between different lev-els of governance, for example between the Inkosi and an Induna, or between an Induna and residents of the isigodi. Chapter Six, for example, describes rising tensions over the imposition of heavy fines for crop damage by livestock in Ngubo, and Chapter Eight dis-cusses widespread controversy over the heavi-ness of the fines imposed for a variety of of-fences in the Mthembu tribal court in 2008 and 2009. A key policy question is thus the degree to which the nested character of land administration and governance in general creates a system of checks and balances on the overarching authority of an Inkosi and a traditional council. Does tension between lev-els indicate that accountability mechanisms are at work?
In Msinga, the very large populations of these tribes, together with the extensive land area that their members reside on, also constrains the exercise of power from above — the Inko-si, the tribal office and the traditional council lack sufficient material resources to control decision-making on land at the local level. On the other hand, centralisation of customary dispute resolution procedures, as envisaged in first drafts of the Traditional Courts Bill, may offer fresh opportunities for chiefs and traditional councils to attempt to exert cen-tralised control over land and other matters.
The version of the Bill tabled in parliament in
2008 enabled the traditional court to deprive people of ‘any benefits that accrue in terms of customary law or custom’, and both commu-nity membership and land rights may be seen as such benefits (Law, Race and Gender Unit (LRGU) 2010: 6). The imposition of onerous tribal levies, and the imposition of fines or even expulsion as a sanction for non-payment of such levies, offers another potential strat-egy for leaders attempting to shift the bal-ance of power decisively in their own favour.
This suggests that the nested character of land administration in these tenure regimes is not sufficient to keep centralised authority in check, and legal recognition of the sub-stantive and procedural rights of community members as rights holders is also required.
Women’s land rights
A key criticism of the CLRA was that it failed to adequately recognize and secure the land rights of women who are not spouses within a marriage, of whom there are many — as many as 41 percent according to one analy-sis of official data102. According to Claassens
& Ngubane (2008: 164-165) the Act failed to engage with the reality that land tenure sys-tems informed by customary norms and val-ues are family-based systems. The CLRA thus formalised rights deriving from discrimina-tory laws and distorted versions of custom.
In addition, unequal power relations within decision-making forums also reinforce the tenure insecurity of women, and these were not adequately addressed in the Act. An al-ternative approach would involve defining and securing use rights, often exercised by women within family and kinship networks, and thus strengthening the position of wom-en within social relationships and community structures. This would require oversight and support from the state.
Our research shows that in Msinga many women who are neither married, nor heads of households, do access land through their membership of a household or homestead. As discussed in Chapter Seven, a pent-up demand for residential land by unmarried women with children exists, which in the case of the Mchunu tribe has seen the traditional council decide recently that such women can be allo-cated land in their own right. This lends sup-port to Claassens and Ngubane’s (2008: 181) argument that law and policy should seek
102 See Claassens and Ngubane (2008: 164) and footnote 10.
to engage with uneven processes of social change under way in rural South Africa.
Contested processes of change and adapta-tion are a key theme in the wider literature on women’s land rights in Africa. Whitehead
& Tsikata (2003: 78-79) argue that women’s rights within socially embedded, customary systems are often weakened as a result of eco-nomic and political transformation, because men are able to manipulate change processes to their own advantage. Similarly, Cotula &
Toulmin (2007) describe how women have been rendered vulnerable by demographic shifts, urbanisation and the commodification of land, which have led to land management decisions shifting away from extended family groups towards households and individuals.
Where there is increased pressure for land, men sometimes reinterpret customary rules in ways that weaken women’s land rights.
Mackenzie (1993: 213) describes how in the context of individual land titling in Kenya, men have generally won out in contests over claims to land through both customary and statutory law. According to Walker (2003:
143), it is not clear that giving women their own independent land rights, or providing them with joint title are effective solutions on their own, if social roles and power relations remain unchanged. In this literature, unequal power relations emerge as a key variable in determining whether or not social change is beneficial for women.
A ‘living law’ perspective on legal reform suggests the importance of opening up local institutional space for a variety of voices on what should constitute the content of land tenure rights in specific contexts. As discussed above, it is possible that the presence of vo-cal women on the Mchunu traditional council was a key factor in the decision to allocate land to single women (although this was clearly not a sufficient condition). The policy implications are that unequal and gendered power relations must be addressed not only through legal recognition of rights, but also by creating institutional frameworks that will support women’s claims for the realisation of such rights. Ensuring equal female represen-tation in local institutions such as traditional councils or elected committees is a minimum
requirement, but support from external ac-tors and institution such as land rights officers (ibid: 180) will also be key.
Conclusion
Ascertaining the changing content of the liv-ing law of land is a challengliv-ing task. In 2009 the Constitutional Court upheld the appoint-ment of a woman, Tinyiko Shilubana, as hosi (chief) of the Valoyi community in Limpopo province. The constitutional court noted that:
Living’ customary law is not always easy to establish and it may sometimes not be possible to determine a new position with clarity. However, where there is a dispute over the law of a community, parties should strive to place evidence of the present practice of that community before the courts, and courts have a duty to examine the law in the context of a community and to acknowledge developments if they have occurred.103
The Imithetho yomhlaba yaseMsinga project attempted to ascertain the content of the liv-ing law of land in one corner of rural South Africa. Meetings, interviews and focus groups convened by the project between 2007 and 2009 generated lively discussions and debates on a range of issues and problems related to land tenure in Msinga. Few decisions resulted directly from these debates, but the wide-ranging ‘conversation’ about land, initiated by the project, may possibly have influenced the Mchunu traditional council to some de-gree when it made its momentous decisions in 2009 and 2010 in relation to women’s land rights and the registration of customary marriages.
Policy makers need to consider how to con-vene conversations of this kind, on a large scale, before they launch a new round of tenure reform policy formulation and law-making. Our experience suggests that well-designed processes are critically important to ensure informed discussion, but also that ordinary rural people, not just their leaders, are more than ready to engage in debates about policies that could have major impacts on their lives.
103 Shilubane and others vs Nwamitra 2009 (2) SA 66 (CC), para 46
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