POLOKWANE, 10 February 2023. The Institute for Poverty, Land, and Agrarian Studies (PLAAS) continues to disseminate findings from its research on the privatization of customary land and its implications for women’s land tenure security and livelihoods in Southern Africa. After hosting three successful National Policy Dialogue sessions in Mozambique, Zambia and Zimbabwe, PLAAS last week brought the conversation on customary land ownership reform to Limpopo, South Africa.
The February 10th event, which PLAAS co-hosted with the Nkuzi Development Association, brought much-needed attention to South Africa’s problematic land ownership-related policies, which, when legislated, govern rural land ownership procedures and, by extension, create accountability vacuums, impeding efforts by communities to break free from more restrictive and often deeply entrenched, patriarchal systems.
This sentiment, together with key findings from a three-year research project spearheaded by PLAAS in 2020, and funded by the Austrian Development Agency, provided the cornerstone for the Polokwane policy dialogue session.
The research project aimed to identify the implications that an increase in customary land privatization trends has had on the accessibility to land tenure in rural communities – specifically focusing on the effect on women’s rights to land ownership.
The research project was carried out on the ground in four key southern African countries: Mozambique, South Africa, Zambia, and Zimbabwe.
The research shows that customary land rights are not well documented, which has played a role in undermining land tenure security. As a result, there has been a push from governments in southern Africa to reform land tenure policies – a move supported by the African Union.
It was, therefore, disappointing that invited dignitaries from key government institutions and representatives of traditional leaders cancelled their attendance at the last minute.
Fortunately, esteemed members of civil society, including the Commission for Gender Equality, community members and activists, as well as academics, came together in support of the National Policy Dialogue.
Presenting some of the key research findings as they applied to South Africa, PLAAS senior researcher Dr Phillan Zamchiya said that a majority of women remain beholden to traditional authorities, where patriarchal norms continue to fail women’s pursuit of protected land ownership rights. The research revealed that women are often left out of key decision-making discussions on land, which are usually taken at traditional council meetings, where women are very poorly represented.
Nkuzi Development Association executive director Motlanalo Lebepe presenting at the national dialogue
The South African leg of the research project was carried out in two villages situated in Limpopo’s Capricorn District Municipality: Moletjie and Ceres.
The two rural areas were identified due to the increase in private sales of customary land to outside urban elites, who are drawn by the prospect of a cheaper lifestyle outside the city.
Our research found, however, that any benefits to local communities are skewed towards traditional leaders and local organized crime groups, who are better placed to profit from the increasing demand for rural land. It is local community members – and the research shows, mostly women – who ultimately suffer as their access to the same tracts of land is undermined by forced removals and evictions carried out upon the competition of the sale.
Echoing similar sentiments to the findings around women’s rights in land ownership, Nkhensani Hlekani from the Commission for Gender Equality (CGE) in Limpopo noted: “The study findings reflect cases we mostly deal with in the commission. Most of the women lodging complaints with us are widows, [women] single parents, and divorced women. Moletjie tops the number of complaints in the Capricorn district”.
Nkhensani Hlekani of the Commission for Gender Equality in Limpopo
One step forward, two steps back?
Although our research did find some instances where traditional systems appear to acknowledge the cost to women, the commercialisation of customary land has incurred. This is evidenced in cases where traditional leaders have allocated independent residential sites to single women and widows. Unfortunately, these gains are undermined by the lack of clarity around individual rights to land ownership – which often gets lost in power plays over land sales.
Research project: Key findings
- Evidence shows that most married women are restricted from independently accessing residential land under the guise of protecting marriage and families.
- Land registration through the Permission to Occupy remains entrenched in patriarchal norms for married women, as traditional authorities require a newly married woman to re-register land she would have acquired while single in her new husband’s name whilst putting herself as spouse and not as joint-owner.
- Divorced women are the most vulnerable group in relation to accessing land. A woman must leave the land after divorce, especially if they choose to remarry.
- Young people struggle to gain access to land through traditional authorities, as revealed by our research: only 3.95% of our respondents who acquired land in the past five years were aged between 18 and 35 years.
- An acceleration in the movement of urban elites to rural areas tracks the acceleration in processes of commodification of customary tenure: 75.25% of respondents who acquired land from traditional authorities or individual landowners in the past ten years paid for it in cash.
- There are changes in how land is used: 100% of respondents from Ceres use newly acquired land for residential purposes, not agriculture.
- A total of 90.5% of respondents prefer to live under customary tenure compared to individualised titles. Still, they want their land rights to be clearly defined and for the local land governance institutions to be more democratic, gender equal and accountable.
- The majority of female respondents (92%) preferred to live under customary tenure systems because it is cheaper, they did not have to pay council rates, and they could share their culture and traditions; it supported a diverse range of land-based livelihoods for the poor and vulnerable.
- Most women also cited the ‘negotiability, flexibility and adaptability’ (Peters 2004) of existing customary arrangements, which worked well for the poor and future generations. This did not mean that the women did not want patriarchal norms and practices within customary tenure systems to be reformed and to be gender equal.
- Land markets in the rural areas have seen the rise of new non-state institutions composed of young men that exercise autocratic power and authority over land by mimicking ‘stateness’. These are unemployed ‘young boys’, aged between 28 and 36 years, illegally demarcating and selling land.
Shirhami Shirinda, Director at Koti Research and Land Rights Services, credited the research findings, saying the findings are “reflective of the realities of women in the northern part of Limpopo,” where he works as a legal researcher. Shirinda emphasised his lack of surprise over the treatment of women’s land rights by traditional councils and leaders, noting that. “traditional councils in Limpopo are illegal; the law stipulates that there should be elections within traditional councils every five years. A third of the council should be women. That has never happened in Limpopo”.
AgriSETA’s Executive Manager: Learning Programmes and Projects, Medupi Shabangu questioned the role of the government, saying: “Politics are at play; the land is a commodity that traditional leaders will always put a price to. What, then, is the state’s role in mitigating property power relations between the custodians (Chiefs) of the land and owners of the land (communities)? It is now chiefs versus the people, and we don’t see the visibility of the state mitigating these politics and property power relations.
Responding to these concerns, the CGE’s Hlekani said the commission “heeds the call to be visible in customary jurisdiction to protect women”.
Hlekani also announced that the commission signed a memorandum of understanding with the House of Traditional Leaders in Limpopo on January 31, 2023. “The commission is hopeful that the signed understanding is a positive move in gaining access to customary jurisdiction and working with traditional leaders to resolve cases lodged with the commission. The research findings and the report will strengthen the commission’s monitoring efforts,” she said.
David Mtshali of the Legal Resources Centre applauded the research methodology, saying: “Dr Zamchiya went to the people and engaged with them”. He continued to say that security of tenure is a constitutional right in South Africa, enriched by Section 25 (6) of the constitution. The basis of tenure insecurity resulted from past racist laws or discriminative practices, but cotemporally customary law can lead to insecure tenure. Time and time again, our government has shown that they design policies that are not reflective of people’s realities. They don’t consult with the people. We saw with the Communal Tenure Bill of 2008- the people took it to court because they were not consulted to find out from them what tenure is, what makes it insecure, and what can make it secure. We need to go out there, engage and consult with the people.
- Customary tenure reform must allow women and men to choose the tenure system which is appropriate to their circumstances.
- Re-draft a new Communal Land Tenure Bill and amend the Traditional leadership and Governance Framework Act (TLGFA) and the Traditional and Khoi and San Leadership Act and Traditional Courts Act. To shift the balance of power to individuals, families and members of the community living on customary land because the current bill and laws vest too much power and authority over land in the traditional leaders.
- Where there are other family members with rights, residential and arable land rights should be vested in the families to avoid possible exclusion of other users, especially women and children, by one individual.
- New and/or amended land governance laws must ensure that women – whether they are married, single, poor, or living with disabilities – must have legally secure rights equivalent to those of men: with specific reference to the ‘ownership’ of residential plots and arable land along with clearly defined access rights to natural resources.
- Amendments to the Interim Protection of Informal Land Rights Act 31 of 1996 (IPLRA) should be before they are legislated. These amendments include a mechanism to ensure that smaller groups of people retain their rights to ensure their equal participation in community decision-making processes.
- Strengthen women’s land rights through a suitable, dynamic and affordable land records system. This can be achieved with the use and implementation of geospatial digital technology that can record multiple, nested and layered property rights in land, as well as more flexible customary land boundaries to reflect existing land rights.
- Government oversight via the judiciary, policing and independent/Chapter 9 institutions must work towards being more vigilant to stop violence against women.
- State institutions must stop the proliferation of predatory institutions.
- Traditional leaders to stop aiding or enabling land grabs by urban elites.
- Alternative dispute resolution mechanisms should be easily available and accessible to address rising land tenure conflicts..
- Support the development of mechanisms to ensure that women constitute 50% (both local and national levels) of land policy committees, land administration committees (including customary structures) and land conflict mediation committees at different levels of the government.
Going forward, PLAAS will continue to provide platforms for rural women and policymakers to ensure that women’s concerns are voiced, and their needs are heard. Following the disappointing act of government representatives and traditional leaders pulling out of the dialogue, PLAAS and Nkuzi will seek out alternative avenues through which to share our findings. PLAAS is organizing a regional policy dialogue event to be held in March 2023, where the research project findings will be presented to representatives from the AU and SADC. National policymakers from the four study countries will also attend to ensure the ongoing harmonization of national and regional policies on women’s land rights.
Read more about the study on the PLAAS website here
The dialogue was held by PLAAS in partnership with the Nkuzi Development Association and with financial support from the Austrian Development Agency (ADA), the operational unit of the Austrian Development Cooperation (ADC). We would like to thank ADC for its financial support. However, these views are entirely our own.
For interviews and further information about the impact of the formalization of customary land tenure in South Africa for women, please contact the following:
- Primary contact: Molatelo Mohale, Programme Manager, Nkuzi Development Association: email@example.com- +27 72388 1698
- Secondary contact: Shula Lebepe, Project Officer, Nkuzi Development Association: firstname.lastname@example.org- +270825663338
For further information about the PLAAS study, please contact:
- Dr Phillan Zamchiya, Senior Researcher: email@example.com
Issued by the Institute for Poverty, Land and Agrarian Studies
PLAAS is an independent Policy Research Institute within the Faculty for Economic and Management Sciences at the University of the Western Cape.
Nkuzi Development Association is an NGO based in Limpopo, that does important work on land issues relating to access to land, security of tenure, food security, management of natural resources and Integrated local economic development.
About Austrian Development Cooperation
Austrian Development Cooperation supports countries in Africa, Asia, South Eastern and Eastern Europe in their sustainable development. The Federal Ministry for European and International Affairs plans the strategies. The Austrian Development Agency (ADA), the operational unit of Austrian Development Cooperation, implements programmes and projects together with public institutions, civil society organizations as well as enterprises.