Addressing shortcomings of land tenure reform in customary land rights

February 15th, 2018, Published in Articles: EE Publishers, Articles: PositionIT, Featured: PositionIT

Despite over two decades of intervention, land reform in South Africa is failing [1; 2]. The failure of land reform is attributed to an inappropriate logic of land reform [2], which we link to differences in how land is understood, giving rise to application of inappropriate theory for the context [3, 4].

For land reform to become successful, the process and outcomes should be significant for existing land rights-holders. Sustainability also needs to be built into any land administration systems linked to land reform. These are the three Ss – Success, Sustainability, and Significance [5, 6]. They are mutually interdependent: land reform won’t be Successful without Sustainability and Significance.

Success is the achievement of the goals of development. Sustainability is the ability of the cadastral system to keep on being successful. If it’s not Sustainable, then it will eventually fail and hence cease to be Successful. To be Successful and Sustainable, the goals of development should arise from the citizens’ or communities’ needs, which means that the goals will carry Significance for them. People are unlikely to use a land administration system with which they don’t identify. Only if the goals of development are Significant for the beneficiaries of development, will they buy into the development, which fosters its Success and Sustainability.

Land reform

Land reform comprises of three elements (Fig. 1): land restitution, land redistribution, and land tenure reform [7, 8, 9].

  • Land restitution is about giving people back the land that was taken from them due to past racially motivated and discriminatory legislation. As geomaticians, we should be at the forefront of this process, because it involves land and the location of that land and the management of South Africa’s land.
  • Land redistribution tackles the inequitable racial distribution of land in the country by making land available for ownership by previously disadvantaged people. Under the latest iteration, the Proactive Land Acquisition Strategy (PLAS), the State is purchasing farmland and making it available for lease by communities.
  • Land tenure reform is about securing and protecting customary and informal land rights that were left vulnerable by earlier land policies and apartheid [9]. It serves to recognise locally held rights and to transfer power over those rights to the land rights-holders [10].

Land tenure may be insecure when land rights-holders are uncertain that their rights to land will be upheld in the face of challenges to those rights. Security of tenure is improved when land rights are recognised as legitimate by relevant stakeholders, and legal by the State [11]. In South Africa, land tenure security is a problem for four categories of land rights-holders [12, 13]:

  1. Farm labourers and their families living on privately owned land,
  2. People living on former mission stations – the so-called ‘coloured rural areas’,
  3. People living in situations of insecure tenure in urban areas, such as informal settlements and backyard dwellings, and
  4. People living under customary tenure systems in the rural areas of the former Bantustans, – the so-called “communal areas”. It is this category of land rights-holder that forms the focus of our current research.
Fig. 1: Land Reform in South Africa and the focus area for this research.

Fig. 1: Land Reform in South Africa and the focus area for this research.

Constitutional obligation

Section 25(6) of the Constitution of the Republic of South Africa states: “A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.”

Hence, the government is obligated to pass legislation that secures land tenure for people whose tenure is insecure because of apartheid. Various pieces of legislation have been enacted for these different categories and in response to the State’s obligation to provide secure land tenure:

  1. The Land Reform (Labour Tenants) Act 3 of 1996.
  2. The Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA).
  3. The Extension of Security of Tenure Act 62 of 1997 (ESTA).
  4. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE).

Of these laws, only IPILRA applies to so-called communal areas [2]. While this is a very good piece of legislation, it is interim legislation and needs to be renewed every year. It is also little-known and oft-overlooked by developers. Despite over two decades of democracy and the State’s obligation under Section 25(6), there is currently no permanent legislation providing tenure security for people living in so-called communal areas.

In 1999 there was a Land Rights Bill, but this was thrown out in 2000, when the ministry changed hands [14], and replaced by the Communal Land Rights Act 11 of 2004 (CLaRA). This was never enacted and was found to be unconstitutional on procedural grounds in 2010. We now sit with the Communal Land Tenure Bill (CLTB) which is currently before Parliament. The CLTB is facing the same kind of opposition that CLaRA faced, so that even if it is passed into law, it is likely to face stiff opposition in the courts. There is a gap in the legislation that needs to be filled because the people affected, those who call the so-called communal areas their home, comprise nearly 60% of the population of South Africa [15].

Communal versus customary

Thus far, we have been referring to customary and so-called communal areas. Cousins [16] notes that the terms “customary”, “communal”, and “traditional” are often and incorrectly used as synonyms1, and asserts that it is important that these terms be understood as distinct. The conflation of “communal” and “customary” is attributed to misconceptions about customary land tenure by colonial authorities. “Because colonial governments did not find conceptions of land holding that were equivalent to that of fee simple or exclusive land ownership among colonized peoples, it was assumed that landholding [sic.] was vested in the community” [17], whereas land rights may actually be either individualised or communal [18]. Despite empirical evidence that “customary tenure is not exclusively communal”, the “communal paradigm” persists in land policies and legislation [19].

Examples of such legislation in South Africa are CLaRA, the CLTB, and the Traditional Leadership and Governance Framework Act (no. 41 of 2003). In its submission to Parliament on the CLTB, the Land Governance Transformation Network (LGTN) asserted that the communal descriptor “… derives from colonial and apartheid constructions of tenure where successive white minority governments liked to emphasise the fundamental differences between white-owned land and African occupied land… What most African tenures have in common is that rights are held, transmitted, and controlled at the level of the family… This is not strictly ‘communal’. By defining it as such, the point of departure of [the] CLTB is problematic from the start” [20].

In the interests of decolonisation, to avoid confusion, and following the examples of [21] and [18], in this article customary is preferred over communal or traditional. This is to avoid the communal paradigm, with its colonial connotations, while highlighting that access to land is via “social norms and networks… where local powers play an important role in land rights regulation and conflicts resolution” [18]. It is also to acknowledge that all “traditional” knowledge and practice is influenced by the current and broader society [22, 23, 24], and that the types of tenure systems under investigation draw predominately from customary law.

Fig. 2: Customary tenure systems operating in the former Transkei region of the Eastern Cape, South Africa (Credit: Simon Hull)

Fig. 2: Customary tenure systems operating in the former Transkei region of the Eastern Cape, South Africa. (Credit: Simon Hull)

Why is this important?

While the State dallies around conceptions of land ownership, proposing bills that are unimplementable and serve to empower the few at the expense of the majority, most of the citizens of South Africa are living with insecure tenure. This means that, not only is their land holding insecure, but they are also not able to reap the full benefits of the land they live on. When developers arrive to mine or construct wind farms in customary areas, they consult with the chiefs and local authorities. The economic and social benefits of such transactions should trickle down to the community households, but it is far too easy for some to take more than their fair share. Having secure tenure should lead to improved opportunity for development and help communities to rise out of poverty.

How land tenure reform in customary areas impacts us as Geomatics professionals depends on how the State eventually decides to improve tenure security – and we should play a role in that process. The question we should be asking is, how could customary and informal land tenures be secured and protected? Because, the answer to that question determines the extent of the impact on our profession. But, no matter the eventual outcome, securing tenure will always involve some sort of property demarcation and recordation. Demarcation might be simply sketching boundary lines on an aerial photo, erecting terminal cairns, demarcating fence-lines in consultation with the community, or recording locations using handheld GPS receivers. Recording land rights-holders could take the form of a list of names in a notebook, scribbled onto the aerial photo, or kept in the collective memories of the community (see Fig. 3).

Whether it be through formal survey or some other method, improving tenure security must involve demarcation and recording of land rights-holders by someone. That someone should be a registered geospatial professional because determining the position of property boundaries is our specialist domain. But the present system of land administration, as governed by the Land Survey Act (no. 8 of 1997) and Deeds Registry Act (no. 47 of 1937), is unable to accommodate these less formal forms of land rights. What is required is development of the cadastral system to accommodate customary land rights.

Fig. 3: Two lever arch files containing (unregistered) land records of the Dumalisile tribe, Eastern Cape Province, South Africa. (Credit: Simon Hull)

Fig. 3: Two lever arch files containing (unregistered) land records of the Dumalisile tribe, Eastern Cape Province, South Africa. (Credit: Simon Hull)

Some say that individual titling is the way forward, because only absolute ownership provides individuals with complete tenure security [25, 26, 27]. But such an approach is widely rejected by customary land rights-holders [28, 29, 30]. In conducting interviews with people living on tribal land in the Eastern Cape, the first author found that their biggest fears around individual titling were the loss of identity, the loss of ownership, and the threat of rates and taxes. People recognised that individual titling would allow anyone to sell or buy their land, leading to the dilution of community identity and the eventual death of their customs and traditions. They also recognised that banks could repossess their land if they defaulted on loan repayments, leading ironically to a loss of ownership and increased tenure insecurity. And, with individual title, there is no more hiding from rates and taxes. Instead they proposed various forms of group tenure, wherein families or kinship groups could own land as a collective, as proposed in the CLTB. This poses its own problems, because land rights and even property boundaries in customary areas are not static but change with time and circumstance [30]. And one plot of land may have multiple people or groups of people who identify themselves as owners, without conflict [31].

Through interviews with izinduna and a representative from the Eastern Cape House of Traditional Leaders, we learned that the tribal authorities prefer it if they can be the owners, not the communities. They see themselves as the custodians of communal land, but this was firmly rejected by the community members interviewed on the basis that they would be further disempowered and relegated to subjects of the chief, not citizens of the country. The role of traditional leaders, they said, should be to protect customs and traditions, while land administration should be left in the hands of the people living on the land.

The conceptual framework

Hopefully, from the foregoing, the complexity of the problem is made apparent. To help land tenure reform in customary areas achieve the three Ss, we have proposed a conceptual framework. The framework is conceptual because it draws from published literature, not first-hand experience, although most of the literature consulted used case studies in their research, so there are elements of groundedness incorporated into the framework. What we did was to evaluate 20 publications related to land administration reform through the different lenses of a human rights-based approach to development, pro-poor development, and good governance aspects. We then took those parts of the frameworks that were sensitive to these approaches and incorporated them into our conceptual framework (see Fig. 4) [5, 6].

Fig. 4: Evaluating frameworks (Fw) based on their sensitivity to various approaches to derive a conceptual framework [6].

Fig. 4: Evaluating frameworks (Fw) based on their sensitivity to various approaches to derive a conceptual framework [6].

The resultant framework consists of four levels of specificity: there are evaluation areas, broken down into aspects, further broken down into elements, and assessed via indicators. At the area and aspect level, the framework should have universal applicability. But as the specificity increases, the field of application of the framework narrows. Hence the proposed elements and indicators are specific for customary land rights areas, but others may propose different elements and indicators for different contexts. There are five evaluation areas: underlying theory, change drivers, change process, land administration system (LAS), and review process (see Fig. 5).

Fig. 5: Structure of the conceptual framework.

Fig. 5: Structure of the conceptual framework.

Underlying theory

Developers tend to adopt methods with which they are familiar and that were successful in the past. The theory informing development hence goes unspoken and unnoticed. But conscious decisions at the theory level are important, especially when seeking to undertake cadastral systems development in contexts differing from well understood western norms, because the value and meaning of land to land rights-holders is context-specific [32].

We have identified six dominant land-related theories and placed them on a continuum related to their approach to formalisation (Fig. 7).

  • Replacement Theory identifies customary tenure as a hindrance to economic development and promotes their replacement with individual titles to foster economic development.
  • Land Titling Theory (LTT) states that land titles provide tenure security, and can be used for mortgage finance, which leads to economic development. The South African government’s approach to land tenure reform seems to draw strongly from this theoretical background.
  • The Evolutionary Theory of Land Rights (ETLR) claims that land rights will spontaneously evolve towards individual titles under pressure from population growth, urbanisation, economics, etc.

These three theories are together called “formalisation theories”. They claim that, whatever the driver might be, individualisation is desirable because it leads to tenure security and economic development.

The next three theories, the “emerging theories” move away from the focus on individualisation as a solution to current problems.

  • Traditionalist Theory, in contrast to Replacement Theory, claims that customary tenure provides sufficient tenure security and that individualisation actually breaks down the social structure, leading to other problems. This was one of the fears expressed by customary land rights-holders that were interviewed.
  • Adaptation Theory recognises the Evolutionary Theory but sees individualisation as a long-term goal. Land rights may be incrementally formalised as necessary and complete individualisation may or may not ever be achieved.
  • The Unified Model breaks away from the focus on ownership and emphasises land use rights instead.

Fig. 6: A continuum for understanding land-related theories [6].

Fig. 6: A continuum for understanding land-related theories [6].

Proponents of formalisation theories tend to view land as a commodity that can be bought and sold for profit, or used as collateral for loans, and hence land titling is seen as a way out of poverty [25, 26, 27]. This is a very “Western”, capitalist conception of land, and one that doesn’t sit well with customary land rights-holders. They see themselves as belonging to land, rather than land belonging to them. From a broadly African worldview, the right to hold land is extended to include the living, the unborn, and the deceased [see 33; as cited by 34].

Land rights form part of an African spiritual and communal connection to the earth. Hence, in customary areas, there are religious, social, and political connotations to land and any reform policy should be aware of these. It is inconceivable for individuals to sell land, because it doesn’t belong to them. People – the community that share customs and traditions – belong to the land. Any talk of land ownership must accommodate a multi-generational perspective if Significance is to be achieved. Depending on which underlying theory you are drawing from, ownership can take on very different meanings.

The underlying theory informs how land is understood as well as the goals of development. The goals determine the conceptual end state and hence the measures of success. If drawing from the formalisation group of theories, the measures of success will relate to e.g. numbers of land parcels registered [35] or some economic indicators [36, 37]. We see such indicators of success being applied to the Rwandan land regularisation project, where development agents boast of 10-million land parcels registered in four to five years [38]. By contrast, if drawing from the emerging group of theories, goals for development may be more social than economic: numbers of schools built, roads tarred, services installed, and so on. These were the desires of the land rights-holders interviewed in the Eastern Cape. What development agents should be aware of is that the theory they are drawing from influences the way that they understand land and the goals for development. And these must be aligned to the land rights-holders’ understanding and goals, or else the development project will not be Significant for them and will eventually fail.

Responsive change drivers

The goals for development, informed by the underlying theory, arise in response to drivers of change. These may be demand- or supply-related [39].

Demand-related drivers refer to external pressures or internal deficiencies [40]. For example, population growth, climate change, or political will can put pressure on the land administration system, prompting change. Or the system can be shown to be deficient in some way, requiring improvements that lead to development. Such deficiencies may relate to tenure insecurity, a poorly functioning land market, affordability of services, or a dysfunctional land administration system.

Supply-related drivers arise from the supply of new technologies, theories, and policies. New technologies create new opportunities for measurement and recording of cadastral information [41, 42], but we caution that new technology is not a panacea for current deficiencies [43]. Using new technologies only leads to Success and Sustainability when the users have the capacity to adapt to the change [44]. New theories influence what should be recorded and why. And new policies, such as the Communal Land Tenure Policy of 2013, or the 1997 White Paper on Land Reform, supply the political will to drive change [45].

To achieve Significance, the goals arising from each of these drivers should be related to the communities’ needs and in line with their understanding of land. Failure to ensure such alignment means imposing a solution that is inappropriate for the context, leading to the ultimate failure of the programme or massive expenditure to keep it running. In South Africa, we see such a situation unfolding where people have been given title to land, but the situation on the ground is not reflected in the deeds registry [14, 46].

The same problem is reported in other African countries such as Benin and Côte d’Ivoire [18]. This is because people don’t identify with the individual ownership model that the State is using. If a deceased ancestor’s name is on the title deed, that is fine with them, because the property is still in the family and the deceased ancestor has as much right to the land as their living and not-yet-born descendants [46]. But the Deeds Registry finds such a situation abhorrent and undertakes expensive and lengthy title readjustment programmes to bring the title deeds into alignment with the situation on the ground. If the State could acknowledge that their paradigm is inappropriate, they could tackle the problem from a different angle – an angle that makes sense to the land rights-holders.

Change process

Before any change is undertaken, the participants should identify and agree on the problems with the current situation, and come to some conceptual idea of what getting to the end state should look like. This leads to a gap analysis in which all role-players identify the differences between the current situation and the desired situation, and from this formulate shared goals for the intervention. A Successful intervention results in the closure of the gap between the initial state and the end state. This occurs when the goals for change are met. The context-specific citizens’ and communities’ needs should inform goals along with the states’ obligations to initiate change. If these motivations for cadastral systems development are brought into alignment, Success relates to Significance, which fosters Sustainability.

It is cautioned that this scenario is utopian in its presentation of the participants being of one mind and goals as static and non-competing. There is likely a divergence of world views and conceptual understandings of the end state of cadastral development. Goals may be competing and even shifting, which is typical of “wicked” contexts [47, 48]. Getting to the end state therefore requires good leadership [2] and effective collaboration [40, 49].

The presence and commitment of a strong leader may initiate and sustain collaboration by different parties towards a common goal. Strong leaders should be committed to the process of development and be unbiased and impartial with respect to the outcomes and preferences of participants. They should have sufficient vision and faith in the process to overcome resistance to change, yet be willing to take the risk that the development project will yield its anticipated outcomes. Such vision should be tempered by realistic expectations. But such perfect leaders don’t exist in the real world, where leaders may be corrupt and driven by personal desires that are not shared by the community [34, 50]. In the context of customary land rights, leadership may be contested [51], and the Success of a development initiative may rest on the community’s acceptance or rejection of those in leadership roles, whether customarily or legally defined.

In 2014, the first author went to Germany and the Netherlands to learn about cadastral systems development in developed contexts. In Germany in recent years, they successfully completed the migration from an old, out-dated cadastral system to a new, future-oriented system [52]. Good leadership was a key ingredient for this success. The relevant ministry decreed that the change would take place. They had the vision and were willing to take the calculated risk that the new system would be better than the old system. Importantly, they had assessed the capacity of all relevant stakeholders to adapt to the new system. Had the vision exceeded the industry’s capacity to adopt the new system, the migration would have failed. But the success of the project, despite teething problems, indicates that the expectations of the leadership were realistic and their faith in the industry to adapt was well-founded.

Another thing that the Germans did right was to build on existing practice. They took a system that was working, albeit outdated, and instead of throwing it out altogether, they adapted and improved on it. We should be doing the same for customary land tenure reform, because there is an informal, unrecognised land administration system in operation. People know where their boundaries are. They know who has rights to do what, where and when. They know the system of land allocation. By incorporating such local indigenous knowledge and institutional arrangements into cadastral systems development, Significance is assured, and Success and Sustainability will follow. Of course, this requires innovative thinking, because the current cadastral system can’t accommodate the types of multi-layered, flexible tenure in customary areas.

Customs and traditions run deep in South Africa. If we try to force them to change in compliance with an imposed formal LAS, we will merely be creating a dual land tenure system [14, 18, 46]. We will have the formal system, which is how things are “supposed to be”, and also the reality on the ground. What we should be aiming for, and what was proposed in the White Paper on Land Policy [7], is a unitary system that accommodates all the different types of land tenure in existence in the country. That doesn’t mean throwing anything out; it means building on existing practices, whether they be legally or customarily defined. We already have a good, formal cadastral system. There are already functional, customary tenure systems in existence. We need to bring these together, keeping the former without destroying the latter.

One more thing that the Germans did right was to take sufficient time to do the job properly. They started their project in 1995 and initially planned to finish it by 2002. Budgetary constraints and the complexity of the project slowed them down so that they only finished in 2015 [53]. That’s 20 years from initial idea to completion. The Dutch had a similar experience. Their cadastral renewal project started in 1996 and they initially thought it would be completed in five years. They are now on the third iteration of the project and they hope to be done by 2020 [54].

Our own Project Vulindlela, the migration from paper-based to e-cadastral system [55], met with similar unrealistic expectations of how long it would take (Fig. 7). But whereas the Germans were able to push through and keep their project going to completion, Project Vulindlela has stalled. The difference is in good leadership and capacity. Regarding capacity, all three countries – Germany, the Netherlands, and South Africa – bit off more than they could chew. The difference is that the European countries were able to boost the capacity of their organisations and stakeholders to adapt to the new requirements as the complexity of the project was revealed, whereas in South Africa, State capacity is inadequate [2]. The minimal corruptive influences in the European countries also helped.

Fig. 7: Timeline to complete cadastral systems development.

Fig. 7: Timeline to complete cadastral systems development.

Regarding collaboration, the State and the land rights-holders need to get together and agree on shared goals stemming from a shared paradigm or underlying theory. But, this is not easy. There are many stakeholders including the community members, the traditional authorities, the local authorities, the Department of Rural Development and Land Reform (DRDLR), and developers whether locally based or abroad. Each stakeholder may have their own idea about what should be done and how. Successful development that is Significant and Sustainable needs effective engagement to get all stakeholders to the table to agree on a shared vision for the end state and shared theory of action of how to get there [40]. This topic is too big to cover here, so suffice it to say that all relevant stakeholders need to leave their prejudice at the door and acknowledge that there is no single, correct way of doing things.

Land administration system context

As part of a country’s national development plan, land policy forms the highest-level instrument for stating the strategies and objectives for the social, economic, and environmental use of land [56]. Below this are the strategic, management and implementation, and operational levels (see Fig. 8), followed by the review process [57, 58]. The setting of goals happens at the policy level while objectives, at the strategic level, are realised through action that results in outcomes (at the implementation level) requiring review. From new policy usually flows new legislation and hence practice. Customary needs, norms, and values should form part of the process of policy and legislation formulation. Without active participation, there is likely to be a disconnect between policy and needs, and hence Significance of outcomes for the community will suffer, Success will be inappropriately measured, and Sustainability will be unlikely.

Fig. 8: Hierarchy and functions of elements of Land Administration Systems [6].

Fig. 8: Hierarchy and functions of elements of Land Administration Systems [6].

Pro-poor land policy makes the interests of the poor and vulnerable the subject of a national development plan [32]. This requires recognising and protecting their existing, customary land rights, showing sensitivity to class and gender concerns, while ensuring that productivity and livelihood are improved. Care must be taken to ensure that land reform policy doesn’t decrease agricultural productivity, as has already happened in some places. Rather, the poor should be supported to acquire the skills and resources to effectively utilise the land [59]. This has been one of the major failings of land reform in South Africa. The focus has been on the numbers of hectares transferred, or the percentages of land holdings, all of which are political goals stemming from land titling theory. Pro-poor land policy focuses on the needs of the poor and ensures that they have the necessary support and capacity to realise those needs.

The goal for land tenure reform is to improve tenure security, and this is realised through the setting of objectives at the strategic level. This can be done by answering the following three questions:

  • What rights in land are currently held, which of these are insecure, and why?
  • Can legitimacy, legality and/or certainty be improved with the existing land rights type?
  • Is the land rights type in use inappropriate, indicating the need for changing the rights type, in the eyes of which role-players and why?

The first question is the job of the land rights enquirer proposed by the CLTB. If this is a single person, then looking at everything that is required of them led us to the conclusion that this is some kind of superhero. Customary land tenure is multi-layered and flexible, and unpacking the reality on the ground requires a team of experts including lawyers, sociologists, and surveyors. It is beyond the capability of an individual. Only once the status quo is made visible, can we assess how to improve the tenure security, which is the topic of the other two questions. This leads us to the implementation level.

At this level we need to decide how to record or register land rights, and this will require innovative thinking, because customary land rights don’t fit nicely into a deed- or title-based system. Land records in customary areas are recorded at the community level, which means that if you want to know who has rights to what, you ask. There are customary systems of land allocation in place, governed by amakhosi and izinduna, and the community is always involved. Even if it’s not written down anywhere, an informal cadastre exists in the minds of the community. And this is not a static system, and nor is the people-land relationship a one-to-one relationship. People belong to the land, so many people can have different rights to the same piece of land at the same or different times [60]. Once the land rights situation is made visible, we can identify how legitimacy, legality, and certainty of land rights can be improved [11], and then the cadastral system can be improved to accommodate the recording of these rights.

Concern also needs to be given to the standards used for surveying, demarcation, and registration. We have a good formal system with exacting standards. But such exacting standards are inappropriate for customary tenure systems, where boundaries don’t need to be so precisely defined. This will require changes to the Land Survey Act to allow, for example, rectilinear boundaries defined using aerial imagery, single point cadastres, or even oral evidence. Careful consideration needs to be given to what happens at the boundary, where the existing formal, precise cadastre meets the fit-for-purpose, customary cadastre.

Review process

Finally, the review process is an essential part of the development cycle [57,61]. Outcomes should be reviewed against the goals of development to see whether that gap between current state and desired future state has closed. And the impact of development should be assessed to see whether community well-being has improved or not. The results of the review process should be used to adapt the drivers influencing development, and so the cycle continues, because development is never finished.

Reviews should happen at well-defined intervals throughout the development process, not just at the end. And the reviewers should include people or organisations external to the development process, to give unbiased feedback [57, 62]. Feedback from the State and from the communities experiencing the fruits of development should also be considered. This increases the quality of the results through building trust and creating shared values [62].

Interestingly, there was no review process in the German cadastral development project mentioned earlier. They decided to spend Euros on improving the system, rather than on evaluating the improvement [63], because they thought that improved technology should lead to more efficiency and positive outcomes [64]. While that may have worked for them, in their first world, developed context, this is a very dangerous position for us to take, because there is no guarantee that improved technology will improve tenure security in customary areas [43]. Throwing technology at a problem won’t necessarily solve it, and might create more problems.


In conclusion, our recommendations can be summed up as follows:

  1. The reason that customary land tenure reform has been a non-starter in the land reform process in South Africa is because of a mismatch between the paradigm or underlying theory informing development on the side of the State and the land rights-holders.
  2. There needs to be an overhaul of the entire land administration system in the country to allow for a unitary, non-discriminatory system that accommodates the land rights of every individual and community in the country. This is going to require innovative thinking because the current formal system cannot accommodate customary tenure, and customary tenure won’t change to fit the formal system.
  3. To address this challenge, we have prepared a framework to guide development of the cadastral system that takes the Significance of development into account for the land rights-holders [6]. Only when development projects are Significant, will they be Successful and Sustainable too. The framework addresses the theory underpinning development, highlights the drivers influencing development, considers the change process, proposes elements for the land administration system, and expects there to be a review process.

1 “Indigenous” and “tribal” may be added to that list.


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Contact Simon Hull, UCT, Tel 021 650-3574,

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