LAND AND THE CADASTRE IN SOUTH AFRICA: ITS HISTORY
AND PRESENT GOVERNMENT POLICY
BY DR. CLARISSA FOURIE
SCHOOL OF CIVIL ENGINEERING, SURVEYING AND CONSTRUCTION
UNIVERSITY OF NATAL (DURBAN), SOUTH AFRICA
Paper presented as a Guest Lecture at the International
Institute of Aerospace Survey and Earth Sciences (ITC), Enschede, The
Netherlands, 1st November, 2000.
A majority government, led by the African National
Congress under President Nelson Mandela, came to power in April, 1994
in South Africa, and one of its major policy and legislative focuses has
been to address the injustices of the apartheid past in relation to land.
It is only through understanding the history that it is possible to comprehend
the challenges facing the new majority government, and the reasons behind
its legislative programme. Also, it is only by grasping the enormity of
the problems being faced, that it can be understood why the land and cadastral
issue is not being solved in the short term in South Africa, but could
well take generations. I will therefore briefly look at this history,
before reviewing some of the new land legislation in the country, and
assessing whether it is delivering the desired results. This will of necessity
be a brief overview of a complex subject.
History of land tenure in South Africa
By the beginning of the twentieth century Black South
Africans had been pushed into small areas of the country by the colonisers
-both the Dutch and then the British. The pattern of racial discrimination
in South Africa probably began as early as 1653 when colonisation started.
I will focus on historical developments in the twentieth century, as this
is the era when specific Acts were passed which formalised racial discrimination,
or apartheid, with respect to the land.
There were two major Land Acts passed early in the twentieth century,
which changed the face of South African society and whose effects will
be felt for generations to come. These were the 1913 Land Act No.27 and
the 1936 Trust and Land Act No. 18. These Acts effectively reserved 87
percent of the national surface of the country for Whites, Coloureds and
Indians, but mostly for Whites. Black South Africans, probably about 75
percent of the population, were limited to 13 percent of the country's
land. That is, Black South Africans could only occupy or own 13 percent
of South Africa. I believe this is the largest ratio in the world of discriminatory
land holding, either between races or 'haves and have-nots.' This has
to be dealt with by the new South African government's land reform programme.
These two Land Acts also had other implications for Black South Africans.
Most of the areas they could legally own or occupy were in rural South
Africa. Blacks were only allowed as 'temporary residents' in the cities
and towns, which were designated for White, Coloured and Indian ownership.
From the 1950s Whites, Coloureds and Indians had to live in their own
race group areas, with Whites having the largest amount and generally
the best located land. Because Blacks could not legally reside in the
cities and towns permanently, except under special conditions, they had
to obtain land in the cities illegally.
This, together with the fact that so little land was available for Black
occupation in general, meant that large informal settlements, sometimes
known as squatter settlements, developed in and around most cities and
towns. While the situation has improved dramatically in the last 5 years,
this is still the picture today as we struggle to redistribute the land
Let me give you an example. Johannesburg, the largest city in South Africa,
has about 360 separate informal settlements located within its boundaries.
The upgrading of these settlements, both in terms of services and titles,
is a major cadastral challenge. It is an area where most of the jobs for
land surveyors are focused.
In regard to the cities, the policy of apartheid also meant that the formal
housing stock was not planned for the whole population at that time. This
created enormous housing shortages in the cities and towns, especially
for low income people. The new government came to power in 1994 intending
to build a million houses over the next 5 years. Although the development
of low income housing was slow to start, by early 1999 745,717 houses
had been completed or were under construction, with 350,000 houses being
completed alone in 1998. This compares very favourably with other large
scale housing programmes in the world -Cuba built 500,000 over 25 years
and 85,000 in the first 5 years; Sweden built a million houses in 10 years,
250,000 in the first 5 years.
The 1913 and 1936 Land Acts identified about 13 percent of the national
land surface for Black South African occupation. After 1948, when apartheid
was introduced and refined further, these same areas, became the Homelands
or 'Bantustans.' The South African government's intention was that these
areas would become 'independent states' separate from the South African
state. This would effectively, in their eyes, remove the Black citizens
of these states from South Africa.
This part of South Africa's history is probably not news to an audience
such as this, but the land ownership and cadastral implications probably
is news. Whereas previously the 13 percent was for Black occupation, from
the 1950s a new filter was placed on the 13 percent. Only Xhosa speaking
Blacks could live in the Transkei and own or occupy land there. Zulu speakers
had to leave and live in KwaZulu. Tswana speakers could only acquire land
in Bophutatswana. Of course a number of these areas took so-called 'independence'
-Transkei, Bophutatswana, Venda and Ciskei. After their so-called 'independence'
some of these 'Bantustans' or homelands started changing their cadastral
systems. One even tried to introduce general boundaries, whereas South
Africa has an accurately beaconed boundary system. Consider the implications
of this when these areas again became part of the jurisdiction of South
Africa in April 1994.
The 1913 and 1936 Land Acts also introduced inferior forms of land titles
for Blacks. In 1936 the South African Development Trust was formed, in
which all land in the 13 percent, which was not already held by Blacks
in freehold, became vested in the Trust. For the KwaZulu area only about
5 percent of KwaZulu was held by individual Black freehold owners and
the rest was held by the South African Development Trust. This Trust made
land available in this 13 percent to Blacks only, by allocating a range
of highly restrictive titles. Permissions to occupy, 99 year leasehold
which could be cancelled administratively, customary rights, house rentals
and so on. A condition of title was always that it had to be occupied
by a Black person and often the state could take the land back for unacceptable,
read 'political' behaviour.
Some of these titles, for example the 99 year leasehold, included proper
surveys, but the underlying title was not first extinguished. The new
government is now trying to upgrade all these titles and give people freehold.
So the Land Registration Offices and professions have been very involved
in the upgrading of these titles, but it is a slow process.
The 1913 and 1936 Land Acts also had major implications for land delivery
systems in South Africa. In the 13 percent part of South Africa, there
were special land delivery procedures known as Proclamation R293 of 1962
for proclaimed urban areas and R188 of 1969 for rural areas. As each homeland
or 'Bantustan' took so-called 'independence' they developed their own
version of R293. So South Africa was a jigsaw puzzle of different pieces
of legislation in relation to land delivery. This aspect had to be taken
into account by professionals well after 1994, as different land delivery
projects still had to be finalised, which had been started in different
areas under different pieces of legislation. Even today we have what are
still known as R293 townships that land professionals are attempting to
convert to freehold areas, but are held back by the provincial planning
ordinances which do not always accommodate more basic planning approaches.
As I have already indicated, the 1913 and 1936 Land Act areas became the
homelands or 'Bantustans' of the apartheid government. Now, although a
large number of Blacks had been pushed into these same areas by the turn
of the century, there were many Blacks who lived outside of these designated
areas. Some of these Blacks even owned freehold that they had acquired
prior to 1913.
As the location of these people outside of the designated areas did not
suit apartheid policies, the government removed millions of people, at
least 3 million, to make the spatial units contiguous in racial terms.
This historical removal of Black people from large tracks of land, that
had been designated for Whites, to areas in the homelands or 'Bantustans'
has resulted in specific policies by the new government, so I will deal
with this aspect in some detail. However, before I do that, it must be
noted that other race groups besides Blacks were also removed to bring
about racial spatial distribution. For example, many so-called Coloureds
lost land in Cape Town -and District 6 is a well known name. But in terms
of scale the removal of Blacks far out-stripped the effects on other race
Blacks who owned freehold land outside of the 13 percent had their land
expropriated by the apartheid government. These areas were known as ‘Black
Spots’ as they were pieces of land settled and owned by Blacks in areas
designated for Whites. In government circles they were known as 'badly
situated' areas because they were not contiguous with the homeland boundaries.
Once the areas were expropriated, the residents were then resettled into
the closest homeland. The resettled people were often given land that
already belonged to a tribe within that homeland, leading to ongoing conflict.
They were given a weak form of title deed -a permission to occupy.
Also, in a number of areas of South Africa, namely KwaZulu, and Mpumalanga,
there are a category of people called 'Labour Tenants' These are farm
workers who have ancestral claims in the area. For example, in one area
of what used to the Transvaal, the Voortrekker farmers defeated a local
tribe and took them as indentured labour around 1880. This tribe worked
as indentured labour for 10 years and subsequently became farm workers
in the area where they had ancestral rights. These farms over time became
registered in the South African cadastral system under the name of the
White owner. The indigenous rights of the tribespeople, who became farm
labourers, were not recorded on the title at all.
Even though the apartheid planners did not want Black South Africans to
be part of the South African state, they did want Blacks to work in the
cities. Consequently large urban areas called 'townships' were generally
located within the closest homeland area to a city or town so that Blacks
could commute to the so-called 'White' cities. A daily commuting distance
of 180 kilometres was considered acceptable by the apartheid authorities.
In some situations, such as in the case of Soweto, dormitory townships
were also developed outside those cities that were too far from homelands.
This approach meant that, unlike other cities in the world, the rich lived
in the central city and the poor lived in the outside areas. This planning
approach also pushed up the costs of servicing in general and transport
costs for the poor in particular.
Finally, the 1913 and 1936 Land Acts were abolished only in 1991 by the
Abolition of Racially Based Measurements Amendment Act No. 133. Eliminating
racially discriminatory legislation on its own has been an uphill battle
for the new government, as there are over 17,000 separate pieces of legislation
This is a broad summary of the history of South Africa that serves as
a backdrop to most of the legislation being passed by the new government.
It is also the social context that is challenging our cadastral, land
registration and planning systems, which were largely set up to serve
the White minority settlers in the country.
The new government's land policy and legislative programme
The new government has developed a range of new land policies and legislation
to redress the social injustices of the past and to turn the apartheid
history of the country around. These policies include:-
1. Redistribution of land
2. Restitution of land to those who were removed
3. Large scale formal housing development for low income groups
4. Re-structuring the cities and towns
5. Giving land rights to labour tenants
6. Securing customary rights holders
7. Upgrading and giving title to informal settlements
8. Unifying the land delivery legislation and procedures
9. Rationalising administrative structures
10. Facilitating group registration approaches
11. Changing inferio r titles to freehold
12. Gender equality
13. Providing a comprehensive, user friendly, affordable, accessible,
transparent land information system, especially to the historically
Unification of the land administration
Two of the most crucial Acts passed were the Land Administration Act No.
2 of 1995 and the Land Affairs General Amendment Act No. 11 of 1995. If
we look at the map of the old pre-1994 South Africa, and compare it to
the new South Africa, it is possible to see that there have been dramatic
changes to our politico-administrative boundaries. Prior to majority rule
as of April, 1994, South Africa consisted of four provinces and ten homelands
or 'Bantustans.' On the day of the elections all the homelands with all
their different legislation, became absorbed into the larger South Africa
and simultaneously nine provinces were created. Act No. 2 dealt with the
delegation of powers to the provinces and local authorities, in terms
of the new constitution where land registration and cadastral policy is
a central government function, but planning, land delivery and the operation
of the cadastre and land registration system is a provincial function.
Act No. 11 attempted to make land legislation uniform across the entire
country to overcome the problems with differing legislation in the previous
'Bantustans.' Legislators, in drafting these Acts, had to take into account
54 separate pieces of legislation.
Each province and each homeland had different land delivery legislation.
Can you imagine the complexity that the land professionals had to deal
with in the first few years after majority rule, in undertaking land delivery,
increasing the formal housing stock, upgrading titles and re-distributing
the land. Just one small example is that all the titles in the country
had to be re-numbered. Also, all the titles kept on record in the homelands
had to be integrated into the main deeds registry system, a massive task
that is still ongoing, as generally the underlying titles have to be cleaned
In order to move away from the 13:87 percent ratio of racial land distribution,
the government is relying on a range of measures. Government does not
intend to pass a redistribution act. Instead they are relying on the willing
buyer-willing seller approach, and supplying a R16,000 (Fl. 5,300) grant
to low income families to enable them to buy the land. It is commonplace
for Black people now to pool their subsidies to buy up a commercial farm.
Housing is also obtained by using this subsidy. Also, the Department of
Land Affairs has set up pilot land reform programmes in most parts of
the country to help people to obtain land for farming, using the Provision
of Certain Land for Settlement Act 126 of 1993. By early 1999 1,034,161
subsidies had been approved.
With respect to the land registration and cadastral system, all land for
redistribution has to pass through our very sophisticated and expensive
Roman-Dutch system, which requires the extensive use of public and private
sector land professionals. This has proved very problematic for poor individuals,
and as many as one third of new owners might already have sold their recently
acquired house informally.
Under the Interim Constitution property could only be expropriated for
public purposes, such as hospitals and roads, and not for public interest,
such as land redistribution. This policy was changed under the final constitution
passed in 1996. Under the new constitution, section 25, land can be expropriated
for redistribution purposes. This option has not been used in any significant
way to date.
Finally, with respect to the redistribution of land, between 1994 and
1999, 465 projects were completed and 773,363 hectares has been redistributed.
However, this figure added to the 173,805 hectares distributed through
restitution, amounts to only 0.8 percent of the land, which is exceptionally
low especially given the low starting base of 13 percent. Despite its
massive resources relative to many other developing countries in terms
of land professionals and finance for land acquisition, the process of
redistribution is not working quickly enough.
Whereas the redistribution policy concerns the general redistribution
of land, the restitution policy concerns only specific parcels of land.
'Black spots' that were expropriated and the people re-settled into an
adjacent homeland are an example. The Black owner of that freehold land
who lost his/her title under apartheid may institute a claim against the
state to get that specific parcel of land back. That is, it is a claims
The restitution policy, as laid down in the Restitution of Land Rights
Act No. 22 of 1994, only allows claims dating back to the 19th June, 1913,
when the first Land Act was passed. This means that all previous claims
when most of the colonisation and settlement took place in the country
will not be allowed, including that of the First Nations in the country
such as the San, Strand lopers etc.
Claims for restitution are heard by a Land Claims court and the first
hearings started in 1996. That is, it took about 2 years to set up the
process administratively. There was a 3 year period for the lodgement
of claims; 5 years to finalise them; and 10 years to implement the court
The restitution of claims will be settled in a number of ways:-
1. By the restoration of the land lost under apartheid
2. By the provision of alternative land
3. By the payment of compensation
Some of the claims are on very high value land, such
as central Pretoria. There is one claim that has been made which covers
129 citrus farms in the Mpumalanga Province. Many of the claims have been
made by groups of people and especially tribes, rather than by individual
freehold owners who were expropriated. This has complicated the process
as evidence of these rights is not as easy to assess, as there are no
title deeds to substantiate these claims.
Altogether 63,000 claims for restitution were lodged by the closing date
in 1997. To date 6,560 have been settled at a cost to the state of R272,000,000
(Fl. 90,000,000) (Sunday Times: 20/8/2000). The Department of Land Affairs
is taking a fresh look at the restitution approach as the costs to the
state are considered to be unacceptably high, especially if one considers
the number of claims still outstanding
Other new legislation
A number of new laws have been passed namely the Land Reform (Labour Tenants)
Act No. 3 of 1996, the Interim Protection of Informal Rights Act No. 31
of 1996, the Communal Property Associations Act No. 28 of 1996, the Extension
of Security of Tenure Act No. 62 of 1997 and the Prevention of Illegal
Eviction from Unlawful Occupation of Land Act No. 19 of 1998. Many of
these laws have introduced English common law approaches into what was
a fairly rigid and absolute Roman-Dutch system. English common law approaches
tend to be more progressive in terms of the protection of human rights,
rather than property rights, which is critical in a situation such as
South Africa with its racially skewed land distribution. However, the
implementation has not always been easy.
Officials working with this range of acts argue that where claims are
made relative to other registered rights they are easier to solve. That
is, if a claim is made and described in terms of a farm boundary and a
farmers' rights, it is possible to obtain sufficient evidence of the vulnerable
person's rights to reach a settlement. However, where the rights claimed
are on unparcelled/unregistered state land and/or in a customary area,
there is generally insufficient evidence/records to be able to easily
reach a settlement. New and innovative cadastral/land registration approaches
still have to be developed to underpin a number of these Acts.
With respect to the Land reform (Labour Tenants) Act, as already explained,
in a number of areas in South Africa farm workers have ancestral rights
in the area. These rights were not placed on the Land Register when the
country was colonised. Only the rights of the White owner were registered.
The intention of this Act is to secure the land rights of these labour
tenants and make sure they acquire land. Also, the Act states that labour
tenants cannot be given notice and evicted from the farm unless and until
they have breached their contracts.
It has not always been possible to reach amicable agreements between farmers
and the labour tenants on their farms. The Farmers Union for example,
feel they own the freehold and the state cannot therefore give registered
rights on their land. Therefore, usually the implementation of the act
has lead to the purchase of the land occupied by the labour tenant/s,
either on an individual basis, or more often by a group of farm labourers,
utilising the R16,000 (Fl. 5,300) subsidy already described.
The Communal Property Association Act is a legal mechanism that allows
people to hold land collectively. Only an outside boundary is registered
with the Deeds Registry, and no information is kept by the state on rights
held on the inside. The Act also prescribes certain conditions and rules
for the group holding the land and they must have a constitution that
is approved by the Department of Land Affairs.
While there have been some limited successes, this approach has also encountered
a range of problems, especially where the groups obtaining the land have
not been cohesive with their own set of norms and acknowledged leadership
structure. Another problem for the state has been that often these groups
do not have sufficient leadership and/or the leadership does not have
the land administration capacity to manage the area, and the state has
had to intervene and supply this land administration. This has resulted
in an increasing load being placed on the state, with no end in sight.
Facilitation of urban development
One of the key Acts passed as far as urban development and informal settlement
is concerned is the Development Facilitation Act No. 67 of 1995. This
Act was considered to be one of the major building blocks of the Reconstruction
and Development Programme of the ANC, which was their platform for the
1994 elections. The main purpose of the Act was to facilitate the development
of hundreds of thousands of houses for low income people and to upgrade
the thousands of informal settlements in South Africa. This Act consists
of a number of parts, and as I was on the Technical drafting committee
both for the law and for the regulations, I am very familiar with the
The first chapter of the Act lays out the philosophical framework for
development in the new South Africa. Here we see how the ANC is attempting
to create new democratic guidelines and move away from apartheid approaches
to planning and land delivery. For example, the densification of cities
is enshrined and the movement of the rich to the outskirts is encouraged.
This is especially important given the way apartheid structured the cities
by creating dormitory suburbs for Blacks at a distance from the so-called
White cities. Also, mixed land use is allowed in residential areas, providing
use is not noxious or dangerous and so on.
Another innovation is the introduction of provincial tribunals. These
are very powerful bodies which can overrule local authorities, utilities
and property owners if necessary, to make it possible for developers to
build low income housing. We have a phenomena in South Africa called NIMBY
-not in my backyard. Every time someone wants to develop low income housing,
the people in the local neighbourhood make it impossible. These tribunals
will be able to override this. Some people consider this to be draconian,
but the original 13:87 percent ratio of land distribution makes it the
only way forward in many circumstances.
The tribunals are also a one stop shop for planning approvals for low
income developments to speed up land delivery. To do this, and develop
more appropriate standards, half the tribunal consists of the relevant
land professionals. Adjusting standards, whether it be sewer sizes, road
widths, land registration procedures or layout designs -for these areas,
is one of the biggest challenges facing South Africa's professions. It
is not just a matter of moving from middle-class standards to more cost
effective approaches, but it is also about developing appropriate standards.
For example, roads are generally developed for an automobile society,
but we have a largely pedestrian society who use the roads differently.
The other chapters deal with land delivery and land registration procedures
and again a number of innovative approaches have been taken. An approach
enshrined in the Act is that of an outside figure/boundary. When development
applications for a property containing a number of land parcels is made,
it is generally linked to some kind of outside figure. This figure should
be registered as an accurately beaconed boundary connected to our national
geodetic network. This outside figure then serves a number of purposes.
Firstly, it makes it possible to introduce a range of registration procedures
and titles within the outside figure without affecting or degrading the
outside system. For example, all parcels of land in South Africa are accurately
beaconed boundaries and the vast majority are linked to the national geodetic.
This outside figure allows us to introduce general boundaries for the
sites on the inside -either provisionally or permanently. Because there
is an outside figure it will not degrade the cadastral system as a whole.
But at the same time it makes it possible to extend the cadastral system
to a wider range of people. This option has not been developed at all
since the Act was passed, and even attempts by technicians to undertake
the accurately beaconed boundary surveys on the inside have been prevented
by the land surveying profession.
Secondly, the outside figure becomes the point of reference for the negotiation
of services with existing people on the ground in informal settlement
upgrades. It is also the unit for planning purposes. Under the Act utilities
and local governments are only responsible for taking bulk supplies up
to the outside figure and a community on the inside is responsible for
what happens on the inside. Also, when a DFA application is made to the
tribunal, the developer in submitting a plan for the area, can suggest
more appropriate conditions of title and can request that certain conditions
of establishment, servitudes etc, can be set aside within such an outside
figure. Again cost recovery is associated with the outside figure.
A community within an outside figure puts together the R16,000 (Fl. 5,300)
per household subsidy, which then finances the entire development -professional
costs, servicing and the house. The community becomes the direct client
of a private sector developer and land professionals, who have to negotiate
directly with the community in relation to layout, services, approaches
etc. This approach has put pressure on all professionals -property lawyers,
planners, civil engineers, land surveyors, geo-technical people, to learn
to work with each other better as fellow professionals, as well as with
communities and NGOs. The outcome of this approach has been very successful
and there is much better integration of professional skills, leading to
innovative cost effective approaches, and their relationship to low income
groups and communities has vastly improved, building democracy and local
land administration skills.
As indicated, not all of the new legislation has produced the desired
results. New approaches are under development to improve the results.
Also, one of the critical areas which still remains to be addressed is
that of the 13 percent customary tenure areas, which are still largely
owned by the central state. Central government is very keen to divest
itself of this ownership and give the land rights instead to those individuals/households/families
in occupation and/or to tribes. Finally, as you can see, we live in intellectually
challenging times in South Africa and I hope that I have managed to give
you some idea of what is happening there.