LAND MANAGEMENT AND LOCAL LEVEL REGISTRIES

by CLARISSA FOURIE AND HERMAN VAN GYSEN
DEPARTMENT OF SURVEYING AND MAPPING,
UNIVERSITY OF NATAL (DURBAN), SOUTH AFRICA

Paper presented at 63rd Federation of International Surveyors PC Conference, Buenos Aires, Argentina, April, 1996. Paper published in 1996 in South African Journal of Surveying and Mapping, 23, 6(142): 353:359.

ABSTRACT

Case material from Namibia shows that land management in developing areas is facilitated where there is a flow of information to the public from a local level registry. Land reform programmes in South Africa, which rely on registry information for land management, might well consider this approach to improve record currency, the sustainability of titling and land use controls and conflict resolution over land rights. Placing this in a theoretical framework, we show that, despite it being a non-computerised registry, the usual concept and characteristics of a multi-purpose cadastre apply to the material, albeit unconventionally. The very unconventionality and informality found with respect to the registry might point towards more appropriate approaches for multipurpose cadastres in the developing world.

INTRODUCTION

We will argue that it is only by setting up local level multipurpose registries, which facilitate the flow of land information and land management, that it will be possible to solve some of South Africa's land reform problems. We will argue, based on research on a local level registry in Namibia, that the multipurpose cadastral concept often proposed for developed countries is possibly even more crucial for land management in developing countries, especially those involved in land reform programmes. However, although the concept is the same, the form which such a multipurpose cadastre should take in a developing area, differs from the classical approach usually described by its proponents.

Problem to be solved
: Some of the land issues in South Africa


As a result of past apartheid policies many of South Africa's citizens have become used to living outside of the formal land registration system. This factor, together with the legacy of a skewed distribution of land ownership which limited Black South Africans (75 percent of the population), until 1991, to only 13 percent of the land up until 1991, has direct implications for the country's cadastral records. We are arguing that the currency of these records is poor in many developing areas of the country; and that this currency might not improve as much as is expected using current procedures. Such a lack of currency makes land management and land reform more difficult where it is needed the most.

Buckley, the recent past President of the statutory council of the South African survey industry, argues that in many areas of South Africa the records do not mirror what is on the ground. For example, "[i]n Soweto [the largest township in South Africa], ..[a]lthough freehold title has only recently been introduced, more than 15% of the recent transfers have not been registered. These figures are expected to escalate." (Buckley:1995:2). This statement accords with the findings of a number of other land surveyors around the country.

Informal settlements, also known as "squatter settlements" occur throughout the country. In the province with the most settlement of this type, KwaZulu-Natal, out of an estimated population of 9.3 million people, 26 percent of the population is estimated in 1992 as living in informal settlements (Hindson and McCarthy:1994:2-3). Although some of this settlement is on customary tenure, there is also extensive informal settlement on privately held land. In such areas the cadastral records do not mirror the reality on the ground (Jenkins et al.:1986:45-47).

In many areas of South Africa there are multiple claims to the same parcel of land in terms of the restitution process. In 1994 a Restitution of Land Rights Act was passed which created a commission and a land claims court whose task was to investigate the claims of people who had lost specific parcels of land because of apartheid. Although the main intention of the act was to return freehold land to those who had been dispossessed after 1913, other claimants are also being considered, such as "..farm workers, labour tenants, landless tribes, people affected by betterment [villagization] schemes.." (Department of Land Affairs:1995:4).

An example of multiple claims, including restitution claims, within the same area, albeit one of the more complex examples, is that of Cato Manor. This vacant area of land, in the heart of Durban, intended for the development of low income housing for 180,000 people, has a range of claims against it. Some of these being, the former landowners; the present landowners; the present squatters on the land; the squatters who lived there before they were removed in the late 1950s when the original landowners were expropriated for apartheid planning ideals; and the Cato Manor Development Association, which heads a President's project to develop the area for the poor (Makhathini:1994:61).

This example, though complex, is by no means unusual and demonstrates the enormous problems being faced in the country. Not only is land management and land delivery extremely difficult, but adjudication becomes a centre stage issue. South Africa at present has no legislation which adequately caters for this type of adjudication (although some is in the pipe-line). The only adjudication legislation on the statute books was created during the apartheid era for the awarding of deeds of grant on state land (Statutes of the Republic of South Africa:1993).

Where titling and adjudication legislation and procedures are inadequate the weak, and especially women, are discriminated against. Lastarria-Cornhiel argues that "[d]uring the transition (be it through land reform, market forces, or a land titling project), men and particularly male heads of households acquire total, legal ownership of.. land. [The process can].. eliminate the few rights.. that women had to land.." (Lastarria-Cornhiel:1995:39).

In these circumstances if the registered male title holder dies then it is unlikely that the woman, who originally had some form of de facto land right, would take the trouble to re-register the land in her name. This aspect is important both for the customary tenure areas in South Africa, as well as for the burgeoning informal settlements which are in the process of being titled and serviced.

A few of the major reasons why the cadastral records are not current in some of the developing areas are:

• The present registry is not accessible in terms of location;
• Re-registration is too costly;
• There is no re-registration because of conflicting claims to the land;
• The deeds registry system is not transparent to the poor and historically disadvantaged, who in some instances are still suspicious that the system is not looking after their interests;
• Conflict over women's de jure land rights despite their de facto rights;
• Weak local government structures and officials who have allowed development without land use control consent procedures or legal titling;
• The structural tension between group and individual rights to land - this occurs in customary tenure as well as formal townships;
• The slow pace of the legal redistribution of the land, because of multiple claims, the administrative and legal complexity of creating developable land and adjudication problems;
• Only ad hoc conflict management is done at the local level, so that boundary disputes and the conflict which can result from land use control interventions are not dealt with systematically;

THE CONCEPTUAL FRAMEWORK: LAND MANAGEMENT AND LAND INFORMATION AT THE LOCAL LEVEL
We are arguing that, where registry and other land information is held at the local level in developing areas, and is held in such a way that it is readily available to a wide range of local officials and ordinary people, land management (land administration) is facilitated. Local land management is improved because the land information is readily available, but it is also improved because of the increased symmetry in this information. This increased symmetry comes about not only because the land information is available at the local level but because it also sets up local linkages and builds the decision making capacity of local communities.

To undertake land management, so necessary in developing areas, information about the land is needed. Nichols argues that "[i]nformation is the foundation for making, implementing, and enforcing land management decisions. Those involved in the management process -from public policy makers to private developers -require information.. about land tenure because the implementation of plans and policies ultimately rests in rights to use, control and benefit from the land and its resources.. As custodians of land tenure information, land registration systems have an essential role to play in land management." (Nichols:1993:26). That is, to improve land management it is essential that land information, especially that held in the land registry offices, should be readily available to the public. The idea of the multipurpose cadastre has received international currency in regard to this aspect. Dale and McLaughlin define such a cadastre as "..a large-scale, community-oriented land information system designed to serve both public and private organizations and individual citizens."

They go on to identify some of a multipurpose cadastre's distinguishing characteristics. The cadastral parcel is "..the fundamental unit of spatial organization.."; and such a cadastre "..relates a series of land records.. to this parcel.."; And ".. provides a ready and efficient means of access to the data." Finally they add that, "It differs from other forms of the cadastre in its breadth.. [And].. from other forms of land information system in that it is parcel based." (Dale and McLaughlin:1988:63-4).

That is, "The intention of a multipurpose cadastre is to make information held in registries easily available to the public for the use of the society. This is usually done by making it possible for the private sector or other government departments to buy information from the Department of Lands. This presupposes that the government's information is.. accessible; that both the private sector and other government departments have the capacity to obtain and use this information; and that both the private sector and/or government departments have the financial ability to buy this information. In underdeveloped countries this is unlikely." (Alberts et al.:1995:39). We are arguing that the Rehoboth registry system in Namibia could be seen to be a form of multipurpose cadastre in that it fits into the conceptual framework outlined by Dale and McLaughlin and has many of the distinguishing features which they identify (see below). But it functions differently from the conventional multipurpose cadastres being developed. The Rehoboth registry, which will be described in more detail below, has made land information (conditions of title and ownership descriptions, survey information, land use control/zoning and valuation information) for land management (agricultural and urban, planning and adjudication) available for many years to a local community of about 35,000 people. It has provided this service without any computers, "..with a poor record keeping system which has no indexes and with no formal framework for the management of information flows, and most significantly in a developing world context."(Alberts et al.:1995:39).

We are arguing that land management decision making at the local level has been facilitated by the flow of information from the registry office to local level officials and ordinary people. This conforms with the findings of practitioners of what is known as the Participatory Rural Appraisal (PRA) system. Instead of outside professionals (specialists) obtaining information about a local area by using field workers, then fitting this information into an official land management plan of action "..in which locals are then invited to participate.. PRA 'facilitators' hand the planning initiative over to the local people. They are encouraged to use their first hand knowledge and expertise of practices.. [And information about land tenure relations].. to construct charts, maps and matrices.. In many cases, the problem-solving strategies that result are innovative.. And sustainable." (Lamb:1993:37).

The PRA technique operates on the premise that problems in these areas are endemic and ongoing. "The solution is to equip people.. To tackle.. [Land management problems].. as a group through an organised process of inquiry.. PRA helps them set and achieve their own management standards working within local means." (Lamb:1993:38).

The PRA approach introduces the idea that the amount and symmetry of land information can be increased using formal techniques (group problem solving approaches). These techniques, and the information collected, can then have a direct impact on the ability of a local community to manage its problems, including land management issues. Although Lamb does not discuss registry information or any information held on formal records, the approach he documents can be seen to exist in the processes and information flows surrounding the Rehoboth deeds registry system in Namibia.

That is, by taking the PRA approach, linking it to the stated objective of multipurpose cadastres (Dale and McLaughlin:1988) and placing it within Nichols' (1993) linking model for land information and land management, it is possible to suggest a way forward to solve problems in the developing areas of South Africa, as outlined above. Most importantly, the theoretical construct can be compared to what is already operating, albeit informally, in a local level registry system, in Rehoboth.

An overview of the literature indicates that although the concept and existence of local level registration and/or record management for land administration and management is not new (Angus-Leppan and Williamson:1985:69,71; Adlington:1991:8), and could well be becoming fashionable (de Soto:1989:25,248; Williamson:N.D.:13,17; Fourie: 1994: 21-23,30-35; Christensen and Hoejgaard: 1995:6,7; Latu:ND:30; Ezigbalike, Rakai and Williamson:1995:12), the details surrounding these systems have still to be fleshed out. We hope that the Namibian material presented here, within terms of this theoretical framework, will contribute to this debate and to the building of cadastral reform theory
.

CASE STUDY: THE REHOBOTH DEEDS REGISTRY IN NAMIBIA

Land tenure backgr
ound

Rehoboth is an area in the south of Namibia which has a population of about 35,000 people. It has a distinctive land tenure history focused on a particular group of people who call themselves the Rehoboth Basters. It consists of an agricultural area and a developed formal urban area, making it possible to assess land management and registry information in terms of both rural and urban needs.

The first form of title deeds (plaaspapieren) in the area were issued in 1895 by the Baster Raad, or council, and were recorded in the diary of a council member. Starting with the Paternal Laws at the end of the last century, some of the land tenure of the Basters was codified over time by missionaries and then colonists (German and South African). In 1976 the South African government encouraged the Rehoboth Basters to take so-called 'independence' from the rest of the country. This action also involved the creation of a deeds registry system just for Rehoboth Basters.

This registry took over all the titles in the area, such as freehold and leasehold, as well as the mortgages. Most of these were the original farm titles (plaaspapieren), many of which had been surveyed and registered in the central deeds registry of Namibia. The Rehoboth registry also held the undivided share titles which were linked to most of these farms. Most of the surveyed farms had a number of co-owners or co-heirs, because of the inheritance system practised in Rehoboth. Their rights were registered as a portion of a share, with no spatial extent defined. Costs for the preparation and registration of transfers for farms or erven in this deeds registry system is presently about US$5.00 and such transfers can usually be done in a day.

The erven (lots) in Rehoboth town were also registered (some being surveyed and some not) after 1976 as freehold. Individuals traditionally had had a right to such an erf at no cost, because they were a member of the Baster group. Prior to 1976 erven were allocated by the Baster Raad and pointed out to individuals by what could be termed a 'community surveyor' who worked for this council.

There was also communal land used by the community, which was originally administered by the Baster Raad, then by the Rehoboth government, and is now disputed land between the central government and some local officials of the previous government of Rehoboth.

Land information and linkages in Rehoboth

Throughout Rehoboth's history decisions have been made about land and land use controls which were debated at an annual get together and then put in place by their indigenous officials, some of whom became officials of the Rehoboth government. The community ethic was that there was no privacy attached to land information; everybody had a right to such information.

Also, the Rehoboth community has a history of being a cohesive group, which meant that all those who were involved with land management and administration had known each other over time and probably had multiple social links (kinship, church, neighbours, career paths, etc).

Group cohesiveness, that land information was accepted public property and that the registry information came to be held locally, all facilitated the flow of land information from the registry to other officials dealing with land, as well as ordinary citizens.

That is, the registry staff spend a lot of the day interpreting the uncomputerised data held on the registry files, adding it to information held in their heads, and supplying this value added information to local land managers, as well as assisting ordinary people to make better decisions about their land. This would not have been possible without the combination of circumstances and social processes outlined above which led to a particular user-friendly corporate culture in the registry office.

"People from undeveloped areas are often intimidated by government offices staffed by people whom they do not know. This.. leads to a situation where such people rely on 'gate-keepers', such as big men or patrons to help them deal with issues such as obtaining finance, land, solving inheritance problems and boundary disputes. The Rehoboth registry staff have.. historically filled such a gap for the residents of the area." (Alberts et al.:1995:38).

Information flows and land management


Some examples over time of the flow of registry information to other officials concerned with land and ordinary citizens are:-

• The registrar and the agricultural extension officers worked very closely together. Extension officers used registry information given to them by the registrar (who holds what rights to surveyed parcels; how many undivided shares and the identity of the CO-owners, mortgages) and cadastral maps, as part of the information necessary for adjudication, consolidation of land, and land management. For example, they would assist CO-heirs in coming to an agreement about the use of the land. These extension officers would try and ensure, for the sake of agricultural productivity and to limit the degradation of the environment, that the entrepreneur among the CO-heirs, usually "the man with the best horse," was protected in terms of their adjudication.

• Adjudication and dispute resolution, based on registry information and local knowledge, was also done in order to move parcels of land from communal and/or disputed ownership to individual ownership. This was done, in rural and urban areas, to facilitate local entrepreneurs and developers, so that they could utilise the land productively and obtain mortgages. It was also done to change rural villages to formal urban settlement, where people were already settled around a spring.

• Community surveyors' based in the Rehoboth municipality often undertook locally acceptable land management and planning tasks, within terms of the legal restrictions and rights that have been defined by the wider society. They do this by making reference to general plans; deeds registry information supplied by the registrar; topocadastral maps; and having the beacons pointed out to them by professional surveyors when surveys are undertaken.

• Ordinary people are assisted by registry staff to draw up contracts such as sales agreements, conditions of title, wills, marriage contracts, and are also assisted with their estate management problems in relation to land. How to deal in land, mortgages and second mortgages are also explained by registry staff. The registrar indicated that he knew that if these matters were not attended to, that they would affect the registry records at some future date.

Interviews indicated that ordinary Rehoboth people considered the registry to be a local resource, in relation to the ease of obtaining a transfer of property, as well as its accessibility, in terms of location and corporate culture.

Other officials in Rehoboth dealing with land matters, who were responsible for land records of the type which would normally be linked into a multipurpose cadastre, indicated that they too valued the information which they obtained from the registry staff. The registrar indicated that he acquired a wider range of knowledge, about the various parcels registered in his office, from these discussions. He used this knowledge to check, and in some instances improve, the currency of his records, by instigating action by adjudicators or the estate section.

Problems in a local level registry


We have shown that the flows of information and the multiple roles being played by locally based registry staff facilitate land management at a number of levels. However, the very form which this takes also creates problems within a registry system.

Because of the lack of skilled administrative capacity at the local level the registrar often finds himself in situations where there is a conflict of interests. He witnesses the sale (and even sometimes the payment of money), and also draws up the papers and then registers the transfer. He also has to draw up conditions of title, then prepare the papers, register, and then file them. Sometimes this conflict of interests has resulted in the registrar being taken to court. Unreliable record keeping is more likely when the land register is kept at the local level, because of the lack of administrative capacity, training, adequate supervision and political pressure.

Another problem area is "[t]he structural tension that exists between different groups at the same level, or between levels, [which] is often mirrored in the registry records, especially if the registry is not held at the national level. These groups can be elites versus the poor, different levels of government, rural/traditional groups versus urban groupings within the same community, local versus the wider society.. The registrar has to manage this range of political tensions which impact the registry." (Alberts et al.:1995:40). If the registrar and his staff are the source of registry information rather than the information being held on computer for public access, then they have to link through to a large range of information users with different capacities and interests. They "..have to do this both in terms of the administrative and political structures in existence (and their capacities over time).. [and] supply information of all types required by the range of other role players in the land information and development process, such as citizens, banks, professionals, rural.. [And] urban land managers, government officials." (Alberts et al.:1995:40)
.

REHOBOTH AS A MULTIPURPOSE CADASTRE

Returning to Dale and McLaughlin's definition of a multipurpose cadastre (1988:63,4), we have shown that the Rehoboth registry is a multipurpose cadastre in concept, though not necessarily in form. That is, it is a large-scale land information system which is community oriented and serves both public and private organizations and individuals.

However, Rehoboth does not conform completely in terms of the distinguishing features of a multipurpose cadastre which Dale and McLaughlin identify (1988:63,4). Firstly, although its system is based on the cadastral parcel, not all parcels registered have a spatial description. Secondly, although the registry is linked to a series of other land records, this is not in a conventional fashion as it relies on human communication alone.

Thirdly, it could be said that although Rehoboth does not "provide a ready and efficient means of access to the data", it certainly supplies this type of access to registry information (data and interpretation by registry staff), although again in an unconventional and administratively unstructured way. Finally, the Rehoboth registry system is broader than the conventional juridical cadastre found in the rest of the country, but again in an unplanned way.

We are arguing that the Rehoboth registry might give some valuable insights into how to set up cadastral systems for developing areas. Dunkerley argues that LIS in developing countries is too often not maintained and/or cannot be replicated because of a lack of resources (1985:309). That registry information flows to the public in Rehoboth, without computerisation, suggests that multipurpose cadastres for the developing world can be replicated and maintained. However, as Williamson (ND:13,17) argues, new and unconventional approaches have to be adopted when addressing cadastral issues in the developing world. He states that these approaches should include "the establishment of ..appropriate legal and institutional frameworks; local level involvement for the establishment and operation of the system; .. listening to the users of the system.." (Williamson:ND:17). All of these approaches and more are apparent in the Rehoboth material and should perhaps be incorporated in new thinking about multipurpose cadastres.


DRAWING THE THREADS TOGETHER

We have identified a number of land management problems which have to be addressed in the South African land reform programme. Some of these problems relate to:- record currency, adjudication, legitimacy and user-friendliness of the registry, lack of knowledge about property rights and responsibilities by the historically disadvantaged, sustainability of titling measures and land use controls, and cumbersome legal and administrative procedures.

The Rehoboth material indicates that if a local level registry makes information accessible to the public it is possible to:-

• Build local knowledge about property rights, thereby improving the legitimacy and sustainability of the system.
• Undertake adjudication over time using local officials.
• Make land use controls more sustainable.
• Improve currency in the registry records.
• Build local land management capacity to the point where people are not entirely dependent on professional outsiders.
• Get people to feel that the registry office is a local resource.
• Get poor people to reregister their land.
• Solve boundary, inheritance and group versus individual disputes locally and cheaply.
• Avoid some of the lengthy legal and administrative delays that are linked to land delivery procedures driven from the centre.

We are arguing that a local level registry along the lines of the Rehoboth system could supply some, but not all, of the answers to land management problems in developing areas. However, firstly, the existing formal Rehoboth system should not be duplicated as it stands. Improvements would have to be made to it. At the least, information flows to the public from such a local level registry would have be much more formally structured in terms of administrative procedures.

Also, a formal effort would have to be made to create the kind of corporate culture which would make people see it as a local resource. The range of roles which lead to conflicts of interest around the registrar, as well as the effects of political pressure on the registrar and his records, would have to be examined and ameliorative administrative measures created. Ongoing training of staff and their supervision within the administrative structure could also go a long way to improving the quality of the records held at the local level.

We are arguing that a re-vamped Rehoboth type registry system is necessary for land reform and land management in developing areas in South Africa. However, such a system although necessary is not sufficient to ensure land management and land delivery at the local level, in a jurisdiction like South Africa. South Africa is a very regulated society with an extensive and sophisticated range of registered rights, as well as high value land and an economy largely underpinned by its cadastral system and registered mineral rights. Finding one's way through the maze of legal and administrative procedures is a task which even professional land managers find daunting. We are therefore arguing that these professionals, both in the public and private sector, have a vital role to play in land management. Their role should be both one of understanding and guiding the 'big picture,' but they also have a role linked to local level registries.

This role should be more along the lines described in the PRA approach. They should build and facilitate local land management and administrative capacity linked to the registry, rather than trying to solve the problems on a one off basis from outside the local community by imposing top-down solutions. This role of the professional land manager could be vitally important in relation to the integrity of the registry and how it, and the rights it registered, were perceived by the wider society and the finance houses in particular.


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ACKNOWLEDGMENT
C.Fourie was involved with a team of consultants in investigating options for parallel interchangeable property registration systems in Namibia. Her research focused on the flows of information from the Rehoboth deeds registry office to the local community. This consultancy was undertaken for the Ministry of Lands, Resettlement and Rehabilitation, Namibian Government and the authors wish to thank the Ministry for allowing the research results to be used for publication. Reference is made in the paper to the report produced by the consultants, 'Discussion paper on options for parallel interchangeable property registration systems' by R.Alberts, C.Fourie,J.Latsky and D.Palmer.

Dr. Clarissa Augustinus
© 2003