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					                                                                                                                    Chapter 8




      Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8




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      Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8




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                                                                                                                           Chapter 8




                                                                                      capacity development
                                                                                      Quadrant 2: Securing rights,
                                                                                      enabling social, institutional and
Secure rights to land underpin secure livelihoods and shelter by reducing households’ vulnerability
to shocks, guaranteeing a level of self-provisioning and supplementary incomes from basic foodstuffs
and enabling easier access to basic infrastructure, employment markets and financial services (Quan
2003).


                                                              5.2.1 Fixing and overhauling existing CPIs   272

Contents                                                      5.2.2 Establishing functional entities as
                                                                    part of newly planned projects         273
                                                              5.2.3 Amending the CPA Act                   274
1   The chapter at a glance                       258
                                                              5.2.4 Creating CPAs, not trusts, to hold
2   Current situation                             259
                                                                    land and manage land rights            275




                                                                                                                 Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8
    2.1    Membership, rights and equitable
           access                                 259         5.2.5 Creating an accreditation system
                                                                    for service providers                  275
    2.1.1 The CSIR review                         260
                                                              5.2.6 Providing support to ensure
    2.1.2 The SDC enquiry                         261
                                                                    continued CPA functionality            276
    2.1.3 CPAs                                    261
                                                              5.2.7 Ensuring ongoing M&E and
    2.1.4 Trusts                                  262               assessment of rights                   276
    2.2    Business entities and their relationship           5.3    Commonage and land rights
           to the land-holding entity               262              management                            276
    2.3    Social development                     263         5.4    Building business entities            277
    2.3.1 Quality of Life surveys                 263         5.5    Enabling improved social
    2.3.2 Meeting social development needs:                          development                           278
          The sustainability imperative           266         5.5.1 Social profiling                       278
    2.4    Capacity development and training      266         5.5.2 Reducing the impacts of HIV/Aids       278
    2.4.1 Land reform participants                266         5.5.3 Integrating gender, age and
    2.4.2 Government officials and others         267               livelihoods perspectives               279

    2.5    Local organisation                     268         5.5.4 Securing social development benefits 279
    2.5.1 The decline of land sector NGOs         269         5.6    Capacity development and learning     279
3   Key issues and problems                       269         5.6.1 Developing capacity in a dynamic
    3.1    Rights determination and                                 context                                280
           CPI functionality                      269         5.6.2 Building capacity in three spheres     280
    3.2    Capacity of municipalities to
                                                              5.6.3 Building the capacity of land reform
           manage commonages                      270
                                                                    participants                           280
    3.3    Business entities                      270
                                                              5.6.4 Indicative capacity development
    3.4    Social development                     270
                                                                    areas                                  281
    3.5    Capacity development and training      270
    3.6    Local organisation                     270         5.6.5 Developing the skills of SIS service
                                                                    staff                                  282
4   Where we want to be                           271
5   Getting there                                 271         5.7    Encouraging local land reform
                                                                     participant associations              285
    5.1    Establishing a social and economic
           baseline                               271     6   Conclusions                                  285
    5.2    Securing membership rights and                 7   Chapter references                           285
           equitable access                       272     Endnotes                                         287



                                                                                                                 257
                                                                                                              1 The chapter at                                             the land reform programme. This quadrant also sets
                                                                                                                                                                           out what must be done to identify and put in place

                                                                                                              a glance                                                     social development measures which ensure access
                                                                                                                                                                           to services, mitigate the risks and impacts of HIV/
                                                                                                              The strategic thrust in Quadrant 2 is based on six key       Aids, and enable the acquisition of key skills and the
                                                                                                              premises:                                                    enhancement of collaborative learning at all levels.

                                                                                                              1.    People are at the centre of the land reform            Essential elements include:
                                                                                                                    programme which must secure their rights,
                                                                                                                    improve their livelihoods and build skills and         •    A much tighter focus on the people and

                                                                                                                    institutional capacity.                                     communities acquiring land through the land and
                                                                                                                                                                                agrarian reform programme including improved
                                                                                                              2.    Project sustainability rests on clarity of                  profiling of their capabilities, social and material
                                                                                                                    membership, plainly defined land rights and                 assets, livelihood strategies, needs, risk and
                                                                                                                    entitlements backed by effectively functioning              vulnerability coupled with an assessment of
                                                                                                                    land and land rights management institutions/               social coherence and group functionality as a
                                                                                                                    communal property institutions.                             foundation for appropriate planning and local SIS

                                                                                                              3.    Projects which establish business entities require          strategy formulation.
Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8




                                                                                                                    a customised programme of institutional and
                                                                                                                                                                           •    An emphasis on determining membership and
                                                                                                                    management development support.
                                                                                                                                                                                rights of individuals acquiring land as part of a
                                                                                                              4.    People from poor households acquiring and                   community or group within the planning process
                                                                                                                    residing on land require a comprehensive,                   and subsequent provision of support to the
                                                                                                                    gender-differentiated programme of social                   members and those responsible for managing
                                                                                                                    development to ensure access to essential                   the new land-holding entity to enable them to
                                                                                                                    social, health and education services and                   carry out their functions.
                                                                                                                    mitigate risk and vulnerability.
                                                                                                                                                                           •    A well-resourced programme to support existing
                                                                                                              5.    The capacity of all role-players involved in land           CPIs which have fallen into difficulties, and to
                                                                                                                    reform needs to be systematically developed                 ensure that newly established CPIs are well-
                                                                                                                    – from leadership and members in projects                   supported. This should be combined with
                                                                                                                    through to officials in government departments              legislative amendments and regulations where
                                                                                                                    and municipalities which provide services, and              appropriate.
                                                                                                                    including private sector and civil society partners.
                                                                                                                                                                           •    Creating an enabling environment for the self-
                                                                                                              6.    The success of area-based planning and support              organisation of land reform participants into
                                                                                                                    depends on the building of local associations of            area-based associations. Local and international
                                                                                                                    land reform beneficiaries to enable horizontal              development practice demonstrates the value
                                                                                                                    peer support and learning between people on                 of self-organisation, based on the formation
                                                                                                                    land reform projects in the area or district and            of associations to represent the interests of
                                                                                                                    which can articulate the interests of land reform           land reform participants in a particular area
                                                                                                                    beneficiaries in the local development context.
                                                                                                                                                                                or municipality. The benefits for participants

                                                                                                              This chapter sets out the strategies required to ensure           include providing ‘voice’, securing benefits, and
                                                                                                              that membership of land reform projects, and the                  providing opportunities for peer learning and
                                                                                                              rights of members, are clearly defined and that robust            mutual support. For government, this provides
                                                                                                              land-holding and land rights management institutions              the opportunity to engage with organised
                                                                                                              are put in place and supported in order to fulfil the             representatives of land reform entities on the
                                                                                                              key constitutional and legal mandates which underpin              ground.




258
2 Current situation                                        The evidence reveals that, in both Restitution
                                                           and Redistribution, the key foundational issues of
                                                           membership, rights, benefits and the securing of
                                                           equitable access to land and other resources are not
2.1 Membership, rights and                                 being adequately addressed. This is a critical flaw
equitable access                                           in the programme which impacts directly on social,
                                                           economic and ecological sustainability. The State’s
Sections 25(5)1 and 25(7)2 of the Constitution, with
                                                           failure to assist with determining and managing
reference to Sections 25(8)3 and 25(6),4 provide the
                                                           individual user-rights within a community context is
framework for the legal and institutional arrangements
                                                           one of the primary causes of the significant problems
that are required for community rural land-holding and
                                                           outlined below.
management arrangements in projects where land has
been redistributed or restored.                            The Commonage review report (DLA 2005)
                                                           emphasised that, in most cases, individual user-rights
Sections 42D(2) and 35(3) of the Restitution
                                                           were not secured. A legal technical review of the
Act provide that if a claimant is a community, the
                                                           contracts of eight Commonage projects established
settlement agreement (or order of court) ‘must
                                                           that, while agreements were concluded between
provide…access to the land…on a basis which is fair
                                                           associations representing stock owners and the
and non-discriminatory’. This does not mean that every
                                                           municipality as landowner, individual user rights were
individual should be given access to the same amount




                                                                                                                       Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8
                                                           secured in only one case.
of resources. It means there should be equity amongst
members and equity (fairness) in access to those           The impacts of the failure to determine rights have
resources.                                                 been picked up in DLA Quality of Life surveys. The

The CPA Act requires that a CPA’s constitution must        2001 survey (DLA 2003) indicated rising levels of

provide for managing its property for the benefit of the   disputes over distribution of benefits within surveyed

members in a participatory and non-discriminatory way.     projects. This was echoed by the CASE Restitution

The Act provides that a member may only be excluded        research which found that conflict within communities,
from access to the property of the CPA in accordance       within community leadership structures, or between
with the procedures set out in its constitution. An        communities and their leadership structures was
association may not dispose of or encumber its land        undermining development in 34% of projects in the
without the consent of the majority of members             study (Diako et al. 2005).
present at a general meeting of members.
                                                           In almost all land reform projects, access to land and/
These provisions mean that unless community                or the extraction of benefits from the project has been
members are ensured of access to land on an                permitted prior to the due determination and allocation
equitable basis, and of improvement in their quality       of the rights of members. In most land reform projects,
of life, a land reform project cannot be said to be        the rights of individual project members have not been
achieving the objectives of land reform.                   appropriately determined. This is often a consequence
                                                           of a failure to determine the membership. In the few
The available evidence suggests that the situation         cases where this has been done, there has not been
with respect to rights determination is cause for grave    adequate public administrative support for rights
concern in the majority of Restitution, LRAD and           administration.
Commonage projects. A study of Restitution projects
conducted by CASE (Diako et al. 2005), a study of          The SDC Status Quo Report observed that, when
CPIs (CSIR 2005), a review of Commonage projects           communities have taken occupation of land, it is often
(DLA 2005), and recent enquiries by the SDC have all       stated that the tenure of the community is secure
found that where rights have not been determined prior     because the legal entity that represents the community
to occupation of the land, the results have often been     owns the land. But such tenure is only secured, in
self-help, elite capture of resources, uncontrolled use    law, with regard to the ‘outer boundaries’ of the land.
of the resources and internal conflict.                    In most cases, the ‘internal’ tenure rights of individual




                                                                                                                       259
                                                                                                              members to use the land and benefit from it have not         and functional decision-making bodies; and clear
                                                                                                              been secured.                                                rights, responsibilities, powers and procedures for
                                                                                                                                                                           members and decision-making bodies.
                                                                                                              Drafting the constitution of a CPI before it is registered
                                                                                                              as a legal entity is critically important in shaping the     The authors developed criteria to assess equitable
                                                                                                              substantive rights of its members. However, available        distribution of land ownership as provided for in
                                                                                                              research reflects that, by and large, this has been          Section 9 of the CPA Act, including:
                                                                                                              reduced to a hastily executed step in the project cycle
                                                                                                                                                                           •     fair and inclusive decision-making;
                                                                                                              whose principal goal is to establish procedural rights
                                                                                                              associated with voting and attendance of meetings.           •     equity of membership;

                                                                                                              The need to register a CPI in order to effect transfer       •     democratic process;
                                                                                                              – a function often assigned to a service provider and
                                                                                                              allocated a minimal budget – has taken precedence            •     fair access to property;
                                                                                                              over the need for meticulous work with people
                                                                                                                                                                           •     accountability and transparency;
                                                                                                              acquiring land to clarify their rights and obligations and
                                                                                                              to assist them to put in place effective institutions to     •     security of tenure;
                                                                                                              manage these in perpetuity.
                                                                                                                                                                           •     sustainability; and
                                                                                                              Those projects where rights and benefits are clear
Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8




                                                                                                                                                                           •     compliance with relevant legislation and the CPI’s
                                                                                                              and where CPIs function reasonably effectively are
                                                                                                                                                                                 constitution.
                                                                                                              those which have had substantial support over a
                                                                                                              sustained period. Putting in place robust and effective      The review found that while five CPIs in the sample had
                                                                                                              institutions, based on clear and enforceable rights          totally collapsed:
                                                                                                              and benefits, with the capacity to manage these rights
                                                                                                                                                                           The majority of CPIs are partly functional from an
                                                                                                              and the succession of rights-holders over time, is an
                                                                                                                                                                           institutional perspective but are largely or totally
                                                                                                              essential requirement of the SIS Strategy.
                                                                                                                                                                           dysfunctional in terms of allocation of individual
                                                                                                              Criteria for membership of the relevant community            resources and the defining of clear usage rights,
                                                                                                              must be determined early in the process of acquiring         responsibilities, powers and procedures for members
                                                                                                              land (i.e. during the ‘pre-settlement’ stage). This          and the decision making body. Transparency and
                                                                                                              is because membership impacts on a number of                 accountability is also often below what is required
                                                                                                              other issues, notably the rights which accompany             (CSIR 2005:61).
                                                                                                              membership, such as the right to erect a dwelling on
                                                                                                                                                                           The review also found that:
                                                                                                              the land or utilise natural resources.
                                                                                                                                                                           A high number of CPI members are not receiving

                                                                                                              2.1.1   The CSIR review                                      tangible benefits from CPI membership and this has
                                                                                                                                                                           lead to disillusionment with CPIs. Conflation of the role
                                                                                                              The CSIR was commissioned to investigate the                 of the CPI as a land holding entity with the CPI being a
                                                                                                              alleged dysfunctionality of CPIs established in terms        decision making structure for production activities is
                                                                                                              of the land reform programme. A literature review            one of the issues that affect sustainability of CPIs.
                                                                                                              was undertaken and an assessment framework was
                                                                                                                                                                           A major concern of the review was that ‘DLA
                                                                                                              developed which was piloted and then applied in the
                                                                                                                                                                           seems to have no long term commitment to assist
                                                                                                              field. Research reports were commissioned as part of
                                                                                                                                                                           communities in tenure management and consider
                                                                                                              the diagnostic study (Bosch & Hirschfeld 2004). The
                                                                                                                                                                           their job completed once land is transferred to the
                                                                                                              review assessed a relatively small sample of 25 CPIs
                                                                                                                                                                           CPI’. The review highlighted a number of related
                                                                                                              comprising 19 CPAs, five trusts and one company. It
                                                                                                                                                                           problems including ‘lack of CPI monitoring by the DLA,
                                                                                                              was supplemented by a legal technical review of 41
                                                                                                                                                                           non-fulfilment of land administration functions (e.g.
                                                                                                              projects.
                                                                                                                                                                           development of rules, regulations, resource allocation)
                                                                                                              The review defined a CPI as dysfunctional if it lacked       by the CPI committees as well as the practice of unfair
                                                                                                              the presence of: legitimate (democratically elected)         rights allocation’, including gender inequality.


260
Overall the review found that CPA constitutions              In addition, it is also clear that insufficient attention
complied reasonably well with the CPA Act in overall         has been paid to the complex interplay between
form, but lacked clarity or detail around substantive        the formal precise requirements of the law and the
rights (Items 7, 10 and 18), allocation of profits and       fuzzy, messy and less formal domain of practice.
the transactability of rights (Items 11 and 12), and         There should be recognition of the fact that people in
sanctions (Item 21).                                         different circumstances will have developed their own
                                                             value systems and approaches to managing resource
The review recommended a more rigorous planning
                                                             tenure. The law provides that people acquiring land
process that develops a land administration plan and
                                                             must form a legal entity to hold the land on their
culminates in the actual allocation of user rights as an
                                                             behalf and allocate use and access rights. This formal
integral part of the project planning phase and prior to
                                                             requirement needs to be integrated with what people
the settlement agreement.                                    actually do so that law and practice can support one

The report recommended that in community claims              another.

where several farms are involved, the option of              One possible contributing factor to the failure of CPIs
subdividing the community into smaller groups with           is that they represent a paradigm which may not sit
common interests linked to specific farms should be          well with existing custom and practice. Even in more
considered. Property subdivisions may also create            successful projects such as the Makuleke, which had
more manageable land-holdings.                               strong leadership and good technical backup, it is clear




                                                                                                                         Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8
                                                             that CPAs are not easily accepted. Even with the depth
2.1.2 The SDC enquiry                                        of the Makulele’s human resources and support base,
                                                             Turner and Meer (2001) reported that the group had
The above findings have been corroborated and
                                                             to ‘grapple with the concept of the CPA’ to make it a
amplified by the SDC enquiries, which also found
                                                             workable, living institution. CPAs are a new concept
substantial problems with the founding documents
                                                             that people struggle to relate to. Communities are
of several CPIs. It was also clear that the majority of
                                                             expected to adapt what they do to fit the requirements
trustees and CPA executive members either did not
                                                             of a formal legal structure whose form may be too
understand, or were not using, their constitution as
                                                             static to provide for their changing needs.
the basis for running their entity. In virtually all cases
reviewed (with the exception of Algeria), internal use       Overall, this creates a tension between advice and
rights had not been defined.                                 support that is rooted in the primacy of the law and
                                                             the prior (often limited) knowledge and experience of
This is indicative of a fundamental mismatch between
                                                             people in land administration, prior to their involvement
the complex requirements of the law, the current
                                                             in land reform.
CPI establishment process, and the capability of
CPI executive bodies to fulfil the functions required
of them by law. In almost all cases there had been           2.1.3 CPAs
no institutional support provided to the CPI once            According to the DLA CPA Registrar, 952 CPAs had
registered, and no follow-up by DLA to check that            been registered as of January 2007. However, given
the institution was still functioning, even though the       the relatively small samples of CPAs assessed in
majority of CPAs failed to submit annual reports as          studies to date, it is difficult to determine how well
required by the Act.                                         these entities are functioning.

This is not surprising, given that the DLA Registrar         The CPA Act requires that a CPA will manage
of CPAs is so under-resourced. Our enquiry revealed          its property for the benefit of the members in a
that currently there is a single handwritten register in     participatory and non-discriminatory manner. The Act
which CPAs are recorded. The first 400 or so entries         provides that a member may only be excluded from
had apparently gone missing. The registration does not       access to the property of the association in accordance
appear to have been computerised. In addition, it was        with the procedures set out in its constitution. An
reported that the DLA keeps no record of other entities      association may not dispose of or encumber its land
such as trusts which are registered to take ownership        without the consent of the majority of members
of land on behalf of land reform project beneficiaries.      present at a general meeting of members.


                                                                                                                         261
                                                                                                              These provisions mean that unless community                   ‘complete and absolute discretion as to the manner in
                                                                                                              members are ensured of access to land on an                   which they shall deal with, appropriate and apply the
                                                                                                              equitable basis and the improvement of their quality          assets constituting the trust fund for the benefit of the
                                                                                                              of life, a land reform project cannot be said to be           beneficiaries’.
                                                                                                              achieving the objects of land reform.
                                                                                                                                                                            It is also standard practice for the deed to note that no
                                                                                                                                                                            rights to any benefit may vest in a beneficiary, unless
                                                                                                              2.1.4 Trusts                                                  and until such right or benefit has been duly allocated
                                                                                                              At least 700 trusts have been established for land            by the trustees. The personal rights of beneficiaries are
                                                                                                              reform projects in terms of the Trust Property Control        usually described as being ‘protected’ in the sense that
                                                                                                              Act, but DLA does not keep any register of land that          that trust property does not form part of the personal
                                                                                                              has been transferred to trusts.                               estate of the trustee, e.g. cannot be seized by the
                                                                                                                                                                            trustee’s personal creditors. But trust property can be
                                                                                                              In the case where land is held by a trust, the trust
                                                                                                                                                                            seized by creditors of the trust, e.g. for debt incurred
                                                                                                              deed operates as the foundational document. It
                                                                                                                                                                            while administering the trust.
                                                                                                              constitutes a special type of contract between the
                                                                                                              settler (creator or founder) of the trust and one or          The principal problem from a land reform perspective
                                                                                                              more trustees who receive the property in ownership,          is that, unlike CPAs, land-holding trusts are not by
                                                                                                              to administer it in favour of the trust beneficiaries (i.e.   legislation subject to supervision by the Department
Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8




                                                                                                              the community in this case).                                  of Land Affairs. Indeed, once trusts have been
                                                                                                                                                                            established, the ability of DLA to provide support
                                                                                                              The trust beneficiaries become entitled to the benefits
                                                                                                                                                                            or intervene is circumscribed. This either requires
                                                                                                              of the trust when they have expressed their acceptance
                                                                                                                                                                            expensive court proceedings or the enactment of
                                                                                                              of the trust arrangement, i.e. assented to it. Unless
                                                                                                                                                                            legislation to give DLA such powers.
                                                                                                              the trust instrument provides otherwise, no specific
                                                                                                              form of assent is required but a mere mental attitude         For the above reasons, it should be clear that a trust,
                                                                                                              of acceptance is not enough to become a trust                 in its usual form, is not a body that is best geared
                                                                                                              beneficiary. For land reform purposes trust deeds need
                                                                                                                          5                                                 to hold and administer land on behalf of land reform
                                                                                                              to have built in a mechanism to record this consent.          beneficiaries. Lawyers involved in establishing trusts
                                                                                                                                                                            prior to the promulgation of the CPA Act, on advice of
                                                                                                              A trust is a particular legal institution and has its
                                                                                                                                                                            attorney Richard Rosenthal, established community
                                                                                                              own rules, including the power of the High Court to
                                                                                                                                                                            land-holding entities as voluntary associations, but in
                                                                                                              supervise the management of the trust, e.g. to replace
                                                                                                                                                                            the form of trusts. So the property was held by the
                                                                                                              a trustee. It is thus not just a contractual arrangement
                                                                                                                                                                            trustees but the beneficiaries and trustee(s) were also
                                                                                                              between founder, trustees and beneficiaries, but is           members of a voluntary association tied to the use
                                                                                                              open to wider legal scrutiny.                                 and control of the trust property. Examples of such

                                                                                                              Trust beneficiaries do not ‘own’ the trust property or        deeds are Tsitsikamma Development Trust (Mfengu),

                                                                                                              any part of it, unlike the situation in England where         the Witbank Ontwikkelings Trust (1995) and the

                                                                                                              trust beneficiaries may own a beneficial interest in the      Riemvasmaak Ontwikkelings Trust (1995). When the
                                                                                                                                                                            CPA Act was passed in 1996, it became possible to
                                                                                                              property of a non-discretionary trust. In South African
                                                                                                                                                                            establish a CPA as a more appropriate entity to hold
                                                                                                              law, trust beneficiaries have personal rights against
                                                                                                                                                                            land on behalf of a community.
                                                                                                              the trustee only and no real rights in the trust property
                                                                                                              itself, at least not in the usual case where the trust
                                                                                                              property is owned by the trustee.
                                                                                                                                                                            2.2 Business entities and
                                                                                                              If the trust deed provides that the trust may allocate        their relationship to the
                                                                                                              user-rights to beneficiaries, the beneficiaries can sue
                                                                                                                                                                            land-holding entity
                                                                                                              the trust to enforce such rights. It is for this reason
                                                                                                              that it has become standard practice for commercial           Until recently there was a consensus amongst lawyers
                                                                                                              attorneys to insert a clause in the deed of trust that        and officials that trusts which hold land and CPAs are
                                                                                                              makes it clear that the deed vests the trustees with the      inappropriate entities to run business enterprises.



262
The primary function of the land-holding entity is to       tax and compliance obligations that are associated
determine membership and allocate rights to available       with more complex entities. These factors have led
resources. These could include access to a residential      the LRC to review the circumstances under which a
site in projects with a settlement component, a             CPA may in fact be an adequate vehicle for conducting
portion of land for household provisioning and access       business.
to communal grazing and fuel wood within an agreed
                                                            Irrespective of which business entity is chosen, it
land-use management framework. However, in
                                                            is clear that establishing such an entity without a
addition to meeting basic household livelihood needs,
                                                            thorough assessment of the CPI members’ capacity to
many of the properties restored or acquired have
                                                            run it effectively and meet statutory reporting and tax
commercial assets and existing enterprises which
                                                            requirements is irresponsible and may inadvertently
may be taken over as ‘going concerns’. For example,
                                                            put people and their assets at risk. Ensuring adequate
in eMpangisweni (see Chapter 4), several properties
                                                            assessment and putting in place dedicated business,
were acquired, two of which had existing centre-pivot
irrigation for maize and vegetables.                        management and capacity development systems is a
                                                            core feature of the SIS Strategy outlined below and in
Unfortunately, in situations where there is a going         Chapter 10.
concern, the focus has been largely technical/legal,
with the emphasis on taking over an existing business
to ensure continuity of production and identifying          2.3 Social development




                                                                                                                       Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8
the relative suitability of available business entities
                                                            According to the 1997 White Paper for Social Welfare:
for the task. In these instances, the search for the
‘appropriate entity’ has overshadowed the assessment        the ultimate objective of social development is to
of the management demands and transaction costs             bring about sustained improvement in the well-being
required to operate it effectively and how these fit        of the individual, family, community and society at
with the available management capacity and ‘human           large… the dimensions of social development are: social
capital’ of the people acquiring land and planning to       welfare; health; education; housing; urban and rural
operate a business on it.                                   development; and land reform.

The DLA Quality of Life surveys (reviewed below)            It is important in this context to understand that
provide sobering insights into the formal education         poverty reduction involves much more than raising
levels of the majority of people acquiring land – 61%       incomes. As was highlighted in the 1995 World
of whom were found to be illiterate in the 2001 survey      Summit for Social Development Programme of Action:
(DLA 2003). These realities and their implications
                                                            Poverty has various manifestations, including lack of
for corporate governance unfortunately appear to
                                                            income and productive resources sufficient to ensure
have rarely been taken into account when structuring
                                                            sustainable livelihoods; hunger and malnutrition; ill
complex business ventures. This often puts land reform
                                                            health; limited or lack of access to education and other
participants and the leadership which represents them
                                                            basic services; increased morbidity and mortality from
in highly unequal and vulnerable positions in relation to
                                                            illness; homelessness and inadequate housing; unsafe
business partners and each other.
                                                            environments; and social discrimination and exclusion.
The route taken in some projects is for CPI members to      It is also characterised by lack of participation in
form business entities, including sole proprietorships,     decision-making and in civil, social and cultural life
close corporations, partnerships and joint venture          (United Nations. 1995 Chapter 2, Clause 19).6
agreements, Share Equity Schemes, Section 21
                                                            If land reform is to have a meaningful impact on
companies, private companies, trading and unitised
                                                            poverty reduction, the process of planning and PSS
trusts. Despite the range of business entities available,
                                                            should take every one of these factors into account.
very few of them are wholly suitable for land reform
contexts. They may be constrained by the numbers
of people they can accommodate (close corporations
                                                            2.3.1 Quality of Life surveys
– 10 members; partnerships – 20 members) or by high         As highlighted in Chapter 4, the DLA QOL surveys
transaction costs, management demands, reporting,           conducted in 1998 and 2001 have provided some


                                                                                                                       263
                                                                                                              limited insights into the livelihoods and living standards          livelihood impacts may be very unequal across
                                                                                                              of land reform beneficiaries. DLA commissioned                      households, even within the same project. The
                                                                                                              the surveys to investigate the extent to which the                  average household income from agricultural
                                                                                                              objectives of the land reform programme have been                   activities (in cash and kind) for the total sample
                                                                                                              met. A total of 118 projects were sampled in the 1999               was R1 146.00 per annum (May & Roberts
                                                                                                              study, and 123 in the 2001 study. The surveys claim                 2000:15);
                                                                                                              to provide ‘an account of the impact of land reform
                                                                                                                                                                            •     more than 90% of land reform beneficiaries
                                                                                                              on the livelihoods of land reform beneficiaries’ (DLA
                                                                                                                                                                                  expected better services and homes after the
                                                                                                              2003).
                                                                                                                                                                                  land reform process, and only 15% felt that
                                                                                                              Interestingly, both of the QOL reports indicate the silo            these expectations had been realised; and
                                                                                                              mentality that has characterised land reform to date
                                                                                                                                                                            •     the survey also noted that it was ‘disturbing
                                                                                                              as they state that ‘access to services and facilities falls
                                                                                                                                                                                  that women-headed households are less likely
                                                                                                              beyond the mandate of the land reform programme’
                                                                                                                                                                                  to use land for production than male-headed
                                                                                                              while simultaneously observing that they are essential
                                                                                                                                                                                  households. The specific constraints faced by
                                                                                                              to the success of the programme. Clearly this approach
                                                                                                                                                                                  women on land reform projects may require
                                                                                                              has to go. Land reform needs to be reframed as a joint
                                                                                                                                                                                  further investigation’.
                                                                                                              programme of government in order to overcome this
                                                                                                              artificial separation of key functions.                       The QOL survey for 2000/1 reported similar findings.
Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8




                                                                                                                                                                            However, some important comparative trends emerged.
                                                                                                              The QOL survey for 1998/99 found that ‘beneficiary            In the 1999 study, 48% of beneficiaries were found to
                                                                                                              households have alarmingly high levels of poverty,            be illiterate and an illiteracy level of 61% was recorded
                                                                                                              with 78% falling below the expenditure poverty                for beneficiaries in the 2001 study. While these
                                                                                                              line of R476.30 per adult equivalent per month                differences may reflect methodological differences
                                                                                                              and 47% classed as ultra poor (less than half the             in data collection, the report finds that ‘the high
                                                                                                              poverty expenditure line)’ (May & Roberts 2000:14).           incidence of illiteracy and low education levels for land
                                                                                                              Nevertheless, there was substantial variation in              reform beneficiaries does in itself highlight the need for
                                                                                                              beneficiaries’ livelihood sources and strategies.             proper institutional support and capacity development
                                                                                                              The relative poverty and inequality characterising            to ensure the viability of land reform projects’.
                                                                                                              households in any given project has to be at the centre
                                                                                                                                                                            The QOL reports highlight rising levels of conflict
                                                                                                              of an equitable determination of rights and access to
                                                                                                                                                                            and institutional dysfunctionality within land reform
                                                                                                              resources.
                                                                                                                                                                            projects.
                                                                                                              The key findings of the 1998/99 QOL survey on the
                                                                                                                                                                            More disturbing, while only 15.7% of respondents
                                                                                                              livelihoods of land reform beneficiaries were:
                                                                                                                                                                            in 1999 reported disagreement over distribution of
                                                                                                              •     that 63% of beneficiary households received             products and income from the project as a source of
                                                                                                                    some form of wage income;                               conflict, this figure increased to 27.8% in 2001 (DLA
                                                                                                                                                                            2003).
                                                                                                              •     just under 20% of beneficiary households
                                                                                                                    received an income from both agricultural               Likewise, these reports appear to highlight declining
                                                                                                                    production and self-employment activities;              access to essential services. While the reported
                                                                                                                                                                            figures for accessing water from public taps were
                                                                                                              •     only 8% of households reported transfer                 similar across both studies, those people who reported
                                                                                                                    payments, though this low figure is probably            accessing of water from wells, springs, rivers and dams
                                                                                                                    related to the virtual absence of migrant               increased from 16.9% in 1999 to 26.7% in 2001.
                                                                                                                    household members in the sample;                        Likewise, the number of people reporting having no
                                                                                                                                                                            sanitation at all increased slightly from 19.9% in 1998
                                                                                                              •     thirty-eight percent of households were deriving
                                                                                                                                                                            to 21.9% in 2001.
                                                                                                                    income either from the sale or own consumption
                                                                                                                    of agriculture and livestock, while 62% were            The 2001 report highlighted that the majority of
                                                                                                                    not deriving income at all, indicating that             respondents found distance and transport to primary



264
and secondary schools difficult (50.1% and 77%              It has particular relevance where land is restored in
respectively) while affordability of uniforms, fees and     remote locations far from available health services
books was a major constraint.                               where HIV susceptibility and Aids vulnerability are
                                                            aggravated by the absence or poor quality of housing,
HIV/Aids                                                    water and sanitation. It also impacts on productive
The 1998 QOL survey made no mention of HIV/Aids,            activities:
while the 2001 report made scant reference to
it, recording only participants’ perceptions of the         Stresses of poor beneficiaries under HIV and Aids
seriousness of the pandemic – 12.5% of respondents          conditions would result in lower capacity to till
thought HIV/Aids was a serious problem. Overall,            (capital and/or labour), preserve seed (skill and labour),
the majority of the households (50.4%) stated that          maintain crops (weeding, fertilization – labour and
they were either dissatisfied or very dissatisfied with     capital) and harvest and use (labour) in the absence of
the level of health and other services available to         labour saving devices. Capacity to service debt is also
them and 34% were either very satisfied or satisfied.       reduced and asset depletion (including savings) and
Particularly high levels of dissatisfaction were recorded   dissaving can be expected. Nevertheless, households
in Mpumalanga (89.5%%), the Eastern Cape (85%)              with accumulated resources and robust livelihoods,
and Gauteng (73.5%) which indicates the need for            while subject to the same trends, are able to resist dire
customised problem analysis and strategy formulation        poverty for longer and recover more quickly (Ambert &
at provincial and local level.                              Hornby 2006:31).




                                                                                                                         Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8
We could find little evidence that HIV/Aids features        If land reform offers poor livelihood returns, then
specifically within the planning and project assessment     members of the household may be forced to migrate
processes of the DLA despite DLA having a HIV/Aids          in search of work and economic opportunities. This
policy in place for several years. As explored in detail    increases vulnerability and the likelihood of multiple
in the supporting documents (Ambert & Hornby                sexual partners which further drives up risk and
2006), HIV/Aids is a multidimensional phenomenon            multiplies the impacts of the pandemic.
with implications for many aspects of the land reform
                                                            As has been observed above, land reform is poorly
planning and post-transfer support process.
                                                            integrated within municipal IDPs. This increases the
HIV and Aids impact on the sustainability of                risk that land reform beneficiaries will be excluded from
communities and their development conditions.               ‘the benefits of the multi-sector and inter-governmental
Conversely development conditions affect HIV                response to HIV and AIDS’ (Ambert & Hornby 2006).
prevalence and the impact of Aids on individuals,
households and communities. Poor housing and                Gender and age dimensions
settlement conditions have been correlated with high        Poverty is already highly feminized7 in South Africa
HIV prevalence. Inadequate access to services, to secure    and the region generally. Poverty exacerbates HIV
tenure and to housing makes HIV-positive individuals        susceptibility and Aids vulnerability through increased
and HIV-negative individuals alike particularly             migration (relating to household viability), poor
vulnerable to opportunistic infections (ibid). Such         housing, water and sanitation and poor access to
conditions do not provide an appropriate platform for       services providing these and inadequate resources to
care and support of the sick and frail (Ambert 2005:2).     sustain regular health service access. There are thus
                                                            strong linkages between poverty, gender and HIV
Clearly from both planning and PSS perspectives,
                                                            and Aids. The Department has remained vague about
it should be assumed that within each grouping of
                                                            how to give effect in implementation to its policy
people who acquire land there may be those who
                                                            statements of targeting women as beneficiaries of land
are HIV-positive, those who have full-blown Aids and
                                                            reform (Ambert & Hornby 2006:34).
those who are at particular risk of acquiring the virus.
This has implications for household livelihood security,    There is a generally a lack of focus on gender issues
for investment in household food security, improved         in land reform. While there is an emphasis on more
nutrition of children, and for access to health services    equitable representation of men and women in
and clinics which supply preventative services and          projects, there is generally a lack of a more thorough
antiretroviral drugs.                                       analysis of gender relations and measures to address


                                                                                                                         265
                                                                                                              issues faced by poorer more vulnerable women and            Training is a focused activity to develop individual skills
                                                                                                              households headed by single women. This extends to          or transfer knowledge that contributes to the overall
                                                                                                              the planning of production and livelihood opportunities     development of human capacity. Capacity development
                                                                                                              which are often framed by gendered assumptions.             is an approach that operates at a much broader scale
                                                                                                                                                                          and focuses on all the elements that enable actors to
                                                                                                              Strategy and support services need to be guided by
                                                                                                                                                                          meet their development objectives. Applied to the SIS
                                                                                                              gender analysis at local and area levels to ensure that
                                                                                                                                                                          Strategy, this means that the capacity of all the players
                                                                                                              they are appropriately targeted. Likewise there needs
                                                                                                                                                                          in the land reform process (including DLA, the CRLR,
                                                                                                              to be an explicit focus on young people – how they
                                                                                                                                                                          its partners, claimants, CPI executive committees and
                                                                                                              acquire rights, education and access to employment
                                                                                                              and self-development opportunities.                         business entity directors) should be built so that they
                                                                                                                                                                          are better able to meet their development objectives.

                                                                                                              2.3.2 Meeting social development needs:
                                                                                                              The sustainability imperative                               2.4.1 Land reform participants
                                                                                                              Effectively identifying and finding ways to address key     The CASE report (Diako et al. 2005) assessed the
                                                                                                              social development needs in ways that are gender-           status quo of 178 settled land restitution claims with
                                                                                                              and age-sensitive are an essential component of the         a developmental component. The report found that
                                                                                                              project planning process and the SIS Strategy.              out of the 178 projects, claimant groups on 127
Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8




                                                                                                                                                                          projects had received no training at all. Given that the
                                                                                                                                                                          report does not clearly distinguish between training,
                                                                                                              2.4 Capacity development                                    extension advice and other PSS services, this finding is
                                                                                                              and training                                                open to interpretation. However, if taken at face value
                                                                                                                                                                          the finding starkly indicates the generally low level of
                                                                                                              At the outset it is important to distinguish between
                                                                                                                                                                          support being provided.
                                                                                                              training and capacity development (Figure 8.1). Very
                                                                                                              often the two terms are conflated.                          The CASE report also found that:




                                                                                                                  Figure 8.1: Distinguishing between capacity development and training




                                                                                                                                   ‘Capacity includes the resources, knowledge and processes employed
                                                                                                                                     by the organization to reach its goals. These comprise the staffing,
                                                                                                                                   physical infrastructure, technology, and financial resources; strategic
                                                                                                                                     leadership, program and process management; and networks and
                                                                                                                                        linkages with other organizations and groups’ (IDRC 2002).




                                                                                                                                                                                                  ‘Capacity development is the
                                                                                                                                                                                                 process by which individuals,
                                                                                                                     ‘Capacity building is the                                                      groups and organizations
                                                                                                                   ability of individuals, groups,                   Training:                      increase their abilities to
                                                                                                                  institutions and organizations                   To teach so                       perform functions, solve
                                                                                                                        to identify and solve                       as to make                 problems and achieve objectives;
                                                                                                                   development problems over                      fit, qualified,              to understand and deal with their
                                                                                                                       time’ (Morgan 1993).                       or proficient                 development need in a broader
                                                                                                                                                                                                   context and in a sustainable
                                                                                                                                                                                                      manner’ (UNDP 1997).




                                                                                                                                                                                                        Source: Lusthaus et al. 1999.



266
    Table 8.1: Training to Restitution projects

                                  Projects assessed             Projects in which              Projects in which no
                                                                     training was            training was provided
                                                                         provided
     Eastern Cape                                     29                           6                                 23
     Free State                                       13                           4                                  9
     Gauteng                                             7                         0                                  7
     KwaZulu-Natal                                    32                          11                                 21
     Limpopo                                          21                          10                                 11
     Mpumalanga                                       25                           6                                 19
     North West                                       25                           5                                 20
     Northern Cape                                    13                           7                                  6
     Western Cape                                     13                           2                                 11
     Total                                           178                          51                              127

                                                                                               Source: Diako et al. 2005.




                                                                                                                            Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8
•     technical assistance that was reportedly provided            No monitoring systems for this purpose seem to
      to the 177 assessed projects was totally                     be in place in any of the projects.
      inadequate;
                                                             The evidence shows that very often current approaches
•     officials from the RLCC and other relevant             to capacity development and training are not based
      government departments do not have the                 on an assessment of claimant skills and experience. It
      necessary skills to provide adequate technical         also appears that training and capacity development
      assistance; and                                        are not closely linked to the competencies, finance
                                                             and management systems required to implement the
•     in 60% of the assessed projects, beneficiaries         business plan. They are often conceptualised in the
      claimed that a lack of skills contributed to           form of stand-alone, add-on courses.
      the failure to attain their developmental aims
      (particularly in agriculture and tourism).             As might be anticipated, there is a major gap with
                                                             respect to management skills. It is clear that the
The trend identified by the CASE report is corroborated      majority of land reform beneficiaries have a lack of
by the CSIR (2005), the Commonage review (DLA                formal education and skills. This deficit cannot be
2005) and LRAD review (Ministry of Agriculture and           addressed simply by sending people on generic short
Land Affairs 2003). In a review of 50 projects in the        courses provided by established institutions. It will
Free State during 2003, Swanepoel and Stroebel               require ongoing, on-farm training and support to assist
(2004) concluded that:                                       claimants to deal with the business and management
                                                             issues of the day and the identification of young people
•     Agriculture officials who have to assist
                                                             to undergo specialist tertiary education if land reform
      community projects generally have an inadequate
                                                             is to make a lasting impact and projects are to have
      understanding of essential concepts such as
                                                             intergenerational continuity.
      commercialisation, co-ordination, beneficiaries,
      the mainstream economy, gender issues and
      small farmer development.                              2.4.2 Government officials and others
                                                             The available evidence highlights that capacity
•     There seems to have been no emphasis on
                                                             development and training are not just things that
      learning in the projects. This implies a lack of
                                                             land reform participants require, but are also required
      reflection on progress and achievements by
                                                             for those who are expected to provide services and
      project participants and managers.
                                                             develop operational systems – lawyers, extension
•     There is an urgent need for appropriate training.      workers, conservationists, business professionals and


                                                                                                                            267
                                                                                                              others – who are often ill-equipped to apply their skills   This also relates to the management of information
                                                                                                              in the complex project landscapes which make up the         and intra-departmental learning in relation to land
                                                                                                              land reform working environment.                            reform. While certain other departments – most
                                                                                                                                                                          notably DPLG – have invested heavily in learning
                                                                                                              Within the DLA line function, training of officials is      process approaches in order to strengthen capacity,
                                                                                                              largely pitched at basic entry level courses of one         this seems notably absent in the land reform context.
                                                                                                              or two days in duration. The DLA Training Directory         This is addressed below as an adjunct to the SIS
                                                                                                              2006/7 lists the following courses that are currently       Strategy.
                                                                                                              provided. Many of the courses on land legislation are
                                                                                                              offered by e-learning. Courses include:                     There is no training and learning programme available
                                                                                                                                                                          as yet which deals with the process of area-based
                                                                                                              •     Land Information Management;                          planning, proactive land acquisition and the provision
                                                                                                                                                                          of SIS services. Also, no training is provided to improve
                                                                                                              •     Project Management;
                                                                                                                                                                          the overall development literacy of DLA staff and
                                                                                                              •     Basic Course on Land Redistribution for               which familiarises them with the key functions of other
                                                                                                                    Agricultural Development (LRAD);                      departments relevant to the land reform programme.
                                                                                                                                                                          This is an essential requirement where integrated SIS
                                                                                                              •     Valuation;                                            services are to be provided within the context of a
                                                                                                                                                                          municipal IDP.
                                                                                                              •     Business Plan;
Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8




                                                                                                              •     E-learning on Land Redistribution;
                                                                                                                                                                          2.5 Local organisation
                                                                                                              •     Extension of Security of Tenure Act;
                                                                                                                                                                          The 2nd QOL survey noted that:
                                                                                                              •     Land Reform (Labour Tenants) Act;
                                                                                                                                                                          the functioning of land management committees
                                                                                                              •     Communal Land Rights Act;                             and other local associations is critical not only to the
                                                                                                                                                                          effective use of the land that is transferred, but also to
                                                                                                              •     Communal Property Associations Act;
                                                                                                                                                                          the ability of the community to mobilise and organise
                                                                                                              •     Upgrading of Land Tenure Rights Act;                  for the delivery of services (DLA 2003).

                                                                                                                                                                          However, currently there is little evidence of self-
                                                                                                              •     Transformation of Certain Rural Areas Act;
                                                                                                                                                                          organisation among land and agrarian reform
                                                                                                              •     Distribution and Transfer of Certain State Land       participants. While there is some evidence of self-
                                                                                                                    Act;                                                  organisation in certain regions, such as parts of the
                                                                                                                                                                          North West, this seems to be the exception rather than
                                                                                                              •     Land Titles Adjustment Act;
                                                                                                                                                                          the rule.
                                                                                                              •     Interim Protection of Informal Land Rights Act;
                                                                                                                                                                          The international experience highlights the importance
                                                                                                              •     Integration of Environmental Planning into Land       of organising local people for development work,
                                                                                                                    Reform and Land Development; and                      but cautions that outside interventions to form local
                                                                                                                                                                          organisations often fail because they do not take
                                                                                                              •     Geographic Information Systems.                       cognisance of existing social arrangements.

                                                                                                              Very few of these courses are practical or have a field-    Both governmental and non-governmental agencies
                                                                                                              based learning component. Courses such as that on           have implemented various projects that have needed
                                                                                                              the CPA Act provide an introduction to the Act but do       and encouraged collective action by people. Often,
                                                                                                              not focus on the process of determining rights, and do      however, such projects malfunction after the outside
                                                                                                              not provide practical case-based examples. Overall,         agencies retreat from the project site, suggesting that
                                                                                                              the curriculum and approach to training do not appear       ‘making organizations’ is not the same as ‘making a
                                                                                                              to reflect a real culture of learning about land reform     system of making organizations’. The latter is essential
                                                                                                              and the experiences of implementing the programme           to make rural organizations self-reliant and sustainable
                                                                                                              to date.                                                    (Shigetomi 2006:3).



268
In recent years there has been an increasing focus           stepping stone to the public service. This has serious
on the importance of social capital and the notion           implications for the provision of PSS as NGOs often
of building on existing social organisation in local         have essential ‘soft’ skills and local knowledge required
development processes. Social capital is usually             for process facilitation and provision of support in
conceptualised as a productive force:                        relation to rights determination and management and
                                                             the building of institutional capacity. Ideally, the SIS
Those communities endowed with a diverse stock
                                                             Strategy should contain measures which can contribute
of social networks and civic associations are in a
                                                             to the reinvigoration of the NGO sector.
stronger position to confront poverty and vulnerability
(Moser 1996; Narayan 1995), resolve disputes (Schafft
1998; Varshney 2000), and take advantage of new
opportunities (Isham 1999)…The social networks of the        3 Key issues and
poor are one of the primary resources they have for
managing risk and vulnerability, and outside agents
                                                             problems
therefore need to find ways to complement these              This section summarises the key issues and problems
resources, rather than substitute for them (Woolcock         in the current context which must be directly addressed
& Narayan 2000:226).                                         by the Strategy.
However, it has also been recognised that in
particularly isolated and poor communities there can




                                                                                                                           Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8
be what is termed ‘perverse social capital’ where            3.1 Rights determination
negative relations of power, dependency and inequality       and CPI functionality
are reproduced instead. As Woolcock and Narayan
                                                             As is clear from the foregoing, there has been a major
observe:
                                                             failure with respect to the allocation of rights and
Understanding how proposed policy interventions              benefits to individuals acquiring land under the land
will affect the power and political interests of the         reform programme. The CPI establishment process
stakeholders is a vital consideration, since all policy      is not methodically implemented in many projects,
interventions occur in a social context characterized by     leaving membership, rights, benefits and obligations
a delicate mix of informal organizations, networks and       poorly defined and implemented.
institutions. The design of an intervention needs to pay
                                                             Failure to specify obligations, such as levies for upkeep
special attention to the potential for dominant groups
                                                             of shared infrastructures, or to develop the institutional
to mobilize in ways that undermine the public good
(Woolcock & Narayan 2000:242).                               capacity to collect them, can result in the failure of
                                                             the CPI to maintain essential infrastructure once the
This indicates that while local organisation is essential,   land has been acquired. In some instances the failure
an enabling environment needs to be created which            of land-holding entities to pay for irrigation water or
stimulates the development of existing formations
                                                             electricity has resulted in loss of rights or withdrawal of
while simultaneously monitoring the risk that local
                                                             services.
elites capture such associations and appropriate
benefits that are intended to flow through them.             Once established, CPIs do not receive support for
Incentivising the formation of local associations to         administering the land rights of members or for
provide an improved interface with SIS service entities      managing their day-to-day affairs. This can result in
is an additional element within the strategy set out         the collapse of group decision-making processes and
below.                                                       result in inequitable access to resources and benefits.
                                                             Monitoring of established entities is weak and systems

2.5.1 The decline of land sector NGOs                        for indicating when they may be experiencing problems
                                                             are inadequate and provide information only when
Since 1994, there has been a net loss of capacity
                                                             problems are advanced, if at all.
amongst land sector NGOs providing vital support
services to rural people. This has partly been due to        This is a systemic problem as evidenced by the
the redirection of donor finance and NGOs acting as a        failure of either the November 2003 Ministry of



                                                                                                                           269
                                                                                                              Agriculture and Land Affairs LRAD review or the DLA’s       3.3 Business entities
                                                                                                              LRAD manual (Version 1 of June 2003) to make any
                                                                                                              recommendations as to how the rights of individual          In many land reform projects, business entities have
                                                                                                              land reform beneficiaries should be secured. Neither        been established without due attention being paid
                                                                                                              document makes any reference to ‘equitable access’          to the capacity required to manage them, or the
                                                                                                              or to securing the user-rights of individual project        transaction costs associated with establishing them

                                                                                                              participants. With regard to land management and            and meeting ongoing compliance requirements.
                                                                                                                                                                          (Examples include meeting tax obligations and
                                                                                                              tenure arrangement the LRAD manual merely poses
                                                                                                                                                                          complying with a number of regulatory requirements in
                                                                                                              the question as to whether ‘the land is going to be
                                                                                                                                                                          respect of annual financial statements.)
                                                                                                              owned individually or communally or leased?’

                                                                                                              The DLA produced a draft legal entity handbook and
                                                                                                              implementation manual for CPIs towards the end of           3.4 Social development
                                                                                                              2006. Despite detailed provisions made in the 2005
                                                                                                                                                                          Land reform planning and implementation are not
                                                                                                              CSIR report based on the legal technical analysis of
                                                                                                                                                                          securing optimal social benefits for people who acquire
                                                                                                              41 CPAs, the handbook pays no attention to options
                                                                                                                                                                          land. The social development needs of people who
                                                                                                              and examples for the securing of individual user-rights
                                                                                                                                                                          settle on the land are not adequately addressed.
                                                                                                              or proposed steps or mechanisms to ensure equitable
                                                                                                                                                                          There are also significant silences with respect to
                                                                                                              access. Steps to address the many problems within
Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8




                                                                                                                                                                          mitigating the impacts of HIV/Aids and recognising the
                                                                                                              CPAs, as clearly set out in the CSIR report, receive no
                                                                                                                                                                          significance of gender and age within the development
                                                                                                              attention. Many entities lack capacity to carry out their
                                                                                                                                                                          planning process.
                                                                                                              functions or are dependent on founder members.

                                                                                                              The legal remedies available to the beneficiaries of
                                                                                                              trusts and the DLA are complex and time-consuming
                                                                                                                                                                          3.5 Capacity development
                                                                                                              and can require expensive court proceedings. The Trust      and training
                                                                                                              Property Control Act requires the intervention of the
                                                                                                                                                                          Members of land and agrarian reform projects lack
                                                                                                              Master of the High Court in the event of problems.
                                                                                                                                                                          access to customised training and on-site learning
                                                                                                              While the Master has substantial powers to intervene
                                                                                                                                                                          support. Where training programmes have been
                                                                                                              without resorting to court proceedings, it is often
                                                                                                                                                                          delivered, they are often generic courses which may
                                                                                                              difficult to secure timeous attention, which can then
                                                                                                                                                                          have limited relevance for the specific needs of
                                                                                                              require an expensive approach to the courts, without
                                                                                                                                                                          participants, or they may be inappropriately pitched.
                                                                                                              funds being available for this purpose.
                                                                                                                                                                          Officials within different spheres of government who
                                                                                                              By contrast, the CPA Act enables DLA to access              are required to provide services often lack proper
                                                                                                              resources to address institutional failure, although this   understanding of land reform and may lack appropriate
                                                                                                              facility has been seldom used.                              skills and methodologies to work effectively with land
                                                                                                                                                                          reform participants. The same often applies to private
                                                                                                                                                                          sector organisations and partners.
                                                                                                              3.2 Capacity of municipalities
                                                                                                              to manage commonages
                                                                                                                                                                          3.6 Local organisation
                                                                                                              Municipalities which acquire land for commonage
                                                                                                              often lack capacity, expertise and support to manage        Government engagement is largely on a project-by-
                                                                                                              the land in accordance with the commonage policy            project basis (with the partial exception of land claims
                                                                                                              and legal requirements of the notarial deed. In some        on contiguous areas of high value land in Limpopo).
                                                                                                              instances, Commonage has degenerated into open              There have been few attempts to stimulate local
                                                                                                              access, key infrastructure has been allowed to run          associations and enable horizontal peer support on an
                                                                                                              down and resources have been depleted. Commonage            area basis. This has contributed to the fragmentation
                                                                                                              is seldom firmly located as a LED project within the IDP.   of existing PSS initiatives.



270
4 Where we want                                                  develop the capacity of all role-players involved
                                                                 in land reform – leadership and members in

to be                                                            projects through to officials in DLA and relevant
                                                                 government departments; municipalities which
The key strategic goals for this component are:                  provide services; private sector and civil society
                                                                 partners – and which enable the development
•    To implement comprehensive social profiling                 of a growing knowledge base for successful land
     at project- and area-based scales to provide                reform implementation.
     adequate baseline data for monitoring
     improvements in rights security, livelihoods,         •     To stimulate the development of well-organised
     well-being, skills and institutional capacity.              and independent associations representing
                                                                 the interests of people who have acquired land
•    To put in place agreed processes for the                    through the land reform programme as a key
     establishment and support of CPIs in order to               element to facilitate the provision of area-based
     ensure clarity of membership, plainly defined               planning and support.
     land rights and entitlements backed by effectively
     functioning land and land rights management
     institutions that guarantee continuing secure and
     equitable access to land and resources.
                                                           5 Getting there




                                                                                                                      Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8
•    To establish and capacitate a national                Key strategic elements are briefly identified below
     programme to audit and resuscitate CPAs and           which must be addressed in order to meet overarching
     trusts that have experienced institutional failure.   goals.

•    To put in place provincial support programmes
     to service municipalities managing commonages         5.1 Establishing a social and
     and to ensure that commonage obligations are
                                                           economic baseline
     fully understood and supported by DPLG and
     provincial departments of local government.           Currently there is no effective mechanism in place to
     Also, to enable the recommendations of the            enable DLA to monitor and evaluate individual project
     Commonage review (Ministry of Agriculture and         success or the impacts on individual participating
     Land Affairs 2003) to be implemented effectively.     households. Problems with the methodology and ability
                                                           to compare trends across respective QOL surveys have
•    To engage with specialist units within the
                                                           also been discussed above. These problems are partly
     Department of Trade and Industry, South African
                                                           a reflection of the inadequate collection of project
     Revenue Service (SARS), the private sector
                                                           baseline data at planning and initiation stage.
     and organised agriculture to ensure that, where
     projects establish business entities, these are       The importance of reliable data cannot be
     supported by an ongoing customised programme          overemphasised as it makes a vital contribution to both
     of institutional and management development           the evaluation of project processes and outcomes.
     support.                                              The objective here is to establish a starting point, or
                                                           baseline, to determine whether and how the project is
•    To facilitate a comprehensive area-based,
                                                           having an impact (Mizell 2005).
     gender-differentiated programme of social
     development to ensure that poor households            Achieving this will require the development of a
     obtaining land through the Restitution and            standard household survey instrument. The survey
     Redistribution components of the land reform
                                  8
                                                           instrument may require distinction between core data
     programme have access to essential social,            common to all projects and flexible datasets tailored to
     health and education services which mitigate risk     particular products or a project typology.
     and vulnerability.
                                                           This will need to be carefully designed to articulate
•    To initiate national, provincial and area-based       with other survey instruments currently in use. The
     learning processes which systematically               design of the survey instrument will need to be part



                                                                                                                      271
                                                                                                              of a nationally managed but provincially implemented         Redistribution and Restitution land reform projects on a
                                                                                                              data collection and analysis system. The design of the       firmer footing.
                                                                                                              survey instrument should involve DLA M&E, StatsSA
                                                                                                                                                                           Clearly the current strategy of contracting out legal
                                                                                                              and a range of departments including DPLG and the
                                                                                                                                                                           entity establishment to unrated service providers is
                                                                                                              departments responsible for agriculture, education
                                                                                                                                                                           inadequate. Constitutions are often drawn up on a pro
                                                                                                              and health, together with appropriate independent
                                                                                                                                                                           forma basis. The establishment of the entity is simply
                                                                                                              research institutions, to ensure relevant content and
                                                                                                                                                                           regarded as the vehicle to enable transfer of the land
                                                                                                              the portability of data between departmental systems.
                                                                                                                                                                           without sufficient attention being given to providing
                                                                                                              It may also be necessary to identify appropriate control
                                                                                                                                                                           procedures for the determination and allocation of
                                                                                                              groups – people not benefiting from land reform for          individual user-rights or benefits. Increased oversight is
                                                                                                              purposes of comparative analysis.                            required, coupled with comprehensive support, follow
                                                                                                                                                                           up and monitoring.
                                                                                                              Once a draft inventory instrument has been designed
                                                                                                              to capture baseline data and tested, it will need to         To this end, the SIS Strategy envisages:
                                                                                                              be administered as a standard component within
                                                                                                              the project cycle for Restitution and Redistribution         •     overhauling the majority of land reform projects
                                                                                                              projects. While this will have the effect of pushing               that are at present not achieving the objectives of
                                                                                                                                                                                 land reform;
                                                                                                              up project costs and may impact on timelines, we
                                                                                                              argue that the benefits will far outweigh the costs.         •     ensuring that planning and implementation of
Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8




                                                                                                              Ideally, the household survey will be administered once            new land reform projects complies with a rigorous
                                                                                                              membership and rights have been determined and will                CPI establishment process set out in regulations
                                                                                                              also serve to record rights allocated in the proposed              in relation to the constitutional objectives and
                                                                                                              Resource Allocation Plan (see section below). Data                 monitored by the proposed CPI support team;
                                                                                                              from the household survey should be made available to
                                                                                                                                                                           •     considering CPAs as the preferred land-holding
                                                                                                              SIS service entities and be used to inform the drafting
                                                                                                                                                                                 entity for land reform purposes, given the
                                                                                                                                                         .
                                                                                                              of a land reform sector plan within the IDP Where
                                                                                                                                                                                 difficulties experienced with trusts;
                                                                                                              possible, the data should be GIS-linked, enabling
                                                                                                              planners and support staff from different agencies           •     creating a system of accreditation for service
                                                                                                              to call up spatially referenced social and economic                providers tendering to establish land-holding
                                                                                                              baseline data on projects within their jurisdiction.               entities and determine rights;
                                                                                                              (These possibilities are discussed further in Chapter
                                                                                                                                                                           •     ensuring that ongoing support is provided to
                                                                                                              13.)
                                                                                                                                                                                 new and existing projects to ensure ongoing
                                                                                                              The availability of reliable baseline data on each project         functionality;
                                                                                                              should make the process of conducting subsequent
                                                                                                                                                                           •     ensuring that ongoing assessment, monitoring
                                                                                                              QOL surveys much simpler and enable the findings to
                                                                                                                                                                                 and evaluation is undertaken to determine
                                                                                                              be disaggregated at project, area and district levels
                                                                                                                                                                                 whether the objectives of land reform are being
                                                                                                              while enabling provincial and national reviews of
                                                                                                                                                                                 achieved, and to identify needs for further
                                                                                                              programme performance. It effectively creates a set
                                                                                                                                                                                 intervention; and
                                                                                                              of panel data which will provide the foundation for
                                                                                                              analysis of a cross-section of households and projects       •     establishing a dedicated national public-private
                                                                                                              over time.                                                         partnership between a DLA CPI support unit,
                                                                                                                                                                                 with staff decentralised to PRLOs and SIS service
                                                                                                                                                                                 entities at area and district levels, and legal
                                                                                                              5.2 Securing membership                                            resources NGOs and selected service providers.
                                                                                                              rights and equitable access
                                                                                                                                                                           5.2.1 Fixing and overhauling
                                                                                                              The Strategy details steps to ensure the determination
                                                                                                              of rights and the provisioning of public administrative
                                                                                                                                                                           existing CPIs
                                                                                                              support, while taking family and community interest          Fixing and overhauling existing CPIs will require the
                                                                                                              into account, as an essential intervention to place          development of capacity within the DLA and the



272
probable development of a partnership with existing          While the position in a trust is considerably more
NGOs and public interest law firms to provide legal          complex, the Trust Property Control Act creates a
services and support. It is well known that numerous         number of remedies to address problems. However,
CPAs and land-holding trusts are no longer functioning.      the requirement for approaching the court (locus
In some cases there has been complete institutional          standi) is higher since it requires that only a party with
failure resulting in conflict. The programme will involve:   an interest (a beneficiary) may apply.

•     auditing existing CPAs using available information     In the context of land reform, it seems likely that the
      from reviews such as CASE (Diako et al. 2005)          courts will, if requested, grant the State standing to
      and the CSIR (2005) and conducting additional          apply to the High Court to ensure that the remedies in
      investigations;                                        terms of the Act are applied for the removal of trustees
                                                             and their replacement by new trustees, appointed by
•     developing a register of land that has been
                                                             the Master. In some respects the remedies open to
      transferred to trusts;
                                                             the Master are, at first glance, less complicated and
•     developing a CPI revitalisation programme and          costly that those of the CPA Act. The Master does not
      prioritising failed CPIs within designated area-       need an order of court but may, in terms of Section
      based programmes providing SIS services;               20(2)(e), remove a trustee from office if the trustee
                                                             fails to perform satisfactorily any duty imposed upon
•     locating CPI revitalisation as part of an overall
                                                             him under the Trust Property Control Act or to comply




                                                                                                                          Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8
      project renewal strategy which simultaneously
                                                             with any lawful request of the Master. Section 7(2) also
      reviews livelihood options together with project
                                                             presents the Master with wide and convenient powers.
      participants; and
                                                             It the Master considers it desirable, notwithstanding
•     approaching the Master of the High Court with a        the provisions of the trust instrument, he or she may
      view to jointly developing legislative amendments      appoint a fit person as a co-trustee.
      to enable DLA to engage with and support land-
                                                             However, a complicating factor is that these actions
      holding trusts.
                                                             require the intercession and support by the Master.
In terms of the Constitution, the State has legal            If the Master neglects or refuses to intervene, the
standing and an obligation to intervene to protect           court must be approached. This raises the question
land reform beneficiaries if the beneficiaries are not       of how DLA or the beneficiaries would pay for court
protected or cannot act. While there are serious             proceedings. Legislative provision has not been made
problems with CPAs throughout the country, what              for monies to be appropriated by Parliament for this
distinguishes them from land-holding trusts is that          purpose. This should be addressed by legislative
they have inbuilt remedies in law which obliges the          amendment, as discussed below.
DLA to provide support. However, to date, available
legal remedies to fix ailing CPAs have hardly been
                                                             5.2.2 Establishing functional entities as
used. Only three CPAs have been placed under
                                                             part of newly planned projects
DLA administration, namely: the Khomani San,
Mmamahlola and Elandskloof. These remedies will              In order to establish functional land-holding entities
need to be more extensively used as part of the CPA          as part of newly planned projects, it is proposed
revitalisation programme. The emphasis, however,             that the approach outlined in the May 2005 CSIR
should be on low-impact interventions, rather than           report be followed. These set out clear and practical
dramatic court-ordered administration.                       recommendations specifying what must be done.
                                                             These warrant being reproduced in full. The principal
The legal remedy for CPAs in difficulty is Section 13
                                                             recommendations of the CSIR report and the
of the CPA Act, which provides that on application
                                                             associated review of the constitutions of 40 CPAs were
made by the DLA Director-General, an association
                                                             as follows:
or provisional association or any member thereof,
or any other interested person, a court may place            Amend the regulations to require a process for the
the association or provisional association under the         allocation of substantive rights (in greenfield projects)
administration of the DG.                                    and the recording of rights (where communities are



                                                                                                                          273
                                                                                                              already on the land) and the maintenance of a register     purchase of sufficient land for an individual household’s
                                                                                                              of rights, and requiring that these rights are allocated   subsistence.
                                                                                                              to women on the same basis as to men.
                                                                                                                                                                         Ensure that where a business is to be established on
                                                                                                              Amend project cycles of all land reform programmes         CPA land, it should operate through a separate legal
                                                                                                              and sub-programmes, to include the preparation             entity.9 Though CPAs should be encouraging business
                                                                                                              of a land administration plan (LAP) and a resource         ventures on the CPI land, the CPI should not be the
                                                                                                              allocation plan (RAP). This must take place prior to       instrument used to manage the business. Better options
                                                                                                              transfer in greenfield situations. Where communities       are to leave business activities to individuals, or to set
                                                                                                              are already resident on the land the process will be       up independent companies or joint ventures to conduct
                                                                                                              to confirm, adapt or formalise existing land rights        the business management.
                                                                                                              administration practices.
                                                                                                                                                                         Intervene to fix ailing CPAs. The CPA Act provides
                                                                                                              Ensure that CPI committees provide members with a          for many remedial activities. The DLA, land reform
                                                                                                              written document describing the physical boundaries of     NGOs and CPI members should invoke and use these
                                                                                                              the land and the attributes of the right allocated where   remedies.
                                                                                                              rights relate to a specific piece of land. Where rights
                                                                                                                                                                         Use individual rather than household membership
                                                                                                              relate to communal land, such as for grazing, ensure
                                                                                                                                                                         when forming CPIs. Individual membership is
                                                                                                              that members have written agreements defining their
                                                                                                                                                                         recommended unless there are very compelling
                                                                                                              rights and obligations to use the communal resource.
Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8




                                                                                                                                                                         reasons to have household membership. Where there
                                                                                                              This should include user pays principles where the users
                                                                                                                                                                         is household membership, internal consistency and
                                                                                                              of the commons (e.g. livestock owners) are responsible
                                                                                                                                                                         clarity in constitutions is needed. Protections are
                                                                                                              for the costs of maintaining the commons. Templates
                                                                                                              for such documents should be developed by DLA. The         needed to ensure women’s rights are maintained if

                                                                                                              procedures developed for municipal commonage               the household should be split due to divorce or other

                                                                                                              management can be used as a basis for commonage            factors. Inheritance as it applies to a household also
                                                                                                              management, but should be simplified.                      needs clarity, as does termination of membership. Note:
                                                                                                                                                                         the way rights are handled will differ greatly between
                                                                                                              Allocate sufficient DLA staff and resources to render
                                                                                                                                                                         ‘open’ and ‘closed’ membership and between restitution
                                                                                                              support on an ongoing basis to CPAs to meet CPA
                                                                                                                                                                         and redistribution (CSIR 2005:4-5).
                                                                                                              establishment and post establishment obligations
                                                                                                              including assistance in the administration of rights,      The SDC could find very little evidence that these
                                                                                                              monitoring and evaluation and intervening when CPAs        recommendations have been taken on board by DLA
                                                                                                              are showing signs of dysfunctionality.                     or measures put in place to put them into effect.
                                                                                                                                                                         This requires leadership, direction and capacity which
                                                                                                              Put in place an annual monitoring and evaluation
                                                                                                                                                                         must be strengthened if these key issues are to be
                                                                                                              system to monitor all CPIs. Results from this should be
                                                                                                                                                                         addressed.
                                                                                                              presented to parliament as required in section 17 of the
                                                                                                              Act.
                                                                                                                                                                         5.2.3 Amending the CPA Act
                                                                                                              Subdivide farms so that smaller groups can access
                                                                                                              land. In restitution situations where a large group is     In addition to the above, the SIS Strategy envisages
                                                                                                              needed to acquire a farm and the group does not have       amending the CPA Act to oblige the State to provide
                                                                                                              joint aspirations, consider the option of subdividing      ongoing rights administrative support to CPAs and to
                                                                                                              the farm and creating a number of smaller CPIs. In         enable the creation of mechanisms to achieve this in
                                                                                                              restitution, where a number of farms are involved          conjunction with other branches of the State, such as
                                                                                                              consider the option of subdividing the group into          municipalities.
                                                                                                              smaller communities with common interests linked to
                                                                                                                                                                         Despite the State’s constitutional obligations and
                                                                                                              specific farms. Alternatively develop sets of rules that
                                                                                                                                                                         an array of legal mechanisms to facilitate the initial
                                                                                                              can accommodate the different interests.
                                                                                                                                                                         determination of rights, little, if anything, exists to
                                                                                                              Conduct a review on the optimum smallest grant size        ensure ongoing State administrative support in land
                                                                                                              for LRAD grants. The current starting grant size of        reform projects where land has been transferred in
                                                                                                              R20 000 is considered as too small to allow for the        private ownership to community land-holding entities.



274
The CPA Act currently does not make provision for the         to the beneficiaries. To correct this, it is proposed
rendering of administrative support for the continued         that DLA develop an accreditation system for service
securing and management of rights after the land has          providers tendering to establish CPAs and facilitate the
been transferred.                                             determination of rights. Service providers should be
                                                              required to complete a combination of online and face-
Once the Act directs that the Minister or the DLA
                                                              to-face training on the Act and undertake supervised
should provide such support, the preferred route would
                                                              assignments to demonstrate their competency
be to amend the CPA regulations as this will give the
                                                              before they can be accredited. This must be linked
DLA greater control over the ‘legislative process’ and
                                                              with the development of a clear and appropriately
the content of the amendments which the Minister
                                                              designed approach and methodology for working
signs into operation.
                                                              with CPA executives and membership to facilitate
Further, the Strategy proposes that the CPA Act should        the establishment of the entity and the process of
be amended to ensure that trusts established to               determining and recording rights. It is suggested
hold land acquired under the land reform programme            that this should be based on existing good practice
are effectively transformed into CPAs. The original           established by the Legal Entity Assessment Project
reason for not making the entire CPA Act applicable           (LEAP) and the Legal Resources Centre.
to trusts was because of the archaic legal nature of a
                                                              The new system must ensure that service providers
trust and the fact that a different body of law governs
                                                              and SIS service entities understand and are enabled




                                                                                                                             Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8
the sequestration of trusts. Currently, the CPA Act
                                                              to work with communities to apply those provisions
provides that Sections 6 to 10 of the Act may be
                                                              of the CPA Act which oblige the CPA to determine the
made applicable to a trust that is a ‘similar entity’ to a
                                                              rights of its members. This includes the procedural
CPA.10 However, the evidence indicates that this is not
                                                              requirements concerning land rights transactions that
adequate and the entire CPA Act, in particular Section
                                                              a CPA has to observe as well as requirements on the
13, must be made applicable to similar entities.
                                                              extent to which a CPA constitution must provide for the
                                                              rights of members, as set out in the Act at Sections
5.2.4 Creating CPAs, not trusts, to hold                      8(8)(c)(i)–(ii); 9(1)(c); 9(1)(d)(i)–(iii); 12; and Items 7,
land and manage land rights                                   10, 11 and 12 that the constitution must comply with
For the purposes of choosing between entities to hold         in terms of Section 8(2)(d).
the land, as opposed to entities to use as business
                                                              The appointed service provider must be competent
vehicles, land reform beneficiaries are confined to
                                                              to establish a CPA, facilitate an initial determination
choosing between a trust and a CPA. In the opinion
                                                              of rights with the participants and reach agreement
of a range of land reform experts, communities and
                                                              on the extent to which they are transactable. If rights
groups taking ownership of land should establish
                                                              are to be transactable, this must be set out in clearly
a CPA, not a trust, as the land-holding entity. The
                                                              defined procedures. Service providers must also be
reasons for this are explained in Section 5.2.1 above.
                                                              in a position to assist with the implementation of
This approach will require clear policy direction from        the process in association with the local SIS service
DLA, coupled with an intensive capacity development           entity to ensure that rights and opportunities are duly
process, to ensure that DLA officials, service providers      allocated. This could involve:
and a range of actors are fully conversant with the CPA
                                                              •     linking rights determination with a resource
Act, the regulations and the practical processes of
                                                                    management plan (See Chapter 9);
determining and recording rights.
                                                              •     determining fees payable by members for
5.2.5 Creating an accreditation system                              the maintenance of infrastructure and CPA
for service providers                                               administration and a system of payment for such
                                                                    fees;
The evidence shows that, in many cases, legal entities
have been hastily established. Some service providers         •     developing systems and providing training
have adopted a ‘cut-and-paste’ approach to drafting                 and oversight in the administration of records
constitutions and have not fulfilled their responsibilities         pertaining to rights and transactions of rights;



                                                                                                                             275
                                                                                                              •    devising a process for the confirmation of existing     5.2.6 Providing support to ensure
                                                                                                                   land use rights (if settlement and land use have        continued CPA functionality
                                                                                                                   already commenced);
                                                                                                                                                                           Clearly, it is not just the initial ‘determination’ of
                                                                                                              •    preparing a report on disputes with regard to           the rights of individuals which is important, but also
                                                                                                                   rights on the land that may be obstructing              ongoing support to ensure that such rights endure over
                                                                                                                   implementation of projects and devising and             time for the purposes of securing equitable access. For
                                                                                                                   invoking procedures and processes to resolve            land reform to work, land rights management needs
                                                                                                                   or cause the adjudication of disputes, including        ongoing support.
                                                                                                                   whether provisions concerning tenure redress
                                                                                                                                                                           Currently the CPA Act does not make sufficient
                                                                                                                   may be required;                                        provision for safeguarding community-owned land
                                                                                                                                                                           from risk. Special provision needs to be made in the
                                                                                                              •    assisting in the formulation and writing up of
                                                                                                                                                                           Act as well as prescriptions in the regulations. The Act
                                                                                                                   a set of rules to guide or determine dispute
                                                                                                                                                                           should provide that the CPA needs to be authorised by
                                                                                                                   resolution procedures within projects;
                                                                                                                                                                           a general meeting to undertake a series of transactions
                                                                                                              •    making leadership and membership aware of               (similar to the provision at Section 12(2)). The CPA
                                                                                                                   their rights, obligations and liabilities in terms of   regulations need to make provision for standard
                                                                                                                   applicable legislation governing natural resource       proposals for tender and procurement (as suggested
                                                                                                                                                                           in the 2005 CSIR report) special reporting. In addition,
Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8




                                                                                                                   management on their land and ensuring that
                                                                                                                   local rules are compliant with overarching              and accounting provision, as made in the regulations,
                                                                                                                   legislative provisions in this respect;                 needs to apply.

                                                                                                              •    making leadership and membership aware of               CPAs must be obliged to share a copy of their

                                                                                                                   their obligations in terms of tax law and municipal     constitution and their rules concerning tender and
                                                                                                                                                                           procurement, including a copy of a duly authorised
                                                                                                                   property rates;
                                                                                                                                                                           general meeting resolution that authorises the activity
                                                                                                              •    making members aware of their legal position            with any party that they enter into agreements with.
                                                                                                                   in cases where there are labour tenants or farm         Contracting parties will be obliged to verify the steps.
                                                                                                                   dwellers already living on the land;                    These measure should be addressed as part of the
                                                                                                                                                                           amendment process proposed above.
                                                                                                              •    in cases where there are processing plants which
                                                                                                                   fall under the Occupational Health and Safety
                                                                                                                                                                           5.2.7 Ensuring ongoing M&E and
                                                                                                                   Act (e.g. Zebediela), to ensure the CPA and the
                                                                                                                                                                           assessment of rights
                                                                                                                   business entity are aware of health and safety
                                                                                                                   regulations; and                                        Ongoing monitoring, evaluation and assessment of
                                                                                                                                                                           rights determination and land rights management will
                                                                                                              •    in cases where there are employees, to ensure           require the co-development of indicators to assess the
                                                                                                                   that the CPA or other business entity is aware of       day-to-day functionality of CPIs, the extent to which
                                                                                                                   its responsibilities in terms of minimum wages          they meet the objects of land and agrarian reform, and
                                                                                                                   and registration in terms of the Unemployment           the legal requirements of the founding legislation. It will
                                                                                                                   Insurance Fund and the Workers’ Compensation            also require the ongoing collection and analysis of data
                                                                                                                   Fund.                                                   through a combination of CPI self-assessment and
                                                                                                                                                                           external monitoring by SIS support teams
                                                                                                              Sample agreements have been generated in certain
                                                                                                              projects such as Algeria in the Western Cape and
                                                                                                              proposals on how these may be used by service                5.3 Commonage and land
                                                                                                              providers need to be described in the terms of
                                                                                                              reference for planning and implementation. Likewise,
                                                                                                                                                                           rights management
                                                                                                              the new draft Commonage Manual (December 2005)               The evidence from the field-based learning sessions
                                                                                                              provides useful information on the process of rights         conducted by the SDC highlighted major problems with
                                                                                                              determination and means to record these rights.              the Commonage projects under review. These mostly



276
related to the lack of capacity or willingness on the part   responsibility. Equally important is that Commonage
of municipalities to manage the commonage according          needs to be reframed as a LED activity within the
to DLA Commonage policy and the guidelines                                ,
                                                             municipal IDP with an active focus on how to maximise
contained in the Commonage Manual. This has                  currently underutilised and badly managed assets.
resulted in the commonage deteriorating into an open
access resource and infrastructure on the land being
allowed to run down.                                         5.4 Building business entities
Similar problems were identified within the DLA              While there has been agreement to date that business
commonage review (2005) which recommended that:              and land-holding functions should be separated and
                                                             that in general CPAs and trusts are not appropriate
•     the Directorate: Redistribution Implementation
                                                             as business entities, the SIS Strategy proposes
      Systems (RIS) conduct a contractual and
                                                             an important caveat. There should be a careful
      user agreement review in 2005/06 in order to
                                                             assessment of the establishment costs, management
      determine best practice examples of contractual
                                                             and compliance requirements of setting up such
      and user agreements;
                                                             entities in relation to value of the enterprise and the
•     a clause be inserted in the notarial deed of all       level of managerial skills and expertise.
      commonage land to enable transfer of the land
                                                             It is essential that land reform participants are not
      back to the province if managed inadequately by




                                                                                                                        Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8
                                                             further encumbered by complex entities established
      the municipality;
                                                             at great cost by consultants which may end up by
•     a planning grant be made available in order for        being a liability to the people they are there to serve.
      municipalities and PLROs to properly plan for          Emphasis must be placed on establishing entities
      Commonage projects, to be set at a maximum of          that are appropriate to the scale of the enterprise,
      15% of the land acquisition grant;                     the levels of skill of the participants and the level of
                                                             ongoing business and management support that will be
•     a commonage M&E system be designed which
                                                             available.
      includes qualitative indicators to enable the
      sharing of best practices and provide government       Internationally there are examples where an
      and other stakeholders with precise data about         intermediary organisation recruits legal and
      progress and performance;                              management consulting firms to provide pro bono
                                                             assistance to emerging entrepreneurs. The Volunteers
•     a training plan be developed by the Directorate:
                                                             of Legal Service (VOLS) non-profit organisation does
      RIS with the involvement of the Farmer
                                                             this in New York where the Micro Enterprise Project:
      Settlement Directorate in the NDA, PDoAs and
      DPLG, drawing on CASP funding to support and           provides pro bono legal assistance to low-income
      train commonage users and municipal officials;         micro entrepreneurs. Many poor people have a skill…
                                                             but have little practical knowledge about setting
•     the Directorate: RIS in consultation with PLROs,
                                                             up a business… The availability of valuable legal
      PDoAs, NGOs and municipalities should develop
                                                             advice is very helpful to persons of low-income and
      guidelines in 2005/06 to cater for both emerging
                                                             limited business experience. VOLS recruits law firms
      and subsistence farmers to ensure equitable
                                                             for this project; matches the law firms with non-
      access to commonage land; and
                                                             profit economic development agencies working with
•     assistance be given to provincial governments to       micro entrepreneurs; and provides ongoing project
      develop provincial policy, legislative frameworks      coordination (www.volsprobono.org).
      and administrative systems for the maintenance
                                                             There is no good reason why a similar system should
      and use of municipal commonage for land reform
                                                             not develop to support land reform in South Africa.
      purposes.
                                                             Clearly most legal and management consulting
In addition to the above, it is important that               skills exist in the private sector and in some more
commonages are located as part of area-based                 specialised NGOs. We propose that the new
plans and are not isolated as a separate municipal           Directorate or Special Purpose Vehicle responsible for



                                                                                                                        277
                                                                                                              SIS (see Chapter 11) launches a national programme         of business support centres to areas which were
                                                                                                              with provincial chapters to provide pro bono or low-       previously not serviced.
                                                                                                              cost legal and management consulting advice to land
                                                                                                              reform projects in designated area-based clusters. This
                                                                                                              would be consistent with the overall Strategy message      5.5 Enabling improved social
                                                                                                              that ‘land reform is everybody’s business’. Such an        development
                                                                                                              approach could also draw on the experience of the
                                                                                                                                                                         The provision of services and integration of water,
                                                                                                              Makuleke claim where a range of external stakeholders
                                                                                                                                                                         sanitation, housing, education, health and social grant
                                                                                                              dubbed the ‘Friends of the Makuleke’ provided
                                                                                                                                                                         needs are largely dealt with in Chapter 9, together
                                                                                                              important support and advice to the community. This
                                                                                                                                                                         with ways in which municipalities can provide services
                                                                                                              kind of support could be extended through area-based
                                                                                                                                                                         on a sustainable basis. As argued above, this rests on
                                                                                                              associations.
                                                                                                                                                                         the inclusion of a range of factors in the land reform
                                                                                                              Such a programme could involve partnerships with           planning and settlement support function.
                                                                                                              the National Business Initiative, large corporations,
                                                                                                              organised agriculture and commercial lending
                                                                                                                                                                         5.5.1 Social profiling
                                                                                                              institutions. Internationally, there are persuasive
                                                                                                              arguments that these investments do not need to be         As argued above, household survey instruments need

                                                                                                              limited to corporate social responsibility programmes,     to be put in place in order to establish an accurate
Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8




                                                                                                              but can form part of a new business model of investing     profile of the participants in projects and which enables

                                                                                                              in the so-called ‘bottom of the pyramid’ (BOP) target      the identification of particularly vulnerable households

                                                                                                              market (Prahalad & Hammond 2002).                          such as those headed by grandparents or children as
                                                                                                                                                                         well as those which may contain people with physical
                                                                                                              Given that big business will take time to rethink          or mental disability. This information must be made
                                                                                                              its paradigm, the SIS Directorate or SPV will need         available to key stakeholders and updated annually.
                                                                                                              to negotiate with DTI and the National Treasury to
                                                                                                              create opportunities and recognition for involvement
                                                                                                                                                                         5.5.2 Reducing the impacts of HIV/Aids
                                                                                                              by business in land reform. This could involve
                                                                                                              identification of potential benefits that can be accrued   Awareness of HIV/Aids must become an integral part
                                                                                                              from pro bono service delivery such as:                    of project planning to identify risk, prevention and
                                                                                                                                                                         measures to ensure those infected and affected are
                                                                                                              •     points earned on BEE scorecards;                     supported. There should be a particular emphasis
                                                                                                                                                                         on improving household food security, nutrition and
                                                                                                              •     preferential tendering procedures that award
                                                                                                                                                                         provision of services to minimise health risk and
                                                                                                                    points for social investment and training;
                                                                                                                                                                         triggers to opportunistic infections.
                                                                                                              •     ‘social discounts’ on finance; and
                                                                                                                                                                         To reduce susceptibility to HIV and vulnerability to
                                                                                                              •     tax incentives.                                      the impact of Aids, the following have been identified
                                                                                                                                                                         as part of the package of benefits that must be
                                                                                                              Clearly business entities require specialised oversight
                                                                                                                                                                         considered to guide the formulation of projects:
                                                                                                              and support which needs to be built into national,
                                                                                                              provincial and local SIS services. Linked to this          Safe, sufficient, reliable, affordable and accessible
                                                                                                              will be the importance of having a register of land        water for (1) drinking and washing, (2) food security
                                                                                                              reform projects that have established business             (irrigation), (3) income production activities;
                                                                                                              entities coupled with a calendar that highlights key
                                                                                                                                                                         Appropriate sanitation, above the national minima of
                                                                                                              compliance dates and deadlines – such as filing of tax
                                                                                                                                                                         a ventilated improved pit latrine, if the land reform
                                                                                                              returns, auditing and preparation of annual reports
                                                                                                                                                                         project comprises the establishment of a dense
                                                                                                              and financial statements. Such services may also be
                                                                                                                                                                         settlement;
                                                                                                              provided through local business support centres. The
                                                                                                              ABP approach, coupled with the development of local        The identification of burial space in places that do not
                                                                                                              associations, can be used to leverage the extension        risk contaminating underground water;



278
Accessible health services, either in terms of spatial       returning families and a school was constructed with
location of project relative to existing or planned          donor support. While the housing was allocated, many
services or in terms of affordable and reliable transport    units remained unoccupied as people had relocated to
services to health services;                                 places with higher levels of service and closer proximity

Upfront allocation and ongoing state supported               to jobs and shops. Despite a well-equipped school,

management of substantive collective and individual          enrolments remain low as the current demographic

rights (including transactions) and records of rights;       profile of the settlement is dominated by old people
                                                             with historical attachment to the land.
Technical support for the identification and
cultivation of nutritious and diverse foods for
household consumption and minimising exposure to
                                                             5.5.4 Securing social development
environmental pathogens and parasites (where these           benefits
are endemic) together with the Departments of Health         An accurate gender and age profile will enable an
and Agriculture;                                             accurate determination of social development needs
Promotion of community-based management of natural           for health, education and social grant planning
resources; and                                               purposes. Given the high levels of illiteracy that
                                                             characterise land reform participants and the difficulty
Affordability of product to individual beneficiaries, such
                                                             in accessing information and State services, a key part
as commonage fees, tenure system, rates and other
                                                             of the planning for household livelihood security must




                                                                                                                         Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8
service levies, water use rights, third party insurance,
                                                             be ensuring that all adults have identity documents
own equity in government grants.
                                                             and receive assistance in applying for the range
The spatial location of projects requires dedicated          of social development benefits to which they are
attention, as it will affect the feasibility of              entitled. This will require engagement with officials
implementing this package of benefits. Where services        from the provincial departments of social services and
(particularly health) and inputs (seed, fertiliser) are      development, and the Department of Home Affairs.
too far and people can not afford transport or there
is no transport available, land reform objectives are
at risk of being undermined by poor health and land          5.6 Capacity development and
reform is likely to contribute to exacerbating both
                                                             learning
HIV susceptibility (through non-treatment of STIs
and co-factor pathogens and household mobility) and          There is an increased understanding that rural
Aids vulnerability (poor treatment of opportunistic          development works best when conceptualised as a
infections and low levels of nutritional food security)      learning process which recognises that all actors need
(Ambert & Hornby 2006:36).                                   to learn as they go. Likewise, there is the growing
                                                             acknowledgement of different types of knowledge
5.5.3 Integrating gender, age and                            – e.g. ‘local’, ‘indigenous’ ‘scientific’ and ‘gendered’
livelihoods perspectives                                     – with different types of explanatory power which need

The social profile generated in the project planning         to articulate with one another.

phase will identify the demographics of the community
                                                             Within emerging extension and development
acquiring land. This will highlight the number of
                                                             practice, there has been a progressive evolution from
female-headed households and the age range of the
                                                             attempts to ‘transfer technology’ and hand down
participants. These factors will need to be taken into
                                                             pre-packaged technical and economic models to a
account when determining rights and securing resource
                                                             more facilitative approach. In the literature, there
tenure.
                                                             is broad agreement that outsiders are not able to
Likewise, in projects where housing and human                determine ‘best practices’ for rural people (Hagmann
settlement is proposed, the population profile will          et al. 1999). However, this agreement has yet to
provide an indication of the social sustainability of the    inform much of the practice in South Africa which
settlement. For example, in the case of the Bakubung         still privileges technocratic expert/service provider-
Ba Ratheo, housing was constructed to be occupied by         led approaches and sets great store on documents


                                                                                                                         279
                                                                                                              – business plans, development plans and the like – as        5.6.2 Building capacity in three spheres
                                                                                                              the key deliverables, which then often mark the end
                                                                                                                                                                           Capacity development is required for all the actors
                                                                                                              of the engagement. As discussed in Chapter 4, in
                                                                                                                                                                           involved in the land reform process. These have been
                                                                                                              eMpangisweni, a lot of money was spent on developing
                                                                                                                                                                           grouped into three spheres (Figure 8.2):
                                                                                                              a business plan which then the project participants and
                                                                                                              their appointed farm manager have never seen. This is        •     Sphere 1 focuses on the specialised needs and
                                                                                                              not an isolated occurrence and is an indicator of the              requirements of land claimants, land reform
                                                                                                              disjuncture between planning and accountability for                beneficiaries, executives of legal entities and
                                                                                                              implementation.                                                    management bodies responsible for rights
                                                                                                                                                                                 determination, land rights management and
                                                                                                              As outlined in more detail in Chapter 10, a very
                                                                                                                                                                                 administration, resource and production
                                                                                                              different approach underpins the SIS Strategy. This
                                                                                                                                                                                 management together with local associations
                                                                                                              envisages enabling medium-to long-term engagements
                                                                                                                                                                                 representing land reform projects in a designated
                                                                                                              by consortia to service projects in designated areas
                                                                                                                                                                                 area.
                                                                                                              in ways which combine responsibilities for planning,
                                                                                                              implementation and development of local management           •     Sphere 2 contains DLA officials responsible
                                                                                                              capacity.                                                          for Restitution, Redistribution, Tenure Reform
                                                                                                                                                                                 and other functions within the Department’s
                                                                                                              The Strategy envisages that this new direction will need
                                                                                                                                                                                 mandate.
Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8




                                                                                                              to be underpinned by a learning process approach,
                                                                                                              which deepens and enables exchange of knowledge              •     Sphere 3 contains councillors, officials and ward
                                                                                                              and skills between all participating role-players. Local           committees in municipalities, officials in other
                                                                                                              SIS service entities will require a learning process               departments (including NDA and PDoAs, DEAT
                                                                                                              facilitator who will be responsible for organising                 and provincial departments responsible for the
                                                                                                              area-based training and capacity interventions and                 environment, DTI, DPLG and DWAF) organised
                                                                                                              documenting lessons and approaches. This will                      agriculture, NGOs and tertiary institutions
                                                                                                              contribute to the expansion of a local and national                involved in the land reform programme.
                                                                                                              knowledge base on how to make land reform work.
                                                                                                              This, in turn, will require support to develop a new         The SIS service entity at the centre, in whatever

                                                                                                              culture of learning at local and other levels.               form it finally takes, will have to align processes and
                                                                                                                                                                           draw on resources in Spheres 2 and 3 in order to
                                                                                                                                                                           provide effective support to land reform participants in
                                                                                                              5.6.1 Developing capacity in a                               Sphere 1.
                                                                                                              dynamic context
                                                                                                              The ability to manage risk, uncertainty and change are       5.6.3 Building the capacity of
                                                                                                              key capabilities for all actors in their efforts to make     land reform participants
                                                                                                              land reform work. It is clear that there are no blueprints
                                                                                                                                                                           It is important to recognise that to assess and build
                                                                                                              or standard procedures which will automatically result
                                                                                                                                                                           participant capacity requires well-trained officials,
                                                                                                              in successful projects. Land-based livelihoods can
                                                                                                                                                                           competent service providers, efficient structures and
                                                                                                              be placed at risk by external shocks and stresses,
                                                                                                                                                                           systems and a network of agreements and institutional
                                                                                                              especially where people have a narrow asset base and
                                                                                                                                                                           arrangements that will enable the provision of
                                                                                                              limited resources to fall back on.
                                                                                                                                                                           appropriate pre- and post-settlement support.
                                                                                                              In this context, capacity development should also
                                                                                                                                                                           The SIS Strategy assumes that the land reform
                                                                                                              contribute to a sustainable development and resource
                                                                                                                                                                           planning process will be based on an assessment of
                                                                                                              management approach that helps overcome the:
                                                                                                                                                                           the current livelihoods, education, work experience,
                                                                                                              fragmentation and gaps within and between scientists         technical and managerial skills and demographic
                                                                                                              and different sciences, policy-makers, business              profile of the claimants. This profile will be assessed in
                                                                                                              organizations, non-governmental organizations and            relation to the livelihood opportunities associated with
                                                                                                              individuals (Korhonen 2005).                                 the acquisition of the land.



280
    Figure 8.2: Building land reform capacity in three spheres



                                         Sphere 1: Land reform participants
                                               and local associations



                                                                                   Area-based SIS
                                                                                       entity




          Sphere 2: DLA and
            CRLR officials                                                         Sphere 3: Municipalities, line
                                                                                   departments, private sector,
                                                                                    NGOs and tertiary partners




                                                                                                                       Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8
This assessment should make an important                  •      the development of customised area-based
contribution to the risk and feasibility assessment of           learning and capacity development programmes
the project, the proposed land use, enterprise and               that combine peer learning circles, field-based
livelihood options. It should determine whether the              learning sessions, mentoring support and
claimants have the capacity to take over existing                functional training in core generic skills;
farming operations or other enterprises on the land.
                                                          •      the utilisation of area-based SIS programmes as
It can also assist in the selection of options that are
feasible from technical, financial, environmental,               ‘learning laboratories’ to enable local experiences

human capacity and managerial perspectives.                      to assist the land and agrarian reform delivery
                                                                 process in non-designated areas;
Based on the initial capacity assessment, key
competencies, management and legal entity                 •      the documentation of the key learnings from

requirements need to be identified in order to make              local case studies and learning programmes and
optimal and sustainable use of the restored assets.              their communication as part of a broader process
This should form the basis of a linked capacity and              of knowledge management and in preparation for
systems development strategy as an integral part of              scaling up; and
the implementation process. This process can also
                                                          •      the articulation of these programmes with DLA,
generate an important set of indicators for M&E
                                                                 the departments of agriculture and the sectoral
purposes.
                                                                 skills development plans of the various relevant
A capacity development programme will focus initially            SETAs.
on the designated areas identified for the delivery of
SIS support. It will involve:                             5.6.4 Indicative capacity
                                                          development areas
•     project- and area-based surveys to identify
      capacity development needs amongst land             The capacity development areas identified in the
      and agrarian reform participants, SIS support       table below are indicative. They will need to be
      teams, participating government departments,        elaborated, adapted and adjusted according to the
      municipalities, private sector partners, NGOs and   local area-based operational context, with specific local
      CBOs;                                               stakeholders and institutions being clearly identified.


                                                                                                                       281
                                                                                                              Capacity will need to be assessed and developed                   learning and training methodologies will need to be
                                                                                                              where required in each key area and across the                    appropriate for land reform participants, and adapted
                                                                                                              different spheres. This will require a co-ordinated               for government officials and other role-players in each
                                                                                                              approach between DLA and other government and                     sphere.
                                                                                                              private sector/NGO/tertiary role-players and will require
                                                                                                                                                                                Within Spheres 2 and 3, the need to encourage
                                                                                                              integration with DLA’s existing training programme.
                                                                                                                                                                                simultaneous working and learning will require that
                                                                                                              Given the scope of what is required, the content of               much capacity development activity is likely to take
                                                                                                              the proposed capacity development programme will                  place in team contexts using field-based learning
                                                                                                              need to be incrementally developed and a variety of               methodologies, supported by workshop sessions and
                                                                                                              delivery methods explored. While learning areas may               knowledge resources made available by e-learning and
                                                                                                              straddle the three spheres, the depth and detail of               virtual office intranets.
                                                                                                              what is required will vary substantially. Likewise, the




                                                                                                                Table 8.2: Indicative learning content areas for different spheres
Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8




                                                                                                                  Sphere 1: Land reform                     Sphere 2: DLA and the CRLR                  Sphere 3: Municipalities,
                                                                                                                  participants and associations                                                         partners in government,
                                                                                                                                                                                                        private sector, NGO and
                                                                                                                                                                                                        tertiary education sectors
                                                                                                                  Undertaking area-based planning and       Undertaking area-based planning and         Undertaking area-based planning and
                                                                                                                  institutional arrangements including      institutional arrangements for support      institutional arrangements for support
                                                                                                                  the formation of local associations       GIS mapping and data-sharing                Providing access to and interpretation
                                                                                                                                                                                                        of GIS data
                                                                                                                  Self-assessment of existing               Social profiling and skills assessment      Appraising proposed project sites
                                                                                                                  institutions                              of the claimants/applicants, identifying    in relation to the municipal spatial
                                                                                                                  Social history                            strengths, weaknesses and gaps              development framework

                                                                                                                  Well-being/wealth ranking                 Undertaking social risk assessment          Identifying service delivery implications
                                                                                                                                                            Undertaking data capture, analysis
                                                                                                                                                            and communication
                                                                                                                  Appraising the land and its natural       Appraising the land and its natural         Appraising the land and its natural
                                                                                                                  resources and assessing its suitability   resources and assessing its suitability     resources and assessing its
                                                                                                                  to meet the needs of the community        for meeting the needs of the                suitability for meeting the needs of
                                                                                                                  drawing on available indigenous           claimants, utilising DLA environmental      the claimants, utilising assessment
                                                                                                                  knowledge                                 guidelines and ESAT                         science and framing legislation
                                                                                                                  Appraising environmental                  Demonstrating knowledge of appraisal        Demonstrating knowledge of appraisal
                                                                                                                  opportunities and threats                 methods and legislative framework           methods and legislative framework
                                                                                                                                                            Developing feasibility and assessment       Applying feasibility and assessment
                                                                                                                                                            criteria                                    criteria
                                                                                                                  Determining the rights, duties and        Learning from the experience of CPA         Facilitating linkages between resource
                                                                                                                  obligations of the members                establishment to date                       management and individual resource
                                                                                                                  Ensuring congruence between tenure        Facilitating the determination of rights,   tenure rights
                                                                                                                  arrangements and resource rights          duties and obligations/drafting brief for   Understanding the specifics of
                                                                                                                  Drafting CPI constitutions that clarify   service providers                           managing water resources, water
                                                                                                                  procedural and substantive rights         Developing a methodology for                rights, wetlands, rangelands, forests
                                                                                                                  including determination of access and     determining tenure arrangements             and woodlands, biodiversity, mining ,
                                                                                                                  use of productive resources                                                           invasive aliens, soil conservation, etc.
                                                                                                                                                            Understanding the requirements of
                                                                                                                                                            the CPA Act and regulations re: CPA
                                                                                                                                                            constitutions and establishment
                                                                                                                                                            processes
                                                                                                                                                            Developing assessment criteria to
                                                                                                                                                            appraise constitutions and rights
                                                                                                                                                            determinations




282
Undertaking local administration           Developing structures and systems to       Providing support and monitoring with
of the structures and systems to           support CPAs to administer rights          respect to land rights management in
administer these rights and duties         Developing relevant indicators and         relation to particular resources, e.g.
                                           monitoring systems                         grazing, common property resources
                                                                                      and conservation resources
Understanding the duties of executive      Developing an appropriate                  Understanding the legislation and
members                                    methodology for training and support       rules governing resource access and
Understanding the CPA Act and its key      of CPA executive members                   use
requirements                               Developing monitoring and early
                                           warning systems
                                           Developing dispute resolution systems
                                           Developing assessment methodolo-
                                           gies to review existing CPAs and trusts
                                           and strategies to revitalise these
                                           Developing rights enquiry
                                           methodologies
                                           Understanding the Trust Property
                                           Control Act and legislative options for
                                           intervention
                                           Registering trusts as ‘similar entities’
                                           in terms of the CPA Act
Understanding township establishment       Undertaking settlement planning            Undertaking settlement planning and




                                                                                                                               Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8
options                                    Developing township establishment          siting
Understanding service levels, service      options                                    Determining service provision costs
charges and maintenance                    Developing service provision and           and implications for IDP budgets and
Understanding the municipal indigency      maintenance options                        targets
policy                                     Supporting the development of a
Understanding local service provision      municipal indigency policy
entities and possibilities
Understanding property rates liabilities
Understanding livelihoods, enterprise      Undertaking household livelihoods and      Undertaking market scoping studies at
and land-use planning                      enterprise development planning            district scale
Understanding economic opportunities       Facilitating understanding of              Developing LED strategies
and benefits                               opportunities                              Assessing economic opportunities and
Understanding rights and benefits and      Facilitating linkages between land         business models at project and area
determination in relation to economic      reform, the IDP and LED strategies         scale
opportunities                              Contracting consortia to service           Facilitating project-level household
Understanding business entity              projects in designated areas               livelihoods and enterprise
formation options where appropriate        Developing project management,             development
                                           indicators and monitoring systems          Assessing risks and returns
                                                                                      Providing business and
                                                                                      implementation support services
Understanding rights, obligations and      Ensuring joint venture contracts and       Providing specialist support to
liabilities in respect of joint venture    leases favour the interests of land        review contracts and leases where
contracts and leases                       reform participants                        appropriate
Understanding and implementing M&E         Setting indicators, facilitating           Interpreting trends and appropriate
of progress against project goals          participatory M&E, doing data and          support interventions
Identifying corrective action              trend analysis
                                           Identifying and ensuring
                                           implementation of corrective action
Understanding and applying for             Identification of available grants and     Providing grant and loans and related
available grants and sources                                          ,
                                           sources of finance (CASP MAFISA,           support to projects
                     ,
of finance (e.g. CASP MAFISA,              Land Bank and others)                      Undertaking debt risk assessment and
Agricultural Development Fund and          Undertaking debt risk assessment           performance monitoring
Land Bank)
                                                                                      Providing targeted support
Understanding implications of non-
payment of commercial loans




                                                                                                                               283
                                                                                                                  Understanding and analysing risk and     Ensuring risk assessment and risk        Identifying support to be provided by
                                                                                                                  the development of risk reduction        reduction measures are in place at       appropriate departments and local
                                                                                                                  strategies to deal with drought, fire,   individual project and area scales       actors to identify, reduce and manage
                                                                                                                  etc.                                                                              particular risks
                                                                                                                                                                                                    Ensuring disaster risk strategies are
                                                                                                                                                                                                    integrated into the IDP and address
                                                                                                                                                                                                    the specific needs of land reform
                                                                                                                                                                                                    projects
                                                                                                                  Undertaking farm/enterprise              Ensuring enterprise management and       Providing management enterprise
                                                                                                                  management                               mentoring support is available           support in ways which build capacity
                                                                                                                  Undertaking farmer lead extension        Stimulating new approaches to            and transfer skills

                                                                                                                  Participating in peer learning circles   extension and peer learning              Implementing new approaches to
                                                                                                                                                                                                    extension and peer learning
                                                                                                                  Acquiring technical skills to manage     Sourcing technical expertise             Providing appropriate advice, support
                                                                                                                  crops, livestock, soils, fertilisers,                                             and technical services within an
                                                                                                                  irrigation, pest management, invasive                                             appropriate extension paradigm
                                                                                                                  aliens, forestry, medicinal plants,
                                                                                                                  biodiversity, etc.
                                                                                                                  Acquiring skills to maintain equipment
                                                                                                                  and plant
                                                                                                                  Acquiring skills to keep financial       Sourcing financial and business          Providing financial expertise and the
                                                                                                                  records, make financial projections,     management expertise                     development of skills and project-level
Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8




                                                                                                                  manage money, and make sound                                                      systems
                                                                                                                  business decisions
                                                                                                                  Understanding and complying              Identifying key compliance obligations   Providing appropriate support in key
                                                                                                                  with key legislative requirements        Securing training and support for        compliance areas
                                                                                                                  – e.g. tax, levies, service payments,    projects from appropriate departments
                                                                                                                  environmental and natural resource       and institutions
                                                                                                                  management, water rights, etc.
                                                                                                                                                           Developing systems for monitoring key
                                                                                                                                                           compliance obligations
                                                                                                                  Identifying skills and expertise         Developing a skills and capacity         Securing Agri-SETA support
                                                                                                                  shortfalls                               development plan to ensure the           Securing funding for skills
                                                                                                                                                           development of appropriate technical     development programmes on an area
                                                                                                                                                           capacity                                 basis
                                                                                                                                                           Supporting skills development
                                                                                                                                                           amongst younger people through
                                                                                                                                                           bursaries, placements and
                                                                                                                                                           learnerships
                                                                                                                  Undertaking produce and location         Commissioning market research and        Providing market advice
                                                                                                                  marketing                                branding of local area land reform       Developing linkages with area-based
                                                                                                                                                           initiatives                              tourism development and farm-stay
                                                                                                                                                                                                    strategies




                                                                                                              5.6.5 Developing the skills of SIS                              •      develop and adapt area-based approaches and
                                                                                                              service staff                                                          ensure the integration of land reform into IDPs;
                                                                                                                                                                                     and
                                                                                                              The DLA Chief Directorate or Special Purpose
                                                                                                              Vehicle which assumes overall responsibility for                •      facilitate the provision of a suite of support
                                                                                                              the implementation of the SIS Strategy will have to                    services to new landowners in different localities
                                                                                                              make a substantial investment in the development of                    and livelihood contexts.
                                                                                                              competent multi-skilled officials with the capacity to:
                                                                                                                                                                              Once it has been agreed to establish a new SIS
                                                                                                              •     effectively implement policy and legislation and          Directorate or an SPV, a more detailed institutional
                                                                                                                    ensure the determination of rights and equitable          design process will need to be undertaken which will
                                                                                                                    access to land and resources;                             identify the different functions of directorates and staff


284
posts. Specific competencies will be required by the        extent to which we are able to support participants
new staff to enable them to fulfil their job descriptions   to clearly determine and manage land and resource
and meet programme objectives. Skills development in        rights both now and in the future. This requires the
this area will need to be included within the overall DLA   development of robust land-holding entities and a
Skills Development Plan.                                    programme to revitalise and rehabilitate entities and
                                                            projects which have fallen into difficulties.

5.7 Encouraging local land                                  By themselves, however, land rights have limited

reform participant associations                             value. For these to make a contribution to livelihood
                                                            security, they must be part of a package which enables
Local associations of land reform beneficiaries will        key social development needs to be met, household
enable representatives of projects in given areas to        provisioning to be improved, and capacity and business
take up the interests of their members, enable linkages     acumen to be developed.
between producers of the same commodities and
entrepreneurs in the same sectors, and negotiate            The State has to provide holistic planning and
with other stakeholders. As has been observed               implementation support, particularly in the area of
internationally:                                            monitoring and capacity building for CPIs. For people
                                                            acquiring land to develop a voice and be recognised
The degree to which the interests of poor rural
                                                            as players within their local development context,




                                                                                                                          Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8
entrepreneurs are taken into consideration by the
                                                            such support strategies must include measures
private and public institutions is frequently limited.
                                                            to incentivise the formation of local and district
There is limited information about the specific needs,
                                                            associations. These have the potential to leverage
demands and potentials of these entrepreneurs.
                                                            additional social and economic benefits, but will need
There is a need to articulate and represent the interests   to be managed carefully to avoid capture by powerful
of different groups for fair negotiation, create and        individuals and groupings guided by narrow self-
strengthen local structures and organisations as            interest.
the basis of channelling information… giving small
and micro enterprises opportunities to achieve
opportunities of scale in input supply and marketing
as well as to improve market access through improved
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6 Conclusions                                                   reform. Pretoria: Council for Scientific and Industrial
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                                                            7
                                                                 That is, it affects women and girls more seriously
                                                                 than men and boys.




                                                                                                                         Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8
Endnotes                                                    8
                                                                 Clearly, once programmes in the communal areas
                                                                 are rolled out, these goals should apply across the
1
    The State must take reasonable legislative and               board, although they will need to be adapted to
    other measures, within its available resources,              the specific social and legislative contexts of those
    to foster conditions which enable citizens to gain           areas.
    access to land on an equitable basis.
                                                            9
                                                                 This needs to be carefully assessed in relation
2
    A person or community dispossessed of property               to possible transaction costs, management and
    after 19 June 1913 as a result of past racially              compliance requirements and assessed against
    discriminatory laws or practices is entitled, to the         the management capabilities of the participating
    extent provided by an Act of Parliament, either to           members.
    restitution of that property or to equitable redress.
                                                            10
                                                                 In terms of the CPA Act, a ‘similar entity’ can be
3
    No provision of this section may impede the State            a trust, an association of persons or a Section 21
    from taking legislative and other measures to                (non-profit) company.




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      Settlement and Implementation Support (SIS) Strategy for Land and Agrarian Reform in South Africa Chapter 8




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