ASPECTS OF LAND ADMINISTRATION IN THE CONTEXT OF GOOD GOVERNANCE

Land administration, and especially land registration, is often associated with old, gray men shuffling around with maps and deeds. In South Africa pressing land tenure problems require more than the endeavours of old gray men. It is a process which has to be based on sound policy and manageable procedures. As proved in Zimbabwe, unsolved land tenure problems and ineffective land

18 Gwanya (n 15). 19 Compared with land claims settled in other jurisdictions, land restitution in South Africa seems to be a success. In Australia 630 land claims have been lodged of which 45 have been settled, see De Villiers (n 8) 108-109; in Zimbabwe only 600 of 4500 white farmers are still on their land and 11 million hectares of land was reclaimed, at this stage without compensation, De Villiers (n 8) 21-22; in Namibia 34 000 out of 200 000 rural people were resettled on 7.5% of commercial farmland, De Villiers (n 8) 37. 20 Gwanya (n 15). 21 Many of the problems with land restitution were emphasised and discussed during the Land, Memory, Reconstruction and Justice Conference at Houwhoek on 13-15 September 2006, cf presentations by Bohlin "Choosing cash over land"; De Wet and Mgujulwa "Land restitution claim"; Liebenberg and Horn "Unfair criticism"; Tong "Judicial versus administrative settlement" and Walker "Defining restitution by default"; and at the Conference on Land Reform in South Africa in Pretoria on 26 August 2008, cf the presentations by Gwanya (n 15); De Jager "Organised agriculture"; Hall "Successes, challenges and concrete proposals". 22 De Jager (n 21).

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offered, but the settlement was drawn out by the lack of attention by administrative employees of the different regional land claims commissioners. Some regional land claims offices are notorious for administrative blunders and delays. 23 • Many land claims are rejected by the land claims court due to sloppy screening measures and lack of evidence, to the detriment of claimants. 24 • Evidence upon which land claims are based is often a well-kept secret, only to be dramatically revealed during the court case.

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• The land restitution policy is directed at redress for apartheid victims, rather than beneficiaries of a new land policy system. 28 • The state's long-term financial obligation to foot the bill for restitution seems to be unsustainable.
This hampers post-settlement support programmes. 29 These shortcomings in the procedure to adjudicate land claims and determine compensation are mostly due to unclear vision and policies, as well as management practices that do not comply with good governance principles.
This lack of good governance practices is slowing the process down, causing resentment and anger in both claimants and landowners, and is costing South Africa billions of Rand in wasted resources that could have been used for other necessary land tenure developments. 30 The following aspects of good governance to streamline the process of land restitution and rectify some of the problems encountered with the administration of land claims have been identified: 31 • clarity of aims and objectives; • downscaling of expectations; • viability of monetary settlements; • maintenance of the rule of law; • clear policy; • establishment of private sector partnerships; • establishing cooperation rather than confrontation; • monitoring; and • efficient post-settlement support.

Post-settlement support
Two aspects of post-settlement support have to be addressed in the process of restoration of land, namely support with institutional arrangements and financial support. Land handed back to a community or tribe as a result of a successful land claim has to be registered in the name of such community or tribe as a juristic person or held in trust for the community. The Communal Property Associations Act 28 of 1996 provides for a procedure to establish communal property associations as juristic persons or trusts, which can acquire, hold and manage land on behalf of the community or group. 32 A communal property association has to be registered with the Department of Land Affairs by submitting a written constitution as prescribed by regulations in terms of the Act and the communal land may then be registered in the name of the association.
The members of the group or community are all members of the communal property association and their use-rights to the communal land are allocated and protected by the association. In most instances where land is handed back to a group or a community as a result of a successful land claim in terms of the Restitution Act, the land claims court makes a specific order that a communal property association is to be registered to hold and manage the land on behalf of the group or community. 33 The CPA Act 34 enjoyed a largely lukewarm reception, because it was in general perceived to be too sophisticated for most communities. Furthermore, lawyers drafting constitutions for these communities frequently did not take community customs and culture sufficiently into consideration. 35  Often these rules are ignored by the members, and the management of the 24/168 association or trustees of the trust do not always act to the benefit of the community. Because of these problems it is now widely accepted that communal property associations are in most instances not suitable to deal with communal property in rural areas. Many communal property associations are characterised by internal strife, dominance and power struggles. The lack of financial management often causes the management or trustees to misappropriate funds to the detriment of members or beneficiaries, who often struggle to exist or proceed with profitable farming activities. 37 The financial side of post settlement support looks even bleaker. Although

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The tenure security of labour tenants and farm labourers was improved by the

Land Reform (Labour Tenants) Act 3 of 1996 and the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998. These Acts are not discussed in detail because the success rate of implementing the protective measures for labour tenants and unlawful occupiers against unjust evictions is fairly high. 40 Labour tenants can also claim registered rights to farmland they are occupying or the court may order a landowner to supply the labour tenants with alternative land. 41 The Extension of Security of Tenure Act 62 of 1997 provides for the protection of all lawful occupiers (including labour tenants) 42 outside urban areas. This Act is used mostly where persons occupy land in terms of an employment contract. It provides for protection after the contract has been terminated and includes protection for the relatives of the employee.
This Act is also applied successfully in most instances where land tenure is insecure. 43 The unravelling of communal land rights and interests in rural areas seems to be a daunting task. As more than sixteen million people in rural areas live in They were further concerned about the cost of adjudication of land rights and the introduction of a surveyed land registration system.
In order to determine to what extent this Act complies with the principles of good governance, the following aspects are examined: • The maintenance of communal structures through the administrative functions of land administration committees.
• The individualisation of land tenure by the registration of new-order rights.

The fiduciary duty of the state
The fiduciary duty of the state towards rural people practising communal land tenure is embodied in the preamble to the CLRA, where it is stated that the Act must provide for legal security of tenure by transferring communal land to communities, the conduct of land rights enquiries to determine the transition to The determination of communal land and the tenure security of communities is in terms of section 18 of the CLRA the responsibility of the Minister of Land Affairs. This is based on a land rights enquiry in terms of section 14, 51 where the participation of the community is prescribed, but not decisive. 52 However, it is clear that many administrative provisions of the CLRA are not based on the accepted community structures and community participation.
The Minister is bound by his/her fiduciary duty towards the community to allocate the land tenure rights to the advantage of the community, which advantage does not necessarily entail the individualisation of communal land tenure. 53 The Minister, without giving reasons, may determine that the whole of an area be surveyed and registered in the name of a community or subdivided and registered in the name of individuals. 54 The Minister is not bound by the democratic decision of the community, but has a wide discretion to recognise communal land rights or subdivide communal land and allocate individualised new-order rights. 55 48 S 25 (5): "The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis." 49 Art 1.3 and 11.1. The South African Government is a signatory of the Covenant, but has not ratified it yet. 50 Art 20 and 21. 51 S 14(2) determines that the enquiry must enquire into the nature and extent of all rights, constitutional, human, old-order, competing or conflicting; the interests of the state; interests legally secure or not; access to land on an equitable basis; spatial planning and land management; gender equality; and the need for comparable redress. A land administration committee may be elected by a local community according to the procedure prescribed by the community rules (section 21 (1)) or a traditional council recognised by the community may act as a land administration committee (section 21 (2)). The composition of a land administration committee is prescribed by regulation. 66 The main concern about the practical application of the Act is that land administration committees are structured in more or less the same way as communal property associations in terms of the Communal Property Associations Act 28 of 1996. This is widely accepted to be unsuitable for the purposes of communal land tenure. Another bone of contention is that the role of traditional leaders has to a great extent been continued in the land administration committees of many communities, In small communities it will be a daunting task to meet the requirements for the composition of the   Land administration committees play a vital role in creating and maintaining the tenure security of communities. In this process the decision to individualise land tenure or maintain communal land tenure within existing community structures is extremely important. Community structures provide security to many rural communities. Before communal land can be transferred to a community, the community has to be incorporated as a juristic person with adopted rules regarding the composition and functioning of the community and tenure-related matters. 75 One problematic area is the determination of membership of a community in terms of the rules. 76

The individualisation of communal land tenure
It is envisaged that the membership issue of many communities will be disputed and extremely difficult to solve. Such membership disputes will have to be adjudicated by a court, as neither the minister nor the land administration committee is expressly empowered to decide on this issue.

Most sociologists and
anthropologists convincingly argue that individualised land tenure is not a prerequisite for tenure security, but that tenure security is often obtained by strong community structures as long as the community functions properly and 33/168 sufficient land is available. 78 In most instances, the conversion from communal land tenure to individualised land ownership by a land titling programme mainly benefits the wealthy and powerful ("rich man's law"), leaving poor and vulnerable people in even worse conditions. 79 When disrupting the social It is part of the fiduciary duty of the Minister to exercise such discretion by taking into consideration existing community structures and the customs and rules of the community. However, in terms of the wide discretion afforded by the CLRA and the regulations, it is 35/168 possible for the Minister to disregard a community's wishes to maintain communal land tenure according to accepted community rules and structures.

Redistribution
This programme is aimed at making land available to people who have no land or insufficient land. Due to apartheid land policy 87% of the population had access to only 13% of the available land and the purpose is to establish a more equitable distribution of land. 91 Although legislation to improve the situation has been promulgated, 92 A concept document has been formulated for the Land and Agrarian Reforms Programme (LARP) wherein principles, new approaches and targets are set; a project manager has been appointed to facilitate the implementation of LARP and the integration of provincial initiatives; proposals for the institutional arrangements have been completed; and business plans have been completed.
the process is slow and cumbersome due to the lack of sufficient funding, poor financial management, a lack of transparent vision and a lack of economic and agricultural advice after land has been made available. One of the problems is that the extent of black landownership cannot be accurately established at this stage, as the race of landowners and members of landowning juristic persons is not recorded in deeds documents. As the principle of "willing buyer willing seller" is not successful in making sufficient land available for redistribution, the government is considering a new Expropriation Act to ensure that sufficient land is available for redistribution.

Global good governance principles in land administration
It is expected that a new revised bill will be published in the near future to streamline the expropriation procedure in the interest of land reform, especially restitution and redistribution.
Land reform is but one of many aspects of land administration. Good governance principles in land administration include policy issues (see 3.

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3.3 below) as well as procedural issues (see 3.4 to 3.6 below) to ensure that accountability, transparency, affordability, participation and easily accessible and accurate information are included in land management processes. To avoid a piecemeal approach to land administration, the following aspects are internationally recognised as requirements for a comprehensive land administration system for formal and informal, including communal, land tenure:

Equal protection
Policymakers in South Africa have to deal with two diverse land tenure systems. The one is a well-developed deeds registration system for real and limited real rights to immovable property, which rights are individualised and  Before a final decision on a long-term land titling strategy is made, it is necessary to examine the needs of the different individuals and population groups across all tenure relationships.

Land tenure principles
122 See the provisions of the Land Survey Act 8 of 1997; Badenhorst, Pienaar and Mostert (n 5) 194-195. 123 Cousins (n 44) 500-501 indicates that the land rights are embedded in a range of social relationships, often of a multiple and overlapping character, which are inclusive rather than exclusive. The rights are derived from accepted membership of a social unit that determines access to land. Resource use boundaries are normally clear, but often flexible and negotiable and therefore difficult to demarcate formally by way of the present land survey techniques. 124 Rakai (n 109) 61 and 143-149; Williamson (n 108) 15; Dalrymple (n 53) 35-37.
introduces a system where the focus is on land objects rather than land parcels. A land object is described as a piece of 125 Dale and McLaughlin (n 107) 9 indicate that a holistic approach is necessary, referring to UNECE 1996 www.sigov.si/ 1: "The modern cadastre is not primarily concerned with generalised data but rather with detailed information at the individual land parcel level. As such it should service the needs both of the individual and the community at large." See also Rakai (n 109) 163-165. 126 Harcombe (n 110) 96-99.

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land in which homogenous rights, restrictions and responsibilities are exercised within its boundaries. This development is in accordance with the trend for registration systems to record more complex arrangements of rights, restrictions and responsibilities in order to accommodate environmental and social priorities in addition to the traditional economic function. 127 The success of a registration system is not dependent on its legal or technical sophistication, but on whether or not it protects land rights adequately and records such rights efficiently, simply, quickly, securely and at low cost. 128 Spatial data infrastructure is a key component of land administration infrastructure. 129 Normally this is based on complicated and expensive land survey processes. In the case of South Africa the land survey system is directed at the demarcation of land parcels for the exercise of individual landownership and registered limited real rights. 130 It is, therefore, important to extend the spatial data infrastructure to include flexible and layered fragmented use-rights, especially in rural areas where communal land tenure is practised.

Spatial data and technical principles
In other developing countries it was established that a registration-based land information system for communal land tenure can largely function without a graphical database. The only prerequisite is a computerised