Экзамен зачет учебный год 2023 / Dickerman, Land Registration in Africa

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The authors suggest a number of ways in which the registration process needs to be amended. Perhaps most important is their recommendation that the process be made less time-consuming and costly. They recommend that final approval for registration be granted by the regional Land and Water Office in Genale rather than by the Ministry of Agriculture in Mogadishu, as is now re- quired. Another obstacle at present is the requirement that land divided among heirs must be fully re-registered, a cumbersome and costly process which many prefer to avoid altogether. In order to prevent wholesale de-registration and

as a way of lessening the increased numbers of inheritance disputes that will undoubtedly occur in the future, Roth ,et al. suggest that a simplified proce- dure be introduced for cases of subdivision of already registered land. They also believe that the government must recognize that many farmers have multiple

holdings and permit their registration. Such a change will benefit primarily the smallholders. (Roth et al. found that in most instances, the total area of these multiple holdings was less than 30 hectares per farmer.) And finally, it is recommended that the government provide more affordable map-drafting services.

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SOUTH AFRICA

In surveying the land registration literature on South Africa, one is continually frustrated by the narrow focus of the work. Some references deal specifically with the technical aspects of the cadastral surveying and land registration system, while others concentrate on social and economic issues surrounding the land without relating them to the registration system. It is only in the past few years that studies of a more multidisciplinary nature have been undertaken.

There is no shortage of references on the technicalities of the land registration system in South Africa, nor on the legal intricacies of various statutes associated with land, but there is a dearth of follow-up studies dealing directly with the evaluation of systems in operation. The work carried out by anthropologist Monica Wilson in the Keiskammahoek area of the Ciskei is a notable exception.

SA1 Mills, M.E. Elton, and Monica Wilson. Land Tenure. Keis- kammahoek Rural Survey, vol. 4. Pietermaritzburg: Shuter and Shooter, 1952.

As part of a wider study of social and economic conditions done in 1949/50, Wilson and Mills looked at three villages in the Keiskammahoek area in which four different systems of land tenure--freehold, quitrent, customary, and trust--prevailed. In their analysis, the authors note, "We have been par- ticularly concerned to discover the relation between the different types of tenure and land use, the standard of living, migration to towns, and the sta- bility of the family" (p. 1).

Mills and Wilson found that although the size of holdings varied from one village to another, there was little difference with regard to crops, agricultural techniques, or productivity. Owners of quitrent and freehold land tended

European-owned farms in the area were purchased by the South Africa Native Trust), but this distinction did not express itself in long-term investment in farm improvements, only in the quality of housing. With regard to social and demographic characteristics, however, tnere were very important contrasts be- tween freehold and quitrent holdings, on the one hand, and customary and trust holdings on the other. Households in the freehold and quitrent villages tended to be larger, with more adult males continuing to live and farm with their parents. This difference the authors attribute to the greater security in inheritance patterns afforded under the freehold and quitrent systems--sons are assured they will inherit, whereas in the customary and trust areas, where there are restrictions against multiple holdings and where chiefs and village councils retain responsibility for the allocation of holdings, sons set up separate households on land given to them by their fathers whenever possible. Emigration is also related to tenure type: males may leave freehold and quitrent villages secure in the knowledge that when they return they may claim

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that fewer men from freehold and quitrent villages migrate permanently, losing all contact with their homes. Freehold and quitrent tenures also afford a certain amount of security in access to land for unmarried women.

These differences between tenure types notwithstanding, there are a number of important similarities that are the product of common constraints inherent in the South African political economy. Land rights are valued less for their economic value than for the security they afford because the areas in which Africans may own land are carefully limited. As a result, the land market does not operate in a "normal" fashion, and land sales, even in freehold areas, are rare, occurring only when the landowner finds himself in very dire straits. Nor is farming a profitable enterprise. The income from semi-skilled labor in town exceeds that produced by farming, and the inevitable consequence is that the enterprising are more likely to work in town than in the rural areas. Moreover,

other differences between tenure types.

In order to fully understand the extremely inequitable land arrangements in South Africa, where 11 percent of the population holds over 8U percent of the land, it is necessary to examine land aliena- tion from an historical perspective. The following is a comprehen- sive history of the occupation and ownership of land:

SA2 Davenport, T.R.H., and R.S. Hunt. The Right to the Land.

Cape Town: David Philip, 1974.

This book contains a collection of approximately 150 documents (dating back to 1b57) which describe the introduction of European tenures into South Africa and the subsequent clash between the indigenous inhabitants and the European immigrants over the question of land rights.

black occupation and thus instigated a policy of separate "development" among the various races of South Africa. Although these areas, known as "scheduled areas," were extended slightly by the passing of the Native Trust and Land Act of 1936, this did not effectively address the problem of the inequitable distribution of land in South Africa, but instead served to consolidate the principle of apartheid. (References to several detailed histories of apartheid are given at the end of this section.)

Apartheid became even further entrenched by the passing of the Group Areas Act, originally enacted in 1950 and revised in 1957 and ayain in 1966, which provided for the creation of separate residen- tial and business areas in cities and town for the various racial groups. A detailed review of this act can be found in the following publication:

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SA3 Van Reenen, T.H. Land, Its Ownership and Occupation in South Africa; A Treatise on the Group Areas Act. Capetown: Juta, 1966.

Van Reenen examines the Group Areas Act from a lawyer's perspective, beginning with the premise that the lawyer in South Africa has no right to ques- tion the merits of the policy underlying an act nor should he take responsibility for the social and economic consequences of the law. The lawyer's role is to interpret the letter of the law and administer it through the prescribed channels. Despite this restriction, the book is relevant because it describes one of the most far-reaching instruments of the apartheid policy, a law that has dictated population and land distribution for the past two decades and pervaded the entire social structure of the country.

In 1955 the Tomlinson Commission recommended that blacks be given freehold title to their land. Initially the government rejected this principle, but when they did finally accept it, they began pursuing a vigorous "homelands" policy, whereby each black ethnic group would be granted its own independent state. In 1976 Transkei became the first homeland to accept independence and it was followed by Bophu- thatswana, Venda and Ciskei. Various other "national states," such as KwaZulu and Lebowa, were also designated for independence but have refused to conform with the government's plan of forming a constellation of independent states.

Mafeje provides an historical overview of the development of the homelands in his 1975 study for the Food and Agriculture Organiza- tion:

This is an excellent account of the historical evolution of the homelands and the land tenure practices among different groups in South Africa. Beginning with the indigenous inhabitants, their modes of production and social

structures, this study includes a brief discussion of the Dutch and British colonial periods and then concentrates on the development of land tenure sys- tems since 1910.

Legislation passed in 1913 and 1936 relegated black farmers to certain restricted areas which amounted to less than 14 percent of the total land area of South Africa. Reserve areas were first delineated under the 1913 Native Lands Act and later expanded in order to "alleviate pressure" under the provisions of the 1936 Native Trust and Land Act. The author describes the impact of these laws on the various racial groups and shows how they have instit_utionalized the concept of apartheid. Mafeje estimates that approximately 6 percent of the land in the black areas is held under individual land tenure and explains that this land was purchased before 1913 in some parts of Ciskei, Transkei, and Zululand--in what was to become "scheduled areas" after 1913 (p. 24). Although he alludes to the registration of black family plots, ne unfortunately gives no

details of land registration procedures involved with

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other types of land. Despite this limitation, however, this report provides a valuable insight into the sociopolitical aspects surrounding rural land in South Africa.

Discussions of land tenure within the independent homelands of Bophuthatswana and Transkei are provided in the following four pub- lications:

SA5 Jeppe, W.J.O. Bophuthatswana; Land Tenure and Develop- ment. Cape Town: Maskew Miller, 1980.

Bophuthatswana is one of five so-called independent national states or homelands in South Africa. Although the author regards land registration as "purely an administrative matter" (p. 210), he does recognize that it is an important tool for land tenure reform. Various indigenous Tswana rights to land are identified and examined. H breakdown of the different systems of land tenure in Bophuthatswana reveals that 42.5 percent is tribal land, 41.6 percent is trust land, 14.6 percent is private land, and the remainder is in the urban and unclassified categories.

Jeppe recommends the implementation of a registration system in the tribal areas of Bophuthatswana which would incorporate three categories of rights-- residential, cultivation and grazing. Individual fields should be surveyed to provide the spatial definition for cultivation rights, but the surveying system should be simple and cheap. ['this was attempted in tribal areas in KwaZulu, where it was found to be inappropriate; see Jenkins, SA26.] This book does provide a useful description of land tenure in Bophuthatswana, but does not deal with land registration in any detail.

SA6 Prinsloo, D.S., et al. The Property Rights Institution as a Detriment of Economic Progress in Traditional Agriculture." In Transkei Birth of a State. Conference Report No. E. Pretoria: Foreign Affairs Association, 1976.

SA7 Southey, C. "Land Tenure in the Transkei: A Report Pre- pared for the Planning Committee." Unpublished report,

[1981].

The Transkei Government commissioned Southey (a Canadian) to prepare a set of recommendations on "whatever land tenure issues seemed most relevant" to the development of the agricultural sector in Transkei. Over 87 percent of the land in Transkei is held under customary tenure with government-owned land making up 4.2 percent of the remainder. Government-owned land includes quitrent land (33 percent) and land held under a certificate of occupation (54.3 percent). Although this report concentrates on tenure issues in tribal

areas, it does deal in some detail with quitrents and certificates of occupa- tion. Unfortunately, no effort was made to determine the differences in agri- cultural production between land held under these tenures and those of a cus- tomary nature.

While recognizing the importance of the tribal system in providing social security, subsistence and a cultural base to raise children, Southey asserts

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that in order to develop a successful agrarian sector it will be necessary for Transkeians to move away from traditional strategies. He does not, however, suggest granting freehold, as contemplated in the Government's development plan, but favors a "nybrid" approach. He recommends that separate tenure arrangements be applied to (a) residential and garden lots, (b) arable lands, and (c) grazing areas. Freehold title, subject to several restrictions (p. 33), is proposed for residential and garden lots whereas a modified quit-rent or certificate of occupation is recommended for arable lands. Tne report presents a lengthy description of alternative schemes to control stock and access to grazing (pp. 38-50), but these all essentially attempt to increase herd production and control the size of the herd by reducing the social value of cattle.

Southey also suggests very briefly that cadastral surveying standards be

approach contemplated in the government development plan is contrary to the long-term economic forces prevailing in Southern Africa and that there is "a need to radically re-think the rural programme, and to seek alternatives to peasant farming."

SA8 Carstens, P.J.A. The Administrative Implications of Landownership in the Republic of Transkei." D.Admin. dissertation, University of Pretoria, 1971.

Carstens obtained the data for his dissertation from questionnaires sent to all Transkei .nagistrates and tribal authorities. Various government departments of the Transkei government were also questioned about their views on the most appropriate form of tenure. This dissertation is therefore an official view of land tenure alternatives, rather than one which relates the perceptions of the landholders. It does, however, contain substantial detail on the formal procedures and participants in the administration of land in Transkei.

The following report by Cross examines the effect of land tenure and labor migrancy on agricultural development in KwaZulu, another homeland.

SA9 Cross, C. "Land Tenure, Labour Migrancy, and the Options for Agricultural Development in KwaZulu." Memorandum submitted to the Buthelezi Commission. Durban, 1981.

Cross provides a general discussion of land tenure and planning needs for KwaZulu and argues that registered freehold tenure does not necessarily promote a land market nor an increase in the landowners' investment in the land.

Agricultural strategies of a more general nature are discussed in the following works by Behrmann and Coetzee.

SA10 Behrmann, H.I. "Agricultural Land Tenure in South Af- rica." Unpublished paper. N.p., n.d.

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Behrmann discusses land tenure aspects associated with both black and white farmers and notes that in areas where blacks hold freehold tenure to their land, the land has become overpopulated and overstocked. Unrecorded subdivisions have also taken place due to the inadequate provisions for trans- ferring title and the expense involved in formally recording transfers. The author argues that improving education and individual ability are more impor- tant to agricultural production than a strengthening of title or tenure.

SAll Coetzee, D.F. "Some Recommendations and Guidelines Which May Lead to More Successful Agricultural Development in Lebowa and Other Black Homelands: Part I." Aqrekon, vol. 17, no. 4 (1978), pp. 14-21.

This article deals primarily with agricultural strategies such as the creation of alternative work opportunities and the provision of agricultural extention services and credit. Although individual tenure is envisioned as being the ultimate solution to agricultural problems in Lebowa, the author pro-poses that the system of registration of guaranteed rights of use be continued.

The legal requirements of the surveying and registration system in South Africa outside of the national states are described in the Land Survey Act No. 9 of 1927 and the Deed Registries Act No. 47 of 1937 as well as in the regulations framed under these Acts. Barnes and Fisher et al. provide brief outlines of this system.

SAl2 Barnes, G. The South African Cadastre: An Overview of the Geodetic Network, Land Registration System and Surveying

Profession." Technical Papers, 45th Annual Meeting,

ACSM, pp. 98-105. Washington, DC: American Congress on Surveying and Mapping, 1985.

This paper discusses the relative importance of different boundary evidence and provides an overview of the coordinate reference framework, structure of the surveying profession. The principal components of the land registration system, which operates very successfully without any form of title insurance or state guarantee, are also described. Most of the so-called homeland or national states have a cadastre which resembles the system operating in non-black areas, also described in this paper, but they are administered by a different government organization.

SA13 Fisher, R., C.L. Merry, and A.C. Hamilton. "Integrated Surveys: The South African Experience." The Canadian Surveyor 36 (1982): 245-257.

In South Africa all cadastral surveys, mediumand large-scale mapping, and most engineering surveys make use of the national network of geodetic points which all have accurate coordinates based on a national coordinate system. The authors review the events that led to the development of this by focusing on the organizational structure and the historical development of the control survey and cadastral survey systems.

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The integrated system operating in South Africa is analyzed and various advantages and disadvantages listed. The strengths include (a) minimization of boundary disputes, (b) the availability of current land tenure information through the cadastral (compilation) maps, and (c) the availability of informa- tion required for resurveys facilitating more efficient and accurate survey work. The weaknesses of the system are identified as (a) the lack of a legal requirement that surveys be connected to the national coordinate framework, (b) the delay involved in obtaining approval for cadastral surveys from the Surveyor General's Office, and (c) the cost of surveying certain kinds of land, particularly in underdeveloped rural areas.

The authors assert that the high cost of certain surveys and the "ponderously elaborate" (p. 257) survey system are definitely preferable to the cost of title insurance and court litigation.

The surveying and legal professions are almost entirely responsible for the spatial and legal definition of land and its conveyance. This close cooperation and the extensive quasi-judicial powers allocated to surveyors has meant that surveying in South Africa is much more intertwined with law than in many other countries. For references that deal with the legal aspects of surveying, see the following three articles:

SA14 Barnes, Grenville. "Law, Land and the Juridical Cadastre in South Africa." Paper written for IBS 400, Legal Issues in the Development of Land Information Systems. Madison: University of Wisconsin, Summer 1985.

This paper gives a brief outline of the legal system in South Africa, highlighting the court structure, the hierarchy of legal authorities and the role of the legal profession.

Tne juridical cadastre, which can most aptly be described as a "modified" registration of deeds system based upon an extremely accurate survey system, is described. The two major titling instruments are the deed, which identifies rightholders and describes the nature of rights, and the diagram, which defines the location and extent of rights. A deed or grant is required for any transfer of real rights in land and these documents must be attached to a surveyor's diagram.

The latter part of the paper deals with the spatial data used to define boundaries and the location of parcels. Coordinates, based on a national ref- erence framework, are used extensively to define parcels and could provide the ideal foundation for the development of a multipurpose cadastre. A brief dis- cussion of the role of coordinates in re-establishing property boundaries is also included.

SA15 Palmer, David. "Security without Guarantee: The South African Cadastral System." Occasional Paper No. 13. Fredericton, Canada: University of New Brunswick, 1984.

Palmer provides a concise account of the development of the South African cadastre followed by an explanation of the quasi-judicial role of the South African land surveyor in resolving boundary disputes. Unlike many other

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cadastral, the South African system does not rely on title insurance or state guarantees of title or boundaries to provide security of tenure. This is en- sured through the high quality of survey and title data which emanate from the surveying and legal professionals and are checked in the Surveyor-General's office and Deeds Registry prior to entry into the system. Palmer points to the low frequency of court cases relating to title and boundaries as evidence of the security of the system. Only four registered titles, out of a total of over 4 million, nave been upset by the courts, the last case occurring almost thirty years ago.

Boundary disputes are generally resolved by land surveyors, who consider all evidence at a field court and make,a decisibn on the lawful position of the boundary or beacon (monument). Once a decision has been made and the agreement of the owners has been obtained, not even the Supreme Court can overrule the decision. A boundary or beacon that has been examined under this process becomes "lawfully established" and its position cannot be changed even if subse- quent uncovering of evidence indicates otherwise.

The author describes the full process of the field court and the related documentation. A list of the number of field courts held in each province is included, showing that on only two occasions has this procedure failed. By resolving boundary disputes quasi-judicially, the owners are spared both the expense and the time associated with lawsuits.

SA16 Simpson, K.W., and G.M.J. Sweeney. The Land Surveyor and the Law. Pietermaritzburg: University of Natal Press, 1973.

This is a detailed text covering the legal aspects of land surveying and the legal principles inherent to the practice of cadastral surveying.

Gibson and Kerr may be referred to for more general treatments of land law.

SA17 Gibson, J.T.R. Wille's Principles of South African Law.

Capetown: Juta, 1963.

SA18 Kerr, A.J. The Customary Law of Immovable Property and of Succession. Grahamstown: Rhodes University Press, 1976.

The latter book describes the origin, development and application of cus- tomary law within the context of the formal legal system operating in South Africa. The author draws extensively on existing case law associated with disputes of a customary nature. Chapter X (pp. 95-110) is devoted to the "ownership" of land, which includes land (arable and residential) held under quitrent or permission to occupy ("unsurveyed land"). This chapter includes a discussion of the acquisition of ownership, rights and duties, the suspension and cancellation of ownership, and land disputes. The book also deals briefly with certain servitudes (easements) that exist under custmary law.

Although the land registration system operating outside of the national states and homelands has remained relatively unchanged over