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

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the past decade, various alternative systems have been proposed for land held by blacks under customary and other tenures. Jones represents the thinking in the sixties and contains some useful historical facts.

SA19 Jones, B.M. "Land Tenure in South Africa--Past, Present and Future: The Apportionment, Tenure, Registration and Survey of Land in Southern Africa and Proposals for the Establishment of a Cadastral System for the Bantu Areas of South Africa." Ph.D. dissertation, University of Na- tal, 1964.

The major part of this dissertation is concerned with the historical de- velopment of, and procedures associated with, the land registration and cadas- tral surveying systems in South Africa. These systems plus the "Bantu Regis-

In investigating alternative land registration systems, .ones limits the choice to either the South African deeds registration system or the Australian registration of title system. In proposing the former he recommends that title be guaranteed in order to "engender confidence" in the system among the black community. He also suggests that blacks should be made responsible for the administration of the system. The remaining recommendations essentially propose the construction of a duplicate of the system operating in white-owned areas of South Africa. Although the author recognizes that a cadastral system should be designed to meet the needs of the community it is to serve (p. 169), he fails to investigate what these needs are and thus reduces the validity of

at the time, it appears to have little relevance in the South Africa of the 1980s.

Bacon et al. and Bacon oath deal with the question of land tenure, registration, and development in KwaZulu.

SA20 Bacon, C.J.; C. Cross; C. Fourie; D. Jenkins; J. Mc-

Laughlin; and D. Scogings. 'Zulu Land Tenure and Devel- opment: The Adaptation of Contemporary Institutions." Report prepared for the Buthelezi Commission. Durban, 1981.

The authors of this report represent both the land surveying and anthro- pological professions and, as a team, possess substantial experience with Zulu

land. Throughout this report, the authors emphasize the dynamic nature of Zulu land tenure and the need to recognize this fact when designing land registra- tion systems and other strategies for agricultural development.

Land tenure is viewed as comprising several different phases, ranging from traditional indigenous tenure to a more modern individualized tenure. A useful

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table of factors (level of sovereignty, over-rights, migrancy, etc.) is presented which can be used to distinguish the different phases (p. 5). It is recommended that any land registration system should be based on existing in- stitutional structures. They warn against using individual tenure interests

as a basis for the cadastral parcel and suggest that the isigodi or tribal ward (a "fixed micro-political unit," p. 15) would be a more stable and effective unit against which to record land tenure information. Individuals who want formal title below the ward level can be accommodated on a voluntary case-by- case basis.

A strong case is made for the use of large-scale aerial photography to (a) record boundaries and (b) provide a document for registration. The actual marking of the photo-identifiable boundaries should be carried out by the people on the ground under the supervision of a surveyor.

SA21 Bacon, C.J. "Towards Cadastral System's Improvement in KwaZulu." Report prepared for the KwaZulu Government,

June 1981.

This report deals with the potential role of a multi-purpose cadastre* (MPC) in integrated rural development. The author defines the term cadastre and discusses three types of cadastral, viz. the fiscal cadastre, the juridical cadastre and the MPC.

Integrated development is defined as "a strategy to improve the economic and social life of the community" (p. 3) which implicitly requires a multidisciplinary approach. The MPC, being a system that facilitates the integration of different types of land information, can provide the framework for interdisciplinary cooperation. In addition, it can provide current and reliable information required for integrated rural development. The author recommends that the Kwazulu Government take steps to study the feasibility of developing an MPC, in view of its substantial advantages over the traditional juridical cadastre.

For more information on land registration system proposals that have reached the implementation stage, see the following two papers by Jenkins:

SAE2 Jenkins, D.P. "Tenure Rights and Registration of Land in

KwaZulu." Preliminary Report, Department of Surveying and Mapping. Durban: University of Natal, 1981.

This report was written prior to the commencement of field research by the author and presents a breakdown of certain anticipated problems. For the purposes of boundary delineation and registration, four categories of land were identified:

* A land information system that contains various parcel-based information relating to land tenure, zoning, land taxation, services, census statistics, planning, etc.

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1)settled land with visible boundaries;

2)settled land with few or no visible boundaries;

3)vacant land to be used for new agricultural and residen- tial settlement programs;

4)land to which "Permissions to Occupy" (PTO) have been granted.

and individual rightholders have been identified and boundaries clarified. The boundaries of parcels can be photo-identified either by eye or by using a mag- nifying stereoscope. In all other cases a field investigation is necessary before any photo annotation can be done.

Category 4 land, to which Pros have been issued, presents a somewhat dif- ferent problem as these 4,000-odd parcels are scattered throughout KwaZulu. The absence of a clear definition of the locality and extent of the parcels

held under this tenure are becoming a major concern to moneylenders who have made loans on the strength of these PTOs. The author proposes that, due to the urgency associated with PTO parcels, a separate section be created in the Government Survey department to address this problem.

The report concludes that it would be desirable to improve the communication channels between the various planning agencies and that research is needed to investigate alternative survey and land registration systems.

SA23 Jenkins, D.P. "Land Tenure in Rural Kwazulu." Paper presented at the 8th Conference of Southern African Surveyors, Durban, 20-24 May 1985. Paper No. 29.

Registration of individual rights in the rural areas of the so-called homelands or national states has been very limited. Recognizing that individual rights exist in the umusi, or dwelling site, and cultivated fields, this paper describes two pilot projects undertaken to register these rights. The projects aimed at investigating the viability of registering individual rights as well as testing certain adjudication surveying and registration techniques.

The first project involved the Mzweni Ward, an area of approximately 50 square kilometers, used almost exclusively for subsistence farming. The idea of demarcating individual fields was soon dispensed with as this proved an al-most impossible task due to the scattered distribution of each owner's tields and the problem of congregating all interested parties. The corner points of the dwelling sites were demarcated by means of cairns of stones (painted white) after an adjudication process involving the occupant, adjoining occupants, induna (headman), and land surveyor. Aerial photography for the demarcated ward was flown to obtain a graphical record of the approximately 1,100 odd corner points (cairns).

The second pilot project was carried out in the Khuluse Ward, a cash cropping (sugar) area 60 kilometers from Durban with a fairly high occurrence of "absentee ownership." The concept of individual ownership was far more advanced in this ward and occupants had a much clearer perception of their boundaries, thus minimizing time required for adjudication. Property corners were demarcated with stone crosses and once again aerial photography was done to capture the positions of these corners.

Jenkins concludes that, contrary to the recommendations of many policymakers, subsistence farming areas (such as the Mzweni Ward) would gain very

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little benefit from freehold tenure based on a rigid boundary pattern. In many cases the imposition of such a system could cause substantial social and economic damage to the community. He recommends that priority be given to cash cropping areas like the Khuluse Ward, where settlement patterns have "crystalized."

209 SUDAN

The Sudan, with its Afro-Arab heritage, has a tenure history which can be documented in some depth. Both the Christian kingdom of Nubia and its Islamic successor states had formal systems of property rights of which documentary, evidence survives. For example, there are collections of land charters from the Sultanate of Dar Fur, established in the mid-seventeenth century. These were initially grants of limited rights of revenue collection over broad regions or communities for mainly military or administrative purposes and grants of tax-exempt or other privileged statuses, but the charters show a progression to grants of Islamic law freeholds (melk, allodial rights) over smaller, more precisely defined districts and their inhabitants.*

The modern histbry of land tenure in the Sudan begins with the Anglo-Egyptian reconquest of Sudan in 1898. The policy of the Con- dominium government provided for the registration as freehold of traditional smallholdings along the Nile in the northern Sudan. This was only 1 percent of the land in Sudan but was by far the most valuable land. Land not registered was presumed to be owned by the government unless and until the contrary was proved in a settlement (adjudication) process. Customary .rules and Islamic law were accepted as governing use rights.

In 1970, the presumption of government ownership was made con- clusive by legislation which vested all unregistered land in govern- ment. Freehold registered up to that date was preserved, but no further freehold has been created. Leasehold has been the preferred tenure for land allocation in the development schemes on government land, which include Africa's largest irrigation and mechanized rainfed schemes. In the vast areas of savanna which are state-owned but fall outside development projects, ineffective local control by gov- ernment has left a de lure tenure vacuum. This vacuum is filled by a blend of Islamic and customary legal principles, accepted by the courts as governing rights to use state-owned land. The recent period of Islamization of laws (1984-87) appears to have had little effect on the situation on the ground but has left the legal position confused. Planned land-tenure reform has been largely confined to the registered land and government development-project areas.

A very useful introduction to the evolution of land tenure in Sudan is provided by:

* See R.S. O'Fahey and M.I. Abu Salim, Land in Dar Fur: Charters and Related

Documents from the Dar Fur Sultanate (Cambridge: Cambridge University Press, 1983).

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SU1 Mohammed Hashim Awad. The Evolution of Landownership in the Sudan." Middle East Journal 25 (1971): 212-228.

A profound dualism in the land-tenure system developed early in the country's history, based in very different patterns of land potential and use. In the irrigated areas along the Nile in the northern Sudan, Arab immigrants into the Nubian kingdoms beginning in the seventh century married Nubian women; their offspring inherited land rights under the Nubians' matrilineal system of inheritance. Their children were Muslims and so shari'a (Muslim law) governed their property relations. Private individual ownership and associated doctrines of Islamic property law were'introduced. By 1315, Arab kings had replaced the Nubian kings and Islamic law became the general legal regime for the region. At the same time, however, Arab pastoralists were moving into the vast arid lands on either side of the Nile, where only a nomadic existence was possible. These brought with them the notion of communal ownership of tribal territories (dar) which owed more to Bedouin custom than to Islamic law.

Focusing on the irrigated lands along the Nile, the author sees the Funj, Turkish, and Mandist periods as tending toward semi-feudal tenure patterns through the development of grants of tax rights and later land ownership. The establishment of the Anglo-Egyptian Condominium in 1898 brought an end to these tendencies toward development of an indigenous class of large landholders and a dependent tenantry, reaffirming the original Arab pattern of small freeholders. (The riverain populations had been slow to flock to the Mandi's banner and had suffered for it.) British land policy in the years immediately after the reconquest emphasized reestablishment of stable smallholder land rights as a key element in the restoration of public order. Landlessness was to be avoided as a potential source of agitation in a country whose political vola-

tility had just been demonstrated. The Sudan was exceptional in the British colonial experience in that commerce followed the flag rather than vice versa. Colonial administrators early developed a policy of limiting land acquisition by Europeans and, more relevant in the Sudan's circumstances, merchant populations from elsewhere in the Near East. In the years immediately after establishment of the Condominium, land speculation by Lebanese and Syrian merchant classes threatened to spill over into Sudan from Egypt.

The author sees this policy of preserving a smallholder agriculture as having been assisted in a major way by the diffuse ownership of most parcels of land along the northern Nile. T h e s e very small parcels, hardly capable of further subdivision on inheritance, tended to be held in undivided co-ownership by heirs or generations of heirs, making it difficult for a prospective buyer to acquire a clear title from all the interest-holders. The author notes the extent of subdivision of holdings and the resultant very small parcel sizes, but he dismisses the common assertion that the small parcel size has hampered development. Legal subdivision is not necessarily physical subdivision, and freeholders pool land for certain purposes. Critical operations such as irrigation have traditionally been managed on a scale larger than the scale of ownership, and with the introduction of modern pump technology replacing the water wheel in the period 1927-57, the average size of the irrigation unit rose from 10 to 92 feddans (1 feddan = .42 hectare). The author describes communal land-tenure patterns as appropriate for the land-use patterns possible outside irrigated areas and defends the use of short-term leasehold tenure in government development projects.

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The Condominium government sought to affirm the land rights of smallholders through a process of systematic and compulsory adjudication, demarcation, and registration of land rights, a process which provided an important model for later programs in Kenya and other British colonies. A good introduction to this process is:

SU2 Simpson, S. Rowton. "Land Law and Registration in the Sudan." Journal of African Administration 8 (1955): 1117.

Even before taking Khartoum, the reoccupying Anglo-Egyptian forces in 1897 issued a Khedival decree on settlement of land titles in Northern Province. The first two pieces of formal legislation after the reoccupation, both in 1899, concerned land. The first provided for land registration in the urban areas. The second, the Title to Lands Ordinance, provided for the creation of land commissions composed of military officers (often seconded to administrative duties) and local notables to investigate systematically and register land titles in rural areas. The Ordinance, which was to be applied in the riverain areas of the northern Sudan, recognized the existence of full individual ownership under Islamic law and provided for the registration of both ownership and use rights less than ownership. In 1905, it was replaced by the Land Settlement Ordinance, which gave further form to the process which had come to be known as "settlement": the "settling" of titles which elsewhere is known as "adjudication." The 1905 Ordinance introduced the principle that "all waste, forest and unoccupied land" was presumed to belong to the Government and, unless the contrary were proved, should be so registered in the settlement. Irregular use was specified not to be sufficient to rebut the presumption. Considerable amounts of land were thus registered to the Government.

Registers were kept from the institution of the program, but a formal deeds register was introduced by the Deeds Registration Ordinance of 1907. This register, tied to a comprehensive cadastre, readily converted to a title registry when, in 1925, a system of title registration was introduced, the first such experiment in British Africa. By that time, 175,000 parcels had been registered. The 1925 act, the Land Settlement and Registration Ordinance, was a consolidating ordinance and did not alter the basic program of registration beyond providing registration with more conclusive legal effect by stipulating that any unregistered dealing with registered land was null and void. Simpson. notes that part of the promise of the new system was that it would make land transactions easier, and suggests that it nas been a success, pointing out that, in 1953, 9,000 transfers were conducted on the register with only the assistance of the registry staft--and without professional legal assistance. The land registry is described as "a thriving and efficient institution."

The author also reviews policy on land transactions. In the first few years after the reoccupation, Greek and Armenian merchants had purchased some land from natives in the vicinity of Khartoum. Government policy against land speculation led to legislation in 1905 and 1918 which closely restricted native land sales, conditioning tnem on government consent. (The 1918 Ordinance continued in effect well into the independence period and may still be in effect.) But, in 1907, a notice gazetted for Khartoum Province allowed sales, though a foreigner could acquire land only from the Government. Some of the early private pump schemes originated in titles acquired at that time. Shortly

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thereafter, Government policy turned against alienation of Government land in freehold; it was subsequently alienated only on fifteen-year leaseholds.

A more technical legal analysis of the Land Settlement and Reg- istration Ordinance, including the practice of the courts under the ordinance, is provided by

SU3 Saeed M.A. El Mahdi. A Guide to Land Settlement in the

Sudan. Khartoum: Khartoum University Press, 1971.

The book begins with a review of the legal history of land registration in the Sudan. Most interesting for present purposes is Chapter 5, which examines the extent to which the courts have been willing to enforce the provision of Section 28 of the Ordinance, which declares any unregistered transaction (including unregistered successions) null and void. This is the sanction against failure to register, the guarantee to a subsequent dealer with the land in a title-registration system that what the register shows is in fact the legal situation. A 1950 judicial decision conveys the position: "On a strict interpretation of section 28, the sale agreement was long since void for lack of registration. But, the courts in their anxiety to do justice between relatively unsophisticated litigants, and having regard to the admitted fact that the land register is very far from up to date, have never applied this section strictly; perhaps it is unfortunate they have not, but that is the position." Most of the cases cited involve leeway for late registrations which do not disappoint anyone who has relied upon the register, but they clearly undermine whatever residual sense there might be that one needs to register a transaction promptly. Saeed's overall evaluation of the experience under the registration legislation is, however, quite as positive as that of Simpson; he emphasizes the thousands of simple, inexpensive, and reliable transactions which are regularly processed under the system.

The concluding section of the book deals in a prospective way with the then very new Unregistered Land Ordinance, 1970. This legislation was an expression of the Nimiery regime's early Arab Socialist period, and nationalized all land not yet registered under the Land Settlement and Land Registration Ordinance. The author examines the exceptions under which new registration could take place under the 1970 Ordinance, but in the event these have been resorted to only in a very few cases since 1970.

Some of our most valuable insights into the early "land settle- ments" which preceded the systematic registration of riverain lands in the north early in the century come from a collection of case materials on real property law:

SU4 Thompson, Cliff F. The Land Law of the Sudan: Cases and Materials." 3 vols. Khartoum: Faculty of Law, University of Khartoum, 1965.

The third volume in this mimeographed collection deals with the experience under land registration. Reports on several early settlements by the field officers involved are provided in full or excerpted: "The Suakin Land

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Commission Report of 1905," by Herbert S.G. Peacock (pp. 518-526); "Report of the Land Settlement of Sukkot and Mahas, Halfa Province, 1907-1911," by T.A. Leach (pp. 503-526); and "Report of Land Settlement in Berber Province, October 25-December 18, 1909," by C.F. Ryder (pp. 550-554). These provide a valuable corrective to the impression created by later commentators that existing rights in land sorted themselves out rather easily into the "ownership" and "rights less than ownership" categories of the registration legislation. It is clear that there was a tremendous diversity of customary and Islamic rights, that there were many important and close judgment calls, and that these were not always made consistently in the different settlement areas. One problematic area in implementation was enforcement of rules on minimum parcel sizes and minimum share fractions for co-owned land, an effort by the authorities to stem the progressive subdivision of land and rights in land implicit in the Islamic law of inheritance. Mentioned in the earlier reports, it is discussed in the Gezira context in official correspondence from 1921 (pp. 602-604) and reflects both the difficulty of dealing with the matter without altering Islamic law and the sensitivity of any such proposal.

The 1928 "Notes on Land Registration," by Bell, Chief Justice, (pp. 383388), indicate the extent of early difficulties in maintenance of the regis- ters. Failure to register transactions and successions has already emerged as a key problem, and he suggests that the registrations based on settlements in the period 1907-1912 are "to a large extent useless for this reason." He attributes the problem to a large extent to the impossibility of strict adherence to the Islamic law on inheritance and the difficulty and expense of obtaining certifications of heirship from the kadi courts. He sees the system as breaking down in the provinces where it has so far been implemented (Northern, Khartoum, and Blue Nile, at that time) and concludes that some settlements (he specifies those for the Geteina rain land, the Khartoum buqr land, part of the Kamlin rain land, and the then quite recently settled Managil Markaz) would have better been not done. A testy exchange of memos between Bell and Harold MacMichael, Civil Secretary (pp. 389-398), indicates a serious division of opinion over the

both its substance and its administration, the latter through devolution of new responsibilities to the Native Authorities.

These reservations gave rise to a full review of the registration program. Thompson reproduces almost the full text of the Report of the Land Registration Committee, 1929 (pp. 399-431). The report notes the reluctance of courts to apply with full rigor the provisions of the legislation rendering transactions which are not promptly registered null and void, and complains that it is common knowledge that the court will rectify the register by entering the transaction at a later date. Transactions usually come onto the register only when some dispute arises or when the next transaction occurs and the trans- ferrer must prove he has title. The report concludes, however, that the fail- ures to register are not due primarily to this problem or to ignorance of the advantages of registration but to the difficulty, delays, and expenses involved in registration. Two or more visits to a registry are usually required, in- volving journeys of as much as fifty miles. The report also reviews the experience with undivided shares in land and their registration. Those shares are themselves fully transferable, subject to certain rights of pre-emption by existing co-owners, and the transfers must be registered. The report concludes that the fact that so many parcels are co-owned in undivided shares has not

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only prevented many transactions but has ensured that most of those which do take place are imperfectly accomplished and done off the register. The Com- mission notes its sense that in many of the rain-land settlements, rights which were only really rights to use were incorrectly registered as ownership, and urges caution in this respect in the future. There is an undertone, not clearly articulated and perhaps a matter of contention, which suggests that the management of the registry by the Sudan Judiciary isolates the registry from the native administrations, which are linked into the provincial civil administrations.

The Commission recommends against any deregistration (White Nile Province

had actually requested the nullificatioir of some settlements there), admitting the serious imperfections in the work but being extremely reluctant to set the precedent. The Commission sees as the ultimate objective a system of registration maintained by the employees of the Native Administration, with technical supervision by a government department. It proposes moves to initiate the transfer of responsibilities: the delegation of the Governor's power of con-sent to transactions among natives to the sheikhs' courts, the admission for registration of locally drawn up contracts rather than only those on the registry's own forms, and delegation of the power of registry employees to attest to signatures on contracts to local sheikhs and omdas. Mending further dev- olution of authority to officials of the Native Administration, the Commission calls for registration tours by the provincial registrars, "taking the register to the people." As regards registration of inheritances, it urges that while heirship should still be determined by the kadis' courts, the heirs should themselves come forward to inform the registry of the distribution of the land which they have made among themselves, as this will often bear only a limited relation to the dispositions of the kadi court. As regards the impediment to sales posed by undivided co-ownership, the Commission discusses a proposal to

to the report by the Registrar-General, but the Commission withholds any firm recommendation, suggesting that there is a need to establish how the trust-for- sale would be viewed by the Islamic law authorities and a need to experiment on a small scale before considering more general application.

Thompson also provides (pp. 431-446) the memorandum embodying the decisions of the Governor-General's Council (1929) in response to the report of the Commission, accepting the recommendations with only minor modifications in matters of detail, and a 1931 note by the Legal Secretary on progress in implementation, which appears to have been on a fairly modest scale but to have been regarded as satisfactory. The note is dismissive of the trust-for-sale proposal, which was, in fact, never enacted.

Finally, Thompson provides (pp. 536-547) a series of memos from 1914 to 1948 on the legal status of unregistered land. Land outside the irrigated areas acquired new importance with the initiation of commercial sorghum production there in the 1940s. The memos view the governing principle as having been established in 193U, that unregistered land is held in "bare ownership by government in trust for the natives, subject to all rights of user belonging to the natives whether in community or individually." It is evident that the authorities are very reluctant to expand registration into rain-fed areas partly because the problems of distinguishing administrative and tax tenures from ownership rights had proved so knotty in earlier rain-land settlements. The exchanges take some interesting twists, as when, in a 1945 memo, the Judge