Learn about the history of the Communal Land Rights Act, why it was declared unconstitutional, and the role of the Legal Resources Centre in securing land rights for millions of South Africans.
What is the History of Land Tenure for Black South Africans During Apartheid?
The history of land tenure for black South Africans during apartheid is one of dispossession and inequality. Under apartheid, black South Africans were forced to live in segregated areas called Bantustans or homelands. In these areas, they were denied the right to own land freely and were instead subject to the control of traditional leaders or government-appointed chiefs. This system of land tenure reinforced apartheid’s racial segregation and left millions of black South Africans in poverty, with limited access to resources.
Land tenure in South Africa was a major tool of apartheid. It restricted black South Africans’ ability to own or use land, which in turn affected their livelihoods and economic opportunities. The legacy of these policies is still felt today, as many people in rural areas continue to live without secure land rights.
What the Communal Land Rights Act Tried to Do
The Communal Land Rights Act (CLaRA), introduced in 2004, was an attempt by the South African government to address the historical injustices of apartheid land policies. The law aimed to give land rights to millions of people living in rural, communal areas. These areas were home to many black South Africans who had suffered from insecure land tenure due to apartheid’s racially discriminatory laws.
The government framed CLaRA as a way to provide people with legally secure land tenure, as promised by Section 25(6) of the South African Constitution. The law was designed to transfer land ownership from the state to local communities, giving them the ability to make decisions about how the land was used and managed.
Why the Communal Land Rights Act Failed
Despite its good intentions, the Communal Land Rights Act (CLaRA) ultimately failed to deliver on its promises. Instead of empowering communities, the law gave too much power to traditional councils—similar to the tribal authorities that existed during apartheid. These councils were granted broad control over the land, including its use, administration, and occupation. As a result, the people living on communal land had little to no say in how their land was managed, undermining the goal of secure land tenure.
Many rural communities opposed CLaRA because it concentrated power in the hands of traditional leaders, often at the expense of the broader community, especially women. Rather than solving the problem of insecure land tenure, CLaRA threatened to entrench the same apartheid-era power structures it sought to dismantle.
After years of opposition, the Constitutional Court declared CLaRA unconstitutional in 2010. The court found that Parliament had not followed the correct process when passing the law, failing to involve provincial legislatures in deliberations that affected customary land rights. This lack of proper consultation, particularly with the rural people most affected by the law, led to its downfall.
The Legal Resources Centre’s Role in Proving the Act Unconstitutional
The Legal Resources Centre (LRC) played a pivotal role in challenging the constitutionality of the Communal Land Rights Act. From the start, the LRC worked closely with rural communities to advocate for their land rights. Over the course of seven years, the LRC fought tirelessly in court to prove that CLaRA was unconstitutional, arguing that it failed to protect the land rights of millions of South Africans.
In May 2010, the Constitutional Court ruled in favor of the LRC’s clients, declaring CLaRA unconstitutional. This landmark decision impacted the lives of over 21 million people living on communal land in South Africa. The LRC’s efforts not only struck down CLaRA but also reshaped the legal landscape of land governance, empowering communities to have a greater say in their land rights and protecting them from traditional councils’ unchecked control.
Why This is a Massive Problem in South Africa
The failure of the Communal Land Rights Act is part of a larger issue of land tenure insecurity in South Africa. Millions of people, especially in rural areas, continue to live without secure land rights. This insecurity leaves them vulnerable to displacement and prevents them from fully benefiting from their land.
Without legally recognized land rights, rural communities cannot make long-term investments in their land, such as building homes or improving agricultural practices. This lack of security hinders economic development in some of South Africa’s poorest areas, further entrenching poverty and inequality.
Land tenure insecurity also discourages investment in rural areas, as potential investors are hesitant to commit resources to land without clear ownership or legal recognition. As a result, the economic potential of these areas remains untapped, leaving communities trapped in a cycle of poverty.
The Prevailing Insecurity of Land Tenure in South Africa
Despite the Constitutional Court’s ruling in 2010, the issue of land tenure insecurity persists in South Africa. To this day, there is no comprehensive legislation that provides secure land rights for rural people, particularly those living in the former Bantustans. The lack of legal clarity around land ownership continues to create challenges for millions of South Africans.
The government has yet to replace CLaRA with a new law that guarantees secure land tenure for all. This has left rural people in limbo, waiting for laws that will protect their rights and provide the legal security they need to invest in their land and improve their lives.
To ensure that land reform in South Africa is fair and effective, future legislation must involve meaningful consultation with rural communities, especially women. The voices of traditional leaders should not dominate the conversation, and the process must prioritize the rights of the people living on the land.
