Land and housing

• Author: T. Cohen
• DOI: 10.10520/EJC34825
• Published date: 01 January 1997
• Date: 01 January 1997
• Pages: 137-163
• publishedBy: Centre for Socio-Legal Studies

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Land and Housing

Tammy Cohen*

‘Housing is, as I have found out during the past two years, about

everything but houses! It is about the availability of land, about access

to credit, about affordability, about basic services, about economic

growth, about social development, about the environment. Some

elements of all of these issues have to be in place before the first brick

of a house is even laid.’1Minister of Housing Sankie Mthembi-Mahanyele

Introduction

While there are many constraints hampering the Government’s housing

programme, the most fundamental is that there will never be enough money to

address the country’s housing needs. A cut in the housing budgetary

allocation for 1998 has only exacerbated this problem. Despite these problems,

the housing sector in 1997 and 1998 has nevertheless benefitted from the

promulgation of several important pieces of legislation as well as managed to

sustain delivery in a dismal economic climate.

Legislation

KwaZulu-Natal Ingonyama Trust Amendment Act 9 of 1997

One of the major impediments to the housing delivery process in KwaZulu-

Natal has been the Ingonyama Trust Act2. The Act provided for King

Zweletini to be the sole trustee of approximately 3 million hectares of

*BA LLB (Natal). Senior Lecturer, Mercantile Law, University of the Western

Cape. Attorney of the High Court of South Africa.

1Housing in Southern Africa January 1997:4

2This act came about as a deal between the Chief Minister of the former

KwaZulu self governing territory, Chief Mangosuthu Buthelezi and the former

State President, F.W De Klerk 24 hours before the 1994 general election

Tammy Cohen

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KwaZulu land.3 The effect of this legislation was that personal permission had

to be obtained from the Ingonyama (the king of the Zulu nation) for the

development, servicing and sale of each individual property under his

trusteeship, and many applicants were deprived of access to the subsidy

system or mortgage loans as they did not own the land in question. The

Amendment Act4 makes provision for the appointment of the Ingonyama

Trust Board5, whose function is to administer the affairs of the trust and the

trust land on behalf of the members of the tribes and communities falling

under it’s jurisdiction. While the Board is not intended to replace the king as

the sole trustee, it would be responsible for delegating land-related problems

to the relevant government departments thereby streamlining the process.

Furthermore, the Act provides that trust land shall be subject to national land

reform programmes, thereby opening up huge tracts of land for development.

The practical effect of this amendment is to remove the legislative restrictions

that were inhibiting the provision of housing in many of the urban areas of

the province, thereby facilitating increased development and delivery in the

province. It is estimated that the amendment will ‘unlock housing projects to

the value of R150 million in the areas in question (representing 13 830 housing

opportunities) and facilitate the spending of a further R100 million on

infrastructure and the provision of services’.6

Housing Act 107 of 1997

This important legislative enactment repeals existing housing legislation,

including the Housing Act 4 of 1966 and the Housing Arrangements Act 155

of 1993, and establishes the framework which will guide housing development

in South Africa. The Act aims to provide for the facilitation of a sustainable

housing development process, which will ensure that the majority of South

Africans have access to decent housing, accompanied by a suitable

infrastructure. To achieve this objective the Act lays down general principles

applicable to housing development in all spheres of government and defines

the functions of the three tiers of government in the housing delivery

process. Provision is made for provincial government to administer and co-

ordinate national housing programmes in its province, to determine provincial

policy in respect of housing development, and to promote the adoption of

3The Act does not apply to land contained in a township, in private ownership

or used for state domestic purposes prior to 24 April 1994.

4Act 9 of 1997

5The Ingonyama or his nominee remains the chairperson.

6Housing in Southern Africa January 1997