Land information as a tool for effective land administration and development

• Jurisdiction: South Africa
• Date: 15 August 2019
• Published date: 15 August 2019
• Author: Gerrit Pienaar
• Pages: 238-271
• Citation: 2011 Acta Juridica 238

Land information as a tool for effective land

administration and development

GERRIT PIENAAR*

In South Africa two diverse property regimes exist alongside one another,

namely the system of individualised, common-law landownership, predomi-

nantly based on civil-law principles, and the system of communal land tenure,

predominantly based on the shared use of land by communities in terms of

indigenous-law principles. Added to this is a registration system originally

based on the Dutch land registration procedures, but modif‌ied in the nine-

teenth century through the introduction of English cadastral survey proce-

dures linked to the registration system. Only individualised common-law

landownership, co-ownership and limited real rights are registrable. The

registration system does not provide for the registration of communal land

rights, which has the effect that off‌icial information in respect of communal

land tenure is currently unreliable.

The failure to provide tenure security for indigenous communities can be

attributed to several factors, including a large incidence of dysfunctional

communities; a defective, and often entirely absent, administrative system to

support communities; the wrong kind of formalisation introduced by legisla-

tion, namely Westernised corporate models too far removed from accepted

customs; the absence of the publicity principle; and the lack of a suitable

information and recording system. The main aim of a formalised structure

should not be the individualisation of communal land tenure in the form of

freehold title, but the security offered by information (recording and publica-

tion) of communal land rights exercised within accepted community struc-

tures.

The existing deeds registration already provides for different forms of

registration, namely individualised land rights in the case of surveyed land and

urban fragmented property holding in the case of sectional titles and time-

sharing. This article explores the possibility of the development of a third form

to record communal land rights in the name of communities, in accordance

with the distinctive nature of community structures and communal land

tenure. The aim of such a register should be the recording of use rights

associated with communal land tenure, which will provide the necessary

information (publication) for the development of a comprehensive land

administration system that is lacking at this stage.

I INTRODUCTION

Presently, the only off‌icial and reliable source of land information in

South Africa is the land registration system, which is based on the land

* B Jur et Com; LLB LLD. Professor of Private Law, North-West University

(Potchefstroom).

238

2011 Acta Juridica 238

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survey system. Land registration is often perceived as a subject or an aim in

itself.

1

In modern South African law, it is often applied as a separate

science with intricate and ‘mysterious’ procedures best understood by

conveyancers, land surveyors and property specialists.

2

However, the

history of land registration indicates that it is part of the process of giving

publicity to the derivative acquisition of ownership and limited real rights

in respect of immovable property.

3

The publicity given to the transfer of

real rights is an essential means of ensuring security of tenure in civil- and

common-law systems.

4

As a specialised f‌ield of property law, it is intrinsi-

cally tied to the general principles of property law, which forms the basis

of the land registration system.

The property dispensation upon which land registration is based is

therefore a decisive factor in the registration procedure that is followed. In

the South African context, two diverse property regimes exist alongside

one another, namely the system of individualised common-law landown-

ership and co-ownership, predominantly based on civil-law principles,

5

and the system of communal land tenure, predominantly based on the

shared use of land by communities in terms of indigenous-law principles.

6

Added to this is a registration system originally based on the Dutch land

registration procedures, but modif‌ied in the nineteenth century through

the introduction of English cadastral survey procedures linked to the

registration system. This system does not provide for the registration of

communal land rights, having the effect that off‌icial information in

respect of communal land tenure is currently unreliable and insuff‌icient.

7

It was only after the demise of apartheid land law and the development of

an inclusive property regime in terms of the constitutional property

1

J W S Heyl Grondregistrasie in Suid-Afrika (1977) v and 18–19;RJMJones&HSNelThe

Law and Practice of Conveyancing in South Africa (1991) 1; J M Knoll Conveyancing Forms and

Precedents (1994) 23–24; contra PJ Badenhorst, J M Pienaar & H Mostert Silberberg and Schoeman’s

The Law of Property (2006) 201–202, who correctly describe it as the publicity that is given in the

case of a transfer of rights based on the derivative acquisition of immovable property.

2

Chief Registrar of Deeds v Hamilton-Brown 1969 (2) SA543 (A) 554A–B.

3

D L Carey Miller &A Pope Land Title in South Africa (2000) 47–48; Badenhorst et al (n 1)

201–202.

4

J C Sonnekus ‘Property law in South Africa: Some aspects compared with the position in

some European civil law systems – the importance of publicity’ in G E van Maanen &A J van

der Walt(eds) Property Law on the Threshold of the Twenty-f‌irst Century (1996) 285 at 287–297.

5

The civilian nature of landownership is one of the best examples of the reception of the

Roman-Dutch principles into SouthAfrican law without inf‌luence by many English common-

law concepts; for an exposition of English principles received into the South African property

law,seeJRLMilton ‘Ownership’in R Zimmermann&DPVisser (eds) Southern Cross: Civil

Law and Common Law in South Africa (1996) 664; K Reid&CGvanderMerwe ‘Property law:

Some themes and some variations’ in R Zimmermann, D PVisser & K Reid (eds) Mixed Legal

Systems in Comparative Perspective (2004) 637 at 646–647; D L Carey Miller & A Pope

‘Acquisition of ownership’ in R Zimmermann, D PVisser & K Reid (eds) Mixed Legal Systems

in Comparative Perspective (2004) 672.

6

Jones & Nel (n 1) 3.

7

Heyl (n 1) 13; Jones & Nel (n 1) 3; Badenhorst et al (n 1) 203–204.

239LAND INFORMATION AS A TOOL

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clause

8

that serious efforts were made to formalise communal land tenure

in order to offer better security to indigenous people and improve the

information system in respect of communal land rights.

9

However, the

mistake has persistently been made to develop and register principles and

procedures that f‌it in with the individualised civilian nature of common-

law landownership only, and attempt to force communal land rights into

this registration mould or adapt communal land tenure principles to the

existing land registration system.

Land information by registration forms part of the general land admin-

istration system of South Africa. ‘Land administration’ is def‌ined as the

integrated processes of determining, recording and disseminating infor-

mation on the tenure, value and use of land in the context of developing

suitable land management and development policies.

10

A well-developed

land administration system for formal and surveyed urban property and

agricultural land already exists in South Africa, but the same cannot be said

about informal land rights and communal land tenure in rural areas.

Therefore, a comprehensive and effective land administration system for

all land tenure rights should be developed to avoid a piecemeal approach

to land administration and sustainable development (see section V below).

In this process, the development and application of good governance

principles regarding land administration will be necessary.

11

The purpose of this contribution is to examine the manner in which

land information and land registration can be used as tools within a

specif‌ic land tenure regime and as part of a comprehensive land adminis-

tration system in order to afford security of tenure to people who exercise

their property rights in terms of such regime, whether through individu-

alised landownership, fragmented property schemes or communal land

tenure. The emphasis will be on tenure security based on information of

the property dispensation concerned.

II REGISTRATIONOF INDIVIDUALISED LAND RIGHTS

(1) Registration as a source of land information

For registration purposes, rights in immovable property are separated into

ownership and registered limited real rights that are registrable in a deeds

registry in accordance with s 63(1) of the Deeds Registries Act 47 of 1937

8

Section 25 of the Constitution of the Republic of SouthAfrica, 1996.

9

Restitution of Land Rights Act 22 of 1994, Communal Property AssociationsAct 28 of

1996 and Communal Land RightsAct 11 of 2004; see also section III below.

10

UN Economic Commission for Europe Land Administration Guidelines (1996) 1;

G J Pienaar ‘The need for a comprehensive land administration system for communal property

in SouthAfrica’ (2007) 70 THRHR 556 at 558.

11

In this regard, see G J Pienaar ‘Aspects of land administration in the context of good

governance’(2010) 12 PER para 3.

240 PLURALISM AND DEVELOPMENT:STUDIES IN ACCESS TO PROPERTY IN AFRICA

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