Land rights and urban tenure: ownership and the eradication of poverty in South Africa

Papier, Taswell Deveril

Land rights and urban tenure: ownership and the eradication of poverty in South Africa

Master Thesis

2014

Publisher

University of Cape Town

Department

Department of Public Law

Faculty

Faculty of Law

Abstract

This paper analyses De Soto's argument that the formalisation of property leads to economic development and accepts it on the premise that such formalisation is not a panacea but a possible weapon in the armoury against poverty in South Africa. A prerequisite to formalisation is land acquisition. However, the skewed land ownership statistic in South Africa necessitates a slow and cumbersome restitution process often impeded by excessive compensatory claims by land owners and exacerbated by the interpretation of section 25 of the Constitution by our Constitutional Court. An analysis of recent Constitutional Court decisions indicates that the court is developing a jurisprudence that takes into account the extreme nature and extent of past land dispossessions and the inequalities in wealth and land distribution. This approach could facilitate the expropriation and restitution of land as a deprivation, (in terms of section 25) which is found not to be arbitrary, is not an expropriation and in consequence would not require compensation. Formalisation can then follow. The paper argues further that formalisation in the strict De Sotan sense of western exclusivity of ownership is not suited to the South African situation. The 'bundle of sticks' approach to ownership on the other hand, allows formalisation to occur whilst taking cognisance of local realities. Thus, formalisation of tribal trust land could mean common ownership where the 'sticks' of exclusivity and alienation are excluded from the 'bundle' while other 'sticks', inter alia income, security, and right to manage are retained. In the urban context, it is mooted that formalisation could include all the 'sticks' (incidents of ownership) but may need to exclude the right to alienate (for a period) to combat the problem of reverse titling. The Richtersveld formalisation model is examined as a case study since it includes both the rural and urban contexts in one formalisation model. It is within this case study that a further 'stick' in the 'bundle' is identified, viz. capacity building and training, as it is seen to be essential that the affected community understands the formalisation model applied. This paper concludes that formalisation as postulated by De Soto could serve as a catalyst for poverty eradication if it takes proper account of South African realities, and on the understanding that formalisation should reflect 'sticks' in the 'bundle' which maximise a community's ownership whilst mitigating anticipated problems.

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Includes bibliographical references.

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