Land & Local Government: Problem or Potential? (Part 2)

AFRA News No. 60 May 2006

Land: A Contended Space - Domini Lewis

Relationships with and about land – its access, resources and ownership – frequently create tensions, expectations and alienation between individuals and social structures. At an overt level this is manifest in physical conflict such as damage to property or physical abuse (and even violence) between people. Although this is the harshest visual reflection of tension, there is frequently a more insidious level at which conflict over land functions. This article takes a brief look at the contended relationships surrounding land, with a particular focus on the conflicts experienced between farm dwellers and other rural stakeholders. Some ideas for municipal management of conflict on a local level are offered.

An overview of the conflicts surrounding land

Conflict over land is not just about an expanse of ground on which things grow, but a deep-seated attachment to place and identity, exacerbated by economic and other imperatives which are located in a history of expansion and acquisition. For farm dwellers, their attachment to a particular portion of land is not about how many cabbages it can sustain per hectare. It is about an identification with the vision of its relationship with the past, with the people who lived and worked on it, and with the spiritual dimensions of the landscape. Understanding land only as a quantifiable economic indicator of worth is a diminishment of its intrinsic value. It further demeans the dignity of the people for whom this intrinsic value resonates with their own historical and lived reality at many different and nuanced levels.

KwaZulu-Natal has a long and painful history of conflict over land – who owns it, who has rights over the land and who derives benefit from its resources. Infringement of land rights such as denial of access and servitudes, reduction of de facto use rights such as cropping, grazing and access to vital resources such as water, intimidation of people living on the land, threatened and actual evictions, denial of cultural and spiritual practices and burials – all contribute to alienation between people and compound tensions and conflict between parties as to rights and obligations. At an overt level, this often results in conflict between individuals, and in particular land owners and farm dwellers.

Although the Constitution, Bill of Rights, and land laws such as the ESTA and LTA are supposed to create frameworks and mechanisms to attend to and resolve such conflict, in reality these are undermined. Knowing that there is a constitution and laws which are supposed to protect people against abuse of their fundamental human rights, is frustrating if you are unable to actualise those rights. The judicial process continues to fail rural citizens of South Africa in its inability to ensure appropriate and necessary access to legal redress, to act against criminal infringements of fundamental rights, and to affirm and entrench in practice that which is constitutionally enshrined.

Land owners with access to skilled lawyers who are knowledgeable about the nuances of the law and are able to argue convincingly before the courts on behalf of their paying clients, are disproportionally favoured over indigent and illiterate farm dwellers, who might know their rights in terms of the Constitution and the law, but have little recourse for redress when these rights are infringed.

Conflict over land and fundamental rights does not just impact on the parties directly involved in the specifics of the conflict. Frustration, anger and a sense of emasculation are often redirected to other affected family members. Women in rural households are frequently the silent other victims who are not only directly affected by the compromising of their land and tenure rights, but also have to bear the brunt of their partner’s frustrations and abuse.

It is not just between land owners and farm dwellers that conflict arises over land, its ownership and resources. Legal entities which have been established by communities acquiring land are also prone to conflict and power dynamics as individual and group needs and aspirations have to be aligned and resolved. This situation is exacerbated by the imposition of western legal frameworks which are frequently at variance with customary law and practice.

The potential to resolve conflict between parties (either through dispute facilitation, mediation or arbitration) is made more difficult when the power dynamics between those parties are unbalanced – either through access to information or resources. The need to create ‘safe’ spaces for all parties to be able to speak openly without fear, victimisation or retribution, requires skilled intermediaries and the commitment of all parties in dispute to engage in a discussion process which is frequently protracted.

Strategies for addressing conflict on a local level

The challenge of addressing conflict over land, access and ownership requires resources and strategies to be put in place at a number of levels. It also requires the co-operation of a number of different government departments simultaneously. But since the conflicts generally exist on a local level, it is local municipalities that need to review their strategies in order to integrate the efforts of the various government departments, and to ensure that these strategies are appropriate to the needs of farm dwellers. The following should be characteristic to the strategies:

1. Local mechanisms for local disputes

Although the DLA contracted research on alternative dispute resolution options, the recommendations and mechanisms for these have never been resolved or put in place. There is a critical need for local level stakeholders comprising government and municipal officials, civic and church leaders, representatives of communities, women’s groups, organised agriculture, and the youth to develop and implement methods to address conflict over land issues in a local context. Relationships between contesting parties cannot be resolved ‘artificially’ or from a distance – it requires a committed and concerted involvement of local stakeholders to hold parties accountable for their actions.

2. Farm dwellers are equal stakeholders

The crux of such local level dispute facilitation, requires that all parties accept and include farm dwellers as equal partners and stakeholders in the process. Thus any attempt to develop a successful framework for alternative dispute facilitation has to include appropriate consultation with and involvement of farm dwellers. Failure to commit to such an inclusive process perpetuates the notion that farm dwellers are merely ‘invisible citizens’ and the recipients of beneficiary's handouts. It perpetuates the idea that they are represented by others in disputes without their own voices being heard on issues which impact their social, cultural and human rights. This is a crucial aspect to conflict resolution, and cannot be emphasised enough.

3. Access to justice

There is currently a lack of internal capacity or competency within the Legal Aid Board to attend to land legal matters. It is critical that appropriate skills and financial resources are made available by the Department of Justice to the Legal Aid Board to ensure that all citizens, including farm dwellers, enjoy equitable access to the courts and the protection of their human rights. Is there perhaps a place for ensuring that these funds are available on a local level, and that farm dwellers are made aware that they have access to legal support? Indeed, a failure to do this nullifies the benefits of South Africa’s much lauded Constitution and reduces it to a meaningless piece of paper.

On a local level, magistrates who side with land owners and talk openly about their relationships with certain parties cannot hope to be viewed as impartial adjudicators of disputes. But they should be, and thus there needs to be a genuine transformation of the judiciary in rural areas, and quite possibly the continued employment of ‘old school’ magistrates could be called into question by local level officials. Continuing the employment of such personalities often exacerbates conflicts and tension, making it more personal than the role of an impartial adjudicator should be, as rural farm dwellers perceive (accurately so) that the law is biased against them and their rights because of how individuals position themselves.

4. Service from the police

The South African Police Service in rural areas needs to understand and implement their obligations of impartial service to all citizens, including farm dwellers. There are examples of transformation of policing management and practice, but at the same time there are also still police stations where station commanders side with land owners, where officers refuse to take statements or open dockets when cases of abuse are reported to them by farm dwellers, and where dockets recording cases of abuse are ‘lost’ or just not attended to. Again there surely is a place for this malpractice to be called into question by local municipal authorities, for indeed it only serves to work against their attempts to deliver services and transformation to those living on farms.

5. Protection of the rights of women and children

As mentioned earlier, women and children are often the unseen victims of conflict over land, and as such, they too have a right to be protected from domestic and social violence instigated against them by men in their communities and on farms generally. State resources need to recognise this, and allocate funds accordingly. Further, state organised and funded recourse opportunities for women and children need to be taken seriously by government departments, realising that a lack of these kinds of services seriously undermines the authenticity of the Constitution and Bill of Rights for women and children in rural society.

But again, there is a local level response: With some effort and initiative from a municipality, and perhaps in partnership with civil society organisations, much more could be done using this strategy for addressing conflict.

Firstly, the perpetuation of patriarchal norms in the treatment of women and children could be addressed through public education, and by ensuring that these prejudices do not prevail in processes governing the resolution of land disputes. Allied to this, is the challenge for key community stakeholders – and in particular mediators or arbitrators of processes – to quickly recognise when conflict over land has stepped in the realm of abuse of women and children, and then to deal specifically and appropriately with this. Land owners whose treatment of farm dwellers includes this kind of victimisation need to be called to account. Abuse of women and children should not be hidden under the guise of land conflicts, but dealt with for what it is.

Secondly, special effort could be made when it comes to the policing of gross violations against women and children in rural areas specifically, as well as access to justice (as mentioned above). Here, the commitment to place police women and victim-sensitive services in rural police stations to attend to relevant cases is critical. Municipalities in rural areas are critically placed for building partnerships at a local level between government departments, and church and civil society organisations whose work it is to assist women and children in such situations. Along a similar vein, appropriate and efficient resources such as abuse counselling centres, HIV/Aids support, and accessible primary health care clinics would go a long way to ensuring that the voices of women and children in rural society are heeded when conflict over land impacts on their rights and needs.

In summary

Conflict over land and access to resources manifests itself in layered dimensions in rural society. Conflict does not emerge overnight and cannot be resolved by a signed agreement. It requires a transformation of rural society at many levels.

Although stakeholders and government departments might speak of laws, policies, budgets and plans, efforts to attend to and address the causes of conflict requires champions at local levels. Municipalities by virtue of their obligations and location in local areas are best placed to lead and integrate such efforts. However, to ensure that there is real and visible commitment and delivery on issues which impact of the lives of all citizens living in rural communities, it is critical that municipalities appropriately consult and include farm dweller communities in their strategy reviews, planning and implementation, so as to ensure that the real issues which impact on farm dwellers’ lives and livelihoods are heeded and integrated into development initiatives.