I attended the above conference from13 to 15 June 2006 at the Indaba Hotel, Fourways, as one of the presenters, representing the Department of Land Affairs, Office of the Chief Registrar of Deeds.
The attendees included representatives from the Tanzanian Ministry of Lands, the banking sector, municipalities, academics from the universities of Limpopo and UNISA, traditional leaders from the provinces of Limpopo, North-West and KwaZulu-Natal, led by Dr Mangosuthu Buthelezi as leader of the House of Traditional Leaders in the provincial legislature and senior officers from various provincial governments.
The conference sought to address quite a number of issues around the implementation or lack of implementation of the Act. It focused on a historical-to-current overview of communal land tenure, the role - if any - of the traditional councils in the administration of communal land, communal tenure and the right to family life, the challenges facing financial institutions and farmers in financing communal agriculture and the role of the Deeds Registry in the administration of the Communal Land Rights Act.
Various presenters gave presentations on their areas of speciality around issues which the Act affected and, with that, their recommendations of how the Act can address the concerns raised by such affected parties.
Pertinent issues around the Act
It emerged during the presentations of the various contributors that there are certain issues of the Act which are of concern to the communities and the traditional leadership. Among them is the concern that, by allowing the traditional councils to exercise the function of administering communal land, the Act takes away the powers exercised by the members elected to play that role.
The representative from the National Emergent Red Meat Producers' Organisation, Mr A Mahanjana, highlighted the apparent indecisiveness of the Department to implement the Act and ensure consistency and effective law enforcement systems around the Act. He further called for a policy framework to ensure a decisive implementation of the Act and to provide for specific roles for government, civil society, traditional authorities and communal farming communities. The need for all the role-players to co-ordinate their efforts around the implementation of this Act was seen as the key to the success of its objectives. The danger of depriving other family members of their indigenous law rights to the use and occupation of the family household by allocating a land parcel to a head of family was also highlighted as an area of concern.
From the traditional leaders represented, there seemed to be a general acceptance that the promulgation of the Act was inevitable. Their major concern stemmed from their specific exclusion from structures administering communal land within their tribal area. This to them is a bitter pill to swallow. The inclusion of tribal land into the area of jurisdiction of the municipalities is seen, together with this Act, as the government's subtle ground-preparation for the eventual taxation and imposition of rates on communal land owners by the municipalities. To this end, the leader of the KZN House of Traditional Authorities, Dr M Buthelezi, expressed his concern for the deliberate exclusion of traditional authorities from communal land administration in terms of the Act. It must be mentioned that at present the whole of the Act and alternatively certain specified sections thereof are being challenged in the Constitutional Court as being unconstitutional and therefore invalid. Because of the subjudice rule, the merits of the challenge will not be entertained further in this article.
Deeds office role
The author's presentation related to the exposition of the role of the deeds office in communal land tenure as envisaged under the Act.
The presentation involved a brief overview of the deeds registration process, covering the role of the deeds office as well as other players involved in the process of deeds registration, and adapting the same to the process envisaged in the Act.
The criticisms of the deeds office related to the unacceptable delays in the registration of title deeds in most of the offices and the mystique around this office. On the issue of delays, it was pointed out to the conference that this was initiated firstly by the initial rationalisation process that centralised all deeds registration functions of the previous TBVC states to, among others, the Pretoria and Cape Town offices. This resulted in extra work for the Pretoria and Cape Town deeds offices without necessarily bringing a readily competent staff complement to deal with the extra load. The result was that the new staff had to be trained first to the required high standard before they could be utilised in deeds examining.
It was also pointed out that it is a well-known fact that we are experiencing an unprecedented property boom. This also adds to the workload of the already pressurised deeds office staff.
The mystery around deeds offices was attributed to the speciality of the transactions registered there (only conveyancers are allowed in terms of the Deeds Registries Act to register transactions). It was, however, pointed out that, as an office of public record, the deeds offices are available to every member of the public wishing to access any public record, subject to compliance with prescribed requirements in terms of the Act.
On the issue of the delay in the implementation of the Act, the presenter explained to the Conference that the Act would only be ready for implementation once the prescribed regulations have been published in the government gazette. In the absence of anyone from the office of the Chief Director: Policy Development, the presenter could not account as to why, since before 2004, the said regulations have not yet been finalised. The presenter could only point out that, according to his knowledge, the regulations are being finalised and could possibly be published next year. This became the subject of discussion for a while and it became very clear that the non-implementation of the Act was a point of concern for the attendees and the panel-members. The pending Constitutional Court challenge of this Act will add to the current delay in its implementation.
Challenges to the deeds office in terms of CLaRA implementation
From the deliberations at the conference it is clear that the Department and the deeds office in particular are faced with the challenge of improving on service delivery by improving on the time it takes to finish the examination process and delivery of the title to the client. There is a regrettable perception (justifiable or not) that the deeds office cannot cope with its workload. The efforts that are already underway to decentralise deeds offices to the provinces were pointed out, with Mpumalanga being held up as an example. The implications of employing more staff and training them was also explained to the conference.
The need to demystify the deeds offices is one that needs attention. The eventual beneficiaries of the application of the Act are the rural communities, most of whom have never heard of the deeds office. This, to the writer, is an indictment on us. We are clearly not doing enough to reach the general public regarding our services.
There is clearly an urgent need to move on the finalisation of the regulations of this Act. The pending Constitutional Court case will further add to this delay, but every effort must be made to enable a roll-out of the Act once the court case is over (if the outcome is in the state's favour). This will also assist in the Department's attainment of the non-negotiable target of redistributing at least 30% of the land by 2014.
The conference offered a welcome opportunity to get some idea on how the office is doing in terms of carrying out its mandate within the Batho-Pele principles. If the view from the conference is anything to go by, I am afraid we are not doing well in the sphere of public education and transparency about the deeds office. There is a general negative public perception about the deeds office, which is brought about by ignorance of its role or function. However, this negative perception was cleared during the presentation by the answers to the many questions raised. What was disturbing was to realise just how wrong people are about the deeds office. It became clear that we need to take our services to the people in order to demystify this public office.
In the author's opinion, every deeds office must make some effort to inform the general public about the nature of its business (use can be made of the DVD supplied to all the deeds offices). The national office can also support this initiative, with the deeds offices in the forefront of the campaign. In short, every opportunity must be seized in the future to publicise the function of the deeds office and to familiarise the public therewith.
Republished with permission from SA Deeds Journal