An An Ideological Land Reform Policy Shift of State Custodianship and ‘Transforming the Rural Land Economy’

Abstract

In customary landholding practices land is regarded as more than an asset of economic value to be owned. African people’s rights in land and other natural resources exceed the idea of mere possession. To African rural land holders, land is not only a material resource for agricultural production, nor is the commercialisation and commoditisation of land the primary driving force for most customary landholding communities’ even though the land is productively used. This broader conceptualisation of the social function of land beyond the economic, aligns with modern property law on the proprietary function of property. However, excessive state limitations imposed on customary land tenure can hinder economically valuable property rights, but also other rights to social, cultural, and ontological resources embodied in the spirituality of African communities.

Security of tenure for land reform beneficiaries cannot be secondary to commercialisation and commoditisation of the rural land economy in the national interest. Commercialisation and commoditisation are the by-products of recognised, protected, and enforceable property rights and not the “pre-requisites” or “qualifiers” for secure land tenure. Thus, the state custodial approach reflected in land reform law and policy that places an overemphasis on private property capitalism, above the constitutional mandate of security of land tenure is critically discussed. It is argued that if not carefully formulated transformative land reform law and policy can be conduits for a state custodianship approach that inadvertently reproduces apartheid-like ideology and preoccupations.

Key words: Secure tenure, state custodianship, National Development Plan 2030, transformative land reform law and policy.