It is trite that the lawlessness of the apartheid regime and its draconian legislation such as the notorious Natives Land Act 27 of 1913 (the 1913 Act), the Native Trust and Land Act 18 of 1936 (the 1936 Act) and the Population Registration Act 30 of 1950 all had a dire impact on the indigenous inhabitants of the land across the country.

The 1936 Act culminated in the government of the time implementing forced removals. Prior to this, the 1913 Act provided for land occupied by the indigenous inhabitants to be scheduled as ‘native areas’ in which only ‘natives’ could acquire land. The 1913 Act defined a ‘native’ as ‘any person, male or female, who is a member of an aboriginal race or tribe of Africa’.

With the passing of the 1936 Act, these so called ‘native areas’ were vested in the South African Native Trust (the Trust) under the ultimate trusteeship of the Governor General. Thereafter, through the implementation of the 1936 Act, these areas were identified as ‘black spots’ which had to be removed to give effect to the policy of apartheid that eventually excised the land held by the Trust. These areas were no longer reserved for the occupation of ‘blacks’ in terms of the Population Registration Act, which resulted in the indigenous inhabitants being dispossessed of their rights in land. This was a direct result of the 1936 Act that declared their land as ‘black spots’ and excised the lands set aside for the occupation of ‘natives’.

The Constitution makes provision for the right to claim restitution of right in land by persons and communities, or their direct descendants who were dispossessed of rights in land after 19 June 1913, and as a result of past racially discriminatory laws and practices, which claim may be resolved by way of restoration or equitable redress (s 25(7)). To this end, the Restitution of Land Rights Act 22 of 1994 (the Restitution Act) was enacted and aims to restore land rights to persons and communities who were dispossessed due to racially discriminatory laws and practices. The Restitution Act established the Commission on Restitution of Land Rights and the Land Claims Court and provides for the procedure for land claims.

Initially, the Restitution Act provided for claimant persons and communities to lodge their claims for restitution of land by no later than 31 December 1998. The Restitution Act has been amended several times including the Restitution of Land Rights Amendment Act 15 of 2014. The Restitution of Land Rights Amendment Bill, 2017 proposed to extend the deadline for lodging a claim until 30 June 2019 but was held to be unconstitutional (Land Access Movement of South Africa and Others v Chairperson of the National Council of Provinces and Others 2016 (10) BCLR 1277 (CC)).

If a claim is successful, the Restitution Act empowers the Minister of Rural Development and Land Reform to expropriate land for purposes of resolving land claims by way of equitable redress (s 35(5)). In many instances, the state has purchased land for the claimant persons and communities.

In respect of the claimant communities, the Communal Property Associations Act 28 of 1996 (the CPA Act) was enacted and allowed for the communities to form legal entities called ‘Communal Property Associations’ (CPAs) to acquire, manage and hold property on behalf the communities. The CPA Act also provides for government to register CPAs and conduct oversight on the affairs of the CPA to ensure the rights of the members are protected and enforced.

There are currently 1 734 CPAs that are registered in the country (Communal Property Association Annual Report 2022/23).

A community wishing to register itself in terms of the CPA Act must prepare and adopt a constitution to regulate its affairs (ss 6 and 7). Once the CPA has been registered and a constitution has been adopted, the members of the CPA must elect a committee from its members to manage the affairs of the CPA in accordance its constitution and the CPA Act.

The members of the CPA and committee members have a fiduciary duty to act in the best interests of the CPA. In this regard, effectively managed CPAs are an important mechanism for the development and economic upliftment of its members. An example of this is the Moletele CPA, which through its various established enterprises, contributed significantly to the citrus export market. On average they export over 2.3 million cartons of citrus to international markets like Canada, United Kingdom, Russia, Bangladesh, China and the Middle East (Communal Property Association Annual Report 2022/23).

Some of the challenges encountered by CPAs include, inter alia –

• lack of management and administrative skills;
• the abuse of power by the CPA’s committee and powerful members of the CPA who neglect and abuse the ordinary members of the CPA;
• conflict among CPA members; and
• lack of accountability.

Previously, it was not clear who committee members and/or ordinary members could appeal to when a dispute or abuse of power occurred.

In terms of the CPA Act, the Director General in the Department of Rural Development and Land Reform (the Department) was responsible for the administration of the Act. Furthermore, the Department had the responsibility to both support and oversee the performance of CPAs, the extent to which they comply with the Act and their reporting obligations to the members and the Department.

Due to the lack of support and oversight on the affairs of the CPAs by the Director General and the Department, on the 8 October 2024, the Communal Property Associations Amendment Bill (the Amendment Bill) was enacted and provides for the establishment of a Communal Property Associations Office (the CPA Office) and the appointment of a Registrar of Communal Property Associations (the Registrar).

The CPA Office will be established within the Department (s 2B) and the Registrar will be responsible for the administration of the CPA office (s 2C). The Registrar will be empowered to provide assistance to the CPAs for purposes of the Act (s 2D(a)).

The Registrar’s salient duties in terms of the Amendment Bill include, inter alia:

• To assist communities in the preparation of a draft constitution (s 6).
• To resolve disputes among the members of the CPA by the appointment of person with adequate experience of knowledge in conciliating community disputes (s 10).
• To monitor the CPA’s compliance with the Act (s 11(1)).
• To undertake an inspection of the affairs of the CPA (s 11(2)).

The Amendment Bill with the establishment of the CPA Office and appointment of the Registrar will hopefully assist the Director General, the Department and CPAs to overcome the challenges highlighted above. This will be done by the CPA Office through the administration of the Registrar addressing the lack of oversight in the affairs of CPA’s and ensuring that the rights of members are protected and enforced. As a result, the provisions of the CPA Act will be implemented effectively and to the benefit of the CPAs and its members.

Uyanda Zwane LLB (Unisa) is a legal practitioner at Koikanyang Inc in Johannesburg.

This article was first published in De Rebus in 2025 (Jan/Feb) DR 37.