Hybrid land tenure administration in Dunoon, South Africa

Land Use Policy 90 (2020) 104301

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Hybrid land tenure administration in Dunoon, South Africa

T

Michael Barry Geomatics Engineering, University of Calgary, Canada

A R T I C LE I N FO

A B S T R A C T

Keywords: Hybrid land tenure administration Land registration Ownership Off-register transactions State versus political party land administration Fit-for-purpose land administration

Hybrid land tenure administration occurs in a number of South Africa’s state-subsidised housing projects and in the informal settlements from which the housing beneficiaries tend to be drawn. Ownership is the tenure form in most of these housing projects. Under ownership the law only recognises registered land transactions. Nongovernment tenure administration in Dunoon was organised by street and area committees that are part of the local South African National Civics Association (SANCO) branch, a community based organisation (CBO). SANCO is aligned with the ANC ruling party, and so Dunoon is a case of a CBO driving an alternative land tenure administration system using a form of private conveyancing operating in parallel and opposition to the official registration system for a period after first registration. Thus there was a party structure supporting a system running in opposition to the official system. The situation then evolved where the CBO encouraged registration as the risks to the buyer of off-register transactions became apparent when the official registration system emerged as the dominant land transaction option. Historical analysis and qualitative interviews inform the study. If hybrid governance is inescapable and if ownership titles meet beneficiaries’ needs and wants, then, ideally, state land administration organisations should engage households and community based organisations continually in title maintenance activities. To increase the uptake of registering land, changes to the rigid procedures required for registration should be explored to examine how certain arrangements and land tenure practices as they actually exist can be accommodated.

1. Introduction The article examines a hybrid system of land tenure administration in the Dunoon state-subsidised housing project in Cape Town, Western Cape province, South Africa. In particular, it examines the different strategies that landholders used to secure transactions in land and defend their tenure over the history of the settlement and the role of nonstate organisations in these strategies. Of particular interest is the role and influence of the area and street committees operating in Dunoon. These are part of the local branch of the South African National Civics Organisation (SANCO), a citizen based organisation (CBO) that is part of a national SANCO structure. SANCO is one of the ruling African National Congress’s (ANC) long-standing alliance partners along with the Communist Party and the Congress of South African Trade Unions (COSATU). The alliance has survived tensions and threatened pull-outs by the partners at various times. The study’s emphasis is on transaction strategies and strategies to defend tenure and the influence of CBOs in these strategies. The focus was Dunoon Phase II, one of three phases in the Dunoon housing project. Phase II properties were registered by 2001. Thus, transaction strategies in the secondary market could be examined. Phase I properties are as yet unregistered, and therefore not

suited to this study. In Dunoon, it would appear that the actions of street committees boosted the number of off-register transactions when compared to housing projects in the Western Cape where CBOs have not been active in land tenure administration. For this discussion, administration is considered a sub-system of the governance system. Hybrid tenure administration is the administration of land tenure by a combination of state and non-state organisations. It can take the form of a non-state organisation assisting directly in the transfer of land rights in an official land tenure information system, such as the land registration system, offering services to transfer land rights unofficially outside the official system (off-register, informal transfers), or merely providing advice on how to go about transferring land using official channels or alternative channels. Non-state organisations may also assist landholders in defending tenure; i.e. in resisting land grabbing and in resisting eviction. Examples of relevant non-state organisations include CBOs, non-governmental organisations (NGOs), civil society organisations (CSOs), political parties, religious organisations and customary authorities. What is distinctive to South Africa’s state-subsidised housing projects, which form part of poverty alleviation programmes, is that land is held under ownership. Ownership limits the options for legal remedies for tenure problems, which are

E-mail address: [email protected]. https://doi.org/10.1016/j.landusepol.2019.104301 Received 27 May 2019; Received in revised form 9 October 2019; Accepted 11 October 2019 Available online 30 October 2019 0264-8377/ © 2019 The Author. Published by Elsevier Ltd. This is an open access article under the CC BY-NC-ND license (http://creativecommons.org/licenses/BY-NC-ND/4.0/).

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people to register transactions. The Dunoon study informs the hybrid tenure administration and registration effectiveness discussion. Although South Africa enjoyed a relatively peaceful transition from a conflict situation to full democracy, hybrid land governance remains an inescapable component of some state-subsidised housing projects, and it may occur long after the delivery of houses and titles. CBOs such as SANCO and its street committees administer tenure in informal settlements. When the settlements are upgraded and formal title registered, street committees and other agencies may perpetuate a role for themselves and continue to engage in tenure administration. Participatory planning and administration may be a critical success factor in effective housing delivery when upgrading informal settlements (UN-Habitat, 2011). The issue is what happens to the participant organisations when the upgrade is complete and titles are registered? Do policy makers and operations managers expect them to disappear? Hybrid tenure administration in registered housing projects where non-government agents promote alternative transaction strategies to registration can create the type of problems described below. The state needs policy, law and strategy to manage these situations over the long term to avoid having to fix the problems that hybrid governance can bring about in ownership regimes. There have to be checks on whether hybrid governance arrangements comply with legal procedure and are contributing to the overarching goals of a housing programme and poverty alleviation policies. The distinctive context in Dunoon is firstly that SANCO street committees played an unofficial role in administering land transactions in parallel with the state land registration system in a de facto hybrid land governance system. They first did this in opposition to the legal land registration system and later in harmony with it. Secondly, SANCO is a national organisation aligned with the ruling African National Congress (ANC). Of interest is that national party politics influenced local level power struggles within SANCO, and the two successive local ward councillors in Dunoon had strong ties to SANCO. This in turn influenced land tenure security in Dunoon and the efficacy and ethicality of the de facto system of hybrid land governance and tenure administration. Thirdly, the legal tenure form in Dunoon state-subsidised houses is registered ownership. From an official land administration perspective, departures from official procedures that cloud an ownership title can be extremely difficult to rectify under South African law. In South Africa, land ownership is maintained by the rigid procedural and documentary requirements of the registration system. The courts only recognise land ownership if it is held under a title deed registered in a deeds office and the deed has to be prepared by an attorney in terms of the Deeds Registries Act 47 of 1937, ss.15, 16. Offregister transactions are not recognised. The title deed can only be registered in terms of a valid written contract (deed) of sale which meets the strict requirements of the Alienation of Land Act 68 of 1981, s.2. The requirements are rigid, but among other things, they serve to minimise the risks of land fraud where a vendor might sell interests that they do not own or do not have the power to dispose of. For political reasons South Africa had to use ownership as the tenure model for state-subsidised housing, primarily because under apartheid whites could own land and in general blacks could not. In addition, ownership is attractive to the state as it limits the state’s property rights administration burden. Tenure problems are a matter of private law, and the state has limited tenure administration responsibilities if land is owned rather than leased, for example. Social stability was also an important factor in the early stages of the housing programme when far-reaching political change was occurring. As Charlton notes, under ownership rent boycotts in state-subsidised housing projects that formed part of the anti-apartheid struggle strategies of the 1980s were removed as an option for expressing dissent when the ANC came to power in the first fully democratic elections in 1994 (Charlton, 2013). South Africa has undertaken one of the largest state-subsidised housing projects, and therefore land titling projects, ever. Noting that

expanded upon below. There are tensions in the international literature concerning the contribution of land registration as a social upliftment tool for the urban poor. A dominant theory, grounded in economic determinism and dating back to 1846, is that individual land titles provide security of tenure and can be used as collateral for credit, which in turn frees up land as capital (Feder and Nishio, 1999; Shipton, 2009). A wide body of research has shown that individual private land ownership has produced significant economic and non-economic benefits to owners and other sectors of society. What many advocates of this theory fail to articulate are the critical success factors for individual titles to generate these benefits. Among these conditions are firstly that individual titles are a good cultural fit, and there is a wealth of empirical work to show that this is often not the case. De facto urban land tenure practices in sub-Saharan African cities may draw on both customary practices and statutory land registration practices and evolve to fit local circumstances and manipulation of rules and social norms due to the dynamics of local politics (Fourie, 1993; Durand-Lasserve and Clerc, 1996; Barry, 1999). Further, elites frequently manipulate the system to grab land (Platteau, 1996; Gilbert, 2002; Mitchell, 2005; Kingston-Mann, 2006; Shipton, 2009). Secondly, even if titles are a general cultural fit, landholders have to register transactions, as off-register transactions cloud the title. Problems associated with cloudy titles are discussed in more detail below. There are a number of current pro-poor initiatives to document land interests internationally. These include the Social Tenure Domain Model (STDM), a special case of ISO standard 19152:2012, and the Fit-for-Purpose Land Administration (FFP) initiative. The former is a data model and software tool for complex tenure relationships. The latter is an approach to collecting and organising data to document land rights which among other things, advocates flexibility, a relaxation of accuracy standards for spatial data relating to boundary evidence, and participatory methods for describing, land boundaries, collecting and processing land tenure data (STDM, 2017; Enemark et al., 2014). Both of these initiatives are still in an experimental stage as a long timeframe and a number of case studies are required to evaluate the efficacy of land tenure administration strategies and policies. Ironically, many of the FFP proposals were explored in a working group in which the author participated on registration and surveying options for post-apartheid South Africa. However, individual registered ownership was chosen in the state-subsidised housing programme for reasons articulated below. What is missing in much of the land titling theory literature and in the STDM and FFP initiatives is how to deal with hybrid land governance and hybrid tenure administration? Specifically, what is the likelihood of governance and administration structures that preceded a titling or land certification initiative continuing to exert power and influence, and conduct operations in the administration of tenure after titles or certificates have been registered or issued? If parallel administration organisations do emerge, how can the situation be managed to ensure that the overarching goals of a development programme are being addressed? I argue that from an official policy perspective that if the official land registration system fits the desired tenure practices and social norms in a community and landholders are positive about it, then efforts should be made to run it effectively. It is poor practice to register title deeds in a housing project which forms part of poverty alleviation programmes and then do little to maintain the integrity of the system. One should also allow for the possibility that under hybrid arrangements an alternative system may emerge as the dominant land tenure administration system, in which case the entire land tenure administration system structures and processes in contexts where this occurs should be re-examined. If indications are that the official system is likely to dominate, policy makers should monitor and evaluate a situation continually and initiate action starting in the early stages of a housing project to ensure that people register land transactions, especially when ownership is the tenure form. Minor changes to the registration system structures and processes are also likely to encourage 2

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the figures are disputed, South Africa has delivered an estimated 4.3 million subsidised housing opportunities to the poor since 1994, when the first fully democratic elections took place (Department of Human Settlements, 2017). There is a major registration backlog, as an estimated 1.88 million of these properties have been registered. This constitutes close to 30% of the 6.4 million registered residential properties in the country (Rust, 2018; CAHF, 2018). A major problem from a land tenure administration perspective is that a significant, albeit unquantified, number of these registered properties have been sold or inherited through off-register transactions, and thus the titles are cloudy. Under ownership, cloudy titles due to off-register transactions pose legal problems for buyers and heirs, for the formal land market, and for general land use administration. It is advisable to prevent a significant number of cloudy titles emerging over time. A cloudy title excludes the buyer or heir from accessing formal loan finance, and financial institutions may blacklist an entire suburb affected by off-register transactions. An off-register buyer may also lose the property if the seller reclaims it, as in general the courts only recognise registered transactions (Barry and Roux, 2016; Barry and Whittal, 2016). From a land market and city administration perspective, it is important that titles remain current and accurate so that properties retain their value, property sales and taxation are based on accurate valuation data, and planning approvals, building plan applications and service delivery can be administered efficiently. Under current legislation the state cannot expropriate land held under a cloudy title, nor can planning approvals proceed if the signatures of the owners of properties with cloudy titles are required for an application to be approved and the registered owner cannot be found. For a buyer, cleaning up a cloudy title may be extremely costly and nigh impossible if the seller has moved away and cannot be traced to sign the necessary documents for registration or a sequence of off-register transactions in a particular property has occurred. In general, the parties to a transaction have to present themselves at the lawyer’s office to sign essential documents. Thus it creates a title dead end for the buyer, and they are at risk of the seller or their heirs reclaiming the land if the transaction is not registered (Barry and Roux 2016, 2018). A solution under the Land Titles Adjustment Act 111 of 1993 is a commissioner can clean up, i.e. regularize, the title and have it registered in the names of the de facto owners. However, this is inefficient, costly policy and strategy (Kingwill, 2013, Int #112, 122, 123, 130). The case informs the international and South African policy and theory discussion on the form, management and efficacy of land registration as the primary tool to uphold the urban poor’s land interests when de facto hybrid governance operates in parallel with state governance systems. There is much written about the desirability of hybrid governance and explanation of how it occurs and has occurred. There is very little documentation about hybrid systems of tenure administration as a primary theme. Dunoon is instructive on the possible role of CBOs and CSOs in land tenure administration and how the state might manage a situation if it is inescapable that they will play a role. The article proceeds with a description of the research method, followed by a brief review of hybrid governance, a description of SANCO and a review of hybrid tenure administration and previous work in the Western Cape. The Dunoon case is then described and analysed.

to an ongoing influx into the settlement an overflow of some 350 families ended up being housed in Dunoon (Barry, 1999, 2006, Int #1001). Documentary evidence included academic journal articles, City of Cape Town reports, Deeds Office records of transactions since first registration (i.e. Transfer Records), and documents provided by interviewees in the field. What is unusual in Dunoon is an active local news journalist took an interest in land matters. More than 120 newspaper articles dating back to 1992 were examined. The context was also informed by interviews with three land title adjustment commissioners and a title adjustment programme administrator. Field work in Dunoon included 43 unstructured and semi-structured interviews. Six key person interviews included two local politicians, two senior housing officials, one of whom had worked on both Marconi Beam and Dunoon, two planning officials and a journalist. A total of 37 individuals and family groups were interviewed door-to-door. Householders were asked about their life histories; what they believed was working well in Dunoon; how they had acquired their house (i.e. transaction strategy); and if they were aware of any problem land tenure cases in the neighbourhood. I then asked what they would do or whom they would approach for assistance in the event of a threat to their occupation of the house. The questions revealed the strategies that people had used, intended to use, or had observed in other households in relation to defending tenure and in securing a transaction, and who or what may have influenced or might influence their choice of strategy. Participants were selected on the basis of their availability and snowball sampling (e.g. if they had been a participant in an iconic problem case). Two households asked the author to interview them in the hope of getting professional advice. Door-to-door interviews were limited to Phase II of Dunoon where the properties had been registered by 2001 soon after the houses had been occupied, and so a secondary market in registered properties had developed. The author also participated in a two-day workshop on Dunoon attended by officials who had worked in Dunoon, academics, and land professionals in private practice and the City of Cape Town. The next section examines the hybrid governance and administration literature, leading into a discussion on formal governance structures, hybrid governance and tenure administration in the Western Cape. 3. Hybrid governance and land tenure administration 3.1. Governance and state building There are two schools of theory regarding building the state and the associated governance system that are germane to this discussion. The first school advocates the conventional approach to state building is the rational model. This is characterised by a culture of adherence to the rule of law and the administrative chain of command. Only a handful of countries come close to this ideal, and their evolution to this position can be measured in centuries (Lund, 2016). However, fixing fragile or weak states with the goal of creating the rational model tends to be a common condition of development policy and assistance. According to the second school, creating the rational state in an uncertain environment is unrealistic. Instead, advocates of this approach embrace hybrid governance, which implies working with the organisational and institutional arrangements as they exist (Boege et al., 2008). The hybrid governance system includes popular organisations that fill some gaps in state capacity. In this context, a wide variety of organisations may constitute themselves as de facto authorities. Of note is that their level of power and influence can wax and wane over time (Lund, 2006). Putting this last observation in the South African state-subsidised housing context, one official observed that street committees, which are often agents in hybrid governance, seem to come and go in waves. There is the first wave when the project starts and the houses are built, then they disappear and then later they reappear (Int #1004). The risk of supporting hybrid governance arrangements is they may

2. Method The study’s primary data was key informant and door-to-door qualitative interviews in Dunoon Phase II and Dunoon’s historical data. It was also informed by a case study the author conducted in the nearby Marconi Beam informal settlement upgrade between 1996 and 2006, where the majority of residents were moved to Joe Slovo Park. Joe Slovo Park was a state-subsidised housing development which was meant to house all the people in the Marconi Beam settlement, but due 3

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presence in some informal settlements and some state-subsidised housing projects where the ANC is the dominant political party. Similar CBOs may also exist in a settlement or suburb, which are aligned with political parties other than the ANC or they are not affiliated to any political party (Roux, 2013; Super, 2015, Int #2017). As alluded to above, urban tenure practices may adapt both customary and statutory procedures, but there is not universal acceptance of this, and SANCO’s practices might be viewed from this perspective. Discussions with academics and informal settlements residents over some twenty five years have described SANCO’s practices in informal settlements as similar to customary practices where people first consult a headman over an issue who may then take the matter to the chief (e.g. Int #2020). Other residents have strongly rejected any forms of behaviour by leadership structures, such as street committees or warlords in squatter settlements, that mirror those of a chief in a customary system. SANCO policy appears to be that street committees may evict alleged criminals from a settlement by massing outside their houses and insisting that they leave. In an informal settlement, SANCO may vet people who purchase a shack and may refuse permission for them to live there, for example if they have been evicted from another informal settlement for alleged criminal behaviour (Barry et al., 2007; O’Regan and Pikoli, 2014; Super, 2015; Barry and Kingwill, 2018, Int #201817). In the Western Cape, SANCO structures may keep local land tenure record systems in informal settlements, where a person registers in the SANCO book and is allocated a WP number, which is a personal identifier allocated in the sequence a person arrives in a settlement. The WP number enjoys some official recognition as it provides a personal identifier and an address (e.g. a shack number) which can be used to access a cell phone, retail accounts and health services (Barry et al., 2007; Barry and Kingwill, 2018). SANCO may also facilitate the buying and selling of shacks in an informal settlement. The buyer and seller obtain affidavit forms from the local police station. SANCO vets the buyer and approves the sale, and the vendor and vendee sign the affidavit in front of two witnesses, who are often SANCO office bearers. In some instances, the police act as witnesses and stamp the affidavit (Barry and Kingwill, 2018). In essence it is a private conveyancing system of land interests. This witnessing system has been used extensively to facilitate off-register sales of land and houses in some statesubsidised housing projects, where it becomes part of a hybrid tenure administration system running in parallel but opposition to the official land registration system. Nowadays the police may refuse to witness affidavits intended to transfer land in state-subsidised housing projects, but that does not necessarily deter people from getting the transaction witnessed privately (Barry and Roux, 2016, 2018).

weaken the state and empower illegitimate social forces, and predicting how this may occur is often impossible. A diversity of outcomes is possible. Embedded local non-state orders are often as contentious as the official order in poorly governed polities (Meagher et al., 2014; Colona and Rivke, 2016). There is the risk of reinforcing dubious, oppressive, illegitimate, corrupt and coercive non-state orders to provide short term solutions which are damaging in the long term. Unofficial structures often create winners and losers. Ideally who might win and who might lose, whose interests are served, and how to deal with accountability are challenges that should be identified before particular arrangements are supported (or permitted if the state has the power to curtail or prohibit them). Institutional coherence and regulatory compliance should be conditions for supporting any form of hybrid arrangement (Meagher et al., 2014). A challenge in supporting hybrid systems of land tenure administration is how to minimise human rights abuses in the form of loss of land interests, as many of the state’s actors in this area are corrupt. Internationally the land sector, politicians, the police, and the judiciary are among the worst offenders when it comes to corruption, patronage, privilege and abuse of power (Transparency International, 2011). Thus monitoring and evaluation of hybrid arrangements are arguably critical success factors if hybrid arrangements are to lead to desirable outcomes. Who performs the evaluations of the legitimacy of hybrid arrangements, who makes decisions on actions relating to these evaluations, who performs these actions and who evaluates the evaluators is also crucial (Barry and Augustinus, 2016). Thus, a working hybrid governance system may exist in what J. K. Galbraith (1958:590) labelled an environment of “functioning anarchy”. The rational state may be a long term vision, but top down planning and implementation is unworkable. The rational state is likely to be achieved through an evolutionary approach. A hybrid system of tenure administration can take the form of nonstate actors working in opposition to the land registration system by providing parallel alternative off-register options to transfer land interests. Alternatively, they may work in harmony with the state system in ways which should make the registration system more effective, or a combination of working both in harmony and in opposition to the state registration system simultaneously (Barry and Roux, 2018). Two or more systems may operate in a particular polity. Conceptually, over time an alternative transfer system or the state registration system may become the dominant system where landholders choose one over the other. Drawing on Durand-Lasserve et al (2013), hybrid tenure administration arrangements may provide parties with a number of strategic options, or channels, to complete a transaction. In some situations, it may be easy to convert an off-register “title” that is legally precarious to an official, legally recognised title. However, in other cases, the buyer or heir(s) may end up with a precarious unofficial title that cannot be converted to a legal title. The latter case is relevant in South Africa’s state-subsidised housing projects. The question that the Dunoon case study examines is if and how hybrid land tenure administration can work when registered ownership is the tenure form and only registered transactions are recognised in law. SANCO has been involved in hybrid governance and land administration in a number of informal settlements, site-and-service schemes where beneficiaries are given a serviced site and they build their own house, and state-subsidised housing projects in the Western Cape, including Dunoon. SANCO is described below followed by a brief discussion on official and hybrid land administration in the Western Cape.

3.3. Official and hybrid governance and land administration in the Western Cape and Cape Town The official local government representative in South African urban areas is a ward councillor who is advised by a ward committee. The ward councillor is elected in municipal elections held every five years. In Cape Town, where Dunoon is a suburb, the ward committee consists of up to 10 members elected from local organisations registered with the City which represent different sectors in a community. These include business, the arts, education, civics such as SANCO, faith-based, education, designated vulnerable groups, and youth organisations, among others. Political parties are prohibited from having representatives on a ward committee (City of Cape Town, 2016). Thus, the official governance structure in local government is what would be expected in a rational state structure. In a utopian state it would be politically neutral. In the rational state view, municipal officials, political parties - through branch offices in housing projects, and local councillors offer advice on housing and land tenure matters. Therefore there should be no need for CBOs such as street committees to be involved in land tenure administration. The reality, however, is often

3.2. The South African National Civics Association (SANCO) SANCO has its origins in the civics movement. The civics originated in the anti-apartheid resistance strategies of the 1980s as alternatives to official local government structures. Each SANCO branch is organised in a hierarchical structure of area and street committees (Seekings, 1992). Currently, SANCO area and street committees often maintain a 4

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and function to SANCO. CC members witnessed the sales of houses (e.g. the handing over of the title deed) and the handing over of the money. They recorded the transaction in a book in the office in the housing project and they advised the parties to the transaction to follow up by consulting a lawyer. Thus the advice they offered was generally in harmony with the official land tenure administration procedures. The problem was that two buyers who were interviewed who had used this process did not follow up by going to a lawyer. They stated that they were under the impression that the witnessing by the CC members was sufficient to effect the transaction. When they did approach a lawyer two years after the off-register transaction, the lawyer found that the contract of sale was not acceptable for registration. If the seller had left town, the buyer may not have been able to register their property as the seller has to sign a number of documents for registration to proceed (Barry and Roux, 2018).

different. In the Western Cape, officially recognised hybrid tenure administration in state-subsidised housing has been limited to agreements between officials, CBOs and informal settlement community leaders who may form part of a steering committee in informal settlement upgrade projects. Other than that, there is no regulatory recognition of CBOs playing a role in land tenure administration in state-subsidised housing once the land is registered in individual ownership. Officially, it is then a matter of private law (Barry and Roux, 2018). Hybrid governance is recognised in security matters, however, in the form of Community Policing Forums and Neighbourhood Watches which liaise with their local police on safety and security matters, and members may patrol their neighbourhood (O’Regan and Pikoli, 2014). 3.4. State-subsidised housing and hybrid governance in the Western Cape

4. Dunoon history

The ANC government initiated its subsidised housing programmes for low-income households soon after it came to power in 1994. Many of the first beneficiaries were drawn from peri-urban informal settlements. In Cape Town, local community leaders, who tended to be drawn from CBOs, were prominent in drawing up housing lists of beneficiaries. As per UN-Habitat’s (2011) recommendations for upgrading informal settlements, participatory administration of the allocation of houses was essential at the time. The reorganisation of the provinces and municipalities meant many experienced public servants resigned or were moved out of longstanding positions and inexperienced people filled their roles. The state lacked legitimate power to enforce the law in many cases. In Cape Town, officials would draw up agreements with community leaders – for example agreements preventing further in-migration into an informal settlement, set up steering committees and expect community leaders to enforce these agreements. This was unworkable and people continued to flood into the settlements. One cannot expect a community leader to act as rule maker, judge and policeman, and live in the settlement where they fulfil these roles, especially when they may have to act against their extended family members. They are susceptible to threats and acts of violence and even assassination (Barry, 1999). Two of the author’s previous housing project studies in the Western Cape had similar ethnographic profiles to Dunoon in that the majority of the beneficiaries had moved to the Western Cape from the former homelands in the Eastern Cape and street committees had been active in the feeder informal settlements. In the Mbekweni case, a housing project some 60 km from Cape Town, the local SANCO branch did not involve itself in land transactions, nor was there evidence of another CBO doing so, and so there was no evidence of hybrid tenure administration. No concrete evidence of off-register transactions emerged, but there were indications that some titles may become cloudy over time if inherited properties are not registered. The only strategy that interviewed residents advocated for effecting land transactions was the official route i.e. by registering the transaction. Factors that may have contributed to this was that it was easy for residents to walk to the municipal housing offices to get information and there was great deal of interaction between municipal officials and beneficiaries before they received their land and houses In addition, there was a significant level of visible administration by street level bureaucrats, especially building inspectors (Barry and Whittal, 2016). In a broader context, City of Cape Town officials suggested: “In general, we have to change the institutional mind-set as we cannot do the development needed within the existing regulatory framework. The building inspector must play an advisory role, and not just serve notices” (Int #2000). In another state-subsidised housing project study in a rural town, a number of off-register sales had occurred using the witnessing system, apparently without the involvement of parallel governance structures. However, two participants who were in the process of getting their transaction registered had done the original off-register transaction with the assistance of the Community Court (CC), a CBO similar in form

Dunoon was developed as a state-subsidised housing development on Cape Town’s north western edge, some 20 km from the City centre. The vast majority of the population are Xhosa speakers, most of whom migrated to Cape Town from the Eastern Cape. The population is large and growing rapidly. A senior official and a politician estimated it at between 66,000 and 80,000 people. Poverty is high and unemployment is estimated at 37% (City of Cape Town, 2013). Land surveyors’ legal plans show that Dunoon contains 2694 state-subsidised houses. It was developed in three phases between 1996 and 2001 (Int #1001). Phase I comprised 1000 properties, Phase II 1331 properties and Phase III 633 properties (Int #1001, Power Construction N.D). Beneficiaries were drawn from informal settlements in the area. It was developed in terms of the (repealed) Less Formal Township Establishment Act (LFTEA) 112 of 1991, which was intended to expedite housing developments for the poor. Of relevance to this discussion is LFTEA exempted a designated development from laws and regulations relating to building standards, and so buildings could be erected without approved plans or on-site checks by building inspectors (Int #1004, Author’s Notes, 2017). One unintended consequence of LFTEA is there are fewer land administration officials visible at street level in Dunoon than would normally be the case in such a development. As noted above, the focus of this research was Phase II. Very little first registration has occurred in Phase I due to subsidy allocation, operations management and project management problems, and local politics dynamics flowing from these. In contrast, Phase II was registered soon after the houses were constructed and so a formal secondary land market exists. In Phase I, the housing construction project ran smoothly and the houses were completed by the year 2000. However, the subsidy processing and housing allocation were problematic. Delays caused a great deal of uncertainty which eventually prevented the properties from being transferred to the beneficiaries. A steering committee with representatives from interested parties, including representatives of groups of potential beneficiaries in the different feeder informal settlements, drew up the list of beneficiaries to be granted a house, which was submitted to the Provincial Department of Housing for subsidy approval. However, a number of people on the list did not qualify for a subsidy or they did not have the necessary documentation to be awarded the subsidy (Int #1001). During the delays, a number of the completed, but unoccupied, houses were invaded. House invasions were a common problem in a number of state-subsidised housing projects at the time (Barry, 1999; Barry and Roux, 2014). Further, some of the original beneficiaries sold their properties informally while they were still unregistered and there were deaths and divorces among the householders, and so the list of people to whom the properties were supposed to be transferred quickly became inaccurate. Consequently, most of the Phase I properties have still not been registered and it is a long, politically challenging and costly process to regularise the 5

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chaired by the local ANC branch chairman, who also chaired the SANCO area committees in Dunoon (Int #1004, Luhanga, 2012c). Local SANCO politics has been tied to national politics, and this was manifested in major disruptions between 2007 and 2010, which are described below. There have also been tensions between the SANCO aligned local councillors and City officials (Luhanga, 2009b, 2009c). In 2008, the Dunoon SANCO Branch chair and deputy chair switched allegiance from the ANC to a national breakaway party, the Congress of the People (COPE). Peace Stemela was the local ANC ward councillor at the time, and he also had strong ties to SANCO. In response to the breakaway, the provincial SANCO leadership dissolved the Dunoon SANCO. Violent conflict between the COPE SANCO faction and the ANC SANCO faction followed during a meeting to create a Dunoon Development Forum (Luhanga, 2010b, Int #1002). During the Dunoon SANCO disruptions, various allegations of fraud were levelled at the COPE SANCO leaders as the situation unfolded, and similar counter allegations were directed at the ANC SANCO faction and councillor Stemela. As these allegations were tied to a political conflict, the facts are difficult to verify. One allegation was that the COPE SANCO leaders had encouraged residents to use them to conduct off-register sales for which they charged between ZAR300 to ZAR10 000, and another was that the COPE SANCO members sold a particular property multiple times. They were alleged to have facilitated sales between an original beneficiary and a buyer, and they then evicted the buyer when the beneficiary died (Int #1003, Professional Mobile Mapping, 2008). In late 2009, the ANC SANCO faction allegedly targeted residents who they accused of illegally occupying houses in Dunoon and evicted a number of them. Apparently, these were mainly houses that had allegedly been sold by members of the now dissolved COPE SANCO faction (Int #1003, 1004, Luhanga, 2010c). In turn, councillor Stemela was accused of patronage in providing contracts for connected parties, manipulating vulnerable residents to obtain their houses in order to sell them, and abuse of tender processes (Int #1002, 1004, Luhanga, 2009a, 2009b, 2009c). Stemela died in 2010, and the new ANC councillor, Lubabalo Makeleni, drew his support base through SANCO and continues to be involved in SANCO. The local SANCO conflict then died down (Int #1003, 1004, Author’s Notes, 2017). Interviews revealed that there are five SANCO area committees in Dunoon, and about 50 street committees which fall under them. According to an area committee chair, they see themselves as having four main functions: (1) dealing with unfair evictions, (2) security and aberrant behaviour – he claimed that they patrol the streets, (3) managing crime and evicting criminals, and (4) land transactions. Confirming SANCO practices reported above, street committees assist in enforcing committee decisions after a negotiation or dispute resolution has failed. Participant #15 estimated that they had dealt with some 50 unfair evictions in the 12 years since he had been on the SANCO committee. Street committee members patrol and search the tsotsis (gangsters) and evict them from Dunoon. If they resist, then they go en masse to “talk to them” (Int #15). This narrative about evicting criminals matches ones recorded in informal settlement interviews. However, no evidence emerged in the press or in the field to corroborate the narrative that street committees have evicted alleged criminals. High crime rates remain a problem, however, and from time to time vigilantes have attacked alleged criminals (e.g. Luhanga, 2013, 2018). A street committee may act as real estate agents in facilitating the sale of a property. They identify a house and put the seller and buyer into contact. Nowadays, they direct the parties to a lawyer and the street committee gets a commission. Family matters, such as inheritance, do not involve the committees. They may, however, become involved in the event of children being orphaned. It would appear that SANCO currently does not encourage off-register transactions, nor participate in them (Int #15, 28, 39). Worth noting is that land administration advice and alternative dispute resolution (ADR) is also offered by leaders in the community who are not linked to the ANC or SANCO. There do not appear to be any

situation. A further problem is that many of the current occupants who have bought these properties informally do not qualify for a subsidised house and so, as the law stands, the properties cannot be transferred to them (Int #1, 1001, 1004). Registration drives in 2002, 2005 and 2009 resulted in some properties being registered. However, officials received a hostile reception and even death threats, possibly because some of the occupants were there fraudulently (Int #1001, 1004, Luhanga, 2010a). In Phases II and III, lessons had been learned from Phase I and similar housing projects in the city. One company was responsible for all aspects of the development, both the engineering construction and the human components which included subsidy approvals, processing and housing allocations. The 1331 houses in Phase II were constructed between 1999 and 2000. Ninety-eight percent of the contracts of sale had been signed in 1999 and transfers were registered in a short window at the end of 2000 and beginning of 2001. In Phase III the same project management structure and methodology was used as in Phase II. By January 2003, 99% of the properties were registered in the names of the beneficiaries (Transfer Records). Off-register transactions in Dunoon have long been identified as a problem by officials and politicians. In 2008 an occupancy audit was conducted for the Provincial Department of Human Settlements. A random survey of 505 houses revealed that 80 occupants (16%) bought houses off-register and 42 occupants (8%) inherited their properties (Professional Mobile Mapping, 2008). However, the report does not distinguish which phases of Dunoon were surveyed, and so the study may have included parts of Phase I where properties are not yet registered. Land fraud has also been a problem. In March 2011, the Directorate for Priority Crime Investigations, the “Hawks”, had filed 45 cases of fraud in Dunoon (Luhanga, 2011). An iconic case is a self-styled real estate agent had also sold properties which were not for sale to unsuspecting buyers, and was alleged to have threatened people who challenged her (Luhanga, 2012a, Int #1003). Councillor Makeleni said that SANCO had confiscated seven of these houses and returned them to the beneficiaries (Luhanga, 2012b). Some participants in this study were aware of the self-styled agent’s activities and a number of other fraud cases, and this probably influenced their choice of strategy in conducting land transactions and defending their rights to their property (Int #1, 12). Today, Dunoon consists of the original state-subsidised houses, extended subsidised houses with rooms added on, new houses, and multistorey flats and hostels. The 2011 census counted 38 blocks of flats in Dunoon and the number has grown significantly since then. In cases of new houses and flats, the original house has been demolished and replaced. Where there is space around the original house, the majority of formal houses have backyard shacks on the property which interviews showed are rented out. McGaffin et al. (2015) examined 21 double storey buildings in Dunoon that had been developed for rental purposes. Five of the participants in McGaffin’s study claimed to have obtained building approval from the City. Discussions with officials suggest that this is unlikely, however (Author’s Notes, 2017). 4.1. Street committees, local politics and land administration SANCO street committees have played a significant role in local politics and de facto hybrid tenure administration in Dunoon. The Dunoon SANCO structures and processes mirrored those of the community governance system in the Marconi Beam informal settlement, which was one of the Dunoon feeder settlements. Off-register transactions in land interests were an adapted form of the witnessing system used in Marconi Beam (Barry, 1999, 2006). Many of the residents had migrated from customary areas where witnessing systems to transfer land interests are common (Kingwill, 2013). There has been a strong connection between CBOs and local ANC politicians. For example, the Dunoon Community Policing Forum was 6

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problems with them doing this (Int #1). The picture that emerges is that since the political infighting between the COPE and ANC aligned SANCO factions died down the area and street committees have assisted in maintaining law and good order and assisted in dispute resolution, but interviews revealed that residents have mixed feelings about them. In general, respondents indicated that street committee members acted in a manner that was beneficial to the community. For some, they play an important role in problem solving and mediation. There were, however, anecdotes of committees acting for their own benefit at times and that they favour ANC members (Int #1, 14, 15, 1002, 1003). Evaluating the above, albeit that most residents who were interviewed considered street committees in a positive light, the national level political links in SANCO and strong links to a sitting councillor in Dunoon is not a healthy governance indicator. This is evidenced by the turmoil that occurred in Dunoon in 2009 which was linked to national political party fissions. In addition, the boundaries between the security functions that street committees see for themselves and the officially sanctioned functions of the Neighbourhood Watches and the Community Policing Forum appear to be blurred. Outside of the criminal justice system and SANCO structures, there appear to be no formal checks and balances on street committees’ behaviour. SANCO structures largely play a positive role, but interviews and newspaper articles provide persuasive evidence of unlawful behaviour by some street committee members and interference with individual freedoms over the history of Dunoon.

Table 2 Off-Register Transaction Strategies.

The following section reports the results of participant interviews relating to land transaction strategies for off-register and registered purchasers. It then reports on the strategies for defending tenure expressed by purchasers and original beneficiaries. All of the names used in this section are pseudonyms. 5.1. Land transaction strategies Counts of the 37 door-to-door household interviews were classified according to land transaction strategy as per Table 1. The results of the strategies to defend tenure and to conduct transaction strategies from the interviews in Dunoon were verified by examining Deeds Registry transaction records (i.e. Transfer Records), key informant interviews, newspaper articles and other documents. The off-register transactions and the role played by street committees in these transactions and registered land transaction strategies are reported first, followed by strategies to defend tenure. Three of the seven households shown as having registered their transactions in Table 1 had originally done an off-register transaction and then registered later. In the three interviews shown as data uncertain, the answers given in the interviews did not correspond to Deeds Registry transaction records. 5.1.1. Off-register transaction strategies The transaction strategies of the 13 off-register transaction interviewees are summarised in Table 2 below. Table 1 Household Interview Transaction Strategy Classification. Count

Off-register Registered Original subsidy beneficiaries Tenants Data uncertain Total

10 7 14 3 3 37

Count

Contract / Affidavit at police station documents handed over to buyer Contract / Affidavit in front of street committee and documents handed over to buyer Contract / Affidavit in front of street committee then registered Contract / Affidavit in front of taxi association then registered Private oral contract Swopped twice

4 4 2 1 1 1

Four households had gone to the police station where the parties had sworn an affidavit to conduct the transfer without a street committee being involved in the witnessing process. The parties may have been advised to go to the police station by street committee members, however. As in the author’s other case studies, an examination of a sample of these affidavits revealed that they would not have been acceptable as a contract of sale which could lead to registration. Six participants had the transfer witnessed by a street committee, one of whom was an original beneficiary who had swopped her house with another house in Dunoon. Two of the six had subsequently gone to a lawyer on the advice of their employer or family and registered the transaction. A third participant had the transaction witnessed by a taxi association to generate publicity “to avoid the house being sold multiple times”, and then gone to a lawyer on the advice of his employer and had the transaction registered (Int #33). Two of the contracts were on standard contract of sale forms for land purchases that can be purchased at a stationary store, suggesting that some street committees had been advised to use these forms. If completed correctly, they would have constituted a valid contract of sale. However, the two forms were incomplete and thus not acceptable for registration. One landholder had entered into a private, unwitnessed, oral contract with the seller when purchasing the property (Int #13). All of the participants who still held property through an off-register transfer were worried about their security of tenure. As noted above, all names are pseudonyms. Noxolo’s iconic case described below appeared to have influenced a number of them. Two households located close to Noxolo’s house had approached the researcher to interview them in the hope of obtaining professional advice. The following are a sample of the narratives relating to the problems, complexities and anxieties that arose from off-register transactions. Many people in Dunoon were aware of Noxolo’s case. As in other cases that the author has studied, it was a strong influence on the level of knowledge of land transactions and the associated risks and costs. Noxolo swopped houses twice, and in the process moved between three different low-cost housing estates in Cape Town. The second swop was with a subsidy beneficiary in Dunoon whom the Deeds Registry records showed to be the registered owner. The registered owner’s son had then initiated litigation to reclaim the house, but he failed to appear in court on the trial date. Noxolo said that the magistrate advised her to reverse the most recent swop and return to the suburb in which she had been living prior to moving to Dunoon (Int #32). Vuyo had bought his house from a deceased beneficiary’s family. They gave him the title deed and a copy of the death certificate, and he had the transaction witnessed at the police station. He claimed that the deceased’s sister and the local street committee then attempted to sell the house from underneath him (i.e. without his knowledge) four times. He could not afford a lawyer to clean up the title (Int #28). Sizwe purchased his house in 2011 using a stationary store standard contract of sale, stamped and witnessed at the police station. He believed he was the second owner, but an inspection of his package of documents showed that at least six sales of the property had occurred. Moreover, there was a break in the chain of off-register transactions in the documents shown to the author, as at least one contract was missing. For example, A sells to B who then sells to C. If the contract of sale from A to

5. Interview results

Transaction Type / Occupant status

Strategy

7

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#5). Kholeka bought her house in 2009 and then went to a lawyer on the advice of the municipal housing office. The transfer had not gone through as the seller still has to sign a document. He is in the Eastern Cape where they cannot trace him (Int #19). Analysing the above, in the registered transactions, purchasers had been advised by employers and family members to engage the services of a lawyer or they had past experience of a legal problem where they had used a lawyer. A problem in Nondwe’s and Kholeka’s cases is they need the seller to visit the lawyer’s office to sign papers. Until this happens the transaction is frozen. Roux (2013) offers a possible solution from her case study where lawyers claimed to have dealt with this issue often. Instead of the buyer handing over the purchase price to the lawyer who then holds it in trust until the transaction is completed, the buyer hands over the money when the contract of sale is signed and the seller then moves away. The buyer still needs to be around to sign certain documents. Lawyers had overcome this by getting the seller to give them a Power of Attorney to act on the seller’s behalf to sign the final papers.

B is missing, then there is a break in the chain of transactions. This is a common problem in private conveyancing systems. It would be impossible for a lawyer to unravel the chain of transactions and register the property in Sizwe’s name, as they would have to locate the original beneficiary and probably each purchaser / seller in the chain of transactions and mend the chain by finding the missing parties to sign the necessary documents. Sizwe wanted to register the property in his name because of the tenure conflicts and cases of fraud he had heard about in Dunoon, and extended family members had advised him to register (Int #9). Nozuko and Liziwe were original beneficiaries. Each had swopped their state-subsidised property with original beneficiaries in different parts of Dunoon. Both were worried that the other party to the transaction might sell their former property off-register and then come back and claim the houses that they currently occupied, which were still registered in the original beneficiaries’ names. The problem was that they had invested a great deal of money in extensions to their houses, and they might lose their investment if they had to reverse the swop in each case (Int #20, 25). Zola’s is an interesting case, as the purchase had been conducted through an oral agreement in 2011 as, according to him, the police refused to witness an affidavit. Zola is well educated and had been in community leadership positions for some twenty years. He is aware of legal risks associated with off-register transactions and the official route to a registered title. He indicated that he intended to consult a lawyer immediately after the interview (Int #13). In the cases of those who first bought off-register and then registered subsequently, Khaya and Bukelwa bought their house from a subsidy beneficiary in 2006. They first had the street committee witness the transaction. Subsequently, Khaya’s employer advised them to consult a lawyer and they then registered the transaction. Had Khaya’s employer not advised them to go to the lawyer, they might have ended the process at the street committee (Int #37). Anele and her husband first went to the street committee and then to the police station to sign an affidavit. Then they handed over the purchase price in cash. In 2007 they went to a lawyer on the advice of her mother-in-law. Anele’s understanding was that her mother-in-law had bought a house elsewhere using an affidavit and lost it when the seller reclaimed it (Int # 38). In 2009, Thando and Nomonde went to the Dunoon Taxi Association to witness the sale to protect themselves against reclaims and multiple sales. They then went to a lawyer and registered the transaction on the advice of Nomonde’s employer (Int #33). In summary, street committees played a direct role in witnessing some off-register transactions, but not in all cases. The situation has changed and they no longer appear to do this, but they appear to act as de facto real estate agents. The police had witnessed affidavits transferring properties, but they too have stopped doing this. As the official registration system has emerged as the dominant land tenure administration system, all of the off-register participants were worried about their tenure security, and they were aware of this because of problem cases in Dunoon and the advice of family, employers and friends.

5.2. Defending tenure A number of participants were asked what they would do if someone tried to claim ownership of their house. Counts of the responses of the different classes of interview are presented in Table 3 below. Examining Table 3, one would expect off-register purchasers to rely on street committees and neighbours to assist in cases where occupants might face eviction, especially as street committees had been part of the transaction strategy in some cases. Likewise, one would expect original beneficiaries to approach the municipality as this is the organisation with which they have had the most experience in dealing with land tenure matters. Registered purchasers can be expected to approach a lawyer, as they would have used one to register their purchase, and their responses confirm this. Of interest is that, with only two exceptions, the title deed was mentioned as an important document in defending tenure among all three categories of household. This is expected as paper documents have been found to be important social and legal artefacts to defend tenure in all the author’s case studies in the Western Cape. One would expect off-register purchasers to rely on street committees, yet only two of the eleven participants where the issue was explored mentioned them. This is probably indicative of an evolving situation where households and SANCO members became aware of the legal risks associated with off-register transactions, and they have been made aware of the need to use official structures. Worth noting is that the sitting councillor advises people to go to a lawyer, and he has been a leader in the local SANCO structures. It is surprising that two registered purchasers should mention the street committee, and it Table 3 Counts of Defending Tenure Strategies.

5.1.2. Registered transactions A total of seven households had registered their purchase. As described above, three had first engaged in an off-register transaction and then registered. Four households had registered, or registration was in process. Lindelwa was a domestic worker who had first used a lawyer in a labour dispute some years previously, and went to him when she purchased the property. He is “her lawyer” and she “didn’t trust anyone else” (Int #36). Zandile’s daughter works for a bank. Her daughter would have been aware of how legally recognised land transactions are conducted through her work and she had bought a property herself. Her daughter arranged the purchase through a lawyer (Int #14). Nondwe’s sister bought the property 12 years previously with the assistance of her employer who had used their lawyer to effect the transaction. However, registration had yet to occur as it appeared a signature was missing (Int 8

Off-Register Purchaser / Swopped Houses Strategies

Count

Title deed and official structures e.g. municipality, lawyer. Title deed and neighbours & street committee Title deed, municipality and street committee Unsure

8 1 1 1

Original Beneficiary Strategies Title deed and municipality Title deed, municipality and street committee Title deed only Municipality only

10 1 1 1

Registered Purchaser Strategies Title deed, lawyer and municipality Title deed and municipality and police Title deed and neighbours & street committee

4 1 2

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community members, have long occurred in urban informal settlements. However, in the absence of the alternative private ‘conveyancing’ system usurping the official land registration system and becoming official policy, they pose a risk to purchasers in state-subsidised housing projects. The question is what roles might people who have been involved in street committees and who have had power and influence in feeder informal settlements play in a state-subsidised housing settlement? From a rational state perspective, the tenure administration role that street committees play in the feeder informal settlements becomes redundant, as the municipality, the ward committee and the local councillor and local party political offices can provide advice on land tenure administration. The problem in a place such as Dunoon is that landholders and purchasers have to use a lawyer to transfer land if the transfer is to be recognised in law. If alternative, simpler off-register strategic options are on offer, which are persuasively promoted by CBO members and others within a community, and parties to a transaction might have prior experience of them if they lived in an informal settlement, then they might well choose the alternative off-register options. In Dunoon, some buyers used off-register strategies to acquire land, and a number of them then registered the transaction once they were advised that they should do so. People learned about the risks of offregister transactions through iconic problem cases in their neighbourhood, evictions in Phase I consequent to SANCO faction disputes, fraudulent sales of properties, the advice of employers, family and acquaintances, possibly the registration drives and surveys, the media, local political party representatives, the ward councillor, non-ANC political leaders, and CBOs such as street committees. The problem is that it is often very difficult and close to impossible to register after an off-register transaction. Two of the seven “registered” interview cases were still trying to locate the seller to sign the necessary documents. The narrative about the deceased beneficiary’s sister attempting to sell a property from beneath an off-register buyer is a caution about giving official recognition to alternative transaction systems without carefully considering the risks. In the author’s fieldwork in Accra, Ghana, Lagos, Nigeria, and Hargeisa, Somaliland, there were numerous instances of multiple sales of the same property. Participants in those studies suggested that in many cases this was due to different family members manipulating or reinterpreting the customary rules to claim the power to alienate a property. In general, the Dunoon participants held positive attitudes to street committees and the roles they play in community service. The caution in endorsing the involvement of CBOs such as SANCO in land tenure administration is their link to a national political party and through that to the local councillor. This is evidenced by the problems that occurred in Dunoon when the split between the national political parties, the ANC and COPE, occurred. That said, hybrid tenure administration may be inescapable and it is a reality that officials have to live with. The Dunoon case adds empirical weight to the findings in a number of the author’s urban case studies in the Western Cape. Paper documents are important to landholders, but they do not necessarily use them in the way policy makers envisage, especially when hybrid tenure administration is present, and perhaps in dealing with inheritance of property. Off-register transactions under ownership create administration problems, problems for buyers, and debunk the economic arguments for individual titles as collateral for loans as the formal land market becomes frozen. The affidavit and witnessing systems used in informal settlements had taken hold in registered housing projects as an alternative strategy to registering transactions after first registration. However, a number of bad news stories sensitised landholders to the risks of off-register transactions; risks at least as the law stands. The risks of losing a property to the registered owner’s heirs when beneficiaries of state-subsidised houses swop houses or engage in off-register transactions are clear in Dunoon.

suggests that street committees are seen as continuing to play a problem solving role and information source for some people in the community. 6. Discussion and analysis Hybrid tenure administration in Dunoon started out with two parallel, simultaneously opposing but interconnected systems of official registration and off-register witnessed transactions. Over the history of Dunoon, CBOs in the form of street committees initially promoted and participated in off-register transaction strategies and then stopped doing so, but they remain engaged as de facto agents in the land market and as an organisation that residents could approach in a problem situation. All the participants in the study, including street and area committee members, recognised that when purchasing property, currently the best transaction strategy in the long term is to register it as the law does not recognise alternatives. This does not mean that all land transactions will necessarily be registered. Importantly, intentions about inheritance and the socio-cultural forces that might dissuade heirs from registering are excluded from this discussion, as it is not a hybrid tenure administration issue in Dunoon. Street committees are seldom, if ever, involved in inheritance matters. That said inheritance is a major social-cultural factor influencing how registration systems are used or not used. Clearly, it should be considered in strategies to improve the uptake of land registration. In the Dunoon feeder informal settlements, participatory administration involving CBOs in allocating houses was arguably essential in avoiding the political disruption that probably would have occurred if community level structures were not involved in the process. However, as in a number of other housing projects, disruption did occur by people who were not on the housing list invaded houses. These are often organised by factions competing with community leadership, and are to be an expected when houses are on offer and people on the margins of being granted a house lose out. Once people invade state-subsidised houses, politically it has been difficult to evict them given South Africa’s struggle history and a history of forced removals under the apartheid regime. Thus, the beneficiary identification, subsidy approvals and occupation of completed houses has to be carefully harmonised and scheduled. Ownership of the process cannot be delegated to community structures. The consequence in Phase I in Dunoon is that even though houses were completed in 2000, the properties remain unregistered. Hybrid land governance may arguably be an inescapable post-delivery component of some state-subsidised housing programmes where CBOs that were powerful in feeder informal settlements continue to play a role in the formal housing project. Hybrid governance may continue long after houses have been handed over and titles have been registered. Dunoon is distinctive in that the street committee system appears to have remained strong since the inception of the housing project. Their presence has not waned, in spite of the presence of ward committees and their overlapping roles. One possible cause is that SANCO had strong ties to each ward councillor over this period, both councillors drew on SANCO for their powerbase, and the local ANC chair was also a leader in Dunoon community structures. Thus the hybrid and official governance systems are linked through the local councillor and the national ruling party’s local structures. For a period there was a state-run land tenure administration system running in opposition to a system in which SANCO structures actively participated. SANCO is aligned to the ruling party and so there were opposing state and party tenure administration systems occurring simultaneously. Other SANCO activities outside of land tenure administration appear to have been in harmony with state governance systems. Under South Africa’s ownership tenure regime, it becomes problematic when CBOs become involved in land transaction administration in parallel with the legal registration system. Private conveyancing systems using witnessing by CBO members or affidavits at a police station, perhaps with the transaction being noted in a book by 9

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7. Conclusions

technical prescriptions are merely a starting point in creating working ‘fit-for-purpose’ systems. It is critical to work with organisations on the ground and with national level political parties and CSOs to make the existing tenure administration work and to draw on their experiences in order to create a system that fits the needs of people living in an area. The author’s work suggests that title maintenance support structures may have to be in place for at least a generation. Title maintenance includes engaging local political structures, CBOs and households; in the latter case especially the administration of property inheritance. Given the conflicts over power and resources in local level politics in a changing, contested environment, this is no simple matter. If non-state structures’ involvement in tenure administration is inescapable, then ideally the state will somehow have to work with them – perhaps through intermediaries, have systems that continually monitor and evaluate the situations, and have ready options for action in the event that systems emerge which are in conflict with poverty alleviation, tenure security, housing and overall city administration goals.

In general, hybrid governance may be difficult to escape if CBOs, and/or politicians with whom they form a power base, may convince (or coerce) a community that the CBO has a continuing, legitimate land tenure administration role to play in a community after land interests are officially documented. This may perpetuate transaction procedures that people had used before, which may conflict with official policy, law and practice. It may be a challenge and politically risky for the state to intervene, and such an intervention may be low on officials’ list of priorities. Who would manage and conduct such an intervention, how would they do it, and who would perform the activities in a neighbourhood? In South Africa the official registration system remains dominant in spite of alternative transaction systems emerging. In Dunoon, the offregister channel has waned. Housing projects such as Dunoon are distinct in that the law is hegemonic under ownership. There is little room for negotiation over state recognition of off-register transactions. What Dunoon shows that is if hybrid land governance is inescapable, and the alternative land tenure administration strategies on offer do not dominate official systems, then the hybrid governance structures and processes need to be managed within the powers and capacity that the state possesses and can control at a particular time. In the Dunoon case major change is unnecessary. However, in the general land tenure administration context, in some situations recognising alternatives to registration may be advisable if that is what suits a particular set of circumstances in the long term, providing a short-term win does not negatively impact long-term tenure security goals. Ideally, there should be policy, law and operational strategies to manage these situations to advance the overarching goals of poverty alleviation using a housing programme as one strategy and avoid having to continually regularise tenure because titles are cloudy. In South Africa’s state-subsidised housing programme involving 4 million or more properties, continual regularization to clean up cloudy titles is not viable. There are questions about CSOs and CBOs such as SANCO that are aligned to political parties, especially the ruling party, being involved in alternative land tenure administration as this can create legal problems for some purchasers. The convention that once ownership is registered in state-subsidised housing projects it is a matter of private law and the state has no further role in maintaining the title is flawed policy and practice. From a land administration perspective the overarching goal is that tenure should be secure, administration of land should be efficient in order to plan a city and deliver services, and land as collateral for formal loan financing should not be adversely affected by off-register transactions locally and in the country as a whole. Registered ownership as part of a poverty alleviation strategy needs to be managed. Visible administration has been one important factor in housing projects where off-register transactions are minimal. In Dunoon, arguably the situation was aggravated by the absence of building inspectors, who are the most visible of officials who deal with land administration matters. A strategic option is involvement of officials at street level before housing lists are drawn up and after houses have been delivered and the land has been registered. There have to be checks on whether hybrid governance arrangements comply with legal land tenure administration procedures, especially if alternative transaction strategies may result in a dead end where the off-register buyer cannot clean up the title and is vulnerable to the house being reclaimed by the registered owner’s family members. A second issue is the difficulty in obtaining signatures necessary for registration to proceed and for the lawyer to verify that the seller is empowered to sell the property. One can speculate that information and communications technology and possibly a quieting period on the title, where the title is granted to the buyer subject to a period where ownership may be challenged, may offer some solutions to remedy situations where a seller has moved towns. An important lesson for land tenure administration is functional and

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