The draft National Land Policy

Contents | 1.0 Introduction | 2.0 Issues and Policy Statements | 3.0 Implementation - Legislative Measures | 4.0 Implementation - Institutional Measures | Appendices

Chapter 2 - Issues and Policy Statements

To achieve the above vision and objectives, and employ the above principles, the following issues have been identified and policies determined:

2.1 Human rights issues and policies

Issue:

Gender bias in land allocation, TDL and SNL.

Existing gender biases in both social and legal contexts are firstly inequitable, and secondly inhibiting to national development. Land allocations should be based upon achieving tenure security encouraging the highest and best sustainable use of land, irrespective of the gender of the allocatee.

Policies:

2.1.1.a It is National Policy that all land-related gender discrimination in legislation or administration be prohibited under the constitution.

2.1.1.b It is National Policy that all citizens responsible for raising a family can khonta.

Under Swazi law and custom, the purpose of allocating land has been to provide a means of raising a family. There is a presumption that a husband and wife intend to raise a family, and their entitlement to khonta is based upon that presumption. However, not all of the future generation have the benefit of both parents being present, yet they must still be cared for. Consequently, any parent who can establish to the satisfaction of the competent authority that he or she is the sole caregiver for a child or children can khonta.

2.1.1.c It is National Policy that land held through khonta be considered as joint tenure for households.

As the purpose of land allocation is to raise a family, the allocated property rights should be regarded as the joint property of both parents or potential parents, as neither would have been allocated the rights without the other’s presence.

Issue:

Bias on the basis of place of birth or current location.

On matters of land allocation, there is currently a tendency to discriminate against fellow Swazis on the basis of their being from a different locality.

Policy:

It is National Policy that all Swazis are free to buy, lease or khonta anywhere in Swaziland.

There shall be no bias in land allocations on the basis of an applicant not being from the immediate locality. Swaziland is one nation, which means that, subject to the normal requirements to obtain tenure (purchase or lease on freehold, khonta or lease on SNL), within all of Swaziland all Swazis have the right to reside where their circumstances demand. On SNL, in accordance with customary law, the applicant must de-link from his or her former residence to khonta elsewhere.

Issue:

Failure to protect private property and equitably compensate for displacement.

Failure to protect property rights, whether written or unwritten, is not only an infringement of human rights, but also a direct threat to economic and social growth and well-being. The rule of law is the only avenue to protect existing rights and redress inequities.

In the land context, this failure manifests itself in four main ways:

1. Incursions by squatters onto freehold land;
2. Lack of recourse to the Farm Dwellers Act;
3. Involuntary resettlements without adequate compensation.
4. Malicious evictions on SNL without due process.

The fundamental principle of involuntary resettlement is that, within measurable, quantifiable criteria, the subjects of such resettlement should be no worse off after the resettlement than they were before. If this principle is not only both adhered to and performed in a transparent and accountable fashion, it is inevitable that both inequities and unjustified accusations of inequities will poison the process. The social and economic costs of such problems can be very high to all concerned.

Policies:

2.1.3.a It is National Policy that compensation for expropriation of ownership or of rights over land be enshrined in the Constitution.

That property rights - whether on freehold or SNL - may only be expropriated under defined legal procedures for defined legal purposes, and no law may permit arbitrary deprivation of property rights. When such expropriation takes place, the compensation paid is to fully reflect the extent of economic loss suffered as a result of the expropriation.

2.1.3b It is National Policy that in all cases of expropriation of those with a legal right of occupancy under statute, common or customary law as appropriate, the compensation should ensure that those affected are no worse off after the expropriation than they were before.

2.2 Cultural issues and policies

Issue:

Erosion of Swazi values in the allocation and acquisition of land.

The land resource is faced with much sterner challenges than existed a century ago; along with the diminishing of both its quality and its quantity per capita, inequitable practices such as:

• accumulation of Swazi Nation Land in the hands of a few,
• failure to discourage land uses destructive to the rights of future generations, and
• failure to enforce cultivation of allocated land
• are being increasingly encountered.

Further, the selling of SNL is occurring by those with no authority to deal in land for monetary reward, often flouting the authority of the competent authority and the Ngwenyama in Trust.

Policies:

2.2.1.a It is National Policy that no person shall usurp role and authority of the competent authority.

In areas where population pressures are becoming more intense, a practice is emerging whereby people are entering the area by direct dealings with heads of households, not the competent authority. Although catering for a demand for rental accommodation is often not available through any other means, the competent authority’s land-related rights as the representative of the Ngwenyama are to be respected at all times and under all circumstances. Consequently, all tenancies permitted by a householder are to be reported to the competent authority.

2.2.1.b It is National Policy that each eligible Swazi adult is entitled to khonta under one chief, who will be expected to allocate sufficient land for the family’s needs.

Land accumulation through marriage and kukhonta to more than one chief is to be disallowed. This is a current abuse, not a traditional practice, which can lead to good land being unavailable to those rightfully declaring allegiance to a single competent authority.

2.2.1.c It is National Policy that SNL is not to go unutilised for long periods; in particular, all available land should be utilised for the production of basic foodstuffs (including livestock) or cash crops.

Under existing law, competent authorities have both the power and the duty to "require any Swazi to cultivate land to such an extent and with such crops as will secure an adequate supply of food for the support of such Swazi and of those dependent upon him." Although this is now often an impossible task to implement within the limitations of some current holdings, the principle that all rural land should be utilised for its highest and best sustainable use remains.

2.2.1.d It is National Policy that holders of land being unused under SNL be allowed to sublease to other nationals who have the capacity to utilise the land. In the case where the landowner has not sublet, the competent authority may allocate the land to someone else for a period.

The spirit of the original allocation was to confer both rights to use the land, and duties towards its proper utilisation and care. This nexus between rights and responsibilities is to be re-established. In this respect, the first recourse of the competent authority should not be to confiscate any unutilised land, but to advise the party neglecting the land to reassign use rights to others for a limited period (if it is established through the appropriate channels that the land is being neglected). If such action by the party neglecting the land is not forthcoming, the competent authority may take the matter of a limited-term reassignment of rights into its own hands.

Issue:

Integration between cultural values and modern economic realities.

Cultural values and economic realities are often in conflict with one another. However, both sound cultural value systems and viable economic systems are required for any social system to prosper. It is therefore necessary to integrate the cultural value system and the market economy in a manner which will allow their mutual coexistence. There are many international examples of success in this complex endeavour, with developing countries becoming modernised, but not westernised. Many individual Swazis have also integrated their cultural values with modern economic realities.

In the land context, the main clash between cultural and market economy values is that many property rights are communal in the traditional system (with an obligation to use only what is needed and to share the remainder with others), and the market economy places an emphasis upon private property, with the property rights belonging to one person who is thereby enabled to accumulate wealth.

Policies:

2.2.2.a It is National Policy that the mortgaging of leases be permitted over SNL.

2.2.2.b It is National Policy that on SNL the approval of the competent authority, after consultation with the affected community, is required before land is released by means of a lease.

The existing property rights on SNL are held by the Ngwenyama in Trust for the Swazi Nation, and delegated to the competent authority in libandla, as representative of the community. Subject to the consent of the Ngwenyama, under market economy principles the community is therefore entitled to recompense for any alienation of such rights, and is under no obligation to alienate same unless a satisfactory agreement is reached. The community is also best placed to monitor the social, economic and environmental consequences of such leases, and learn from experience the desirability or otherwise of continuing their practices.

2.3 Land tenure issues and policies

Issue:

Insecurity for increasing numbers on all tenure categories.

Lack of security of tenure is limiting not only to the individual whose tenure security is threatened, but also to the economy as a whole, which loses whatever economic contribution that the individual would have been otherwise able to make. Such losses are no less real for being difficult to quantify.

Policies:

2.3.1.a It is National Policy that there be constitutional guarantees for security of tenure.

In particular and in concert with the human rights issues above that no one may be deprived of property rights except in terms of law of general application, and no law may permit arbitrary deprivation of property rights. Further, that the state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.

In particular, there shall be no compromising or challenging allowed to tenure security on the basis of gender.

2.3.1.b It is National Policy to ensure that all holders of landed property rights, including farm owners, enjoy uninterrupted use and ownership of their properties.

All property rights recognised by the rule of law are to be protected by the rule of law. Remedies exist within the social and legal framework for aggrieved parties to express their concerns. Respecting the legally recognised rights of others is a fundamental requirement for the achievement of the vision and objectives of this policy.

2.3.1.c It is National Policy that a wide range of different forms of tenure be provided, with appropriate safeguards, which will enable people to benefit from the operation of a market for land.

A wider range of clear, legally enforceable and tradeable tenure options is to be introduced into Swaziland, with a particular view to ensuring that access to secure tenure is affordable to many more citizens than the current tenure situation allows.

On SNL, these options may take the forms of leasehold, community property associations, and other forms of securing smallholder tenure for agricultural land. On TDL, options include sectional titles, leasehold, cluster subdivisions and other innovative tenure options.

2.3.1.d It is National Policy that institutional strengthening be effected as required to ensure the protection of inheritable property rights, irrespective of the form of tenure under which such rights are held.

The current rates of HIV/Aids infection mean that, unless a cure is found almost immediately for Aids, Swaziland will face an unprecedented challenge to its whole way of life. It is imperative to strengthen institutions to protect the rights of those whose rights may be challenged in any future social disruption.

Issue:

Allocation rights and procedures.

Insofar as land allocation rights and procedures lack the qualities of transparency and accountability, irrespective of tenure, they should be amended to allow those qualities.

Policy:

It is National Policy that all current allocation procedures be transparent, and that the allocating authorities be accountable for their decisions.

2.4 Land-use and Land Management Issues and Policies

Issue:

Dual system of land tenure and land administration.

Most Swazis participate in both customary and market systems to varying degrees, so an integrated approach to tenure and administration is a more realistic approach to the current situation. Moreover, land is a national resource irrespective of its tenure; consequently, national priorities must be considered in its management. A fragmented system of administration is incapable of providing the integrated management necessary to achieve the vision of this policy and that of the National Development Strategy.

Policy:

2.4.1.a It is National Policy that land be managed as a national resource through a system of land administration that transcends tenure distinctions.

Tenure is one factor that impacts upon land use, but by no means the only one. For the efficient, transparent and accountable management of the nation’s land resource, tenure distinctions must be taken as being within a broader social, environmental and economic context, and be reviewed towards enhancing the vision of this policy.

2.4.1.b It is National Policy that there be a revised management system built upon the current institutional framework, geared towards empowerment at the local level with assistance from the national level as required.

The revised institutional framework is described in Part Four. However, institutional frameworks do not solve anything by themselves. Other essential features include management systems adequate to the tasks of monitoring and evaluating policy implementation and the policies’ successes or failures in addressing land-related issues.

Issue:

Unplanned and uncontrolled developments.

Land settlement often occurs without consideration for infrastructure provision, and there is uncontrolled spread of informal settlements. In particular as peri-urban and rural population pressures increase, there is an increasing amount of development which pre-empts future rational land use (including cost-effective infrastructure delivery), and provides hazardous environmental health conditions. Destruction of indigenous forests for fuel wood is another consequence of unplanned and uncontrolled developments.

Policy:

2.4.2.a It is National Policy that all development of land be according to an approved plan and subject to the approval of the appropriate authorities.

A mechanism is required that is designed to facilitate growth through setting clear criteria of what can and cannot be done, and is itself transparent, efficient and accountable. Management systems are required which institutionalise dynamism through power-sharing and mutual dependence and accountability.

2.4.2.b It is National Policy that structure plans be instituted for rural and peri-urban areas based on the Agro-Ecological Zoning concept and economic criteria.

AEZs and the economic demand for produce are to provide recommendations to facilitate the highest and best rural land use within the framework of the National Physical Development Plan.

Issue:

Underutilisation and wasteful use of land.

Particularly where market forces cannot perform their self-regulating functions within a well-enforced governmental regulative framework, there is much underutilisation of land.

Policy:

It is National Policy that it be made more economically unattractive to leave land underutilised.

The government is committed to the principle of sustainable development - a principle with applications across a wide range of human activities, including those of both the public and the private sector. Such development requires competent management to succeed, and the maximisation of sustainable economic benefits from the land resource, for the benefit of both the property owner and the nation as a whole. Where the land resource is not being used for the benefit of the nation as a whole, appropriate measures are to be instituted to ensure same. Management systems to facilitate coordination towards the above vision are to be instituted. A well-enforced government regulative framework is required to encourage the clarity required for decision-making in the private sector, at the same time steering such market forces along sustainable paths.

Issue:

Conversion of high agricultural potential land.

Where market forces are not channelled along sustainable paths, high agricultural potential land can be permanently lost.

Policy:

2.4.4.a It is National Policy that good agricultural land be protected from encroachment from other uses.

While recognising that urban expansion is inevitable and even desirable in terms of achieving the vision of the NDS, it is also true that Swaziland’s supply of arable land is scarce, and that some prime areas are under threat of permanent alienation from urban expansion. Further, arable land is often utilised inappropriately in terms of its highest and best sustainable use, sometimes in ways that lead to its degradation - in particular, erosion. The nation’s scarce supply of arable land is fundamental to its long-term future, and is to be protected accordingly. Appropriate measures to protect arable land from such alienation and degradation are to be introduced. These measures are referred to in more detail in 2.6.6 and part four.

Issue:

Lack of regulation and control on common grazing areas leading to erosion.

Although the current conventional wisdom is that many of the guidelines used in the region to detect overgrazing were seriously flawed, the evidence of erosion caused by overgrazing is irrefutable. A recent survey has determined that over half the common grazing area in Swaziland, including much of Swaziland’s scarce supply of arable land, is either seriously or very seriously eroded. Continuance of this erosion can only be avoided by the institution and maintenance of strong management.

Policy:

It is National Policy that both the means and the responsibility for controlling land degradation on common grazing areas be placed in the hands of the local community. All livestock grazing must be kept within the carrying capacity of the land (see the livestock policy).

Overgrazing is one result of the more general malaise of inadequate management, in particular towards long-term sustainability - especially if such management aims are seen to be in conflict with individual short term economic benefits (which are often sorely needed). Management needs to balance priorities better, so that the present generation no longer destroys the land’s potential for future generations. This requires ownership of the process to be at the local level, but facilitated as required from the national level as soil conservation is also very much in the national interest. Just as the grass strip technique has proven successful in controlling erosion on arable land, so local and national cooperation is required to control erosion on grazing land.

Issue:

Competition between wildlife and people for a limited resource.

Policy:

It is National Policy that wildlife conservation be provided for through allocating adequate land for the purpose.

The revised institutional framework is to be charged with ensuring that not only is the existing biodiversity to be maintained, but also be enhanced by the reintroduction of native flora and fauna as appropriate. Integrated land management is to ensure adequate provision of land for both human settlements and wildlife conservation.

2.5 Land market issues and policies

It is recognised that the majority of wealth in almost all countries is held in the form of real property. Moreover, in major ‘property’ economies, over 70 percent of new businesses are established by using real property as collateral, and a significant proportion of the remainder are established by release of the wealth previously held in real property. Without a properly functioning property market, access to that capital is constrained or even denied. Enabling real property markets to work for the benefit of the nation’s citizens is therefore of fundamental economic importance.

Issue:

The land market is not operating to the benefit of all Swazis. The majority of potential purchasers are excluded from the formal land market.

The formal Swaziland property market fails to serve the needs of the vast majority of Swazis. Due to the historical divide which has prevailed in land development in Swaziland, the market choice has been largely limited to either highly priced residential developments, or developing on SNL. There has been very little available in between. This contributes to making the progressive accumulation of wealth very difficult for the majority of Swazis.

There is a need for more areas where the requirements of potential property owners from low to medium incomes can be addressed, with localities providing land and infrastructure at different levels of affordability. The Urban Development Project provides one example of what is required. However, excluding that project there are only about twenty thousand land parcels lodged with the Surveyor-General, compared with a population approaching one million - about one land parcel for every fifty persons. In terms of land affordability per unit area, there is often greater potential to resolve this problem in rural than in urban areas - particularly purchases under cooperatives or joint tenure.

Policy:

It is National Policy that land markets be enabled to work efficiently and equitably - that is, for the benefit of all Swazis.

This policy is in accordance with the recommendations of the Habitat Agenda (Habitat II). Although the ability of even a properly functioning property market to service the poorest sections of the population is yet to be effected in Africa and other parts of the developing world, such a market is clearly capable of enfranchising significantly more Swazis into the market economy. Many of those who cannot be serviced by ownership of property rights can still gain access to same by rental. Moreover, such a market provides secondary benefits - such as job creation - which can assist the non-enfranchised and thereby, together with the multiplier effect, effect a broader wealth distribution. A properly functioning property market, therefore, is one which can provide benefits for the whole society, even if it is not capable of meeting all their needs directly.

Issue:

Under-developed property market and infrastructure (Deeds, conveyancing, surveying, valuation, etc.)

Although the government infrastructure and the private sector is reasonably well-equipped to cater for the minority that can currently afford to buy land, its capacity to deal with the greatly increased demand that a properly-functioning property market implies is limited. For example, the proposal to introduce leasehold on SNL may not be capable of implementation without significantly extending and enhancing the market infrastructure.

Policy:

It is Government Policy that a legal and administrative infrastructure be facilitated, which is capable of delivering clearly defined, enforceable and transferable property rights to as many Swazis as inexpensively as possible.

Issue:

Concern over inflation of land prices beyond levels affordable by the majority of citizens.

As property values are dependent upon supply and demand, the more demand there is for an item of limited supply, the higher the price will be. If, for example, one were to restrict demand by excluding foreigners, the demand will be smaller and the price of land should fall, making land available to a greater number of Swazis.

However, unless land values make it worthwhile for a developer to provide plots - that is, that the value exceeds the cost of supply of the land and services plus a reasonable margin for profit and risk - there will be no land delivery. Land of a size, location and price acceptable to the market therefore becomes scarce, and depending upon the degree of scarcity prices could shoot up - perhaps even to levels exceeding those when foreign investment was a factor, if those with the land delivery skills have left the market.

One of the attributes of properly functioning property markets is that a reasonably steady supply meets a similar demand. So although foreign demand could increase prices, a much more damaging cause is market imbalances through such causes as standards inappropriate to delivery of land to the target market.

Policies:

2.5.3.a It is National Policy that market performance towards land delivery be facilitated at price levels accessible to the target market.

It is recognised internationally that the achievement of this policy is a complex task, but nonetheless it is necessary in terms of achieving the vision of this policy. The recommended administrative framework below is to include achievement of same in its terms of reference.

2.5.3.b It is National Policy that the standards of land delivery imposed do not impede land delivery, subject to the basic standards of environmental health and infrastructure delivery.

Issue:

Land hoarding in expectation of resale windfalls.

Land hoarding is a symptom of both a poorly functioning land market and a lack of viable alternative investment opportunities.

Policy:

It is National Policy that a Capital Gains Tax be introduced.

Except in the case of the principal place of residence of a taxpayer, a tax is to be introduced on the unearned increment in the value of a property between the times of purchase and disposal. Consideration may be given to the rate of inflation over the period.

Issue:

There is a lot of concern that farm sales have occurred without notifying communities potentially affected by same.

In a properly functioning market, all parties potentially affected by a sale have means of knowing when a property is offered on the open market. Similarly, parties that could be affected by the sale of a farm should have the means of knowing that such a sale could take place. Such parties, cooperatively or individually, may be able to compete for the purchase of the land for its utilisation towards its highest and best sustainable economic use.

Policies:

2.5.5.a It is National Policy that communities are to be notified of an adjoining farm coming up for sale.

In all cases when a farm is placed on the open market, there is to be a legal requirement that the prospective vendor notifies the chief/competent authority of the intention to sell. If the community wishes to buy the property, it may seek government assistance in determining the market value of the property. However, there is to be no further alienation of land from uses other than its sustainable highest and best potential use. As is the practice in a market value transaction, the price paid is to reflect that commitment to ensure that property’s sustainable highest and best use.

2.5.5.b It is National Policy that sales of all farms are to be brought before the Land Speculation Control Board for approval before the conclusion of the contract.

In the case of the sale of a farm where there are farm dwellers on site, prospective purchasers are to state to the satisfaction of the Board how they will settle the farm dwellers before they can be allowed to buy the farm, otherwise consent/exemption should be refused.

Issue:

Lack of capacity in the formal market encouraging informal market practices.

Demand continues to exist even when supply does not. If land is unavailable in the formal market, it will place increased demands on the informal market, aggravating the problems of uncontrolled developments (squatter settlements).

Policy:

It is National Policy that, in addition to improving the functioning of the formal land market, government will provide means to regularise informal or semi-formal land tenure.

The tenure initiatives being taken under the Urban Development Project are to be continued in a broader context, and other means of implementing this policy are to be scrutinised.

Issue:

Lack of access to finance for lower income groups.

Finance without land collateral is more expensive than finance with same, placing those without the capacity to raise collateral from land at a competitive disadvantage. However, opportunities for finance are scarce with or without collateral, and international experience is showing that this need not be the case.

Policy:

It is National Policy that land ownership be utilised to improve financial access for lower income groups.

There are several international measures which have been successful in providing access to finance for lower income groups. With a view to providing a number of alternatives capable of fitting the needs of as many Swazis as possible, the viability of the most promising of these schemes must be investigated for local application. As de jure real property rights are a prime collateral for low-interest finance, access to such rights can facilitate access to such finance.

Issue:

Foreign Direct Investment and foreign ownership of land.

There has been little net Foreign Direct Investment (FDI), and almost no employment growth in the formal sector, since 1989. The Government cannot permit this situation to continue. Insofar as FDI is necessary for employment opportunities in Swaziland and ultimately for improving the economic welfare of all citizens, the land resource is to be utilised to facilitate such progress. While Swaziland’s small economic size makes such a policy necessary, Swaziland’s small physical size, the history of land dispossession in Swaziland, and the policy principle of access to land for all citizens must also be taken into account. A balance must be struck between these various pressures, based upon facilitating the vision of this policy.

Policies:

2.5.8.a It is National Policy that the obtaining of property rights over farming and residential land by foreigners can only be in the form of leasehold.

Such leases can be for a period up to but not exceeding 99 years. All such transactions are to be reviewed in terms of the Land Speculation Control Act.

2.5.8.b It is National Policy that property rights over commercial, retail and industrial real property be obtainable by foreign investors either as leasehold or freehold.

While cash investments can easily leave Swaziland, investments in fixed property cannot. All forms of FDI that can contribute to employment levels and the sustainable economic and social welfare of Swaziland are to be encouraged.

2.6 Land Administration Issues and Policies

Issue:

Uncoordinated and inefficient land administration, including hostility between responsible government authorities due to clashing and overlapping roles and differing agendas.

Uncoordinated pursuit of individual agendas can lead to stalemates and resultant inability to tackle urgent problems as they arise. There is often no formal method of resolution of such conflicts, resulting in inaction when urgent action is required.

Policies:

2.6.1.a It is National Policy that a unified, coherent, transparent and representative land administration be established, with the required technical and administrative support, at national and local level. An institutional framework is to be created which is able to decide between competing demands and determine such conflicts. This is to include a body entrusted with the authority to rationalise land allocation for various uses at national level.

Such a body, termed in part four of this document a "Land Management Authority", is to become the executive and advisory arm of the Ministry established under 2.6.1.b.

2.6.1.b It is National Policy that land administration be unified under one Ministry, as far as is practicable and efficient.

Wasteful duplication and underutilisation of scarce professional skills in this area of responsibility must be eliminated if the vision of this policy is to be achieved.

Issue:

Land-related dispute resolution.

Policy:

It is National Policy that land-related mechanisms be implemented to handle land-related disputes expeditiously.

There are many contentious issues concerning land, the main ones of which are addressed by this policy. Inexpensive and expeditious means of dispute resolution are to be introduced.

Issue:

Outdated and overlapping land laws.

There is an accretion of legislation relating to land and the environment. This is urgently in need of rationalisation if efficient, transparent and accountable land management is to occur. Much was based upon obsolete and inequitable policies, and much has remained inactive for decades. Rationalisation, clarity and enforceability are required for improved economic performance, sustainable development and social equity.

Policy:

It is National Policy that the existing legal framework of land administration be rationalised.

A 1995 report identified seventy-nine statutes with land-related provisions, and more have been either introduced or identified since that report. While many are and will remain separate of necessity, there are other instances of legislation introducing overlapping, irrational, confusing and/or inefficient law and practice.

Issue:

Unresolved status of remaining concession land.

Concession land has been, and still is, a highly emotive concern in Swaziland. The continued existence of concessions has costs well in excess of its benefits. Since the Land Concession Order 15/1973 concessions have been held solely at the will and pleasure of His Majesty, which on the one hand allows land use without appropriate recompense to His Majesty, and on the other inhibits appropriate long-term development and management practices over the land.

Policy:

It is National Policy that all remaining land concessions be phased out.

The few concessions that remain - which cover less than two percent of the area of the country - exist only at the will and pleasure of His Majesty and should be brought into another form of tenure. A gazetted commission is to be instituted into the utilisation of such concessions, which is to hear submissions from the concession holders and other interested parties in public. The commission is to have the powers, amongst others, to allow sale or leaseback to the occupiers, or allow them a period (for example, three years) to wind up their operations.

Issue:

Local-level land administration inefficiencies.

Manifestations of this issue include:

• unclear relationships between different authorities (for example, chiefs and regional administrators);
• ambiguity of authority and control over officials;
• loss of confidence and respect for chiefs in the community;
• self-appointed chiefs;
• lack of technical support and training for land officials;
• unrealistic expectations of unsalaried authorities on SNL leading to corruption; incentive of officials to disrupt and resettle for payment;
• favouritism in land allocation.

Policy:

It is National Policy that an institutional framework be created at the local level which is able to resolve all the local-level land administration inefficiencies. This is to be through providing a clearly defined, transparent and accountable structure of decision-making rights and responsibilities.

The foundation of this framework is to be each identifiably distinct community.

In the great majority of cases, a chieftancy will be the "identifiably distinct community." In some cases, however, there is more than one such community in a chieftancy, in which case these communities will be recognised by the proposed administrative structure.

Issue:

Disputes over boundaries and legitimacy between competent authorities.

There have been an increasing number of boundary disputes between chiefs, which have already resulted in violence, including loss of life. Even without such tragic consequences, they are still a constraint upon development.

Policy:

It is National Policy that chiefs’ boundaries and jurisdictions be clearly demarcated, cadastralised and rationalised by a gazetted commission.

The injury and loss of life that has already occurred due to chiefly boundary disputes are a stain on the nation's character. The pressures that led to such occurrences show no signs of abating, so decisive action is required to avoid further conflicts. It is recommended that a boundaries commission be gazetted with terms of reference to include not only determination of those boundaries currently in dispute, but rationalisation of all chiefly boundaries to reflect current realities. In particular, cadastralising chieftancy boundaries should be instituted, thereby establishing clearly defined boundaries over all areas.

Issue:

Mechanism of converting rural and peri-urban land to urban status.

As referred to in 2.4.3, the current procedures result in confrontations between values, each usually legitimate in its own right, but formal mechanisms and criteria are not in place to guide decision-making.

Policy:

It is National Policy that peri-urban areas be defined and designated and ensure that peri-urban developments are in accord with laid-down plans.

Spatial designs for general public benefit are being pre-empted by peri-urban developments. These are completed before the relevant locality is subject to the planning controls in urban areas. The lack of legal and administrative recognition of the unique character of peri-urban development has many serious consequences, amongst which is the loss of the development potential of scarce arable land. Such structure plans are to be implemented an institutional framework involving the local communities in both the design and enforcement of same.

Issue:

Ineffectiveness of existing land administration structures.

Although not a universally applicable issue, several of the existing land administration structures have not coped adequately with all the increasing pressures. For example, the CRDB has been ineffective in fulfilling its briefs of controlling erosion and resettlement, and control of peri-urban settlements has also been at best only partly effective.

Policy:

It is National Policy to review the functioning of all existing land administration structures in the context of the above policy recommendations, with a view to their integrating their relationship within the proposed institutional framework.

The proposed institutional structure must ensure the implementation of this policy. The future roles of all existing land-related administration structures is to be determined upon this basis.