Rules and practices in a communal land tenure regime: emerging findings from the Mchunu tribal area
Ben Cousins and Makhosi Mwheli
CAP-LEAP project on Imithetho yomhlaba yaseMsinga (‘the land laws of Msinga’):
Prepared for the LEAP symposium
Goedgedacht, Nov 6-8 2007
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1. Introduction
This paper reports initial research findings from the CAP-LEAP action-research project on the land ‘laws’ of Msinga, (imithetho yomhlaba yaseMsinga) and explores the distinction between rules and practices in contemporary communal land tenure regimes in rural South Africa. It focuses in particular on access to land by women in a context of changing practices around marriage and a generalized decline in ‘traditional’ forms of marriage that involve payments of bridewealth (lobolo).
2. Locating the project
Imithetho yomhlaba yaseMsinga (‘the land laws of Msinga’) is an action-research project on land tenure laws and practices being undertaken by the Church Agricultural Project (CAP) and the Learning and Action Project (LEAP) between 2007 and 2009. The objectives of the project are to provide information on the Communal Land Rights Act (CLRA) of 2004 to local residents and authorities, to gain an understanding of local land tenure ‘laws’[1], practices and emerging tensions, and to assist local stakeholders to think about local solutions to agreed problems, as well as how they might wish to engage with the CLRA when (or if) it is implemented in the Msinga area.
Research findings on the realities of current land tenure ‘laws’ and practices in Msinga are being fed back to local residents and authorities, and the research team is facilitating discussion on potential responses or solutions to identified problems. In future workshops we will explore how local residents and authorities might wish to engage with the CLRA (eg. in identifying ‘community rules’) so that tenure security is enhanced and emerging solutions to problems can be supported. CAP staff members will enhance their understanding of land tenure and in particular the position of women and HIV/AIDS affected households, which will assist them to develop sustainable agricultural and natural resource management interventions.
The research team comprises 4 CAP staff members, who are all local residents, a team leader on contract to CAP (Makhosi Mwheli), and a research advisor (Ben Cousins of PLAAS). Methods employed in the project include individual interviews, focus group discussions, transect walks, time lines, mapping exercises, and feedback workshops. Meetings with higher level authority structures, such as the Traditional Council, ‘cascade’ down to workshops and focus group discussions at more local levels (eg the ward, or isigodi), research proceeds to individual interviews, and the process then ‘cascades’ upwards again to report back findings and facilitate discussion of their significance and implications by authority structures.
Msinga district is located in the Midlands of KwaZulu-Natal, and incorporates both ‘communal land’ occupied by tribes and (largely) white-owned commercial farming land, a large proportion of which is occupied by labour tenants. Land reform is resulting in the transfer of ownership of large areas of land to former labour tenants, land restitution claimants, or beneficiaries of the land redistribution programme. The CLRA applies to all the ‘tribal’ land in the district but has not been implemented anywhere in South Africa as yet, in part because of a legal challenge mounted by the Legal Resources Centre and other lawyers on behalf of four rural communities.
A linked piece of legislation, the Traditional Leadership and Governance Framework Act (the TLGFA) of 2003, is being implemented in parts of KwaZulu-Natal[2], including Msinga. Traditional councils, which in most places are ‘transformed’ versions of the old Tribal Authorities, have recently been established in the Mchunu and Mthembu tribal areas of Msinga[3]. The CLRA envisages that such councils will become land administration committees, representing the ‘communities’ taking ownership of communal land and administering ‘community rules’ on land tenure. This highly controversial provision is at the core of the legal challenge to the Act (Claassens 2005, Cousins 2007).
The project initiated action-research in the Mchunu tribe of Msinga in March 2007, and will commence work in the neighbouring Mthembu tribe in 2008. CAP is located on two former labour tenant farms on the boundary between white farmland and both these tribes. It has been in existence since the mid-1970s and has over the years developed close relationships with local residents and leaders. Most of the farmland on which CAP is located is now being transferred to former labour tenants, some of whom had moved back to the farm over the past three decades.
The labour tenants on the CAP farms always regarded themselves as members of the Mchunu tribe (isizwe, or nation), and were located in the Ncunjane ward or isigodi, under their own headman (nduna). Ncunjane is relatively lightly settled at present and is relatively well endowed with natural resources. It abuts the Kwaguqa isgodi within the main Mchunu tribal area, and is immediately adjacent to the densely settled sub-ward (umhlati) known as Mathintha. Interviews and focus group discussions have been carried out in both Ncunjane and Mathintha, which provide interesting contrasts in relation to both the significance of land-based livelihoods and in their land tenure ‘laws’ and practices.
CAP is engaged in a variety of development projects in both Ncunjane and Mathintha, focused on cattle breeding, poultry production, crop production, natural resource use, craftwork, and raising awareness of HIV/AIDS.
3. Contexts
Livelihoods
The main sources of livelihood in Msinga are remittances from migrant workers, social grants (pensions, child support grants and disability grants), crop and livestock production, sales of craftwork, sales of fuelwood and thatching grass, and informal trading. Small numbers of people are locally employed, in clinics, schools or shops. Even smaller numbers run local businesses such as taxi services, vehicle repairs or shops. Labour tenancy is still found on some farms in the district, and some people are employed as waged farm workers.
High levels of unemployment in the formal economy mean that remittances are in decline, but they remain an important source of income for households and many young men are absent either at work or seeking work in urban areas, especially Gauteng. Older men generally have a history of migrancy and some have invested earnings in large herds of livestock.
The area is dry with average summer rainfall of around 600mm, and is better suited to livestock than crop production; nevertheless, in the past crops were an important source of food. Crop production has been in decline as a source of livelihood for some years and increasing numbers of households do not cultivate all their arable land. A few households still produce on a reasonably large scale. The main crops are maize, sorghum (for beer making), beans, pumpkins, melons and imifino (spinach). Some people grow dagga, a lucrative but risky crop one given periodic police efforts to destroy dagga fields.
In the densely settled parts of the Mchunu area, such as Mathintha, there is insufficient arable land and some households do not have fields to cultivate, while others with fields do not make full use of them. Drought is a perennial problem, as is the risk of livestock damaging crops during the growing season as a result of a lack of herding labour and a shortage of permanent fencing. The district also contains irrigation schemes that enable the production of vegetable, fruit and green maize crops for direct use but also commercial sales, eg. a large, 100 year old scheme on the Tugela river.
The dominant vegetation in Msinga is a mixed grass-tree savannah of the so-called ‘’sweetveld’ type, which has excellent value as grazing in the dry winter months. Nguni cattle and goats thrive in these conditions and livestock remain important as a source of livelihood for many, but ownership is skewed and many households do not own cattle. Stock theft is a major problem, as is a generalized shortage of water for livestock. Poultry are owned by almost all households.
Land is used predominantly for residential and grazing purposes, although small ‘garden plots attached to the homestead (umuzi) are also very common and used to produce small amounts of maize and vegetables. Natural resources on the commons (thatching grass, timber, fuelwood, brushwood for fencing, medicinal plants and wild fruits) make small but significant contributions to people’s livelihoods.
There are significant contrasts in the importance of land and natural resource based livelihoods between Mathintha and Ncunjane. The latter is relatively lightly settled, as a result of having been on labour tenant farms, and both grazing and arable land are available in relative abundance. As a result cropping, livestock production and natural resource harvesting are key components of the livelihood strategies of almost all households in Ncunjane, although remittances and social grants are no less important than elsewhere in rural South Africa. Residents would clearly like to maintain their relatively resource-rich situation, but are uncertain as to how many former labour tenants are likely to want to return to the isigodi under the auspices of land reform.
Social organization and culture in Msinga: a patrilineal system
The Msinga district is reputed to be a stronghold of Zulu culture and tradition, and the Mchunu tribe in particular is said to be highly ‘traditional’ in character. Nkosi Mchunu is a widely respected chief and is often consulted on matters of Zulu custom. Land tenure here, as elsewhere, is ‘socially embedded’ meaning that rights and obligations are often defined primarily through social relationships and membership of a variety of social units, including families, households, kinship groups and ‘communities’. This means that social organization is key to understanding land tenure.
The general rule in the Mchunu area (as in isiZulu-speaking areas more generally) is that only married people with children to support can be allocated land. Single people cannot be allocated land, and must reside with either their parents or other family members. Land is allocated to a household, under the authority of the (usually male) household head, rather than to individuals. There is thus a strong association between land holding and the necessity of supporting a family from land-based livelihoods.
The underlying ‘model’ of social organization is that of a household headed by a man, who may have several wives. These live in separate residential structures within the umuzi. Each wife is entitled to a field or fields of her own, which she cultivates to provide foods for herself and her children, as well as for her husband when he is eating with her. Married men and their wives and their children may continue to live in their parent’s homestead for many years before establishing their own homesteads, giving rise to large, three or four generation strong ‘compound homesteads’ composed of several marital units. These are still common in the Mchunu tribe, but many married couples are now beginning to establish independent homesteads at an earlier stage than they used to.
The family, meaning here an ‘extended family’ of close relatives not a ‘nuclear’ family of a man and his wife or wives and their children, is the most basic unit of social organization. Together with gender, family membership is a primary determinant of social identity since it forms the basis of a complex web of kinship relationships. Marriage establishes important relationships between two families or descent groups, symbolized by payments of bridewealth (lobolo). Descent is traced primarily through men. It is a patrilineal system, within which there is a central concern with preserving the ‘surname’ of the descent group, in other words the identity of the male lineage. Marriage is virilocal (ie. wives move to the home area or homestead of the husband). Family membership involves legitimate expectations of support from other members but also obligations to provide similar support when requested. These principles and values continue to inform claims to land and practices of land holding.
Social identity is thus linked to land through the lineage system. This has an important spiritual dimension, as Hornby and Alcock (2004: 14-15) explain for KwaZulu-Natal more generally:
Surname is closely linked to the role of ancestors in mediating the past and the future and who ancestors are able to recognize. Land is integral to this mediation because ancestors are only able to recognize communication that takes place from a specific ritualized place on the homestead plot. A specific piece of land is thus integrally connected with a specific family whose name is carried in the male line and is a critical link in the fortunes of that family because of the protection the ancestors give to the living.
Social embeddedness and social change
‘Socially embedded’ does not necessarily mean that land tenure regimes are static, or even stable; processes of rapid social change can lead to uncertainties and ambiguities as to the nature and content of rights and obligations. This seems to be the case here in relation to the land rights of women.
In the Mchunu tribal area it is widely acknowledged that fewer couples are getting married than before, partly because of the difficulties of fulfilling all the obligations involved in a traditional marriage (eg the high cost of the cattle required for payment of lobolo). Some couples live together and have children without ‘being married’, and more women than before have children outside of a stable, co-residential relationship. Older informants say that in the past it was ‘shaming’ to have children outside of marriage, but that norms and values seem to be changing.
The following variations can be observed:
‘Proper’ marriage according to Zulu custom:
§ A virgin (itshitshi) is courted; she becomes a qhikiza when she is acknowledged as in a relationship with young man, she becomes an inkehli when she is ready to marry and negotiations over lobolo have begun
§ 11 cattle are ideally agreed as the lobolo fee; the first payment can be 5-6 cattle and the rest are then paid off over many years
§ Various ceremonies involving gifts and slaughtering of livestock (for the ancestors) must take place
§ An umakoti is a young wife who is allocated a site and a field or works in her mother-in-law’s fields
§ This may have been the norm 30 years ago, but is less and less common today
‘Incomplete’ marriage (ganile):
§ A woman gets pregnant and ‘damages’ (inhlawulo) are paid
§ The couple may be living together or the woman may be living at her father’s home