Leaping the Fissures: Bridging the Gap between Paper and Real Practice in Setting up Common Property Institutions in Land Reform in South Africa

"This paper takes a look at the claim that the new common property institutions are failing and argues that there are no meaningful indicators against which assessments of success or failure can be made. It asserts that the tenure security of the group and its members should be the primary purpose of land reform CPIs, because secure tenure is the primary mechanism for reducing risk for vulnerable people and is the universal need of the group. Securing tenure of individual members of CPIs, rests upon the clarity and accessibility of procedures for the assertion and justification of property rights and institutional mechanisms for realising and enforcing these rights. Useful indicators of security then become the degree to which these procedures and mechanisms are known, accessible, equitable, clear, used, socially accepted, transparent and enforced. The paper begins by analysing what the new CPIs were set up to do and the legal and political framework in which they were created. It goes on to reflect on lessons that the Legal Entity Assessment Project (LEAP) has drawn from assessing the situation of land reform CPIs. Using the focus of tenure security and drawing on lessons from tenure work in Africa, the paper then interrogates in depth how membership has been constituted in land reform CPIs and whether the institutional context in which they have been set up has provided adequate support. It concludes by asserting that community constitutions reflect ambiguous and contradictory definitions of membership without reference to local practices and institutions."