ARENAS OF CONTESTATION: POLICY PROCESSES AND LAND TENURE REFORM IN POST-APARTHEID SOUTH AFRICA ELIZABETH FORTIN IDS, UNIVERSITY OF SUSSEX 2008 A thesis submitted for the degree of DPhil in Development Studies 1 I hereby declare that this thesis has not been and will not be, submitted in whole or in part to another University for the award of any other degree. Signature: …………………………………………….. 2 CONTENTS Summary 5 Acknowledgements 6 Acronyms 7 Chapter 1 – Introduction 8 1 – Introducing CLARA 8 2 – Why CLARA? 15 3 – CLARA and the homelands 16 4 – Theorising CLARA 20 5 – Chapter overview 28 Chapter 2 – Positioning CLARA in theory and practice 30 1 – Introduction 30 2 – Researching the processes and practices of policy-making 30 3 – Policy, practice and Bourdieu: ‘What has Bourdieu got to do with South 31 Africa?’ 4 – An actor-oriented approach to practice 38 5 – Methodological positioning 40 6 – Changing positionalities – encountering difficulties 42 7 – Conclusion 48 Chapter 3 – Power struggles in transition 51 1 – Introduction 51 2 – Introducing the wider field of power: state-making and legitimacy in transition 52 3 – ‘Civil society’ 60 4 – Beyond apartheid: new rural spaces? 72 4.1 – A political playing field 73 4.2 – The rural playing field 79 5 – Conclusion 82 Chapter 4 – Caught in the middle: bureaucracy, politics and the DLA 84 1 – Introduction 84 2 – Caught in the middle: tenure and research in the DLA 84 3 – Post 1994 context 88 4 – Post 1999 context 93 5 – Tenure reform after 1999: room for manoeuvre? 96 5.1 – The Bill’s political framing 96 5.2 – The government’s critics 99 6 – Working on tenure in the national and provincial offices 104 7 – Conclusion 113 Chapter 5 - “A person or community whose tenure of land is legally 116 insecure...” 1 – Introduction 116 2 – The development of habitus: circles of influence over a legal transition 117 3 – Defining ‘the problem’ 120 4 – Shaping discourses: layers of complexity 121 4.1 – The law and rights 121 4.2 – Gender 124 4.3 – Modernity and tradition 128 5 – Struggles for a legal transition 131 5.1 – The legitimacy of law? 131 5.2 – Will law trump politics? 133 3 6 – CLARA: a betrayal of democracy 138 7 – Conclusion 141 Chapter 6 – Struggles with activism: NGO relations and CLARA 143 1 – Introduction 143 2 – Chiefs, democracy and tenure – a collective habitus? 144 3 – The failure of strategic positioning in the activist field 149 4 – From mediating politics to the politics of mediation 155 5 – Conclusion 162 Chapter 7 – A ‘rural area’: Chavani, Limpopo Province (former 164 Gazankulu) 1 – Introduction 164 2 – Introducing Chavani 165 3 – The contested legitimacy of the chieftaincy 170 4 – Bureaucratic practices: a ‘new democratic dispensation’? 172 4.1 – The Traditional Authority bureaucracy 174 4.2 – The ‘DCO’ 177 4.3 – The Municipality: a new democratic local government? 178 5 – Constructing democratic change in the rural field 180 5.1 – ‘Participation’ and ‘gender equality’ 181 5.2 – ‘Democracy’ 185 6 – Land and tenure 187 6.1 – ‘Just a piece of land’ 187 6.2 – Land administration 188 6.3 – ‘Tenure’ 190 6.4 – ‘Ownership’ 193 6.5 – (Mis)understanding practical notions of ‘ownership’ 195 7 – Conclusion 197 Chapter 8 – Consultation and participation: strategies of legitimation 199 1 – Introduction 199 2 – The bureaucratic field in transition: From the euphoria of democracy to the 200 practice of governing 3 – ‘Consultation’ as a strategy of legitimation 204 4 – Strategising ‘representation’ by civil society 206 4.1 – Enlisting voices from below 207 4.2 – Playing with the media: a double-edged sword 210 5 – Representing knowledge 213 6 – The Portfolio Committee process: Bringing the fields together? 216 7 – Conclusion 222 Conclusion 224 Bibliography 232 Endnotes 247 Appendix 251 4 UNIVERSITY OF SUSSEX Elizabeth Fortin, submitted for the degree of DPhil in Development Studies ARENAS OF CONTESTATION: POLICY PROCESSES AND LAND TENURE REFORM IN POST-APARTHEID SOUTH AFRICA SUMMARY This thesis considers different groupings that have come together in their participation in the policy processes relating to tenure reform in post-apartheid South Africa. It is methodologically and theoretically grounded in Bourdieu’s notion of cultural ‘fields’, spaces of ongoing contestation and struggle, but in which actors develop a shared ‘habitus’, an embodied history. In these land reform policies and law-making activities, individuals and groups from different fields – the bureaucratic, activist and legal – have interacted in their contestations relating to the legitimation of their forms of knowledge. The resulting compromises are illuminated by a case study of a village in the former Gazankulu ‘homeland’ – a fourth ‘cultural field’. Rather than seeing these fields as bounded, the thesis recognises the influence of wider political discourses and materialities, or the wider ‘field of power’. In each of the four very different fields, as a result of a shared history, actors within them have developed practices based upon particular shared discourses, institutions and values. But such practices are constantly negotiated, with different individuals claiming the power and struggling for legitimacy to represent their version of a differentiated messy reality. Interactions between the fields have resulted in contestations around the hierarchy of knowledge to produce particular readings of legitimate knowledge which have often squeezed out that messiness. It concludes that, in the context of huge inequality and difference, there are limitations in consultation and participatory processes that assume particular individuals can be ‘representatives’ of the whole. Where such contexts contribute to contestations over the meanings, here of land, rights and tenure, it is necessary to interrogate the methodologies adopted for enabling ‘representative’ individuals to participate in such processes. The assumed inclusivity of policy and law-making processes should therefore be challenged in order to emphasise the importance of conflicts in the production of meaning and knowledge. 5 ACKNOWLEDGEMENTS During the course of my year’s fieldwork in South Africa, I am hugely grateful to: everyone in South Africa who remain anonymous, for giving up so much of their time and showing me the extent of their dedication to positive change in their dynamic and inspiring country, as well as insights into the richness of their lives; Musa Kotane for being a fantastic Research Assistant and great friend; the Muvhale family for welcoming me into their home and showing me incredible generosity; Portia Jordan, Ndodana Nleya and Maggie van der Westhuizen for friendship; the many people I spoke with in Chavani, Mashamba, Elim and surrounding villages; everyone at PLAAS, the LRC, Nkuzi and AFRA for enabling proper ‘participant observation’ at those institutions, including unrestricted access to meetings, seminars, workshops and extensive archives; many current and former DLA officials, NLC employees and board members, and numerous other consultants, politicians and officials at various institutions; and the Centre of African Studies at UCT and PLAAS at UWC both for institutional affiliation while in South Africa. During the course of the whole PhD, I am grateful to: the ESRC for the economic support to make the study possible; my supervisor, Ian Scoones, for encouragement throughout, criticising when needed and for always helping me to see the wood from the trees; IDS for institutional support; and numerous colleagues at IDS and Sussex University for moral and intellectual support and friendship. I am also grateful to Phillip Woodhouse and those in the Reading Group of SERG at the University of Manchester for interesting discussions on ‘dissensus’; Sithembiso Myeni for support, and advice in relation to South African literature; Chris Beyers, Derick Fey, Edward Lahiff, Bronwen Morgan and Theunis Roux for detailed comments on previous drafts of chapters, and other commentators at a number of conferences. More personally, I would also like to thank Jane, Richard and Katharine Fortin, Abigail Harrison, Ruth Copeland, Briony Marshall and Claire Santorelli for their tremendous support during the whole of my doctorate; and my husband, Roy Maconachie, for stimulating discussions as well as his unstinting support, love and encouragement throughout. 6 ACRONYMS African National Congress ANC Association for Rural Advancement AFRA Banking Council, South Africa BCSA Bantu Authorities Act 1951 BAA Black Economic Empowerment BEE Centre for Applied Legal Studies CALS Commission for Gender Equality CGE Communal Land Rights Bill or Act CLRB or CLARA Communal Property Associations CPAs Congress of South African Trade Unions COSATU Congress of Traditional Leaders of South Africa CONTRALESA Convention for a Democratic South Africa CODESA Department for International Development DFID Department of Agriculture DOA Department of Land Affairs DLA Director General DG District Control Office DCO Government of National Unity GNU Growth Employment and Redistribution Strategy GEAR Human Rights Commission HRC Integrated Development Plan IDP Inkatha Freedom Party IFP Interim Protection of Informal Land Rights Act IPILRA KwaZulu-Natal KZN Land Administration Committee LAC Land Claims Commission LCC Land Redistribution for Agricultural Development LRAD Land Reform Systems and Support Services LRSSS Land Rights Bill LRB Landless People’s Movement LPM Legal Resources Centre LRC Mass Democratic Movement MDM National Intelligence Agency NIA National Land Committee NLC National