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Policy responses to tenure insecurity159based approaches are far too expensive to undertake, andwhen they are attempted, they have the net result of reducingrather than increasing tenure security. Still others favourmaintaining customary land tenure arrangements becausethey are seen as culturally appropriate, grounded deeply inthe history of the area concerned, and because they workand are more equitable than approaches based on modernlaw and private property rights.Clearly, one of the key challenges for policy-makers issifting through these and many other views on security oftenure and divining the best approach to a given situation.Before looking at several approaches, it is important to pointout that just as formality of tenure does not unequivocallyguarantee secure tenure, informality does not necessarilymean insecure tenure. As seen above in the context ofregularization, some forms of informality can provide areasonable degree of tenure security. This is not to say thatthis approach should necessarily be favoured; but it goes tothe core of the issue at hand, which is essentially that muchof the strength of tenure security comes in the form of one’sperception of the security of tenure that they believe theyhave.This may appear difficult to fit together with theprinciples and rights of human rights law; but this may notnecessarily be the case. Perhaps perception and rights can gohand in hand, with the objective being a process, perhapseven a lengthy one, whereby the personal or communityperception of security can slowly and steadily be transformedinto a form of tenure – possibly based on freeholdtitle and possibly not – but whereby those currently residingfirmly in the informal sphere, without formal protectionfrom eviction, gradually accrue these rights in a progressivelyempowering way. In this connection, it is important toremember that the de facto and de jure status of a givenparcel of land may be markedly different:NOTESA squatter, or resident of an illegal subdivision,for example, may enjoy no legal rights ofoccupation, use or transfer, but can still feelphysically sufficiently secure, because of numericalstrength or political support, to invest inhouse building and improvement. 66Four major factors seem to contribute to people’s perceptionof the level to which they are protected from eviction. Theseinclude the:• length of occupation (older settlements enjoy a muchbetter level of legitimacy and, thus, of protection thannew settlements);• size of the settlement (small settlements are morevulnerable than those with a large population);• level and cohesion of community organization; and• support that concerned communities can get from thirdsectororganizations, such as NGOs. 67Security of tenure must be seen as a prerequisite, or aninitial step, in an incremental tenure regularization process,focusing particularly as it does on the protection, as opposedto the eviction, of the irregular settlement occupants andnot on their immediate regularization in legal terms.Approaches that try to achieve security of tenure are theonly ones that will meet the immediate and longer-termneeds of the populations. As these varying points of viewconclusively show, the security of tenure debate is alive andwell. Realistically speaking, the main point for the hundredsof millions of people currently living without security oftenure is, perhaps, not whether they are the owners offreehold title to a piece of land or not. More importantly, it isabout being able to live a life where their rights to security oftenure are treated as seriously as human rights law says thatthey should be.Just as formality oftenure does notunequivocallyguarantee securetenure, informalitydoes not necessarilymean insecuretenureMuch of thestrength of tenuresecurity comes inthe form of one’sperception of …security1 General AssemblyResolution 401(V).2 Payne, 2001d.3 See Millennium Declaration,Article 19.4 UN-Habitat, 2003d, pxxviii.5 Durand-Lasserve, 1998,p245.6 Durand-Lasserve andRoyston, 2002, p6.7 Prefecture of São Paulo,2003, p8.8 See Boonyabancha, 2005;Shack and Slum DwellersInternational, 2004.9 Seabrook, 1996, p197.10 de Soto, 2000.11 Durand-Lasserve, 1998.12 Payne, 2001c, p51.13 Cousins et al, 2005.14 Kanji et al, 2005.15 Payne, 2001a, p23.16 Payne, 1997, p46.17 Ibid, p26.18 Bromley, 2005, p6.19 Ibid, p7.20 Payne and Majale, 2004, p54.21 Payne, 1997, p26.22 Payne, 1997.23 Durand-Lasserve, 1998,p244.24 Payne and Majale, 2004.25 FAO, 2005, pp22–24, 26.26 Cousins et al, 2005; Hugginsand Clover, 2005.27 World Bank, 2003b, pxxix.28 Ibid, p50.29 Kanji et al, 2005, p3.30 World Bank, 2003b, p50.31 Housing and PropertyDirectorate/Housing andProperty ClaimsCommission, 2005.32 UNMIK Regulation 1999/23,Preamble.33 UN docE/CN.4/Sub.2/1993/8.34 CESCR, General CommentNo 4, para 18.35 Commission on HumanRights, Resolution 1993/77.36 See COHRE, 1999; UN-Habitat and OHCHR, 2002;UN-Habitat, 2002, 2005a,2005b.37 CESCR, General CommentNo 7, paras 8–9.38 Ibid, para 10.39 Ibid, para 16.40 Ibid, para 13.41 Ibid, para 17; and CESCR,General Comment No 2,para 6 and 8(d).42 Including the right tofreedom of movement andto choose one’s residence;the right to privacy andrespect for the home; theright to equal treatmentunder the law; the right tohuman dignity; the right tosecurity of the person;certain formulations of theright to property or thepeaceful enjoyment ofpossessions.43 Polis, 2002.44 McAuslan, 2002, pp34–35.45 Ibid, p36.46 Ibid, p36.47 Alston, 1993.48 For more comprehensivesurvey of strategies, seeCOHRE, 2000.49 UN-Habitat, 2003b.50 Ibid.51 Contained in Annex 1 ofUN DocumentE/CN.4/Sub.2/1997/7.52 Commission on LegalEmpowerment of the Poor,2006a.53 See section 121 of the(interim) Constitution ofthe Republic of SouthAfrica, Act 200 of 1993; andRestitution of Land RightsAct 22 of 1994.54 Constitution of the Republicof South Africa, Act 108 of1993, Chapter 2 (the Bill ofRights).55 Government of the Republic ofSouth Africa and Othersversus Grootboom andOthers.56 Grootboom versus OostenbergMunicipality and Others.57 Cousins et al, 2005.58 South Africa CitiesNetwork, 2006.59 Kahanovitz, 2007.60 Marques, 2007.61 Banerjee, 2002.62 Baxi, 1982.63 See, for instance, Jacquemin,1999; Eviction Watch India,2003; Gonsalves, 2005.64 Hindustan Times, 2005.65 Indian People’s HumanRights Commission, 2000.66 Payne, 1997, p8.67 Ibid, p7.