Access to property in Africa: An introductory survey

• Jurisdiction: South Africa
• Citation: 2011 Acta Juridica 1
• Date: 15 August 2019
• Pages: 1-22
• Published date: 15 August 2019
• Author: Thomas Bennett

Access to property in Africa:

An introductory survey

THOMAS BENNETT* AND HANRI MOSTERT

†

With land, the single most serious problem – one that is experienced on a

global scale – is the need for a f‌inite resource to be shared by an ever

increasing number of people.

1

Because land is a crucial means for

production and accessing shelter, it must be regulated in order to serve the

interests of a rapidly diversifying user base. Existing theories about the

function of property within communities of users are not always adequate

to explain the realities of these demands.

Alexander and Peñalver’s studies

2

of property and community have

already demonstrated that context shapes choices about the use and

sharing of resources in ways that neither utilitarian nor classic liberal

theory consider. They also question

3

the attempt to essentialise property

by relying on its characteristic exclusivity in distinguishing it from other

legal concepts. Property is, they argue, relativised to such an extent that it

is impossible to rely on a single feature (such as exclusivity), or even a

def‌ined ‘menu’ of characteristics to determine the meaning of this

concept. Acknowledging the doctrinal diversity that renders it challeng-

ing to extrapolate regulative principles of property law, Dagan in the same

vein states that ‘the search for property’s core is . . . futile’. He adds,

though, that a study of property institutions nevertheless reveals ‘societies’

ideals for core categories of interpersonal relationships regarding various

resources’.

4

The argument proceeds by promoting a pluralist view of

property law in particular, which acknowledges the existence of a diverse

set of interpersonal relationships, enabling the users of property law to be

‘the authors of their own lives’.

5

* BA LLB (Rhodes), PhD (UCT). Professor, Department of Public Law, University of

Cape Town.

†

BA LLB LLM LLD (Stell). Professor, Department of Private Law, University of Cape

Town;Visiting Professor: Centre for Law and Governance/Department of Private and Notary

Law,Rijksuniversiteit Groningen.

1

J WaldronThe Right to Private Property (1988) 32.

2

G S Alexander&EMPeñalver Property and Community (2010) and G S Alexander &

E M Peñalver ‘Properties of community’ 2009 (10) TheoreticalInquiries in Law 127.

3

G S Alexander & E M Peñalver An Introduction to PropertyTheory (2012) 3 with particular

reference to T W Merrill ‘Property and the right to exclude’ (1998) 77 Neb L Rev 730 as

representative of such attempts.

4

H Dagan Private Law Pluralism and the Rule of Law forthcoming (draft of 12 February 2012

on copy with authors) 3.

5

Dagan (n 4) 3.

1

2011 Acta Juridica 1

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It was to grapple with similar concerns that a conference was held in

Cape Town, in November 2010. The papers from that conference form

the core of this issue of Acta Juridica. Participants were asked to focus on

access to property from a pluralist perspective with development as the

normative framework.

Development is a prime goal of all African countries. Although clearly

about the improvement of the individual’s living conditions, it rests on

economic prosperity, which is, in turn, usually linked to a secure title to

property, more specif‌ically land.

6

The latter has been a long-standing

preoccupation of individuals, governments and NGOs. We sought,

however, to shift attention away from title to issues that are all too often

forgotten in debates about the fairer distribution of wealth: the problem of

access, and, in addition, non-state normative orders. We believed that

paying closer attention to these factors would better ensure the ultimate

aim of social and economic upliftment.

Indeed, a study of access to property is long overdue. While the law may

protect a secure title,

7

that guarantee is of little value when individuals

have no way of acquiring property in the f‌irst place.

8

And, in this regard, it

hardly needs to be said that the poor, the marginalised and the unedu-

cated

9

– women in particular

10

– have persistently been denied meaning-

ful access to property. This sad state of affairs is a global phenomenon, but

is especially true of Africa.

This dark scenario, however, may be somewhat brightened if seen

through a pluralist perspective on legal orders. As will appear in the

contributions included in this volume, pluralist research serves to show

that access may be determined by methods unacknowledged by the state

regime. Once we are prepared to entertain considerations of normative

orders other than the formal state system, the range of possibilities

broadens signif‌icantly. People live their lives according to a range of

6

See in general eg H De Soto The Mystery of Capital: Why Capitalism Triumphs in the West

and Fails Everywhere Else (2003).

7

See for example internationally: Article 17 of the Universal Declaration of Human Rights

of 1948; and in South Africa: Section 25 of the Constitution of the Republic of South Africa

108 of 1996.

8

L Ntsebeza ‘Land redistribution in South Africa: The property clause revisited’ in

L Ntsebeza & R Hall (eds) The Land Question in South Africa: The Challenge of Transformationand

Redistribution (2007) 107 at 107–108.

9

In 2008, 10.4 per cent of the population of South Africa over the age of 20 had no

schooling. See J Pile ‘SAin numbers’ Financial Mail (19 December 2008) 22.

10

C Walker‘Piety in the sky? Gender policy and land reform in South Africa’(2003) 3 Journal

of Agrarian Change 113 at 113–148;A Terblanche ‘Die posisie van die landelike swart vrou in die

grondhervormingsproses’2007 Tydskrif vir die Suid-Afrikaanse Reg 685 at 685–699.

2PLURALISM AND DEVELOPMENT:STUDIES IN ACCESS TO PROPERTY IN AFRICA

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