Indigenous-law land rights: Constitutional imperatives and proprietary paradoxes

• Jurisdiction: South Africa
• Pages: 308-333
• Published date: 30 August 2019
• Date: 30 August 2019
• Author: Anne Pope
• Citation: 2011 Acta Juridica 308

Indigenous-law land rights: Constitutional

imperatives and proprietary paradoxes*

ANNE POPE

†

The property clause in the South African Constitution requires that legally

insecure tenure of land must be made secure (s 25(6)). The Constitution also

indicates that rights in customary law are protected (s 39(3)). The 1997 White

Paper outlined various principles of land reform, including the objective of a

‘unitary system of land rights’. On the face of it, secure tenure can be achieved

statutorily. However, this approach raises many complexities, especially the

inevitable consequence of undermining indigenous land rights, which f‌lows from

the fact that indigenous land rights are paradigmatically different from proprietary

rights derived from Roman law but are currently recognised in SouthAfrican law.

The essence of property rights consists of an absolute notion of ownership, a

deeds registration system and enforcement of real rights, dependent on surveying

and subdivision of land into parcels; conveyancing of land transfer; and registra-

tion of ownership in a deeds registry. Indigenous land rights do not share this

paradigm. To cause a paradigm shift for indigenous land rights in the quest to

secure tenure of land is to institute a formal destruction of the very fabric of

indigenous land rights. This paper explores why simply enacting legislation is

probably the worst way to go about securing tenure. Rather, such a project

requires excellent legal analysis of crucial technicalities and, simultaneously,

ethnographic, historical and socio-economic information in considering

whether, in fact, a unitary system of land rights is constitutionally feasible.

I INTRODUCTION

Since 1994, a variety of land reform statutes and policy documents

1

have

aimed at achieving the constitutionally mandated redistribution of land,

2

* Most grateful thanks are due to my friend and colleague Professor Chuma Himonga for

her kindness and collegiality shown by spending considerable time with me discussing and

wrestling with diff‌icult concepts and in f‌inding appropriate language to describe them. Any

remaining errors or misperceptions are mine. This article is based on papers presented at the

International Property Law Conference held at UNISAin Pretoria 27–30 October 2010 and, in

slightly amended form, at the UCT conference that gave rise to this collection of essays.

†

Dip Lib (Stell) BA LLB (Rhodes) PG Dip International Research Ethics (Cape Town),

Associate Professor in the Department of Private Law,University of Cape Town.

1

Department of Land Affairs (1997) White Paper on SA Land Policy; Restitution of Land Rights

Act 22 of 1994; Extension of Security of Tenure Act 62 of 1997; Land Reform (Labour Tenants)

Act 3 of 1996; Provision of Land and AssistanceAct 123 of 1993; Transformation of Certain Rural

Areas Act 94 of 1998; Interim Protection of Informal Land Rights Act 31 of 1996; Communal

PropertyAssociations Act 28 of 1996; Communal Land Rights Act 11 of 2004; Prevention of Illegal

Eviction from and Unlawful Occupation of Land Act 19 of 1998; Development FacilitationAct 67

of 1995.

2

Section 25(5) of the Constitution of the Republic of South Africa, 1996 (hereafter the

Constitution): The state must take reasonable legislative and other measures, within its available

resources, to foster conditions which enable citizens to gain access to land on an equitable basis.

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2011 Acta Juridica 308

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secure tenure

3

in respect of land rights that are precarious for historical

reasons, and also restitution of land rights

4

lost as a result of dispossession

in South Africa. Simultaneously, land reform measures must seek to

preserve the possibility of indigenous

5

property management structures

where these are appropriate. These constitutional obligations f‌low from

the land reform mandate outlined in the property clause (s 25) and from

s 39(3) of the Constitution, which states that

The Bill of Rights does not deny the existence of any other rights or freedoms

that are recognised or conferred by common law,customary law or legislation,

to the extent that they are consistent with the Bill.

In addition, s 211(3) of the Constitution obliges the courts to ‘apply

customary law when that law is applicable, subject to the Constitution

and any legislation that specif‌ically deals with customary law’. Collec-

tively, these mandates are the constitutional imperatives, insofar as they

oblige the state to put into place or to implement appropriate mechanisms

that will facilitate the achievement of land reform, including, where

appropriate, the preservation of indigenous-law land rights.

The desired overall outcome of land reform is currently stated in the

1997 White Paper to be that the identity of holders of land rights will

ref‌lect visibly the demographic composition of the country. No longer

will the Deeds Registry ref‌lect a skewing in favour of whites as land rights

holders, whether as owners or holders of rights less than ownership.

Gender-based discrimination in relation to access to land rights will be

diminished effectively, ie not just formally but also substantively. Secure

land rights will be available to all with interests in land. And, as a

fundamental principle of tenure reform, a unitary system of land rights

will prevail.

6

Some of these desired outcomes have to be seen as

aspirational rather than as achievable in the short to medium term. For

example, while legislation may mandate formal gender equality, it is only

through changes in attitude and behaviour that substantive equality can be

achieved. Legislation by itself cannot make attitudes and behaviour

3

Section 25(6) of the Constitution: A person or community whose tenure of land is legally

insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided

by anAct of Parliament, either to tenure which is legally secure or to comparable redress.

4

Section 25(7) of the Constitution: A person or community dispossessed of property after

19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent

provided by anAct of Parliament, either to restitution of that property or to equitable redress.

5

The terms ‘indigenous’ and ‘customary’ are often used interchangeably in the literature.

Here I have preferred ‘indigenous’ (unless quoting) to keep a clear distinction between

indigenous law and custom.

6

In terms of the Department of Land Affairs White Paper on SA Land Policy (1997) 57–66.

A newly drafted Green Paper is currently awaited, following several unexplained delays in

publication.

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