Lost in translation: Family title in Fingo village, Grahamstown, Eastern Cape

• Jurisdiction: South Africa
• Citation: 2011 Acta Juridica 210
• Published date: 15 August 2019
• Pages: 210-237
• Date: 15 August 2019

Lost in translation: Family title in Fingo

village, Grahamstown, Eastern Cape

ROSALIE KINGWILL*

Trends in the passage of long-heldAfrican freehold land indicate that custom-

ary concepts of property were adapted to Westernproperty law in the form of

‘family property’, a concept permeating newly titled African land. African

families tend to self-identify as ‘kin’, conventionally based on patrilineality

with regard to land ownership. In spite of innovative informal adaptations to

embrace the rights of women, there are many unresolved tensions regarding

the future trajectory of formal property rights. Constitutional Court decisions,

in suggesting a framework for modern customary intestate succession, have

(tentatively) adopted common-law prescripts that concentrate rights in the

conjugal family – a narrower band of potential heirs based on marriage – to

protect the rights of women and children. How will emerging property law

reconcile (a) diverging views about family identity; and (b) strongly held views

that ownership is a corporate family responsibility rather than a vesting of

proprietal rights in one or more registered owners?

I INTRODUCTION

James Scott captures the universal contest between state-imposed systems

and the social systems they attempt to override. The gulf between ‘land

tenure facts on paper and facts on the ground’ is widest during social

upheaval:

We must keep in mind not only the capacity of state simplif‌ications to

transform the world but also the capacity of the society to modify, subvert,

block, and even overturn the categories imposed on it....[T]here will always

be a shadow land-tenure system lurking beside and beneath the off‌icial

account in the land-records off‌ice. We must never assume that local practice

conforms with state theory.

1

Evidence emerging from f‌ield research in South Africa indeed reveals a

deep contradiction between the meaning of ownership as def‌ined by law,

and the meaning of ownership as practised by a seemingly large propor-

tion of South Africans of African descent.There would indeed appear to

be a ‘shadow’ land-tenure system ‘lurking’beneath the off‌icial deed off‌ice

records. ‘Paper owners may not be the effective owners’.

2

* PhD Student, Institute for Poverty, Land andAgrarian Studies (PLAAS), University of the

WesternCape.

1

J Scott Seeing Like a State (1998) 49.

2

Scott (n 1) 49.

210

2011 Acta Juridica 210

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During the colonial and apartheid eras, white settler-citizens and even

foreigners ‘owned’ land, while the indigenous black population was

accorded legally insubstantial occupational rights subject to highly discre-

tionary administrative law. Now the Constitution – and land and settle-

ment policy f‌lowing from the Constitution – aff‌irms the commitment to

equalising rights of ownership. But where is ‘ownership’ itself def‌ined and

interrogated? What does it mean to ‘own’ land in SouthAfrica? What is

‘ownership’?

The default legal position is that ‘ownership’ is that which the common

law def‌ines as ownership. Statutes confer a range of rights in land but

‘ownership’ is a discrete category, comprising the greatest number of

rights often conceptualised as a ‘bundle of rights’. Ownership according

to the common law is realised when specif‌ied legal criteria are met, most

obviously registration in the Deeds Registry. As Pope argues, ‘[t]he

current registration system depends strongly on the well-understood

concept of real rights’; the corollary of this is that ‘in principle, rights in

land that do not meet the stringent requirements of recognition as real

rights may not be registered’.

3

‘Stringent requirements’, at the very

minimum, means compliance with the national cadastre. The cadastre

comprises the formal national land information system.

The South African cadastre (like most modern cadastres) is multi-

dimensional. First, there is a spatial component, which is the geometric

description of land parcels. Second, and linked directly to the spatial

dimension, is the textual component, which comprises the records or

registers recording the real rights in the land parcels, such as ownership,

bonds (mortgages) and servitudes. Third, spatial and textual records must

ref‌lect up-to-date information, which means that every time a change

occurs, such as sales transactions or inheritance, or spatial alterations such

as subdivisions or servitudes, each must be duly registered. Three charac-

teristics of this 3-D land information system are: (a) the core unit is the

land ‘parcel’, which is a discrete unit, and, which according to statutes

governing survey standards, must be surveyed within an accuracy range of

centimetres; (b) registered owners of real rights have a certain degree of

autonomy from other users of the property in deciding about the use and

disposal of the property (though users have some legal protections); and

(c) registered owners of real rights have f‌iscal obligations: property

registers are linked to other registers, such as records for purposes of

income tax and servicing. Transactions set off a domino effect, reverberat-

ing along a chain, like a train moving through stations: you cannot get to

3

A Claassens & B Cousins (eds) Land, Power & Custom: Controversies Generated by South

Africa’sCommunal Land Rights Act (2008). APope ‘Getting rights right in the interests of security

of tenure’ (2010) 14(1) Law, Democracy and Development, (review of A Claassens & B Cousins

(eds) (2008), this note.)

211LOST IN TRANSLATION

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