Taking the gap – ‘Living law land grabbing’ in the context of customary succession laws in Southern Africa
| Jurisdiction | South Africa |
| Citation | 2011 Acta Juridica 114 |
| Date | 15 August 2019 |
| Pages | 114-139 |
| Published date | 15 August 2019 |
Taking the gap – ‘Living law land
grabbing’ in the context of customary
succession laws in Southern Africa*
CHUMA HIMONGA
†
This paper explores the interface between state and non-state family-based
ways of accessing inheritable land in Southern Africa. It argues that the
privatisation and individualisation of rights in land through state succession
laws consisting of ‘official customary law’ and legislation enacted to reform
customary law contribute to the phenomenon of ‘living law land grabbing.’
This phenomenon takes advantage of, and operates within, the gaps that are
created by the state legal system. Thus, the gaps in the state legal system
become the avenues by which relatives of deceased persons who are excluded
from inheritance by the individualisation of land rights ‘grab’ inheritable land
from the heirs under state law. This ‘property grabbing’takes place against the
backdrop of conflicting customary law and Western law concepts of succes-
sion and inheritance.
I INTRODUCTION
Succession to land in southern Africa is generally characterised by the
coexistence of different legal systems – customary law, general law and
religious systems of law. The legal principles and values underlying
succession in these systems are different, thereby creating a degree of legal
pluralism and potential conflict in the way rights in land are transmitted
from one generation to another.
In some countries this pluralism is accentuated by the legislative
intervention that has resulted in the reform of customary succession laws.
1
However, it appears from the incidents and examples of property ‘grab-
bing’ discussed in sections Vand VI of this paper that these new laws have
not effectively replaced the old ways of succession under customary law.
The result is that, in practice, there is another (illegal) way of transmitting
rights in land in the context of succession, which I have called ‘living law
* I wish to record my gratitude to Professor Anne Pope for her insightful and generous
comments on an earlier version of this essay,without, of course, attributing any shortcomings of
the essay to her.
†
Professor of Law, Private Law Department, UCT, and National Research Foundation
SARChI Chair in Customary Law.
1
For example, the Intestate SuccessionAct of Zambia Act 5 of 1989, chapter 59 of the Laws
of Zambia; TheAdministration of Estates Act 6 of 1997 (Zimbabwe) and Reform of Customary
Law of Succession and Regulation of Related MattersAct 11 of 2009 (South Africa).
114
2011 Acta Juridica 114
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land grabbing’. Thus the centralist legal paradigm
2
is only one of the ways
in which access to the means of production and development resources,
such as land, is regulated. The concept of living land grabbing is testimony
to the existence of other ‘legal’ orders that are not readily suppressed by
state law.
Africa can only be developed by building upon its existing institutions. Merely
copying foreign systems to impose them on Africa is, to say the least, absurd. In
fact, it is debauchery of the concept of development. The true challenge for
developers is how to coax large surpluses from the peasants, using their
existing institutions, regardless of how ‘primitive and backward.’ But one
cannot do so without an operational knowledge of these institutions. Though
tattered and embattled, these structures still govern and condition the peasants’
response to changes in their social, economic and political environment.
Moreover, these structures constitute an integral part of their culture. Recall
that the vast majority of the African people live in the informal and traditional
sectors. Africa cannot be developed by ignoring these two sectors; nor can
these sectors be developed without an understanding of how they operate.
3
This statement by George Ayittey highlights the resilience of indigenous
laws and institutions. Furthermore, Okoth-Ogendo observed that
‘despite the importation of a complex system of property law in many
African countries . . . land and associated resources continue to be held,
used, controlled and managed’ in accordance with ‘indigenous values and
norms’. These values and norms ‘remain resilient and robust’, notwith-
standing the ‘extensive reach of state law’.
4
He also referred to areas in
which ‘state law has become a prisoner of indigenous values and norms in
the sense that the latter continue to provide the social context in which
the former operates’. The obvious result is that ‘state law is often ignored
where it is not compatible with the social and cultural milieu in which it is
applied’.
5
These statements raise an important point about the need for develop-
ment discourses on Africa to consider issues of development and law
within the African contexts, including their pluralistic ‘regulation’ of
resources vital to development, such as land. This will assist in managing
some of the implementation challenges development plans are likely to
encounter in these contexts. The statements also underscore the signifi-
cance of the concept of this volume of essays, which suggests that the time
2
In this essay, ‘legal centralism’ refers to the idea that the state has the monopoly of
generating legal rules and of regulating the conduct of members of society.
3
G B MAyittey Indigenous African Institutions 2 ed (2006) 19–20.
4
State law is the law that is recognised by the state while non-state law has no such
recognition, even though people use it in practice; it is informal ‘law’.
5
H W O Okoth-Ogendo ‘The nature of land rights under indigenous law in Africa’ in
A Claassens & B Cousins (eds) Land, Power and Custom: Controversies Generated by SouthAfrica’s
Communal Land Rights Act (2008) 95 at 99 (applies to all quotes in the paragraph).
115TAKING THE GAP
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