The Inclusivity of Communal Land Tenure: a Redefinition of Ownership in Canada and South Africa?

JurisdictionSouth Africa
Citation(2008) 19 Stell LR 259
Pages259-277
Published date27 May 2019
Date27 May 2019
259
THE INCLUSIVITY OF COMMUNAL LAND
TENURE: A REDEFINITION OF OWNERSHIP IN
CANADA AND SOUTH AFRICA?
Gerrit Pienaar
B Jur et Com LLB LLD
Professor of Private Law, North-West University*
1 Introduction and scope
The nature of land tenure rights is dened in many dif ferent ways in differ-
ent jurisdiction s. One of the basic differences lies in the extent of exclusivity
or inclusivity of land tenu re, or what is called a “discourse of exclusion”.1
Another lies in the distinction b etween the “ide a of propert y”, premise d by
individualism, and the “institution of propert y”, pre occupied with compro-
mise, relationality and t he tension between indiv idual and commun ity.2
The pu rpose of th is article is to compare the inclusivity or exclusivity of
property in South Africa, where the law is predominantly civilian i n nature,
with Canada, a predomi nantly common law jurisdiction. In both jurisdictions
communal land tenure has been incorporated in t heir proper ty systems of
predominantly civil law and common law respectively. Canada was chosen
for this comparison because of the remarkable similarit y that, in both jurisdic-
tions, it required t hree different decisions by three d ifferent courts before the
matter was nal ly settled, namely the Delgamuuk w decisions3 in Canada and
the Richtersveld cases in South Af rica.4
Roman-Dutch ownership, which is to a large extent in concurrence with the
European civil law concept, is dened in South Africa wit h emphasis on the
exclusivity of ownership:
“Ownership is the most complete real right a person can have with regard to a thing. The point of
departure is that a person, as far as an immovable is concerned, can do on and with his property as he
* The re search for this ar ticle is based upo n work sup ported by the Nat ional Resea rch Foundatio n. Any
opinion, f indings, and conclusions or recommend ations expres sed in thi s article a re those of t he author
and therefore t he NRF does not acc ept any liability w ith regard theret o.
1 Gutto Property and Land Reform: Constitutional and Jurisprudential Perspectives (1995) 4-9; G rear
“A Tale of the Land, the Ins ider, the Outsider, and Human Rights” 20 03 Legal Studies 33-65; Fitzpatrick
“Evolution and Chao s in Property R ights Systems: The T hird World Tragedy of Conteste d Access” 2006
Yale LJ 996 1001.
2 Underkuff ler The Idea of Property (2003) 5.
3 In Ca nada Delgamuukw v Brit ish Columbia Supre me Cour t of British C olumbia [1991] 3 WWR 187;
British Colum bia Court of Appeal [1993] 5 WWR 9 7; and Supreme Court of Ca nada [1997] 3 SCR 1010.
4 In the cas e of South Afri ca Richtersveld Community v Alexkor Ltd 2001 3 SA 1293 (LCC); Richtersveld
Community v Alexkor Ltd 20 03 6 SA 104 (SCA); and Alexkor Lt d v The Richtersveld Community 2004
5 SA 469 (CC). For a comp rehensive exp osition of the fact s and decisions of the d ifferent c ourts, see
Mostert & Fitzpa trick “Living in the Marg ins of History on the Edge of the Cou ntry” 2004 JSAL 309-323
and 498-510; Pienaar “From Delgamuukw to Richtersveld: A re Land Claims in Ca nada and South Af rica
Comparable?” 20 05 Stell LR 446-465.
(2008) 19 Stell LR 259
© Juta and Company (Pty) Ltd
likes. However, this apparently unlimited freedom is only partially true. The absolute entitlements of
an owner exist within the boundaries of the law.”5
In Canada la nd tenure is dened according to com mon law principles, and
is regarded as less absolute and more exible tha n the Roman-Dutch concept
in South Africa. The crown’s ultimate or underlying title to (or radical owner-
ship) of all immovable property in the realm is acknowledged, and land tenure
rights are held of the crown by tenants i n the form of tenures, est ates and
interests. This indicates that different land tenu re rights can be exercised by
several people in respect of the same property.6 However, the crown’s u lti-
mate title has been described by some commentators as a legal ction; and fee
simple ownership (freehold ownership) in Canad a is often regarded as “abso-
lute ownership of the land, or at least as close to being absolute owner as
English common law pe rmits”.7 Thus land tenure rights in Canada also see m
to a large extent exclusive in nature, indicating the us e and possession of land
with exclusion of other persons.
In both Canada and South Africa there is an additional system of land tenure
rights i n operation. Com munal land rig hts have been and st ill are exercised
by indigenous commu nities. Communal land tenure i s dened in terms of its
inclusive nature and displays the following feat ures:8
Land rights are embedded in a range of social relationships, including
household and kinship networks, and various forms of commu nity mem-
bership, often multiple and over-lapping in charact er.
Land r ights are inclusive rather than exclusive in character, being shared
and relative, but generally sec ure.9 In a speci c community, rights may
be individualised (dwelling); communal (gra zing, hunting, shing and
trapping) or mixed (seasonal cropping combined with grazing and other
activities).
Access to land is guaranteed by norms and values embodied in the commu-
nity’s land et hic. This implies that access th rough dened social rights is
distinct from cont rol of land by systems of authority and a dministration.
The rights a re derived from accepted membership of a social unit and can
be acquired by bir th, afliation, allegiance or tran sactions.
5 Gien v Gien 1979 2 SA 1113 (T) (own translation). In First National Bank of SA Ltd t/a Wesbank v
Commissioner, South African Revenue Services 20 02 4 SA 768 (CC) para 51 it was held that private
ownership is constitut ionally protected, but also limited in the p ublic in terest; also President of the
RSA v Modderklip Boerdery (Pty) Ltd 2005 SA 3 (CC). See also Van der Walt “Strivi ng for the Better
Interpr etation – A Critical Ref lection on th e Constitut ional Court’s Har ksen and FNB Decisions on the
Propert y Clause” 2004 SALJ 854 866.
6 Slattery “The Natu re of Aborigi nal Title” in Lippert (ed) Be yond the Nass Vall ey (2000) 11 13; Agbosu
Land Law in Ghana: Contradiction Between Anglo-American and Customary Conceptions of Tenure and
Practices (2000) 3-8; Fox “Relativit y of Title at Law and in Equit y” 2006 Cambridge LJ 330-365.
7 Slattery “Aborigi nal Title” in Nass Valle y 14; see also Agbosu Land Law 8; Henderson, Benson & Findlay
Aboriginal Title in the Constitution of Canada (2000) 5-6; Grea r 2003 Legal Studies 44.
8 Gutto Property 13-17; Agbos u Land Law 14-16; Ülgen “Aborigi nal Title in C anada: Recognition and
Reconciliat ion” 2000 Netherlands Int LR 146 156-158; Slatt ery “Aboriginal Title” in Nass Val ley 16-22;
Cousins “’Embed dedness’ versus Tit ling: African L and Tenure Systems and the Potential Impa cts of the
Communal L and Rights Act 11 of 2002” 2005 Ste ll LR 488 500-501; Fitzpatrick 2 006 Yale LJ 1011-1012.
9 Van der Walt “ Property Rights and the Hie rarchies of Power: A Cr itical Eva luation of Land-Refo rm
Policy in South Af rica” 1999 Koers 259 267-268.
260 STELL LR 2008 2
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