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

• Jurisdiction: South Africa
• Pages: 259-277
• Author: Gerrit Pienaar
• Published date: 27 May 2019
• Citation: (2008) 19 Stell LR 259
• Date: 27 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

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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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