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Intro To Legal Pluralism CH 6
Intro To Legal Pluralism CH 6
Intro To Legal Pluralism CH 6
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Introduction to Legal Pluralism
in
South Africa
Fourth Edition
C Rautenbach
Managing Editor
BIur LLB LLM LLD Professor
Faculty of Law
North-West University (Potchefstroom Campus)
JC Bekker
BA LLB LLD Emeritus Professor, Professor Extraordinary
University of Pretoria
6
Law of Property
Page
6.1 Characteristics of customary law property rights.................................................... 123
6.2 Rights relating to property..................................................................................... 123
6.2.1 Family property ......................................................................................... 124
6.2.2 House property .......................................................................................... 124
6.2.3 Personal property ....................................................................................... 125
6.3 Acquisition of customary law rights to property .................................................... 125
6.3.1 Allocation of property other than land ........................................................ 126
6.3.2 Inheritance ................................................................................................. 126
6.3.3 Marriage .................................................................................................... 127
6.3.4 Other methods of acquiring property .......................................................... 129
6.4 Land ..................................................................................................................... 130
6.4.1 Introduction ............................................................................................... 130
6.4.2 Historical background ................................................................................ 130
6.4.2.1 Constituting traditional areas ........................................................ 130
6.4.2.2 Complexity: Different land control forms and legislative
measures ...................................................................................... 131
6.4.3 Traditional customary law tenure................................................................ 133
6.4.3.1 Introduction ................................................................................. 133
6.4.3.2 Communal land tenure in practice ................................................ 134
6.4.4 Land reform ............................................................................................... 136
6.4.4.1 Introduction ................................................................................. 136
6.4.4.2 Communal Land Rights Act 11 of 2004 ........................................ 137
6.4.4.2.1 Purpose....................................................................... 137
6.4.4.2.2 Measures to achieve objectives .................................... 138
6.4.4.2.3 Constitutional challenge .............................................. 138
6.4.4.3 Green Paper on Land Reform ....................................................... 139
6.4.4.4 Holding measure: Interim Protection of Informal Land Rights
Act 31 of 1996 ............................................................................. 140
6.4.4.5 “Spontaneous” tenure reform under auspices of the Constitution ... 140
6.4.4.6 Conclusion ................................................................................... 141
121
122 Introduction to Legal Pluralism in South Africa
Page
6.4.5 Other statutory land rights .......................................................................... 141
6.4.5.1 Introduction ................................................................................. 141
6.4.5.2 Extension of Security of Tenure Act 62 of 1997............................ 141
6.4.5.3 Land Reform (Labour Tenants) Act 3 of 1996 .............................. 142
Chapter 6: Law of Property 123
________________________
family and succession.10 Consequently, customary law recognises the following categories of
property: family property, house property and personal property.
10 In terms of customary law, whenever a marriage is concluded, a house is created. The house is regarded as
consisting of a wife, her children as well as property brought into such house at marriage or allotted to the
house and property acquired by the members of the house during the marriage. Thus, the term “house” indi-
cates the property of the wife and children of the marriage. See also Mofokeng (2009) 78.
11 See Bekker (1989) 72; Olivier et al (1995) 50.
12 See Bekker (1989) 72; Olivier et al (1995) 49–50.
13 Bennett (2004) 256.
14 Bekker (1989) 135.
15 Mhlongo v Mhlongo 1919 AD 470; Sijila v Masumba 1940 NAC (C&O) 42; Harries (1929) 15; Krige
(1936) 178.
16 Bekker (1989) 140.
17 Mofokeng (2009) 80.
Chapter 6: Law of Property 125
house.18 Any interest that a family member has in the house and its property is a collective,
rather than a personal, one.19 As a result of modernisation and urbanisation, new types of proper-
ty have been acquired, notably houses held in terms of customary or statutory law, which are
regarded as house property.20 The children and the wife of the house established by the marriage
have a special interest in or rights to such property. At the dissolution of the marriage or divorce,
their rights or interests are normally not terminated, as they continue to reside in such house.
Similarly, when the husband dies, the widow acquires control of the property and after her death,
this control passes to one of her children.21 It is this property, commonly known as a house, over
which children of the marriage acquire a special interest. In the normal course of events, the
property is often used by the youngest son of the marriage,22 and, in the event that one of his
sisters is unmarried or is divorced and returns home, such sister and her children, if she has any,
reside in such house. This is, in effect, the adaptation of rules of customary law to suit the
changing needs of society. 23 The property is to be found in both rural and urban areas.24
18 Mlangeni v Macal 1947 NAC (C&O) 1; Maganu v Maganu 1938 NAC (N&T) 37.
19 See, e.g. Mthembu v Letsela 1998 (2) SA 675 (T).
20 Strydom (1985) 35.
21 Watney (1992) LLD thesis 63.
22 Bekker and De Kock (1992) CILSA 366.
23 See Watney (1992) LLD thesis.
24 See Bekker (1989) 81.
25 Strydom (1985) 8; Olivier et al (1995) 50.
26 Mpungose v Zulu 1981 AC 50 (NE). See also Mofokeng (2009) 81.
27 Myburgh (1985) 89–90.
126 Introduction to Legal Pluralism in South Africa
6.3.2 Inheritance
Traditionally, it was generally accepted that the principle of male primogeniture, then applicable
to succession in customary law, applied equally to the inheritance of property.34 This principle
implied that the oldest surviving male relative of the deceased succeeded the deceased and
inherited all his property. Such successor also became liable for the debts of the deceased,
irrespective of how much he inherited.35
Such successor or heir was also responsible for the maintenance of the widow(s) and children
of the deceased. These rights and responsibilities have been described as follows:
The heir steps into the shoes of his predecessor and inherits all the latter’s rights and liabilities past, present
36
and potential, in respect of the family and property of the house of which he is the heir.
Although this might have been the position in original customary law, the current position holds
that, subsequent to the death of a person, the distribution of his or her property is determined at a
family group meeting specifically called for this purpose. The oldest surviving male (usually the
oldest son of the deceased) plays a significant role in determining the portions to be inherited by
the other heirs. Any kind of property may be acquired by means of inheritance in terms of
customary law.
During his or her lifetime, a person may also indicate that a specific property which belongs
to him or her will be obtained by another person after his or her death. The property so indicated
________________________
is regarded as a donation.37 Ownership of such property will be acquired only upon the death of
the person making the donation. Before the owner’s death, the person to whom the donation will
be made acquires only a special interest in such property and the owner is not obliged to transfer
it to him or her.38
Following the commencement of the Constitution, the rules of male primogeniture have been
declared unconstitutional.39 Presently these matters are dealt with in the Reform of Customary
Law of Succession and Regulations of Related Matters Act,40 discussed in detail below. 41
6.3.3 Marriage
In customary law property and marriages are inter-linked.42 This means that marriage generally
provides access to property, both in relation to movable and immovable property. In this regard
the inter-connectedness emerges at various points in time: before the marriage is concluded as
forming part of the marriage negotiations, during the existence of the marriage with regard to
proprietary regimes and after a marriage had been terminated, either by divorce or death. Enter-
ing into a polygynous marriage, especially after the commencement of the Recognition of Cus-
tomary Marriages Act,43 also has particular proprietary requirements and consequences for par-
ties involved.
Marriage in African tradition in South Africa is characterised by the transfer of goods between
the families of the prospective spouses. The most important transaction that precedes a marriage
is the lobolo contract.44 This transaction involves an agreement for the transfer of goods by the
prospective husband represented by his family head to the family head of the prospective wife.
Ownership of such goods passes to the wife’s family head once the marriage is concluded.
Lobolo is defined in the Recognition of Customary Marriages Act45 as follows:
. . . the property in cash or in kind, whether known as ilobolo, bogadi, bohali, xuma, lumalo, thaka, magadi,
emabheka or by any other name, which a prospective husband or the head of his family undertakes to give
the head of the prospective wife’s family in consideration of a customary marriage.
From the definition, it appears that lobolo is given only in respect of customary marriages.
However, in practice, this is often also the position with regard to civil marriages. Traditionally,
lobolo is given to the woman’s family head, but, upon consummation of the marriage, it be-
comes the property of the house to which she belonged before marriage. Thus, ownership of
lobolo is acquired by the house and is regarded as house property.46 Schapera mentions that a
woman may be given cattle by her father on marriage. This kind of gift is known as ketéétso or
serotwana. A woman may also be given a head of cattle from the bogadi of her daughter.47
These kinds of gifts are connected with marriage and intended to be the personal property of the
woman to whom they have been given, as explained above.
The inkomo yobisi and ubulunga cattle are also associated with marriage. Among the Zulu, at
the time of the marriage ceremony, the wife’s father may give her a head of cattle known as
________________________
inkomo yobisi. This is intended to provide sustenance for her and her children.48 She may also be
given another head of cattle by her father and other family members known as ubulunga.49
Another gift associated with marriage is the ngquthu head of cattle. This is given to a woman
when her daughter gets married or is seduced. It is defined as:
A beast which is payable by the husband or seducer as the case may be, to a woman or to the house to which
she belongs, upon the entrance into a customary marriage or civil marriage or the seduction of her daugh-
50
ter.
Traditionally, gifts associated with marriage consisted of livestock in the form of cattle, sheep,
horses or goats. At present, they may be of various kinds. They may be given in the form of
money, furniture, motor vehicles and even houses, depending on the wealth of the families
involved. Upon marriage, goods may also be donated to the husband by his family and family
friends.
The commencement of the Recognition of Customary Marriages Act51 has also resulted in
particular proprietary consequences connected to customary marriages, which are dealt with in
more detail in the chapter dealing with marriage law.52 While the customary marriage is in
existence, section 6 of the Recognition of Customary Marriages Act53 provides that:
A wife in a customary marriage has, on the basis of equality with her husband and subject to the property
system governing the marriage, full status and capacity, including the capacity to acquire assets and to dis-
pose of them, to enter into contracts and to litigate, in addition to any rights and powers that she might have
at customary law.
Unfortunately, the impact of section 6 of the Recognition of Customary Marriages Act was
somewhat negated by section 7(1) of the same Act by providing that the proprietary conse-
quences of persons who entered into customary marriages before the commencement of the
Recognition Act in 2000 were still governed by customary law. Although women had certain
rights in relation to property in general and land in particular, the equal status in marriages in
relation to property was not realised in practice. The dominance of men and the role of patriar-
chy in this regard were perpetuated in the formulation of section 7(1).54 This issue with respect
to monogamous marriages has since been addressed in the Gumede case, discussed in more
detail in the chapter dealing with marriage law.55 As it was found to be unconstitutional, section
7(1) of the Recognition Act was repealed, thereby removing the divide regarding proprietary
consequences of persons married before and after the commencement of the Act.
Concluding a polygynous marriage has further proprietary consequences for both the existing
(first) wife and the woman with whom a further marriage is concluded. While section 7(6) of the
Recognition of Customary Marriages Act56 provides that a contract has to be concluded before a
polygynous marriage is entered into which sets out the future proprietary regime, the conse-
quences of non-compliance were unclear. After protracted litigation it was decided in Mayelane
v Ngwenyama and Minister for Home Affairs57 that in this particular case, due to the Tsonga
customary requirements, the consent of the first wife had to have been secured before the second
marriage could have been concluded lawfully. Therefore the second marriage was found to be
________________________
invalid. Himonga and Pope58 explain that the judgment has serious implications for the compet-
ing rights of women with regard to their access to different resources gained through marriage,
including proprietary resources. By requiring the first wife’s consent for the second marriage to
be valid, her rights to the material and other resources of the marriage were protected. However,
the second wife was clearly disadvantaged as her marriage was invalidated and her proprietary
and other interests left unprotected. This result is disconcerting as the second wife has no control
over (a) the registration of the first customary marriage; and (b) the conclusion of the required
contract. Accordingly, there is no reliable way a woman, who considers entering into a custom-
ary law marriage, can inform herself about the existence or not of a customary marriage. This
and other issues connected herewith are explored further in the chapter dealing with marriages.59
Following the termination of a customary marriage proprietary consequences again emerge,
coupled with succession and the law of inheritance. See for more detail the chapters dealing with
marriage and law of succession respectively.
As marriages have the potential to provide access to property for parties involved, as ex-
plained, it also means that less access is achieved when fewer marriages are concluded. Recent
research indicates that overall, fewer African women are concluding marriages than ever be-
fore.60 Underlying this phenomenon are various considerations, including social changes, chang-
es in attitudes to marriage, financial constraints to conclude valid customary marriages (for
example full bride wealth) and subsistence grants that remove the necessity to get married in
order to provide for dependents. Consequently, other ways to generally gain access to property
and land in particular have to be explored.61 See in this regard also the discussion at 6.4.4.5.
58 Himonga and Popo “Mayelane v Ngwenyama and Minister for Home Affairs: a reflection on wider implica-
tions” in Claassens and Smythe (eds) (2013) 318.
59 See ch 5.
60 See especially Posel and Rudwick “Changing patterns of marriage and co-habitation in South Africa” in
Claassens and Smythe (eds) (2013) 169.
61 Budlender “Women, marriage and land: findings from a three-site survey” in Claassens and Smythe (eds)
(2013) 28.
62 See Van der Walt and Pienaar (2009) ch 8.
63 Van der Walt and Pienaar (2009) ch 9.
64 Section 1 of Act 16 of 1995 and Proc R151 of 1987.
65 See Bekker (1989) 340; Schapera (1955) 247.
66 Schapera (1955) 217.
130 Introduction to Legal Pluralism in South Africa
6.4 Land
6.4.1 Introduction
Land tenure encapsulates rights in relation to land, involving inter alia, the acquisition, exercise
and loss of property rights. To that end, land, as object of property rights and an integral compo-
nent in customary way of life, is dealt with here in particular. In this regard two contexts
emerge: traditional customary land tenure on the one hand and the vesting of rights in land
belonging to other persons (registered owners) by individuals or families who invariably live in
accordance with customary law, on the other. While the first context relates to traditional cus-
tomary land tenure, usually referred to as communal land tenure,67 the second context does not,
strictly speaking, relate to communal land, but usually impacts on land in commercial agricul-
tural areas. However, as the latter context invariably resonates with persons who live in accord-
ance with customary law, some discussion of this context is also warranted here. Both these
contexts have undergone reform and adjustment following the commencement of the Constitu-
tion.
Before the various tenure reforms are explored in more detail below, a brief historical back-
ground to communal land in South Africa is provided. In this regard the various legislative
measures as well as the different forms of tenure and the complexities connected there with, are
alluded to. In light of the historical background, traditional customary tenure and its specific
characteristics and mechanics are furthermore discussed. Due to the commencement of the
Constitution in general and the land reform programme in particular, various tenure reforms
have also been embarked upon, while some other reforms are still in the pipeline. Recent devel-
opments within this arena are accordingly set out at 6.4.4. Interestingly, despite statutory land
measures being promulgated to effect tenure reform, important reform has occurred outside
these measures as well. Consequently, “spontaneous” reform, initiated under the Constitution
itself, is also alluded to. Furthermore, in light of the fact that persons living in accordance with
customary law invariably reside and work on land belonging to someone else, thereby vesting
rights in land, references to the Extension of Security of Tenure Act68 and the Land Reform
(Labour Tenants) Act69 conclude the discussion on land.
67 Though “communal” is also often equated to “traditional” customary tenure, Cousins points out that it is not
always accurate due to the many socio-economic and other colonial influences that had changed the inher-
ent traditional element thereof – see Cousins “Potential pitfalls of ‘communal’ land tenure reform experi-
ence in Africa and implications for South Africa” in World Bank (2009) 1.
68 62 of 1997.
69 3 of 1996.
70 See generally Pienaar (2014) ch 3.
71 27 of 1913. Later renamed the Black Land Act.
Chapter 6: Law of Property 131
on a national scale, for the first time. The land reserved by this Act for the exclusive occupation
and ownership of African persons is listed in a Schedule to the Act and became known as sched-
uled areas.
The scheduled areas were, however, inadequate. After prolonged debate the Native Trust and
Land Act72 was enacted, providing for land bordering on the scheduled areas to be made availa-
ble in addition to the scheduled areas. These newly added areas were referred to as “released
areas”. The scheduled and released areas were used to comprise the ultimate size of the African
areas, which, according to the two Acts, formed approximately 13,7% of the total land area of
the country. These areas eventually became “homelands” (“national states”)73 and “self-
governing territories”.74 While ten areas overall were identified, they were not once-off, clear-
cut geographical areas, as land was continuously added and taken away. For example, in the
Eastern Cape, the Herchel and Glen Grey districts were taken from Ciskei and added to Trans-
kei. Bophuthatswana, on the other hand, consisted of various portions of land scattered over a
vast area. In many instances, land was purchased without ever being incorporated into any
homeland. Remnants of these former homelands and territories are found in present-day South
Africa in all of the provinces except in the Northern Cape, Western Cape and Gauteng. For
purposes of granting security of tenure, these “traditional areas” are generally defined as com-
munal land, elaborated on in more detail below.
Quitrent: A quitrent right is a real right that was registrable if the land, in relation to which it
was granted, was surveyed. 79 This right empowered the quitrenter to occupy the land against
payment of a fixed rent. The state/grantor still remained the owner of the land. Transfer could
occur only with the permission of the relevant official or by way of inheritance according to a
prescribed table of succession until the latter was repealed. The land could be utilised as security
for a loan, and the right was subject to suspension and cancellation.
Deeds of grant with regard to “ownership units”: These deeds related to towns within the
self-governing territories and South African Development Trust Land. The deeds were issued by
the relevant township authorities. As the rights related to surveyed land and were registered,
deeds of grant constituted strong limited real rights. They were alienable, inheritable and could
be burdened with limited real rights. On South African Development Trust Land they could also
be converted into ownership by opening and formalising a township register.
Variety of permits: A variety of permits relating mainly to towns within the self-governing
territories and land held in trust by the South African Development Trust.80 Permits included the
following: lodgers’, building and trading permits.
The diverse set of tenure and land control forms did not originate from one single legislative
measure. Instead, the grid of measures resulted from various statutes and sub-ordinate legisla-
tion, the most important being:
Black Administration Act 38 of 1927: This Act consolidated pre-Union and several Union
laws on the separate administration of African persons. The Act has been repealed piece by
piece since the homeland era so that only bits and pieces would remain intact until the end of
December 2012.81 It is important to note, however, that although section 25 of the Act was
already repealed in 1991,82 secondary provisions enacted under section 25 remained intact. In
relation to land, these secondary provisions include, amongst others, Proclamation R188 of
196983 and Proclamation R293 of 1962.84
Proclamations: In terms of section 25 of the Black Administration Act, the president had vir-
tually unlimited powers to legislate in respect of African persons and so-called “black areas” by
proclamation. Regulations could, likewise, be made in terms of section 48 of the Development
Trust and Land Act.85 The Abolition of Racially Based Land Measures Act86 provided that those
regulations remain in force until repealed under section 87 of that Act or by a competent authori-
ty. In terms of section 87(4), the president could repeal or amend these proclamations and
government notices until 31 December 1994. The president has exercised this power in a few
cases only. Therefore, the proclamations for the most part remain in force, although evidence
suggests that many are no longer applied.
Former homeland laws: Some former homeland laws still apply. Some such laws substituted
national legislation that was in force at the time of their enactment, and some repealed or
amended the proclamations and regulations referred to above. Apart from determining their
current legal status, it is difficult to find the laws. They were originally supposed to have been
lodged with the high court having jurisdiction in the area. Research has revealed that the high
courts’ collections are not complete. They will, in due course, be repealed.
________________________
Assigned or delegated laws: All of the above-mentioned legislative measures functioned with-
in a substantial legal framework relating to spatial planning, survey, deeds registries and land
use management. With the new political dispensation, some, probably most, of these laws were
assigned or delegated to the provinces. Laws that were delegated pose no problems, as the
delegations can, where necessary, be withdrawn. Laws assigned to the provinces fall within the
sphere of their competence, and provisions in respect of which provinces have legislative com-
petence can be repealed by those provinces only. Although provinces do not have legislative
competence in respect of land matters, the laws do not deal with land matters only. Therefore, the
rather un-coordinated approach to land matters continued for some time, following the new politi-
cal dispensation. With regard to land use, spatial planning and development the new Spatial
Planning and Land Use Management Act 16 of 2013 aims to bring all land-related planning and
management issues under one overarching measure. While the Act has a clear transformative thrust
that would also impact on access to land and tenure security, transitional provisions87 mean that the
full effect of the Act will not be experienced immediately. To that end some degree of diversity
may still continue for some time, also having an impact on traditional areas.
Accordingly, the conclusion may be reached that a diverse system of land control measures,
differing from area to area and disparate in relation to content, scope and impact, was operative
when a constitutional dispensation dawned in April 1994. While important developments have
occurred following the implementation of the land reform programme specifically, as explored
in more detail below, a degree of diversity and complexity has remained and will in all probabil-
ity continue for some time yet.
87 Section 60.
88 Mostert and Pope (eds) (2010) 107–108.
89 Claassens “Women, customary law and discrimination: the impact of the Communal Land Rights Act” in
Murray and O’Sullivan (eds) (2005) 43.
90 See Cousins (2005) Stell LR 500–501.
134 Introduction to Legal Pluralism in South Africa
• The relevant rights are derived from accepted membership of a social unit, usually acquired
by birth, affiliation, allegiance and transactions;
• Social, political and resource-use boundaries are clear but flexible and adaptable;
• The balance of power between gender, competing communities, rights-holders, land admin-
istration authorities and traditional communities are flexible; and
• The inherent flexibility and negotiability of land tenure rights embodies potential of ever-
changing and adapting to new needs and demands.
As land rights are linked with community and belonging, “community” is an essential compo-
nent in landholding. While being difficult to define due to, inter alia, fluctuation of members
and culturally-specific characteristics, the legislature has defined it to mean the following for
purposes of the Communal Land Rights Act 11 of 2004, namely a group of persons whose rights
to land were derived from shared rules determining access to land held in common by such
group.91 In this light a community could also include a family or household.
Communal land intrinsically has two dimensions, alluded to above: the communal dimension
in relation to the community as a whole and the individual dimension in relation to individuals
(or families) within the community. Some rights are thus linked to the community as a whole,
whereas other rights are devolved to individuals or families. The communal territory consists of:
(a) portions for residential purposes;
(b) portions for cultivation; and
(c) the remaining area, reserved for grazing and for extending the agricultural and residential
portions.
Accordingly, integral to traditional customary land rights are (a) the basic features listed above,
of which embeddedness is arguably the most prominent feature; (b) the element of community;
and (c) the two dimensions encapsulating an individual and communal dimension. The actual
mechanics of customary land tenure and what it entails, as well as how it functions, will be
discussed below.
91 This same definition is also employed in s 1 of the Restitution of Land Rights Act 22 of 1994 which
explains what a community entails for purposes of the restitution programme.
92 Bennett and Murray “Traditional leaders” in Woolman et al (eds) (2009) 26–57–58.
93 Bennett (2004) 390–399.
94 Bennett (2004) 399–409.
Chapter 6: Law of Property 135
subordinate communities and admits or excludes strangers.95 Ordinarily, his control means that
he allocates a certain area – usually not sharply defined – as communal land for legal communi-
ties next in status, for example the wards among the Tswana.96 The head of the subordinate legal
community has control over the communal land allocated to the legal community concerned.97
The traditional leader can deprive a member of the community of land allocated to the latter as
residential or arable land if it is to the advantage of the community or if he himself, as an organ
of the community, needs it.98 The exact scope of a traditional leader’s role will possibly differ in
detail from community to community. In an attempt to understand and explain customary com-
munal land as a legal phenomenon, academics and authors have opted for Western-style or civil-
law terminology. The exact role of the traditional leader has especially been difficult to pinpoint
within this context. Accordingly, terms such as “ownership”, “vest” and “trust” have been
employed in this regard. In some sources, it is stated that the traditional leader is the owner of
the land and can do with it as he pleases.99 Similar to this point of view is the statement that “the
land is vested in the chief, in trust for his people”. Unfortunately, these terms do not really
convey the true meaning of the elements or complexities involved. Bennett suggests that con-
cepts such as “interest”, “power” and “right” are more useful for understanding customary ten-
ure.100 He furthermore underlines that rights-holders and authorities are bound by powerful
obligations and responsibilities within this system of complementary interests held simultane-
ously. 101
The communal land occupied by or allotted to a particular community is demarcated by vari-
ous natural objects, and not by boundary beacons. Natural things such as rivers, dongas, stones,
trees and anthills serve as suitable objects to indicate the limits of the communal land. While
flexible boundaries are also a strength of communal tenure and one of its outstanding features, it
can give rise to disputes and pose particular challenges for official deeds and recording systems.
The traditional allotment of land to male family heads has brought the debate concerning
women’s rights in property, in general and in relation to land in particular, to the fore. However,
among the African people of South Africa, married women have always been allotted land, as
part of house property, to cultivate and for residential purposes. The general principle is what-
ever land has been allotted to her husband belongs to her house and has to be used exclusively
for the benefit of such house. Schapera102 described this position as follows:
No matter how many fields a man has, he must set aside at least one for the special use of his wife. This field
will be inherited after her death by her own children. Her husband, if he then marries again, must find anoth-
er field for his new wife, although she may at first be allowed to cultivate that of her predecessor. So, too, in
a polygamous household every wife is entitled to her own field. A field set aside for the use of a wife is
known among the Kgatla as tshimo yha lapa (‘house’ field) and among the Ngwato as tshimo ya mosadi (the
wife’s field). Its crops belong to the woman to whom it is allocated; and neither they nor the field itself may
be used by anyone else without her permission. Many men of rank and wealth also have one or more masimo
a kgotla (Kgatla) or masimo a monna (Ngwato), common household fields, as distinguished from the fields
set aside for a wife’s private use.
________________________
Nowadays, for a variety of reasons, land is increasingly allocated to unmarried and divorced
women as well.103 Although these allocations are usually in relation to women as heads of
households, the extent of these new developments appears to differ from community to commu-
nity.104 Although women have always had access to land, they now also have complete control
of the land allotted in the same way as men. It can thus be argued that at least formally, especial-
ly after the commencement of the Constitution, the discrimination that existed in this respect has
been terminated. However, in reality, women still face many problems relating to property,
especially in rural areas.105
As regards unmarried major women, section 9 of the Recognition of Customary Marriages
Act106 becomes relevant. As it states beyond doubt that “[d]espite the rules of customary law, the
age of majority of any person is determined in accordance with the Age of Majority Act, 1972
(Act No 57 of 1972)”, it may be argued that unmarried women have the same rights in relation
to communal land.
While some developments had occurred within the arenas of marriage and succession, thereby
impacting on property and land generally, specific tenure reform endeavours have also been
embarked upon post-Constitution. These developments, aimed at customary land rights in
particular, are explored in more detail below.
103 Claassens and Ngubane “Communal Land Rights Act” in Claassens and Cousins (eds) Land, power and
custom: Controversies generated by South Africa’s Communal Land Rights Act (2008) at 154. See also
generally Budlender “Women, marriage and land: findings of a three-site survey in Claassens and Smythe
Marriage, land and custom (eds) (2013) 28–48.
104 Cousins “Characterising ‘communal’ tenure: Nested systems and flexible boundaries” in Claassens and
Cousins (eds) Land, power and custom: Controversies generated by South Africa’s Communal Land Rights
Act (2008) at 120.
105 Claassens and Ngubane “Communal Land Rights Act” in Claassens and Cousins (eds) Land, power and
custom: Controversies generated by South Africa’s Communal Land Rights Act (2008) at 156–157.
106 120 of 1998.
107 See Pienaar (2014) – ch 7: redistribution, ch 8: tenure reform and ch 9: restitution.
108 Section 2 provides that communities or parts of communities may also lodge land claims where land or
rights in land were lost as a result of racially discriminatory laws or practice. Where such land claims have
been successful, land is usually restored on condition that a communal property association, a juristic per-
son, is formed. Essentially that means that the legal basis of land holding had been adjusted once the claim
was successful and that “traditional” customary tenure is not relevant any more.
109 April 1997.
110 White Paper vi.
Chapter 6: Law of Property 137
available to the people living in communal land areas are largely based on customary law or on
insecure permits granted under laws that were applied exclusively to Africans. Apart from the
fact that numerous legislative measures gave rise to these diverse kinds of rights, as set out in
6.4.2.2, the kind of rights that emerged did not encompass real or limited real rights with con-
comitant force. The holders of such rights could generally not use them to enter the financial
market, for example, as security for loans in order to farm or develop the land. In addition to the
consideration of accessing financial resources, tenure security would also promote protection
against eviction, recognise de facto rights and incorporate and promote gender equality. Essen-
tially, the tenure reform programme seeks to reverse the historical legacy of colonialism and
apartheid by strengthening the land tenure rights of the people living in, amongst other, commu-
nal land areas, giving these land tenure rights the full protection of the law. In cases where the
securitisation of rights was not possible, equitable redress was provided for.111
In this light various developments occurred post-1994.112 Altering the basis of land ownership
in line with constitutional imperatives of equality and dignity, while still encapsulating the
communal spirit, communal property associations were introduced as new juristic constructs
under the Communal Property Associations Act 28 of 1996. This mechanism enabled communi-
ties to hold land on a new legal basis. The Communal Land Rights Act 11 of 2004 was drafted
specifically to embody the aims of tenure reform focused in relation to communal land. Most of
this land is registered in the name of the state or is held in trust, either by the Minister of Rural
Development and Land Reform or the Ingonyama Trust in KwaZulu-Natal.113 This Act was found
to be unconstitutional, elaborated on in more detail below. In 2009 the Department of Land Affairs
was restructured and has since functioned as the Department of Rural Development and Land
Reform. In this regard greater synergy between rural development and land reform, both impacting
in particular on traditional areas and communal land, was envisaged. Since the unconstitutionality
finding of the Communal Land Rights Act in 2010 the Green Paper on Land Reform was pub-
lished in September 2011. Conditions in the former homelands and self-governing territories have
also featured rather prominently in the National Development Plan of 2012. To that end greater
focus on rural areas comprising traditional areas and communal land, including legislative
measures and overarching policy, was expected.
from pre-constitutional legislative measures and recognised by law, including customary law,
practice or usage.114 Although the Act provided that such an insecure right “[was] legally se-
cured in terms of section 4”, the securitisation process did not take place automatically. Instead,
“new order rights” would come into play only once the procedure set out in the Act had been
completed. A “new order right” was a tenure right or other right in communal land or other land
which had been confirmed, converted, conferred or validated by the Minister of Rural Develop-
ment and Land Reform.115
6.4.4.2.2 Measures to achieve objectives
The Communal Land Rights Act contained elaborate provisions to achieve its objectives, mainly
in regard to:
• the transfer and registration of communal land (chapter 3);
• the provision of comparable redress where tenure cannot be legally secured (chapter 4);
• the conduct of land rights enquiries (chapter 5);
• the content, making and registration of community rules (chapter 6);
• land administration committees (chapter 7);
• Land rights board (chapter 8); and
• Ingonyama Trust Land in KwaZulu-Natal (chapter 9).
6.4.4.2.3 Constitutional challenge
Various authors have been critical about certain aspects of the Communal Land Rights Act, even
before it officially passed through Parliament.116 In summary, the main representations deal with
the questionability of supporting and propagating a land titling scheme linked with registration,
as set out in the Act, complaints that the term “community” is vague, that the Act does not
acknowledge and reflect the “nested” system of land rights inherent in traditional customary
communities, that employing traditional councils to act as land administration committees will
entrench patriarchy and existing power relations, that the nature and content of “new order
rights” are not clearly defined and that the Minister has wide-ranging powers in determining the
outcome of “old order rights” without criteria guiding the Minister in the exercise of these
discretions and powers.
In light of these objections and criticism, a formal constitutional challenge was lodged by four
communities in October 2008 in the Northern Gauteng High Court resulting in an unconstitu-
tionality finding.117 As required, the case was referred to the Constitutional Court. At the hear-
ing, the Minister of Rural Development and Land Reform indicated that the Communal Land
Rights Act stood to be repealed in its entirety and that an in-depth investigation into the constitu-
tionality thereof was unnecessary. However, on 11 May 2010, the Constitutional Court handed
down a judgment in Tongoane v The National Minister of Agriculture and Land Affairs118 per
Ngcobo CJ in which the order of the High Court was confirmed.119 As the Act was found to be
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114 Section 1.
115 Section 1.
116 Mostert and Pienaar “Formalisation of South African communal land title and its impact on development”
in Cooke (ed) (2005) 320–321; Cousins “Characterising ‘communal’ tenure: nested systems and flexible
boundaries” in Claassens and Cousins (eds) (2008) 15–28; Smith “An overview of the Communal Land
Rights Act 11 of 2004” in Claassens and Cousins (eds) (2008) 67–69; Pienaar (2004) THRHR 244–263.
117 Tongoane v The National Minister of Agriculture and Land Affairs [2010] JOL 25446 (GNP).
118 [2010] JOL 25446 (GNP).
119 Tongoane v the Minister of Agriculture and Land Affairs 2010 JDR 0539 (CC). (In the meantime the
Department of Land Affairs and Agriculture have been restructured and is now referred to as the Depart-
ment of Rural Development and Land Reform.)
Chapter 6: Law of Property 139
unconstitutional due to its incorrect tagging (referring to the legislative process)120 and in light of
the Minister’s statement that the Act was to be repealed in any event, the Constitutional Court
refrained from an analysis of substantial issues, some of which were raised in the High Court
proceedings. Concerns that the approach followed in the Act and the institutions and bodies
employed in securing title were problematic and in direct conflict with the constitutional ideals
of equality and tenure security were thus not dealt with.
Being an Act that also impacted on provincial matters, more particularly on customary-law
issues, the Communal Land Rights Act ought to have followed the procedure set out in sec-
tion 76 of the Constitution. Instead, it was tagged as a section 75 Act and, therefore, its passage
through Parliament was incorrect. On this basis alone, the Act was found to be unconstitutional.121
6.4.4.6 Conclusion
Despite having a constitutionally-embedded land reform programme that is aimed at the promo-
tion of greater access to land and tenure security, legislative measures promulgated to achieve
these specific objectives have not been very successful to date. Instead, the Communal Land
Rights Act had been declared unconstitutional and policy measures dealing with communal land
in particular are still lacking. Accordingly, land held in communal tenure is still under diverse
land control forms, depending on the location of the land and the particular relevant legislative
measures. In this regard the tenure can be traditional communal, amended communal (by way of
legislative interventions), individual or trust tenure. Interestingly, where reforms have occurred,
these have flourished outside land reform measures promulgated for these purposes, though
under the auspices of the Constitution.
entitled to the right to family life in accordance with their cultural background,142 balanced with
143
the rights and interests of the land owner.
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