African Indigenous Land Rights in a Private Ownership Paradigm

  • Elmien du Plessis University of Johannesburg
Keywords: , Indigenous law, African indigenous land rights, property rights, African indigenous land tenure, the commons

Abstract

It is often stated that indigenous law confers no property rights in land. Okoth-Ogenda reconceptualised indigenous land rights by debunking the myth that indigenous land rights systems are necessarily "communal" in nature, that "ownership" is collective and that the community as an entity makes collective decisions about the access and use of land.[1] He offers a different understanding of indigenous land rights systems by looking at the social order of communities that create "reciprocal rights and obligations that this binds together, and vests power in the community members over land". To determine who will be granted access to or exercise control over land and the resources, one needs to look at these rights and obligations and the performances that arise from them. This will leave only two distinct questions: who may have access to the land (and what type of access)[2] and who may control and manage the land resources on behalf of those who have access to it?[3]

 

There is a link with this reconceptualisation and the discourse of the commons. Ostrom's classification of goods leads to a definition of the commons (or common pool of resources) as "a class of resources for which exclusion is difficult and joint use involves subtractablity".[4] The questions this article wishes to answer are: would it firstly be possible to classify the indigenous land rights system as a commons, and secondly would it provide a useful analytical framework in which to solve the problem of securing land tenure in South Africa?

    

References

Bibliography

Allot 1961 Journal of African Law
Allot AN "Towards a definition of 'absolute ownership'" 1961 Journal of Afri-can Law 99-102

Badenhorst, Pienaar and Mostert Silberberg and Schoeman's The Law of Property
Badenhorst PJ, Pienaar JM and Mostert H Silberberg and Schoeman's The Law of Property 6th ed (LexisNexis Durban 2006)

Bennett Customary Law
Bennett TW Customary Law in South Africa (Juta Cape Town 2004)

CAPRi Resources, Rights and Cooperation
CAPRi Resources, Rights and Cooperation: A Sourcebook on Property Rights and Collective Action for Sustainable Development (International Food Policy Research Institute Washington DC 2010)

Chanock Land, Custom and Social Order
Chanock M Land, Custom and Social Order (Cambridge University Press Cambridge 1985)

Claassens 1993 SAJHR
Claassens A "Compensation for Expropriation: The Political and Economic Parameters of Market Value Compensation" 1993 SAJHR 422-427

Claasens and Cousins (eds) Land, Power and Custom
Claassens A and Cousins B (eds) Land, Power and Custom (UCT Press Cape Town 2008)

Cousins "Characterising 'Communal' Tenure"
Cousins B "Characterising 'Communal' Tenure: Nested Systems and Flexi-ble Boundaries" in Claassens A and Cousins B (eds) Land, Power and Cus-tom (UCT Press Cape Town 2008)

Cousins "Politics of Communal Tenure Reform"
Cousins B "The Politics of Communal Tenure Reform: A South African Case Study" in Anseeuw W and Alden C (eds) The Struggle Over Land in Africa (HRC Press Cape Town 2010)

Delius "Contested Terrain"
Delius P "Contested Terrain: Land Rights and Chiefly Power in Historical Perspective" in Claassens A and Cousins B (eds) Land, Power and Custom (UCT Press Cape Town 2008)

Du Plessis Introduction to Law
Du Plessis LM Introduction to Law 3rd ed (Juta Cape Town 1999)

Du Plessis and Pienaar 2010 Fundamina
Du Plessis W and Pienaar J "The more things change, the more they stay the same: the story of communal land tenure in South Africa" 2010 Fundamina 73-114

Feeny et al 1990 Human Ecology
Feeny D et al "The tragedy of the Commons: twenty-two years later" 1990 Human Ecology 1-4

Hardin 1968 Science
Hardin G "The tragedy of the commons" 1968 Science 1243-1248

Hess and Ostrom 2003 LCP
Hess C and Ostrom E "Ideas, artifacts, and facilities: information as a com-mon-pool resource" 2003 LCP 111-146

Kingwill "Custom-buidling Freehold Title"
Kingwill R "Custom-building Freehold Title: The Impact of Family Values on Historical Ownership in the Eastern Cape" in Claassens A and Cousins B (eds) Land, Power and Custom (UCT Press Cape Town 2008)

Pienaar "Land information"
Pienaar G "Land information as a tool for effective land administration and development" (Unpublished paper delivered at the Colloquium on Develop-ment, Pluralism and Access to Resources at the University of Cape Town 26-27 November 2010 Cape Town)

Pope "Indigenous law land rights"
Pope A "Indigenous law land rights: constitutional imperatives and proprie-tary paradoxes" (Unpublished paper delivered at the Colloquium on Devel-opment, Pluralism and Access to Resources at the University of Cape Town 26-27 November 2010 Cape Town)

Okoth-Ogendo 1989 Africa
Okoth-Ogendo HWO "Some issues of theory in the study of tenure relations in African agriculture" 1989 Africa: Journal of the International African Institute 6-17

Okoth-Ogendo "Nature of Land Rights"
Okoth-Ogendo HWO "The Nature of Land Rights Under Indigenous Law in Africa" in Claassens A and Cousins B (eds) Land, Power and Custom (UCT Press Cape Town 2008)

Rose 2009 Social Philosophy and Policy
Rose C "Liberty, property, environmentalism" 2009 Social Philosophy and Policy 1-25

Simpson 1961 Journal of African Law
Simpson SR "Towards a definition of 'absolute ownership' II" 1961 Journal of African Law 145-150

Singer Edges of the Field
Singer JW The Edges of the Field: Lessons on the Obligations of Ownership (Beacon Press Boston MA 2000)

Singer Entitlement
Singer JW Entitlement (Yale University Press New Haven 2000)

Register of legislation

Bantu Authorities Act 68 of 1951
Black Areas Land Regulations (Proclamation R.188 of 1969)
Black Communities Development Act 4 of 1984
Black Land Act 27 of 1913
Blacks (Urban Areas) Consolidation Act 25 of 1945
Communal Land Rights Act 11 of 2004
Glen Grey Act 25 of 1894 (C)
Group Areas Act 41 of 1950
Native Administration Act 38 of 1927
Natives (Urban Areas) Act 21 of 1923
South African Development Trust and Land Act 18 of 1936
South African Land Policy White Paper (1997)
Upgrading of Land Tenure Rights Act 112 of 1991

Register of court cases

Tongoane v Minister of Agriculture and Land Affairs 2010 6 SA 214 (CC)

Register of internet sources

Meinzen-Dick, Mwangi and Dohrn 2006 www.capri.cgiar.org
Meinzen-Dick R, Mwangi E and Dohrn S 2006 Securing the Commons www.capri.cgiar.org/pdf/polbrief_04.pdf [date of use 4 Dec 2009]

Okoth-Ogendo 2005 www.plaas.org.za
Okoth-Ogendo HWO 2005 The tragic African commons: A century of expro-priation, suppression and subversion - keynote address delivered at a work-shop on Public Interest Law and Community-Based Property Rights, PLAAS, 1-4 August 2005 www.plaas.org.za/pubs/op/occasional-paper-series/OP%2024.pdf/ [date of use 4 Dec 2009]

South African History Online Date Unknown www.sahistory.org.za
South African History Online Date Unknown The Homelands www.sahistory.org.za/special-features/homelands [date of use 4 Dec 2009]
Views
  • Abstract 162
  • PDF 133
  • XML 0
  • epub 4
Views and downloads are with effect from 11 January 2018
Published
2017-06-09
Section
Articles