oa Fundamina : A Journal of Legal History - The more things change, the more they stay the same : the story of communal land tenure in South Africa
Through the ages land has always been a contentious issue. Even from the earliest Roman times those in power interfered with land ownership. In ancient times restrictions were placed, for example, on excessive luxury, whereas in the time of Justinian land tax was raised and unused land confiscated by the state. In the feudal era feudal lords disregarded their vassals and neglected their land in pursuit of their own pleasure. In England pastoralists were forced to become agriculturalists. Each country and each century have their own stories to tell.
South Africa is no exception. Land ownership is an emotional issue, especially in the context of its apartheid legacy. Land reform and stories of success and dismal failure have added a further dimension to the issue. Within this context the history of communal land tenure in South Africa and its unique story also has to be told.
According to Letsoalo, the concept of "communal land tenure" had been misunderstood during the centuries, and legislative interference has corrupted this notion even further. Some described communal land tenure as land belonging to the community with a traditional leader as trustee of the land, while others define it as land belonging to a traditional leader who could allocate land - sometimes referred to as "chiefly tenure"; or regard it as akin to feudalism.
With regard to the traditional concept of "communal land tenure", Letsoalo remarks that the traditional leader is seen as the ruler of the people and therefore also as the ruler of the land. He does not make decisions on his own but in consultation with the traditional council. On his marriage, a husband is allocated land for residential and agricultural purposes; he then owns the land "because the link between the land and the individual tribesman was stronger than the link between the land and the chief". Widows may also be allocated land. Unallocated land was used for grazing. However, there is also another form of communal land tenure that is sometimes overlooked, namely that of the pastoralists of the Northern Cape, a form recognised in the decision in Alexkor Limited v The Richtersveld Community and Others.
There are many versions of South Africa's land history and many perspectives to these histories. It is impossible to relate this history in full, even if one focuses only on the reform of land tenure. This contribution concerns communal land tenure in South Africa and the different stages of development it has undergone since colonial times. It does not pretend to be an exact history, but will provide a very brief overview of the story of the legislative interference with communal land tenure. It will do so in support of Thomas' premise that legal history was written yesterday, is still being written today, and will be written tomorrow. The contribution consists of two main parts, namely the developments that preceded the new political dispensation in 1994, followed by the occurrences after 1994 as embodied in the tenure reform programme within the communal land context.
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