Acta Juridica - Volume 2011, Issue 1, 2011
Volume 2011, Issue 1, 2011
Source: Acta Juridica 2011, pp 1 –22 (2011)More Less
With land, the single most serious problem - one that is experienced on a global scale - is the need for a finite resource to be shared by an ever increasing number of people. Because land is a crucial means for production and accessing shelter, it must be regulated in order to serve the interests of a rapidly diversifying user base. Existing theories about the function of property within communities of users are not always adequate to explain the realities of these demands.
Author Helen ScottSource: Acta Juridica 2011, pp 23 –34 (2011)More Less
An absolute concept of ownership implies among other things a complete divorce between factual holding and legal title; further, that ownership is a unique or singular form of entitlement. However, closer examination reveals that the theory of absolute title fails to match the realities of Roman legal practice. First, the difficulty of proving ownership in a legal order which lacked not only a system of land registration but also any adequate writing technology shows that Roman law must have worked in practice with a system of presumptive title. This brought possession and ownership into much closer alignment than is usually supposed. Second, the traditional picture of Roman ownership as a unique species of entitlement likewise proves on closer examination to be unconvincing. A species of praetorian (bonitary) ownership was created when a civil-law owner transferred a res mancipi without the requisite Roman procedure (mancipatio), using instead the traditio (simple delivery) of the ius naturale. Peregrines (non-Romans) appear to have enjoyed a species of title analogous to dominium, enforced by a fictitious vindicatio. Finally, while provincial land was technically owned either by the populus (state) or the Emperor, from early on it began to be held by private individuals who enjoyed a form of effective ownership. Thus it appears that the conception of Roman ownership as absolute in the sense of abstract and singular is a modern invention, primarily the creation of nineteenth-century German scholarship. It remains possible to reach back beyond this monolithic conception to a more flexible version of Roman dominium.
Legal pluralism in Africa : the implications of state recognition of customary laws illustrated from the field of land lawAuthor Gordon WoodmanSource: Acta Juridica 2011, pp 35 –58 (2011)More Less
Living customary laws, generally observed by the populations of African states, are derived from customary laws observed before the colonial period, but developed and adapted to current circumstances. The laws observed in the institutions of the modern state are based on the legal institutions and norms of the colonial powers, but give some 'recognition' to the customary laws. This policy of recognition is often accepted today as jurisprudentially sound and socially realistic, but it poses the following challenges to the administrators of state law in the current circumstances of legal pluralism in Africa. The ascertainment of the content of the various customary laws entails difficulties which neither codification nor restatements of customary law remove. The forms of the customary laws are such that large parts cannot be applied in state institutions without radical revision. Recognition is required on policy grounds to be withheld from some portions of customary laws, and this distorts the remainder. Finally, choice of law rules need to be developed to determine when a customary law, or received law, is to be applied. These difficulties have implications for policies on the basic designs of legal pluralism in Africa.
Author E.S. NwaucheSource: Acta Juridica 2011, pp 59 –82 (2011)More Less
One of the challenges of legal pluralism in any country including Nigeria is the question of choice of law. When two normative systems of law exist in a state it is often difficult to determine which law applies to an individual or a transaction because of the potential that two normative systems may be applicable. Choice of law rules, enacted by the legislature or developed by the judiciary, therefore seek to define the criteria by which a decision is reached as to which of the contending systems of law is applicable in a way that appears reasonable. Generally choice of law rules have used the personal law of the parties to a transaction depending on their race, the law of the area where the subject matter such as land is located, the law of the area where the court is located, and the intention of the parties to a transaction to determine the applicable law.
With respect to land in Nigeria the general rule is that it is the law of the place where the land is situated that applies to transactions involving customary land. However, in some cases it would appear that the legal system would countenance a change to this general rule and recognise the intention of the parties as governing the transaction. Thus, Nigerian citizens seek to change the general rule of the operation of the lex situs by deploying the procedural and substantive content of another normative field in order to achieve a result in that normative field and thereby render the general rule inapplicable. In many cases these acts and omissions arise from the perceived advantages of one normative field over the other especially with regard to title and tenure which ultimately affect access to land. In this form of normative shopping, it should be noted that individuals are in search of what they consider to be just and reasonable. This paper critically examines how the Nigerian judiciary has evaluated four instances of the recourse by Nigerians to one normative field in order to ensure that transactions concerning land are governed by that field and not by the general rule.
The changing dynamics of customary land tenure : women's access to and control over land in BotswanaAuthor Anne GriffithsSource: Acta Juridica 2011, pp 83 –113 (2011)More Less
This contribution examines women's access to and control over land in Botswana. It explores the dynamics creating a transformation in women's relationship to land that have come about over time. These include better education and formal- and informal-sector employment that have enabled some women to be more proactive, along with a shift in social attitudes towards the role of women in society. The article highlights the importance of family networks in promoting women's acquisition, development and control of land, revealing diverging trajectories based on family - or genealogical histories that reflect processes of social stratification within the country.
Taking the gap - 'Living law land grabbing' in the context of customary succession laws in Southern AfricaAuthor Chuma HimongaSource: Acta Juridica 2011, pp 114 –139 (2011)More Less
This paper explores the interface between state and non-state family-based ways of accessing inheritable land in Southern Africa. It argues that the privatisation and individualisation of rights in land through state succession laws consisting of 'official customary law' and legislation enacted to reform customary law contribute to the phenomenon of 'living law land grabbing.' This phenomenon takes advantage of, and operates within, the gaps that are created by the state legal system. Thus, the gaps in the state legal system become the avenues by which relatives of deceased persons who are excluded from inheritance by the individualisation of land rights 'grab' inheritable land from the heirs under state law. This 'property grabbing' takes place against the backdrop of conflicting customary law and Western law concepts of succession and inheritance.
Securing women's property inheritance in the context of plurality : negotiations of law and authority in Mbuzini customary courts and beyondAuthor Sindiso Mnisi WeeksSource: Acta Juridica 2011, pp 140 –173 (2011)More Less
This contribution examines two sets of issues - law and dispute resolution, and succession and property - with a view to obtaining a better understanding of the ways in which rural women's property rights are negotiated, secured and threatened. These processes occur at the interfaces between different forms of law and authority. Rather than taking intra-family relations vis-à-vis succession as a focus of the study of local dispute resolution, this contribution takes an institutional perspective. It therefore asks: within the many, and volatile, laws and authorities under which rural women live their lives, how do they negotiate with local customary institutional actors in their attempts to secure recognition and respect for their rights in land, particularly as gained through succession? By necessity, it also asks the converse: given the many, and volatile, laws and authorities subject to which local customary institutional actors exercise their functions, how do they negotiate with other institutions and the community they serve in their attempts to secure legitimacy and authority over land and related disputes? I use a case study in Mbuzini to illustrate the complexities of law, authority, dispute resolution, property and succession - a widow accused of illegally redefining her property's boundaries. The result of this inquiry tells us less about women's inheritance as an event than it does about the landscape of contestation and power in which women endeavour to secure their land rights.
Contested power and apartheid tribal boundaries : the implications of 'living customary law' for indigenous accountability mechanismsAuthor Aninka ClaassensSource: Acta Juridica 2011, pp 174 –209 (2011)More Less
The interface between customary law and the formal legal system in South Africa has been the subject of much recent litigation in the South African Constitutional Court. This contribution describes and reflects on the opportunities created by the emerging jurisprudence of 'living customary law' for asserting and protecting customary entitlements to land in the face of controversial new laws that bolster the authority of traditional leaders within fixed jurisdictional boundaries coinciding with the former 'homelands'. I examine the exclusionary effect of these boundaries (which determine both land and identity) on the more flexible and inclusive nature of the 'nested' boundaries typical of customary systems of law. I argue that the new laws attempt to outsource the governance of the poorest South Africans and, in so doing, undermine not only their citizenship rights but also indigenous accountability mechanisms which are inherent in living customary law. I contrast the contextual and purposive approach to issues of inequality and power adopted by the Court in pursuit of its stated transformative agenda with the bounded top-down view of customary law that informs the new traditional leadership laws. I argue that the 'living law' jurisprudence emerging from the Court is deeply embedded in its broader commitment to situate rights in the real-world context of unequal power relations. In addition I suggest that the Court's approach is fundamentally reshaping customary law, such that the new laws are bound to fall short of standards established in living customary law and the broader contextual and purposive approach advocated by the Court.
Author Rosalie KingwillSource: Acta Juridica 2011, pp 210 –237 (2011)More Less
Trends in the passage of long-held African freehold land indicate that customary concepts of property were adapted to Western property law in the form of 'family property', a concept permeating newly titled African land. African families tend to self-identify as 'kin', conventionally based on patrilineality with regard to land ownership. In spite of innovative informal adaptations to embrace the rights of women, there are many unresolved tensions regarding the future trajectory of formal property rights. Constitutional Court decisions, in suggesting a framework for modern customary intestate succession, have (tentatively) adopted common-law prescripts that concentrate rights in the conjugal family - a narrower band of potential heirs based on marriage - to protect the rights of women and children. How will emerging property law reconcile (a) diverging views about family identity; and (b) strongly held views that ownership is a corporate family responsibility rather than a vesting of proprietal rights in one or more registered owners?
Author Gerrit PienaarSource: Acta Juridica 2011, pp 238 –271 (2011)More Less
In South Africa two diverse property regimes exist alongside one another, namely the system of individualised, common-law landownership, predominantly based on civil-law principles, and the system of communal land tenure, predominantly based on the shared use of land by communities in terms of indigenous-law principles. Added to this is a registration system originally based on the Dutch land registration procedures, but modified in the nineteenth century through the introduction of English cadastral survey procedures linked to the registration system. Only individualised common-law landownership, co-ownership and limited real rights are registrable. The registration system does not provide for the registration of communal land rights, which has the effect that official information in respect of communal land tenure is currently unreliable.
The failure to provide tenure security for indigenous communities can be attributed to several factors, including a large incidence of dysfunctional communities; a defective, and often entirely absent, administrative system to support communities; the wrong kind of formalisation introduced by legislation, namely Westernised corporate models too far removed from accepted customs; the absence of the publicity principle; and the lack of a suitable information and recording system. The main aim of a formalised structure should not be the individualisation of communal land tenure in the form of freehold title, but the security offered by information (recording and publication) of communal land rights exercised within accepted community structures.
The existing deeds registration already provides for different forms of registration, namely individualised land rights in the case of surveyed land and urban fragmented property holding in the case of sectional titles and timesharing. This article explores the possibility of the development of a third form to record communal land rights in the name of communities, in accordance with the distinctive nature of community structures and communal land tenure. The aim of such a register should be the recording of use rights associated with communal land tenure, which will provide the necessary information (publication) for the development of a comprehensive land administration system that is lacking at this stage.
Author Johann SchillerSource: Acta Juridica 2011, pp 272 –284 (2011)More Less
The research in legal pluralism has traditionally focused on customary law. As a general theory, however, it lends itself to any normative area, irrespective of territory and content. Hence legal pluralism could also be a useful tool when engaging in complex projects such as investments in the exploration and exploitation of resources which affect the population in the area concerned. Moreover, legal pluralism helps to explain phenomena such as 'soft law' (eg in mergers and acquisitions) and the development of the lex mercatoria. This article explores the above by examining the Hydrocarbon Code of Morocco and selected rules from the social field of international commerce.
Promises of future performance and informal-sector transfers of personal property : the example of Anglophone CameroonAuthor Claire Moore DickersonSource: Acta Juridica 2011, pp 285 –307 (2011)More Less
The informal sector in Cameroon's anglophone regions reveals that business does function there, and that property is sold in commercial transactions, but that most transactions are simultaneous exchanges. Sophisticated formal business laws designed to facilitate the exchange of promises of future performance, even between strangers, do technically apply to these transactions. These formal laws, however, are not implemented deep in the informal sector and, consequently, fail to support informal-sector actors who seek the market-enhancing and capital-forming benefits of such promises. While further simplification of substantive contract law can make it easier to apply in the informal sector, enforcement remains a major obstacle to that law's effectiveness. Only when contract law is enforced in an inexpensive and reliable manner will informal-sector entrepreneurs be prepared to accept offers of future performance, thus significantly increasing the range of possible commercial transactions. In Cameroon's anglophone regions, one possible method of streamlining enforcement is through enhanced customary courts.
Author Anne PopeSource: Acta Juridica 2011, pp 308 –333 (2011)More Less
The property clause in the South African Constitution requires that legally insecure tenure of land must be made secure (s 25(6)). The Constitution also indicates that rights in customary law are protected (s 39(3)). The 1997 White Paper outlined various principles of land reform, including the objective of a 'unitary system of land rights'. On the face of it, secure tenure can be achieved statutorily. However, this approach raises many complexities, especially the inevitable consequence of undermining indigenous land rights, which flows from the fact that indigenous land rights are paradigmatically different from proprietary rights derived from Roman law but are currently recognised in South African law. The essence of property rights consists of an absolute notion of ownership, a deeds registration system and enforcement of real rights, dependent on surveying and subdivision of land into parcels; conveyancing of land transfer; and registration of ownership in a deeds registry. Indigenous land rights do not share this paradigm. To cause a paradigm shift for indigenous land rights in the quest to secure tenure of land is to institute a formal destruction of the very fabric of indigenous land rights. This paper explores why simply enacting legislation is probably the worst way to go about securing tenure. Rather, such a project requires excellent legal analysis of crucial technicalities and, simultaneously, ethnographic, historical and socio-economic information in considering whether, in fact, a unitary system of land rights is constitutionally feasible.