n Acta Juridica - Indigenous-law land rights : constitutional imperatives and proprietary paradoxes

Volume 2011, Issue 1
  • ISSN : 0065-1346
  • E-ISSN: 1996-2088



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.

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