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n Acta Juridica - Land information as a tool for effective land administration and development
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.
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