wicomb nairobi conference june 2013

7/28/2019 Wicomb Nairobi Conference June 2013

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South African experience in

communal land rights

Wilmien Wicomb

Legal Resources CentreJune 2013


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Introduction

Framing: on the road to substantive equality

A value, a right and an aspiration

South African context emphasises race and

gender Increasingly rural communities trying to uncover

te hidden boundaries ofinequaly: rural/urban;customary/common law rights; citizen/subject.

In customary context, the inequality withincommunities highlighted, less attention ondiscrimination against community as rightsholder.


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Introduction (cont)

Central significance of equality in recognition of customary law and therights that arise from it:

Mabo rejects In re Southern Rhodesia on the basis of international law right toequality:

Whatever the justification advanced in earlier days for refusing to recognize

the rights and interests in land of the indigenous inhabitants of settledcolonies, an unjust and discriminatory doctrine of that kind can no longer beaccepted. [] The common law does not necessarily conform withinternational law, but international law is a legitimate and importantinfluence on the development of the common law, especially wheninternational law declares the existence of universal human rights. A commonlaw doctrine founded on unjust discrimination in the enjoyment of civil and

political rights demands reconsideration.

Precedent followed in Richtersveldand Endorois.


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South African experience

Well-known history of entrenched inequality

Transformative Constitution

Explicit recognition of customary law

Recognition of traditional leadership institutions notclear that it is based on right to equality.

Court relates recognition of customary law to culturaldiversity. [Problematic of conflation of custom and

culturesacred, lesser (overcome by IP)+ However, Alexkor and context of Restitution Act

recognised link to non-discrimination.


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Status of customary law

Customary law recognised as an independent source oflaw.

Validity determined with reference to the Constitution,rather than common law (beware the common law

lens. Relationship with statutory law remains unclear, but

Constitution provides customary law is subject tolegislation that specifically deals with it.

Customary law recognised as a system, rather thanrules that fill gaps from a system arises rights thatmust be recognised (s 39, Alexkor).

Living customary law as opposed to official


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Communal Land Rights Act

Does recognition make statutory regulation

redundant?

S 25(6): A person or community whose

tenure of land is legally insecure as a result of

past racially discriminatory laws or practices is

entitled, to the extent provided by an Act of

Parliament, either to tenure which is legallysecure or to comparable redress


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Communal Land Rights Act (cont)

The stated objects of the Bill were to:

legally recognise and formalise the Africantraditional system of communally held land

within the framework provided by theConstitution;

legally secure land tenure rights of communitiesand people (including women, the disabled and

the youth) within the tenure system of theirchoice;

extend the African peoples access to land.


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Communal Land Rights Act (cont)

Mechanisms:

Give communities legal status once community rulesare developed and registered

BUT OkothOgendo *c+are must be taken to avoid the

colonial assumption that African communities have nolegal (or corporate) persona hence can only hold oradminister land resources through jural entitiescreated by AngloAmerican law.

Recognition of existing (democractic/customary)community rules? Subsequent codification?

Land administration committee conflated withtraditional councils.


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Communal Land Rights Act (cont.)

Land rights enquiry: no provision foridentifying all the ways in which people holdrights in customary communities. Entrench

only those akin to common law use rightscreating new inequality.

Entrenchment in itself problematic.

Definition of community restitution,imposed boundaries.

Land transferred to community.


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Constitutional Challenge

Tongoane: thrown out on procedural ground

Substantive arguments: COURT ASKED TO

LOOK AT REAL IMPACT - undermines flexible

and dynamic nature of customary law (and

entrenches apartheid/colonial distortions);

disregards nature of customary land holding;

cant provide court as only remedy.


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Tongoane

Procedural arguments led to debate about the

impact of the Act.

Court said that this legislation does not fill a

vacuum. Customary regulation and law

currently in place.

When does custom seize to be that?

Minimalism vs effective protection


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Implications

Custom must be interrogated against the Constitutionbrings it into formal system. Does legislation make itinvisible again?

Can the legal culture of SA accommodate the flexibilityof custom? Should the culture itself be transformed?

Community to hold land as single entity - Conflationof chief/custom/community

Community right turned into an individual right.Individual right becomes that of the chief. Legislationthat provides for consultation in terms of customarylaw interpreted as consultation with the chief.


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Equality?

Recognition of customary law as an independent

legal system based on equality should mean:

Compensation for loss of customary rights in land

Consultation based on customary law

requirements (FPIC)

Recognition that relocation of community often

means destruction of legal and social orderreflected in reparation


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Finally.Endorois

Right to Development not satisfied if

community is in an unequal bargaining

position.

Is there an equal bargaining position between

individual land owners and the state? Use of

the term public interest.

wicomb nairobi conference june 2013

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