The Interplay Between the Legal Regulation of Communal and Private Land Ownership in South Africa

Abstract

South Africa has adopted a hybrid system of landholding: both communal and private ownership are practised. Private ownership entails ownership of land by a person or entity governed by common law and supported by documentary proof through registration in the Deeds Registry. In the communal ownership system, the land vests in a collective that includes ancestors and the yet-to-be-born. These two distinct property regimes create irreconcilable problems. The private ownership system assumes that property rights are absolute and exclusive, in contrast to the indigenous African model of ownership, which is based on the principle that everyone in the community has rights to land, but that individual rights are balanced against their obligations to the social group. Furthermore, private and communal landholding institutions each articulate distinct bundles of rights, requiring two distinct control and enforcement mechanisms. This article examines the dilution of customary forms of tenure through the adoption of Western values, arising from common law rights created by a parallel system, with legal rights on paper and unrecognised customary rights in practice.
The article also examines whether the customary practice of landownership can exist on its own in the current circumstances.