CUSTOMARY LAW LAND USE AND ACCESS RIGHTS

ACCESS TO LAND IN TRIBAL AREAS

MAMADILA- MOLETJIE TRIBAL LAND

COMMUNAL LAND TENURE

In simple terms land tenure refers to the nature of land holding rights held by a person in relation to land allocated to them. The definition of tenure that is most complete is the one offered by the Food and Agricultural Organization(READ ARTICLE)

In the traditional authority areas land is held jointly by the members of the tribe. The traditional authority, being the political leadership of the tribe is invested with the power to allocate acess to such land to both tribe members and those not belonging to the tribe. 

Tau, Mmaphaka Ephraim ” The communal land tenure system: an analysis of some trends in the Ditsobotla area of the North West province”, discusses this form of land tenure. Although, the discussion is focused on a specific tribal area, it is nonetheless instructive for  the communal land tenure system as it obtains in other traditional authority controlled  villages in the rest of South Africa as well. http://uir.unisa.ac.za/xmlui/bitstream/handle/10500/1191/02thesis.PDF?sequence=1 The attached article by Ben Cousins is also informative. (READ)

The South African Constitution however provides for the protection and promotion of the right to individual tenure to property and for freedom of movment for citizens. In order to reconcile these consitutional rights with communal tenure system, parliament passed the Communal Land Rights Act (see  ALSO TOWNPLANNING LAW  ). However,The Constitutional Court found that Parliament had followed an incorrect procedure in enacting the Act and accordingly declared it invalid in its entirety for want of compliance with the procedures set out in section 76. ( READ COURT DECISION).

A pre-democratic era law named  "Upgrading of Land Tenure Rights Act 112 of 1991 had already provided for the ease of converting permission to occupy to ownership subject to certain conditions (READ THE ACT)

The traditional authorities, therefore still apply the system of acess and land use control, where land allocation is efected by tribal structures in terms of the applicable tirbal laws. Consequently in practice, no person who is not a tribesmember can claim automatic right to acess to land in these areas. The tribes still practice the power to allow or deny access to land to those who are not linked to the tribe by blood lineage. 

 

LAND USE IN TRIBAL AUTHORITY AREAS

Land Use in the tribal authority areas is controlled by the tribal authority who hold the communal land on behalf and for the use and enjoyment by the tribe. Tribal land is according to custom in undevided shares(joint ownership). Consequently the land once allocated to a successful applicant, is allocated on the basis of permission to occupy, a right to use not ownership. The land cannot be purchased and owned. However, with land allocated for business it is always possible for the land applicant to negotiate for transfer of ownership so as to have security of tenure and even finanacial assistance from financial instututions.

The land allocation process is regulated in terms of the Black Areas Land Regulations, 1969. (Proclamation R188 of 1969)

Either a member of the tribe or an non-tribe's member lodging an application for a residential plot. Tribesmembers enjoy more preference than none tribesmembmers in the allocation of land.Men and women are entitled to land on an equitable basis, provided that the applicant must show that he or she is a family head. 

The significance of family headship is that such a person requires the land for the accomodation of his or her family. In the event the application is approved, the tribal authority will allocate a plot for residentail purposes as well as a plot for agricultural purposes. 

Applications may also be made for business plots, by tribesmembers or outsiders. An applicant can elect to hold the land under the Permisssion to Occupy system or elect to buy 

Susan Bouillon ,Legal Advisor to City Council of Pretoria, discusses the relatiosbhip between land tenure and land development in both in the rural and urban areas. The discussion is to be found in an article presented at the Proceedings for Strategies for a Sustainable Built Environment, Pretoria, 23-25 August 2000. (READ ARTICLE)

 

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Today | 03:15

Thanks for good service

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06.08 | 15:16

African law notes update: Act No. 15 of 2014: Restitution of Land Rights Amendment Act, 2014

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HANSARD LINK ADDED

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06.08 | 09:38

how does one cite this page?

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