More than socially embedded: The distinctive character of ‘communal tenure’ regimes in South Africa and its implications for land policy

Abstract

This article analyzes debates over tenure reform policy in post-apartheid South Africa, with a particular focus on the controversial Communal Land Rights Act of 2004. Land tenure systems in the ‘communal areas’ of South Africa are described as dynamic and evolving regimes within which a number of important commonalities and continuities over time are observable. Key underlying principles of pre-colonial land relations are identified, which in formed the adaptation and modification of tenure regimes in the colonial era and under policies of segregation and apartheid, and continue to do so today. Exploring the policy implications of this analysis, the article suggests that alternative approaches to that embodied in the Communal Land Rights Act are required. The most appropriate approach is to make socially legitimate occupation and use rights, as they are currently held and practised, the point of departure for both their recognition in law and for the design of institutional frameworks for administering land.