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Legal Strategies for the Development and Protection of Communal Property$
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Ting Xu and Alison Clarke

Print publication date: 2018

Print ISBN-13: 9780197266380

Published to British Academy Scholarship Online: May 2019

DOI: 10.5871/bacad/9780197266380.001.0001

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Customary Law and Communal Property in South Africa

Customary Law and Communal Property in South Africa

Challenges and Opportunities

Chapter:
(p.127) 7 Customary Law and Communal Property in South Africa
Source:
Legal Strategies for the Development and Protection of Communal Property
Author(s):

Juanita M. Pienaar

Publisher:
British Academy
DOI:10.5871/bacad/9780197266380.003.0007

In the geographical areas forming the focus of this contribution, the traditional communal areas in former Bantustan and homeland areas in South Africa, communal ownership flows from the application of customary law, linked to the constitutional right to culture. Living customary law, embedded in communities, entails a dynamic system of land rights which are negotiated in line with particular needs. Recent policy and legislative developments, however, seem to bolster rights of traditional authorities, thereby impacting on land rights and effectively negating spontaneous negotiation. Conceptual clarification in this contribution embodies the complexity linked to communal property, specifically land, in light of the aftermath of apartheid, the commencement of an all-encompassing land reform programme and the operation of a dual legal system comprising customary law and Western-style legal paradigms. The challenges and opportunities for law reform are explored in this context of inter-connectedness of customary law and communal property.

Keywords:   customary law, communal property, traditional authorities, traditional communal areas, Bantustans, land reform

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