Wednesday, January 29, 2014
Elmien Du Plessis ( North West University) & Gino Frantz (Johannesburg) African Customary Land Rights in a Private Ownership Paradigm on SSRN. Here's the abstract:
With the advent of constitutionalism in South Africa, customary law is elevated to a position where it now is recognized alongside legislation and the common law as one of the sources of law.
This is a major shift from the previous position, where customary law was only recognized in as far as it was easily ascertainable with sufficient certainty or codified, and then only applied when it was not in conflict with the common law.
Despite the constitutional imperatives for the recognition of customary law, and interpretation that is in conformity with the constitution (that includes the recognition of customary law), the courts seem reluctant to do so.
This paper will look at the South African courts’ interpretation of ownership of land held in terms of customary law, and will aim at providing alternative interpretations to “ownership” of customary land.