Abstract
M.A.
South Africa has a dual land tenure system inherited from colonial and apartheid land policies and practices. These past policies and practices ensured that whites had exclusive rights of ownership (i.e. freehold and leasehold) to the land, while Africans have insecure permit-based land rights in the former homelands regulated by customary based land rights systems.
The land tenure reform programme embarked upon as part of land reform since 1994 has not yet addressed this land tenure duality, despite the provisions of the Constitution to provide “legally secure land tenure rights to those whose tenure of land is insecure and inferior as a result of past racially discriminatory laws and practices” (Constitution of the Republic of South Africa 1996). Thus the population residing in the communal areas of the former Transkei continues to occupy and use their land under the legally insecure land rights they were provided with under colonial and apartheid eras.
This study seeks to design a framework for the formalisation of these land rights to ensure good governance in communal areas and to ensure that they are secure and equal to exclusive rights of ownership offered by the statutory land registration system in South Africa.
The study begins with a historical background of the current land rights situation in communal areas, and further reviews various approaches to reform customary based land tenure models. Furthermore, the legislative and policy framework of the current government in relation to the reform of land rights in communal areas was also reviewed. This review revealed that legislative and policy initiatives to address the land rights of the residents of communal areas in the new democratic era have failed to provide legally secure land rights.
The process of designing appropriate laws and policies to secure the land rights in communal areas has proven to be very complex. Part of this complexity was found to be due to unresolved questions relating to the form that land rights should take in communal areas, questions as to what level of social organisation these land rights...