African Customary Land Rights in a Private Ownership Paradigm

8 Pages Posted: 21 Jan 2014

See all articles by Elmien Wilhelmina J. du Plessis

Elmien Wilhelmina J. du Plessis

North West University - Faculty of Law

Gino Frantz

University of Johannesburg

Date Written: June 2, 2013

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.

Suggested Citation

du Plessis, Elmien and Frantz, Gino, African Customary Land Rights in a Private Ownership Paradigm (June 2, 2013). Available at SSRN: https://ssrn.com/abstract=2381922 or http://dx.doi.org/10.2139/ssrn.2381922

Elmien Du Plessis (Contact Author)

North West University - Faculty of Law ( email )

Potchefstroom, North West
South Africa

Gino Frantz

University of Johannesburg ( email )

PO Box 524
Auckland Park
Johannesburg, Gauteng 2006
South Africa

Register to save articles to
your library

Register

Paper statistics

Downloads
62
rank
344,375
Abstract Views
375
PlumX Metrics