Defining the Property Rights of Others: Political Power, Indigenous Tenure, and the Construction of Customary Land Law

Abstract

Constitutional recognition of indigenous law and the role of traditional authorities at last dignifies African legal culture in South Africa with the official equality it has so long been denied. But this new status will stimulate the debate over the content and construction of judicially-recognized customary law and its relationship to the new bill of rights (Bennett 1994a; Bennett and Roos 1992). One of the first questions to be confronted is how land tenure is linked to the administrative powers of traditional authorities. Within weeks of President Nelson Mandela's inauguration, this issue had already threatened the stability of the new government of national unity; former State President de Klerk's last-minute assent to the KwaZulu Ingonyama Trust Act meant that approximately three million hectares were to be administered by Zulu King Goodwill Zwelithini as the sole trustee, with administrative expenses to be borne by the new KwaZulu/Natal provincial government (Randall and Chothia 1994) Although a Cabinet committee managed to resolve the initial crisis, the King's powers over the allocation of resources were left to be settled by future legislation. (See Bennett 1994b; Ngubane 1994 for different accounts of the relationship between traditional authority and land tenure.)

Keywords: constitutional law, indigenous law, south africa, land tenure

JEL Classification: K10, K33