scholarly journals The Battle of the Bakgatla-Ba-Kgafela Community: Access to and Control of Communal Land

2017 ◽  
Vol 20 ◽  
pp. 1-32
Author(s):  
Juanita Magrietha Pienaar
Keyword(s):  
Land Reform ◽  
Director General ◽  
Constitutional Court ◽  
Land Claim ◽  
Official Policy ◽  
Communal Property ◽  
Communal Land ◽  
Communal Property Associations ◽  
Legislative Measures ◽  
Traditional Communities

Like numerous other traditional communities in South Africa, the Bakgatla-Ba-Kgafela community lost portions of their ancestral land in the pre-constitutional era. Under an all-encompassing land reform programme, which also provides for the restitution of land in particular circumstances, a land claim was lodged. Having been successful with the land claim as all of the requirements set out in the Restitution of Land Rights Act 22 of 1994 were met, the first battle of the community in reclaiming their land had been won. The initial victory was short-lived as a second battle ensued, dealing with the governance of and form of control over the newly restored land. While the community wanted a communal property association, provided for in the Communal Property Associations Act 28 of 1996, the traditional leader preferred a trust. In this regard the various options of forms and constructs of collective ownership came into play. The second battle resulted in the Constitutional Court's deciding in favour of a communal property association in the light of the overall scheme of the Communal Property Associations Act, its objectives, the particular role of the Director-General of the Department of Rural Development and Land Reform, and all that had transpired in this particular case. This contribution deals with both of these battles, first setting out the struggle to reclaim the lost land, and then discussing the conflict over ownership and governance issues brought to finality in Bakgatla-Ba-Kgafela Communal Property Association v Bakgatla-Ba-Kgafela Tribal Authority 2015 6 SA 32 (CC). In this regard the judgment is analysed and thereafter reflected on with respect to recent developments linked specifically to communal property association legislation and then to other developments impacting on communal land and traditional communities in general. With regard to the former, recent draft amendments to the Communal Property Associations Act are highlighted, whereas policy developments and draft legislative measures are discussed with regard to the latter. While it is possible that some of the recent suggested amendments embodied in the Amendment Bill would have streamlined the process had these amendments been in operation when the Bakgatla-Ba-Kgafela community fought the second battle, various problems remain. In this context markedly different - conflicting - approaches emerged from the Constitutional Court judgment and official policy measures. Whereas the Court confirmed more democratic forms of ownership and governance in general, but specifically with respect to traditional communities, official policy documents coupled with draft legislative measures relating to traditional courts entrench traditional leadership constructs. In this regard more democratic forms of governance and ownership are seemingly reserved for areas outside traditional communal areas, most notably outside the former homelands. While the judgment handed down in the Constitutional Court may have brought closure to the Bakgatla-Ba-Kgafela community regarding the formation of a communal property association, the struggle of other traditional communities opting for communal property associations may just be beginning.     

The Engagement of Beneficiaries in Farm Governance of Restituted Land through the Communal Property Association Model: The Ideal Versus the Reality of Beneficiary Farms in South Africa

2019 ◽  
Vol 16 (2) ◽  
Author(s):  
Mokoko Piet Sebola ◽  
Malemela Angelinah Mamabolo
Keyword(s):  
South Africa ◽  
South African ◽  
Land Reform ◽  
Farm Management ◽  
The South ◽  
African Government ◽  
Communal Property ◽  
Farm Ownership ◽  
Land Restitution ◽  
Communal Property Associations

The purpose of this article is to evaluate the engagement of farm beneficiaries in South Africa in the governance of restituted farms through communal property associations. The South African government has already spent millions of rands on land restitution to correct the imbalance of the past with regard to farm ownership by the African communities. Various methods of farm management to benefit the African society have been proposed, however, with little recorded success. This article argues that the South African post-apartheid government was so overwhelmed by political victory in 1994 that they introduced ambitious land reform policies that were based on ideal thinking rather than on a pragmatic approach to the South African situation. We used qualitative research methods to argue that the engagement of farm beneficiaries in farm management and governance through communal property associations is failing dismally. We conclude that a revisit of the communal property associations model is required in order to strengthen the position of beneficiaries and promote access to land by African communities for future benefit.

Traditional and Customary Law: Adat

2018 ◽  
Author(s):  
Simon Butt ◽  
Tim Lindsey
Keyword(s):  
Judicial Review ◽  
Rural Areas ◽  
Small Proportion ◽  
Local Governments ◽  
The State ◽  
Customary Law ◽  
Constitutional Court ◽  
The Past ◽  
Statutory Protection ◽  
Traditional Communities

Many Indonesians—primarily those living in rural areas—still follow customary law (adat). The precise rules and processes of that adat differ significantly from place to place, even within short distances. This chapter shows that for many decades, adat has been subservient to national law. State-made law overrode it, leaving it applicable only in a very small proportion of cases where no national law applied, where judges could apply it as ‘living law’. Even in these cases, many judges ignored adat or distorted it when deciding cases. The 1945 Constitution was amended in 2000 to require the state to formally recognize and respect customary law, as practised in traditional communities. The Constitutional Court has given effect to this in various judicial review cases, as have some statutes enacted in the past decade or so. However, this constitutional and statutory ‘protection’ has been impeded in practice by requirements for traditional communities to be formally ‘recognized’ by their local governments, many of whom have been unresponsive to calls for recognition.

Origins of the Mass Party

2021 ◽  
Author(s):  
Edwin F. Ackerman
Keyword(s):  
Land Tenure ◽  
Critical Mass ◽  
Political Organization ◽  
Local Administration ◽  
Partido Revolucionario Institucional ◽  
Communal Property ◽  
Communal Land ◽  
Land Privatization ◽  
Village Government ◽  
Property Holding

This book argues that the mass party emerged as the product of two distinct but related “primitive accumulations”—the dismantling of communal land tenure and the corresponding dispossession of the means of local administration. It illustrates this argument by studying the party central to one of the longest regimes of the 20th century—the Partido Revolucionario Institucional (PRI) in Mexico, which emerged as a mass party during the 1930s and 1940s. I place the PRI in comparative perspective, studying the failed emergence of Bolivia’s Movimiento Nacionalista Revolucionario (MNR) (1952–64), attempted under similar conditions as the Mexican case. Why was party emergence successful in one case but not the other? The PRI emerged as a mass party in areas in Mexico where land privatization was more intensive and communal village government was weakened, enabling the party’s construction and subsequent absorption of peasant unions and organizations. Ultimately, the overall strength of communal property-holding and concomitant traditional political authority structures blocked the emergence of the MNR as a mass party. Where economic and political expropriation was more pronounced, there was a critical mass of individuals available for political organization, with articulatable interests, and a burgeoning cast of professional politicians that facilitated connections between the party and the peasantry.

Customary Law and Communal Property in South Africa

2018 ◽  
pp. 127-151
Author(s):  
Juanita M. Pienaar
Keyword(s):  
South Africa ◽  
Land Reform ◽  
Land Rights ◽  
Customary Law ◽  
Communal Property ◽  
Challenges And Opportunities ◽  
Constitutional Right ◽  
Communal Areas ◽  
Traditional Authorities ◽  
Recent Policy

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.

Legal Changes and Constitutional Adjudication in Portuguese Social Law in Consequence of the European Financial Crisis

2020 ◽  
pp. 208-239
Author(s):  
José Carlos Vieira de Andrade ◽  
João Carlos Loureiro ◽  
Suzana Tavares da Silva
Keyword(s):  
Legal Framework ◽  
Constitutional Court ◽  
State Budget ◽  
Social Law ◽  
The Social ◽  
Social Security Scheme ◽  
Legitimate Expectations ◽  
The Republic ◽  
Constitutional Adjudication ◽  
Legislative Measures

Portugal was affected simultaneously by an economic, financial, and budgetary crisis. It is in this context that in 2011 the country signed an MoU on Specific Economic Policy Conditionality with the EU, the ECB, and the IMF, which prescribed cuts on social expenses in wages, pensions, and other benefits of an ‘assistentialist’ nature. The legal measures adopted in this respect focused mostly on the social security scheme and introduced changes in the legal framework for future pensions and unemployment benefits, new contributions for pensions in payment, and former non-contributory benefits, as well as cuts in pensions and benefits. Throughout the years, the President of the Republic, members of the parliament, and the Ombudsman have asked the Constitutional Court to assess many of the rules included in the State Budget Laws, arguing a violation of fundamental social rights and basic principles such as human dignity, equality, and the protection of legitimate expectations. This led to the issuance of new and important constitutional case law in Portugal, concerning mainly the assessment of legislative measures under the fundamental principles of legitimate expectations, proportionality, and ‘equal proportionality’.

scholarly journals Land Reform for a Landless Chief in South Africa: History and Land Restitution in KwaZulu-Natal

2021 ◽  
pp. 1-25
Author(s):  
Jill E. Kelly
Keyword(s):  
South Africa ◽  
Land Reform ◽  
Political Authority ◽  
African Continent ◽  
Land Claims ◽  
Land Access ◽  
Reform Program ◽  
Kwazulu Natal ◽  
Communal Land ◽  
Land Restitution

Abstract Land claims and contests have been central to the construction of political authority across the African continent. South Africa’s post-apartheid land reform program aims to address historical dispossessions, but the program has experienced numerous obstacles and limits—in terms of pace, communal land access, productivity, and rural class divides. Drawing on archival and newspaper sources, Kelly traces how the descendant of a colonially-appointed, landless chief manipulated a claim into a landed chieftaincy and how both the chief and the competing claimants have deployed histories of landlessness and firstcomer accounts in a manner distinct to the KwaZulu-Natal region as part of the land restitution process.

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