scholarly journals Conflicting Levels of Engagement under the Interim Protection of Informal Land Rights Act and the Minerals and Petroleum Development Act: A Closer Look at the Xolobeni Community Dispute

2020 ◽  
Vol 23 ◽  
pp. 1-32
Author(s):  
Mpho Tsepiso Tlale
Keyword(s):  
Land Tenure ◽  
Mineral Resources ◽  
Land Rights ◽  
Application Process ◽  
Community Members ◽  
Petroleum Resources ◽  
Mineral Rights ◽  
Land Tenure System ◽  
Customary Land ◽  
Petroleum Development

The South African customary land tenure system is currently administered in terms of the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA). As the name suggests, this is a temporary measure to protect vulnerable customary land rights while awaiting permanent communal land tenure legislation. In terms of section 2(1) of the IPILRA, no person may be deprived of any informal right to land without his or her consent. This provision is subject to subsection (4) of the IPILRA, the Expropriation Act 63 of 1975 or any other law that provides for the expropriation of land rights. Accordingly, section 2(4) states that no one may be deprived of his or her informal rights in land unless it is through the Expropriation Act, any valid land expropriation legislation or through custom that is endorsed by a majority of the community members. Nevertheless, the Department of Mineral Resources (DMR) and the mineral right applicants habitually contravene this consent provision by not including the beneficiaries of the IPILRA in the mineral right application process. The DMR awards licences without the communities' consent because the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) authorises it to act as the custodian of mineral resources on behalf of all South Africans. When an application for mineral rights is received, it is the DMR's duty as a custodian to ensure that all the requirements of the MPRDA have been complied with. These levels of engagement, consent under the IPILRA and consultation in terms of the MPRDA, form the basis of the analysis of the decision of Baleni v Minister of Mineral Resources. Although the court decided that the acceptable level of engagement is consent in terms of the IPILRA, this article argues that consultation and consent are not mutually exclusive, and hence require reading the two pieces of legislation together.

scholarly journals Baleni v Minister of Mineral Resources 2019 2 SA 453 (GP): Paving the Way for Formal Protection of Informal Land Rights

2020 ◽  
Vol 23 ◽  
pp. 1-18
Author(s):  
Yolandi Meyer
Keyword(s):  
Land Tenure ◽  
Mineral Resources ◽  
Land Rights ◽  
Indigenous Communities ◽  
Current Debate ◽  
Land Owners ◽  
Petroleum Resources ◽  
Customary Land ◽  
Mining Right

In Baleni v Minister of Mineral Resources 2019 2 SA 453 (GP) the court, duly following the judicial guidance provided in Maledu v Itereleng Bakgatla Mineral Resources 2019 2 SA 1 (CC), made an important pronouncement on the rights of people who hold informal land tenure. The question in the Baleni judgment concerned the level of consent required to obtain a mining right over property held by a community with informal or customary land tenure. The court specifically considered provisions of the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA) and the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), and concluded that the provisions of these Acts should be read together when determining the level of consent required. The court found that a community's consent, as required by IPILRA, and not merely consultation with a community, as required by the MPRDA, is necessary before a mining right can be obtained over a community's property. The Baleni and the Maledu judgments set an important judicial precedent protecting informal land owners against the potentially harmful effects of mining activities, and establish a higher standard for obtaining a mining right over such property. However, despite the success of the judgment, many questions remain regarding the longevity of IPILRA, in particular, and a long-term solution to informal land tenure and land security in general. This case note argues that final legislation should be enacted to provide protection for people who hold informal land rights, and consequently to formalise indigenous communities' land rights to ensure that these judgments act as the precursor for fundamental change in the current debate regarding informal land rights.

scholarly journals Could Mapping Initiatives Catalyze the Interpretation of Customary Land Rights in Ways that Secure Women’s Land Rights?

Land ◽  
2020 ◽  
Vol 9 (10) ◽  
pp. 344 ◽  
Author(s):  
Gaynor Paradza ◽  
Lebogang Mokwena ◽  
Walter Musakwa
Keyword(s):  
Land Tenure ◽  
Legal Status ◽  
Positive Impact ◽  
Mineral Resources ◽  
Land Rights ◽  
Host Community ◽  
Sub Saharan Africa ◽  
Sub Saharan ◽  
Legislative Changes ◽  
Customary Land

Although land forms the basis for marginal livelihoods in Sub-Saharan Africa, the asset is more strategic for women as they usually hold derived and dependent rights to land in customary tenure areas. Initiatives to secure women’s land tenure in customary areas are undermined by the social embeddedness of the rights, patriarchy, lack of awareness by the communities, legal pluralism, and challenges of recording the rights. As pressure on customary land tenure increases due to foreign and local land-based investment interests, land titling initiatives, tourism, and mineral resources exploration, communities and women within them are at real risk of losing their land, the basis of their livelihoods. Women stand to lose more as they hold tenuous land rights in customary land tenure areas. Accordingly, this study analyzes case studies of selected mapping initiatives in Sub-Saharan Africa to interrogate the extent to which mapping both as a cadastral exercise and emerging practice in the initiation of participatory land governance initiatives, catalyze the transmission of customary land rights in ways that have a positive impact on women’s access to land in customary land tenure areas. The results indicate that mapping initiatives generate opportunities, innovations, and novel spaces for securing women’s access to land in customary tenure areas which include catalyzing legislative changes and facilitating technology transfer, increasing awareness of women’s interests, providing opportunities for women to participate in decision-making forums, providing a basis for securing statutory recognition for their land rights, and improving natural resource stewardship. The potential challenges include the community’s capacity to sustain the initiatives, the expense of the technology and software, widespread illiteracy of women, power asymmetries and bias of the mapping experts, increased vulnerability of mapped land to exploitation, the legal status of the maps in the host community and /or country, compatibility with existing land recording systems, statutory bias in recording land rights and the potential of mapping initiatives to unearth existing land boundary conflicts. These challenges can be mediated by sensitive planning and management to ensure real and sustainable land tenure security for women. The paper contributes to debates around customary land tenure dynamics, specifically the issues pertaining to registration of primary and derived customary rights to land. These includes policy debates and choices to be made about how best to secure tenuous customary land rights of women and other vulnerable people. The paper also contributes to our understanding of what instruments in land registration toolkits might strengthen women’s land rights and the conditions under which this could be done.

scholarly journals PAYING THE PIPER (IN PRAESENTIA) Xstrata South Africa (Pty) v SFF Association 2012 (5) SA 60 (SCA)

Obiter ◽  
2021 ◽  
Vol 34 (2) ◽  
Author(s):  
PJ Badenhorst
Keyword(s):  
Mining Industry ◽  
Mineral Resources ◽  
The State ◽  
Mining Operations ◽  
South Africans ◽  
Old Order ◽  
Petroleum Resources ◽  
Mineral Rights ◽  
The Right ◽  
Mining Right

This decision is an appeal from the decision of the South Gauteng High Court in SFF Association v Xstrata (2011 JDR 0407 (GSJ)). The court a quo decided incorrectly that the holder of an old-order mining right, which was converted into a (new) mining right in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (the “Act”), remains liable upon conversion for the payment of (contractual) royalties in terms of a mineral lease, which was concluded prior to enactment of the Act. The appeal was upheld by the Supreme Court of Appeal (“SCA”) (2012 (5) SA 60 (SCA) par 27). The decision was rendered by Wallis JA with the other judges concurring with his judgment. Prior to the Act mineral-right holders could grant a mining right to a miner against payment of royalties or other forms of consideration. At issue on appeal was whether the obligation to pay royalties in terms of a mineral lease “survives the introduction of the new regime in respect of mining rights brought about by the Act”. As indicated by the SCA, the Act fundamentally changed the legal basis upon which rights to minerals are acquired and exercised. Previously mineral rights were vested in the owner of land or the holder of mineral rights, which rights could be exercised upon acquisition of a statutory authorization to exploit the minerals. In terms of the new regime, common-law mineral rights were destroyed and “all mineral resources vested in the state as the custodian of such resources on behalf of all South Africans”, whereupon the state could confer the right to exploit such resources to applicants. Upon granting a mining right in terms of the Act (statutory) royalties have become payable to the state since 1 March 2010 of the Act and the Mineral and Petroleum Resources Royalty Act 28 of 2008. In order to prevent disruption of the mining industry, provision was made in the Act for the continuation of old-order rights for different transitional periods ranging from one to five years and conversion of such rights during the periods of transition. The transitional arrangements in Schedule II of the Act (“transitional arrangements”) inter alia ensured security of tenure of prospecting rights and mining rights and enabled holders thereof to comply with the Act. In particular, an old-order mining right remained valid for five years “subject to the terms and conditions under which it was granted” (item 7(1) of the transitional arrangements) and could be converted into a new mining right (item 7(2) of the transitional arrangements) if certain requirements were met. The applicant had to have: (a) met the requirements for lodgement of application for conversion; (b) conducted mining operations in respect of the mining right; (c) indicated that he would continue to conduct such mining operations upon conversion of the mining right; (d) had an approved environmental management programme; and (e) paid the prescribed conversion fee (item 7(3) of the transitional arrangements). To recap, the Xstrata decision dealt with an old-order mining right that had been converted into a (new) mining right and the effect of these statutory changes on rights to royalties which accrued to a former holder of mineral rights by virtue of a mineral lease. 

Map-Making and State-Building

2020 ◽  
pp. 32-55
Author(s):  
Christine Leuenberger ◽  
Izhak Schnell
Keyword(s):  
20Th Century ◽  
Land Tenure ◽  
Weak Link ◽  
Land Rights ◽  
Land Ownership ◽  
State Building ◽  
Land Allocation ◽  
Natural Order ◽  
Land Registration ◽  
Land Tenure System

During the 20th century, surveying and mapping became vital tools for states; and colonizers used them to know and claim the land. The Mandate of Palestine’s Survey of Palestine surveyed parts of historic Palestine. Their modernist ethos to register the land converged with Zionist visionaries to make it their own. With the Hagannah looting the Survey of Palestine, the Israeli state-in-the making had access to cartographic material which helped them win the 1948 war and facilitated their statecraft. Post-1948, the Survey of Israel designed a new unified triangulation system, enabling the production of maps. The Israeli state also introduced a novel land tenure system. The seemingly imprecise land allocation practices common during the Ottoman Empire were pitted against a technocratic, modernist conception of land ownership, that, by virtue of its implementation, dispossessed many Arab landholders. However, enforcement of technocratic regulations depends on humans. Indeed, the process of land registration reveals how surveyors who would go to villages to ascertain land rights were the human and, at times, a weak link in doing so. Nevertheless, at the end of this process, 93% of land had become Israeli state land. The transformation in the land regime in Israel/Palestine thus attests to how new legal precepts in tandem with science and technology helped establish a modern, territorially defined state. While the Western scientific and legal paradigm enhanced the transfer of land, it also seemingly legitimized and depoliticized the new land regime, making it seem part of the natural order of things and an inevitable outcome of modernity.

scholarly journals When Tradition Meets Modernity in Land Registration: Evidence from Dagbon, Ghana

Land ◽  
2020 ◽  
Vol 9 (11) ◽  
pp. 416
Author(s):  
David Asante Edwin ◽  
Evam Kofi Glover ◽  
Edinam K. Glover
Keyword(s):  
Land Tenure ◽  
Research Question ◽  
Land Ownership ◽  
Registration System ◽  
Land Registration ◽  
Tenure System ◽  
Title Registration ◽  
Land Tenure System ◽  
Customary Land ◽  
And Control

Development practice over recent years in much of Africa prioritized formalization of land policies deemed to enhance better handling and use of land as an asset for social development. Following this trend, land reform policy in Ghana was based on a pluralistic legal system in which both the customary land tenure system and the statutory system of land ownership and control co-exist by law. The primary research question for this study was the following: What implications emerge when customary land tenure system and the statutory system of land ownership and control co-exist in law? The study discussed the prospects and challenges of land title registration and the meaning of the new organizing concept in land ownership and administration among the people of Dagbon in the northern region of Ghana. The principal aim of the study was to assess the challenges of the implementation of a modern land registration system over a deeply traditional one. A qualitative research methodology was used and included qualitative descriptive analysis. This descriptive-analytical study was carried out to investigate opinions on the implications of the merger and preferred options for redress of any systemic challenges. It employed Focused Group Discussions (FGDs) to supplement in-depth interviews. Interviews were conducted among 40 key participants within formal and informal institutions including officials from both the Land Commission and Town and Country Planning Departments. Purposeful sampling was employed, and an interview guide was developed and used for collecting the data. Data were analyzed using a thematic approach. The results showed that in this structural reform, the ‘allodial title’ holder was much more trusted for tenure security because of the traditional legitimacy of the King as the sole owner and controller of land. The title registration system therefore principally served the secondary purpose as additional security. The findings indicate that in the circumstance where the law was seen as pliable, the policy engendered blurred and confusing effects that deepened the sense of ambiguity and outcomes were sometimes contradictory. We argued that the crossroads presented challenges that were novel and engendered innovative thinking for more appropriate solutions. The study revealed that policy reforms must be tailor-made to the physical, social, cultural and economic settings.

Customary Land-Tenure and the Poor: A Study of Jharkhand and Meghalaya

Social Change ◽  
2020 ◽  
Vol 50 (3) ◽  
pp. 430-446
Author(s):  
Ankita Goyal
Keyword(s):  
Land Tenure ◽  
Agricultural Land ◽  
Primary Data ◽  
Disadvantaged Communities ◽  
The Status ◽  
Land Tenure System ◽  
Customary Laws ◽  
Customary Land ◽  
And Control ◽  
Individual Ownership

For most people living in rural India having access and control over land is crucial for their livelihood, more so in the case of tribals. This article analyses the nature of the customary land-tenure system in some districts of Jharkhand and Meghalaya and their impact on livelihood patterns, food security and poverty. Based on both secondary and primary data, the article seeks to examine the nature of the customary land-tenure systems in selected scheduled areas; specifically identifying the status of locals versus non-locals in managing land resources and analysing the extent to which women have been able to secure land rights under customary laws. The article concludes that though there are both positive and negative aspects to community and individual ownership of agricultural land, but on the whole the prevailing system does not helping in bettering the conditions of disadvantaged communities.

A New Era of Customary Property Rights? – Liberia’s Land and Forest Legislation in Light of the Indigenous Right to Self-Determination

2019 ◽  
Vol 52 (4) ◽  
pp. 439-462
Author(s):  
Ricarda Rösch
Keyword(s):  
Property Rights ◽  
Land Tenure ◽  
Land Rights ◽  
Self Determination ◽  
Sub Saharan Africa ◽  
Starting Point ◽  
Sub Saharan ◽  
Forest Legislation ◽  
Customary Land ◽  
The Right

After the end of Liberia’s civil war in 2003, the country embarked upon the reform of its forest and land legislation. This culminated in the adoption of the 2009 Community Rights Law with Respect to Forest Lands and the 2018 Land Rights Act, which NGOs and donors have described as being amongst the most progressive laws in sub-Saharan Africa with regard to the recognition of customary land tenure. Given these actors commitment to human rights, this article takes the indigenous right to self-determination as a starting point for analysing customary property rights and their implementation in Liberia. This includes the examination of the Liberian concept of the 1) recognition and nature of customary land rights, 2) customary ownership of natural resources, 3) jurisdiction over customary land, 4) the prohibition of forcible removal, and 5) the right to free, prior and informed consent.

Fractured Governance and Local Frictions: The Exclusionary Nature of a Clandestine Land Market in Southern Zambia

Africa ◽  
2010 ◽  
Vol 80 (1) ◽  
pp. 36-55 ◽  
Author(s):  
Nicholas J. Sitko
Keyword(s):  
Land Tenure ◽  
Land Rights ◽  
Land Market ◽  
Land Markets ◽  
Private Land ◽  
Land Administration ◽  
The Social ◽  
Customary Land ◽  
Rural Zambia

This article explores the ways in which efforts to expand private land tenure, coupled with the continued centrality of customary land administration in Zambia, produce a fractured system of land governance in which localized markets for land emerge but are forced to operate in a clandestine manner. Using ethnographic and archival data sources, I argue that despite the historical and contemporary relationship between land rights and economic ‘development’, the clandestine nature of land markets in rural Zambia tends to (re)produce many of the social ills that ‘development’ seeks to resolve. Using a case study of a clandestine market for land in a Tonga-speaking region of southern Zambia, this article shows how these markets undermine women's rights to land, while allowing for the consolidation of wealth and power in the hands of a few.

scholarly journals APPLICATION OF UAV SURVEYS FOR EVALUATING THE PRODUCTIVITY LEVELS OF TRADITIONAL AND MECHANISED FARMERS IN A CUSTOMARY LAND TENURE SYSTEM

2021 ◽  
Vol XLIII-B3-2021 ◽  
pp. 617-622
Author(s):  
D. N. Olayinka ◽  
K. L. Omolaye ◽  
A. J. Ilesanmi ◽  
C. J. Okolie ◽  
I. D. Arungwa
Keyword(s):  
Rural Communities ◽  
Land Tenure ◽  
Open Data ◽  
Farming Systems ◽  
Aerial Survey ◽  
Crop Field ◽  
Land Tenure System ◽  
Land Holdings ◽  
The Government ◽  
Customary Land

Abstract. In most of Nigeria’s rural communities, land holdings are small and uneven; and this impacts significantly on their mechanisation potentials. This fragmented nature of the farmlands also inhibits the creation of an effective land market. This study utilised a digital orthomosaic generated from an Unmanned Aerial Vehicle (UAV) survey in evaluating the productivity levels of traditional and mechanised farmers in Okeho Community of Oyo State, South-Western Nigeria. The aerial survey was conducted with a DJI Phantom 4 Professional UAV covering 250 acres of traditional and mechanised farmlands to produce a very high resolution orthomosaic at 6 cm spatial resolution. Sixty-three respondents (61 traditional farmers and 2 mechanised farmers) were also interviewed using questionnaires. Their responses were keyed into a database with the Open Data Kit (ODK) data collector. The orthomosaic was classified into farmland units and a database of the farmers land holdings was created in ArcGIS software. Some parameters influencing their productivity were computed – Crop Field Fraction (CFF) and Crop Yield Index (CYI). The results showed that very few farmers had a shared equity on land (only 3%); most farms were acquired under freehold or lease. Also, only 1% of their farm sizes was larger than 5 acres. There was a sharp disparity in the crop field fraction (traditional farms – 32.2; mechanised farms – 68.8), and the productivity from the mechanised farmers surpasses that of the traditional farmers. It is recommended that the Government should support cluster farming systems among farmers to boost productivity.

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