Customary land law.docx - CUSTOMARYLAND LAW Although much land is registered as owned(in the common law sense by the state the recognition of customary

Customary land law.docx - CUSTOMARYLAND LAW Although much...

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CUSTOMARYLAND LAW Although much land is registered as owned (in the common law sense) by the state, the recognition of customary law land rights – entrenched in s211 (3) of the Constitution and the InterimProtection of Informal Land Rights Act 31 of 1996 (“IPILRA”) – means that the state owns the property subject to “communal” or “indigenous” title. Any legal issue or dispute relating to that land (including mining and prospecting rights – see section 2 (b) of IPILRA) necessarily raises issues relating tocustomary law interests. TheConstitution and IPILRA Section211(3) ofheConstitution “(3) The courts must apply customary law when it is applicable, subject to theConstitution and any legislation that specifically deals with customary law.” What are Customary Land Rights? Section1(a)ofIPILRA includes withinthedefinitionof“informalrightto land” – (a) theuseof,occupationof, oraccess tolandinterms of- (i) anytribal, customary or indigenous laworpracticeofatribe; (ii) the custom, usage or administrative practice in a particular area or community,where thelandinquestionatanytimevestedin- (aa) theSADevelopmentTrustestablishedbys4of theDevelopmentTrust and LandAct1936 (bb) thegovernmentofanyareaforwhichalegislativeassemblywas establishedintermsofheSelf- GoverningTerritoriesConstitutionAct 1971 ; or (cc) the governmentsof theformer Republics of Transkei, Bophuthatswana, Venda and Ciskei. But what is a “tribal, customary or indigenous law or practice of a tribe”? s1 of IPILRA simply defines “tribe” as “any community living or existing like a tribe” left definition of “tribe” to the courts. s2 of IPLIRA refers to “land held on a communal basis” (section 2 (2)) according to rules based on the custom or usage of a community (section 2 (3)). It also deems the custom or usage of a community to be basically democratic (section 2 (4)). The problem still remains – how do we define a customary right to land? In Alexcor the Constitutional Court provided the seeds of an answer: Alexcor vtheRichtersveldCommunity2004(CC) Facts: The indigenous Richtersveld Community occupied a vast tract of land south of the Orange River. In the 1920s, it was excluded from that land by the Union Government,because large alluvial deposits of diamonds were discovered. After 1996 Constitution, Richtersveld Community brought a claim to be restored to the land. Only land disposed after 14 June 1913 qualifies for restitution. Parties’ Arguments: Crucial to the claim was whether the Community had any rights to the land at the time of their exclusion. Alexcor (the state-owned company responsible for alluvial mining in the area) argued that the Richtersveld Community’s rights were extinguished long before they were excluded from the land. Whatever rights the Community hadwere extinguished by the British annexation of the area in 1847. The Community argued that this was wrong:it had “indigenous”/ “customary” rights – which survived annexation by virtue of the common law doctrine of
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