The Complexity of South Africa’s Dual Tenure System: A Legacy Unresolved?

Abstract

Dual tenure refers to a situation where a country has two distinct but often overlapping systems of land ownership or use rights. In South Africa, dual land tenure comprises private ownership and communal land ownership. Section 25(6) of the South African Constitution provides tenure security for people living on communal land. Whilst section 25(9) mandates parliament to enact legislation to give effect to this provision, several legislations with land reform objectives have fallen short in safeguarding rural citizens’ tenure security. The South African government has made numerous attempts to address the effect that dual tenure has on rural citizens’ tenure security. These efforts have not been successful, as they failed to engage meaningfully with the customary land tenure systems that already exist. We use Mahmood Mamdani’s theoretical framing of the bifurcated state to understand the nature of South Africa’s dual land tenure system. This theoretical lens shows that South Africa’s customary land rights and common law land rights do not run parallel with equal powers. We use case law to illustrate the complex nature of dual tenure. We posit that a capable and committed state is important in creating a legal framework that reflects the layered and relational nature of customary land rights. It supports the strengthening of the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA) provisions, considering the various complexities of customary tenure systems that must be considered during the Land Records Act development process as recommended by the High Level Panel.