ACL Semester II

DOL 300 3 H AFRIC AN CUS TOM ARY L AW – SEM ESTER II
CUSTOMARY LAW SUCCESION
OBJECTIVES
- Understand the principles of customary law of succession
- Understand how the Reform Act has changed the customary law of succession
- Explain how an estate would devolve today in terms of the Reform Act and living customary
→ Answer a problem question (see tutorial 3)
- Critically evaluate the Reform Act (state whether good or bad, and why)
→ Strikes down customary law of succession, replaces it with the common law
→ Undermines a constitutional recognition/protection of customary law
→ Creates a single, unified system of law (response to a racist dual system of law)
CUSTOMARY LAW SUCCESSION PRIOR TO COLONISATION
Concept of Succession
The Homestead/Household Unit – The primary unit of social organisation in a customary setting. Every successive wife creates a
household or homestead. The husband is the head of the homestead/household → responsible for and administers property and the
family (not restricted to children, may include sisters or mothers). The husband may delegate responsibility.
The Head of the Household – Defined in terms of a duty to look after the people in the household, not in terms of rights to property.
The death of the family head is a significant event, as it affects control of the family group and its property –
- Risks undermining the stability and cohesiveness of the community
- Has the potential to destabilise the family
Thus complex death and mourning ceremonies which happened over a period of time were meant to transition the deceased’s family
members to the new phase without the deceased.
Customary Law Succession – Principles of ACL succession are based on the values of group solidarity, preservation, and wellbeing
of the family (this is the critical takeaway):
- Meant to ensure continued wellbeing of the family and the transmission of the deceased’s rights and obligations to an heir
- Focuses on the broader concept of succession to the status of the deceased with all the accompanying rights and
responsibilities → not merely on the inheritance of the deceased’s property (someone must take the place of the deceased
and assume his responsibilities for the family)
- Distinguishes succession and inheritance → succession is about status, inheritance is about acquisition of property
(inheritance is often followed succession, but is not as important)
- Defined by the principle of male primogeniture, ie through the male line → males inherit to the exclusion of females, generally
through the eldest male son
Responsibility for the Family – Refers to the extended family of patrilineally-linked relatives for which the deceased was
responsible. The notion of a nuclear family is not the reality on the ground (historically and today) → the family is an extended family.
Example: Simple family matrix

Husband Wife
Daughter 1 Son 1 Son 2 Daughter 2
Grandson 1 Grandson 2
Granddaughter 1
- Son 1 will succeed Husband
- If the heir is a minor (uninitiated and very young), Wife will administer property until Son 1 is of age, as this is in the best
interests of the family
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→ Wife cannot act as the head of the household, but she can administer the property – women play a critical role in
administration of property
- If the heir is irresponsible, Grandson 2 could inherit if he is of age, alternatively Son 2 could inherit, alternatively Grandson
2 could inherit (first exhaust Son 1’s line)
→ It is in the best interests of family to choose a different heir
→ There is no threshold/benchmark regarding irresponsibility (the best interest of the family is key, everything else is
flexible)
- If Son 1 predeceased Husband, Grandson 2 would succeed Husband (first exhaust Son 1’s line)
- Nothing will happen if Wife dies, as she is not the head of household and her death does not trigger succession
→ Husband assumes control of Wife’s property
- In the absence of sons, a Male relative of Husband (brother, uncle, grandfather, cousin) would succeed
→ Often depends on who is available
- Whether an heir can sell property once he receives it depends on whether it is in the best interests of the family to do so
→ The successor doesn’t assume ownership of the property (no unilateral power as exists at common law)
→ If the successor uses the property for his own purposes, he can be ostracised (sufficient to induce behaviour)
- The family oversees the process of succession
→ No outside authority, no involvement from headmen or chiefs
→ Succession is a private matter that happens within the family
Note → In a polygynous marriage, each wife creates her own house. Generally, the first son of the first wife will succeed as the
ultimate head of the household. A son will succeed in each particular house.
Inheritance and Property

Who Inherited Property? – Inheritance generally typically follows succession → the heir assuming status as head of the household
is expected to look after the family, and so is given the means to do so.
Ownership of Property – The heir doesn’t take ownership of property as understood at common law; he administers the property
on behalf of the family. Some property can be given to younger sons (rarely daughters) to establish homes, but the property is
administered by the successor.
Entitlements to Use Property – Widows and daughters can't succeed as head of the household → generally don’t inherit property
BUT have entitlements to use the property. Women cannot be ejected from use of the property and have strong entitlements to use
of property. This is not ownership, but even the heir doesn’t have ownership entitlements.
- Any prejudice to women comes from the apartheid era, not from ACL law itself
Customary Testation
There was limited freedom of testation in ACL, as most property devolved in accordance with the principle of male primogeniture
BUT there were testamentary dispositions of property –
- A father could:
→ Give property to younger children to assist them in establishing their own homesteads
→ Disinherit an unsuitable heir
- These were oral dispositions made in the presence of family that would be given effect to upon death
The family council had some freedom to select an heir or appoint a guardian to an immature heir –
- The rules were flexible and applied differently depending on the circumstances
- The object was to select an heir who would ensure the well-being of the family
- The rule that the eldest son was always the preordained heir wasn’t rigidly applied
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Customary Law Succession vs Common Law Succession

How does ACL differ from common law? → What does the common law value and prioritise, who does it protect, what is the focus?
Common Law Customary Law
Nuclear family, individualised Extended family
Focus: Obtaining rights to property Focus: Succession
No inheritance of duties Duty to look after family members is inherited
Goal: Speedy winding up of the estate, focuses on Underlying Goal: Wellbeing and preservation of the family,
beneficiaries (adversarial) group solidarity
Completely discretionary → wellbeing and preservation of
No discretion under the Instate Succession Act
the family is paramount
Bhe – The underlying values of ACL are critical to critiquing the Reform Act.
SO the systems are very different. FO: How can one pick and choose between them, transfer principles from one to the other?
THE APARTHEID ERA

ACL was generally undermined and ossified during the apartheid era –
- Creates a dual racist system of succession in South Africa → reflected the apartheid agenda of racial segregation.
- Black individuals’ estates administered in accordance with the Black Administration Act and regulations → everyone else
governed by Intestate Succession Act
- Black individuals’ estates administered by magistrates → estates of everyone else administered by the Master’s Office
(entirely arbitrary)
Note → one of the reasons for the Intestate Succession Act was to bring everyone under one system of law to move away from the
racist dual system under apartheid. Keep this in mind when thinking about how best to protect CL succession.
S 23 of the Black Administration Act and Regulations

See Bhe v Magistrate, Khayelitsha.
Content of Custom Unclear – (Most) property devolved in accordance with ‘Black law and custom’ → the content of this phrase
isn’t specified.
Magistrates’ Powers and Male Primogeniture – Magistrates further empowered to hold enquiries (summon members of the family)
in certain instances to determine who the heir should be. BUT magistrates administering estates only really used their powers to
determine the males in the family in order to give effect to male primogeniture.
- In theory, succession of status and devolution of property could happen in accordance with different types of ACL
- In reality, magistrates just applied the principle of male primogeniture → SO the literature codified male primogeniture
Customary Heir’s Duty to Care for the Family – The underlying value of preservation and wellbeing of the family is entirely lost to
male primogeniture.
The Results –
i. The focus shifts from succession of status to inheritance of property
ii. Codification of male primogeniture
SO ACL is defined by male primogeniture in the literature BUT this comes from the manner in which magistrates applied the Black
Administration Act and ACL thereunder.
The migrant labour system
Note – Official changes occur simultaneously with major changes in people’s lifestyles. The migrant labour system pulled black
individuals from rural to urban areas:
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- Breaks down families → the basis of ACL
- Economy is individualised → moves from subsistence to cash
- Changes inheritance practices on the ground → extended families begin to be excluded
Changing Property Rights – Men are forced to move to and work in urban areas. Women stay behind in rural areas and work the
land. ACL precludes women from taking status, but not from taking property → women, younger sons, even unmarried daughters
begin to have greater rights to property.
The Land Crisis – BUT land becomes a critical issue in the country. In the pre-colonial era, land was not particularly significant BUT
a land crisis emerges during the colonial and apartheid eras. The State responds by claiming that ACL doesn’t allow women to own
land in their own right → must own land through husbands or sons.
SO the apartheid government changes ACL to deal with the land shortage/crisis.
Changing practices and ossifying the law
Individuals did not apply the Black Administration Act when dealing with each other. Empirical research revealed that inheritance
practices changed –
- Inheritance practices were capped whenever people approached the courts because the principle of male primogeniture
was blanketly applied → ACL could not evolve and develop
- Perhaps if ACL had been allowed to develop and evolve on its own, the principle of male primogeniture would have been
developed and changed BUT unscrupulous individuals exploited the ossified the law to their benefit
THE CONSTITUTIONAL ERA

Practices are checked against constitutional rights and principles. The problem → male primogeniture discriminates against women
and children.
Moseneke v The Master – The distinction in the administration of estates based on race constitutes unfair discrimination. All estates
must be administered by the Master’s Office. SO there is no longer a distinction based on race for administration purposes.
Note → Who can afford to litigate on this issue? The Chief Justice has to bring the matter.
Bhe v Magistrate, Khayelitsha – Challenges the constitutionality of s 23 of the Black Administration Act and the principle of male
primogeniture.
Bhe v Magistrate, Khayelitsha

NB – Considers the legal framework and ACL.
Facts – Mrs Bhe lived in an informal settlement in Khayelitsha with 2 minor daughters and her partner (Deceased). Deceased’s
grandfather in the Eastern Cape claims the property under the Black Administration Act to sell → this would render Bhe and her
daughters homeless.
Issue – Are the legal framework and principle of male primogeniture constitutional?
Majority – Declares the framework and male primogeniture unconstitutional. Strikes down the Act and ACL. Applies the common law
Intestate Succession Act to regulate the devolution of estates. Notes that polygamous spouses must be accommodated.
Minority’s Critique of the Majority – Small estates are typical in ACL settings: Minor children will lose property in order for the family
to claim the financial value → this isn’t fair, undermines the preservation and wellbeing of the family. ALSO the common law caters
only to the immediate (nuclear) family. The extended family (mothers or siblings of Deceased), which is typical of ACL, is not provided
for.
In evaluating the critique, consider semester 1 work regarding the constitutional recognition, status, role of ACL → how does it
accord?
Majority’s Response to the Minority’s Critique – Not clear what the LCL is in this instance, so only OCL can be considered. The
unconstitutional OCL is struck down. Finds that the nuclear family is the norm SO the Intestate Succession Act will work here.
Polygamous marriages can be accommodated by considering the relevant number of surviving spouses, as opposed to a single
surviving spouse.
BUT what about cases like Mayelane? Why is there no consideration of relevant facts, ie length of the various marriages, etc?
Majority → Application of the Intestate Succession Act is an interim measure, to provide relief to Applicants, who were threatened
with homelessness. This is an issue to be resolved by the Legislature (has the requisite skill and expertise). The Court just wants to
protect the vulnerable (ie the wife and children of Deceased).
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Post-Mayelane Response (See para 228 onward) – Call for evidence on LCL (see semester 1). Consider the importance of LCL
and its protections and equality to common law. The Court cannot simply strike down ACL and replace it with common law → any
judgment replacing ACL with common law is failing in respect of constitutional recognition.
Note – Consider how pressing this issue was. The litigants approached to Court for relief, but the process drags out. FO: Critique the
judgment, but consider the circumstances. [AA: Don’t throw the baby out with the bathwater.]
Note: Application to Polygamous Marriages – The majority in Bhe says that nothing precludes ACL from applying alongside
common law BUT this is unlikely to occur in polygamous relationships in practice → the presence of a second wife triggers property-
grabbing, not a harmonious relationship. The majority is heavily criticised for this.
THE REFORM OF CUSTOMARY LAW OF SUCCESSION ACT

Commenced 20 September 2010 BUT the Master’s Office applies the Reform Act to all estates reported, regardless of date. SO use
the Reform Act for any problem question.
The Purpose of the Reform Act – Women and children not adequately protected in terms of ACL. The Constitutional Court declared
male primogeniture unconstitutional BUT ACL doesn’t cater for these changing conditions. The Reform Act is meant to address this:
- Protect women and children
- Give effect to the Constitutional Court’s declaration regarding male primogeniture
- Protect the best interests of the family
Consider – Does the Reform Act achieves this objective? Does it protect all women and all children? Are the best interests of the
extended family protected? The Act may achieve its purposes in some instances and not in others.
Provisions of the Reform Act

S 2(1) of the Reform Act – The intestate estate of any person who dies without a will and who is subject to customary law will
devolve in accordance with the Intestate Succession Act, subject to subs 2.
‘Who dies without a will’
The Reform Act defines a ‘will’ in terms of the Wills Act. SO for the Reform Act to apply, the deceased must die intestate → without
a will that complies with the formalities of the Wills Act.
Example – A disposed of certain property in terms of ACL testate succession to B and C to ensure their security. Would these
dispositions be given effect to by the Master’s Office? No. There is no a written will.
The Reform Act essentially does away with ACL succession → property will devolve either under a will in terms of the Wills Act or in
terms of the common law Intestate Succession Act.
- Compliant written wills are not accessible → hardly anyone produces a fully compliant written will
- Most people have their property devolve in terms of the Intestate Succession Act
SO deathbed dispositions are done away with under the Reform Act, and will not be given effect to.
Is it Right that the Reform Act Does Away with ACL Succession? – The Reform Act has good intentions, ie to provide certainty
and protect individuals against fraud. BUT it is contradictory → the Intestate Succession Act aims to give effect to the intention of the
deceased BUT it does the opposite in terms of ACL.
There was no engagement with ACL succession during the drafting of the Reform Act, yet it has major consequences for application
of ACL → frivolous/dismissive attitude toward ACL succession.
S 5 of the Reform Act – The Master’s Office has some discretion regarding application of the Reform Act. This discretion is not used
in practice → a written will is required to avoid application of the Reform Act.
‘Who is subject to customary law’
The Reform Act doesn’t give any guidance regarding determining whether someone is subject to ACL SO it is not clear what this
means.
Conflict of Laws – See semester 1. In practice, the Master’s Office takes a pragmatic approach and just applies the common law,
and accommodates customary practices if it falls within the ambit of the Reform Act.
BUT whether a person lives according to ACL ought to be considered.
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‘Devolve in accordance with the Intestate Succession Act’
The Common Law Dominates the System – The Reform Act must be read in conjunction with the common law Intestate Succession
Act, which now applies to all intestate estates (single system of succession) → effectively abolishes the dual system of succession
(may have been considered fairer).
The Law Commission pushed for a single system of law and unification in light of the country’s racially discriminatory history. SO
from this perspective, it makes sense to have a single system of law, under which the population cannot be divided based on race.
BUT for the most part, the single system does away with intestate ACL succession → this may be criticised:
- Why is the one system of law dominated by the common law?
- Why is the single system not informed by both common law and ACL?
- Why is there not more of an influence of a system of law that prioritises the best interests of the family?
- Is the Reform Act a reasonable and justifiable limitation on right to culture?
FO – One system of law works; legal pluralism can create issues BUT more care should be taken regarding the system defaulting to
the common law as the ideal.
Note → There is no case law on the Reform Act BUT this does not mean that it is working perfectly. People work around it BUT there
are also problems regarding access to justice.
The Basics of the Intestate Succession Act

The Estate is Worth More than R250,000 – The estate is shared equally between the spouses and the children. Calculate the child’s
portion.
The Estate is Worth Less than R250,000 – The estate is shared equally between the spouses. Insufficient funds to calculate the
child’s portion; only the spouses inherit.
Note → NOT necessary to discuss ministerial amounts or the method of calculating child’s portion. Just state the above bullets:
‘According to the Reform Act, if the estate is worth more than R 250,000 then ABC; if the estate is worth less than R250,000 then
XYZ’.
The Reform Act: Accommodation of Customary Law

Definitions
Broader definitions of descendant and spouse to accommodate ACL practices → these definitions are the most significant
accommodation of ACL.
‘Descendant’ – A person who is a descendant in terms of the Intestate Succession Act, and includes –
- A person who is not a descendant in terms of the Intestate Succession Act, but who, during the lifetime of the deceased
person, was accepted by the deceased person in accordance with customary law as his or her own child
→ Includes ACL adoption BUT not prescriptive (the adoption must just meet the ACL requirements)
- A woman referred to in s 2(2)(b) or s 2(2)(c)
Based in common law, but extended to accommodate ACL –
Customary Adoption → Celebrated and publicised. Includes the situation where a man marries woman who has a young child – the
child is assumed to forms part of the new husband’s family (unless expressly excluded in the marriage negotiations).
Arrangements of Care → A child is raised in an adult’s house, but is not adopted. Example: A child lives with an aunt or grandmother
who requires help in the home, ie the child is raised by a family member. There is no intention to break the parental relationship.
There is no case law regarding whether this is covered by the definition in the Reform Act. Some considerations –
- There is a duty of care toward the child even if there is no intention to sever the parental relationship → it is in the interests
of the child (and the extended family?) for the child to inherit
- The definition of ‘descendant’ is not limited to adoption
- Allowing the child to inherit in such a situation could be contrary to the wellbeing of the family → it could create conflict with
the biological children who stand to inherit
Whether arrangements of care are included under this definition depends on the facts and how one argues based thereon. It doesn’t
seem to be the intention of the Legislature to include such arrangements BUT argue wellbeing of the family.
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The Legislature has been strict about drawing the line between spouses and descendants. The Courts have taken a broad approach
in cases involving the Road Accident Fund and the duty of care → not just legal obligation, recognises what happens in practice.
‘Spouse’ – Includes a partner in a customary marriage that is recognised in terms of s 2 of the RCMA.
2. In the application of the Intestate Succession Act –
b. A woman, other than the spouse of the deceased, with whom the deceased entered into a union in accordance
with customary law for the purpose of providing children for his spouse’s house …
c. If the deceased was a woman who was married to another woman under customary law for the purpose of providing
children for the deceased’s house …
In terms of the Intestate Succession Act, only spouses (or spouses and children) may inherit. The Reform Act offers a broader
definition of ‘spouse’ –
Spouse under s 2(2)(b) → Seed raiser/substitute wife. The point of this relationship is to produce a child for the first wife (analogous
to a surrogacy relationship). The second union woman is considered a wife and must inherit, if this is done in accordance with ACL.
- Extramarital affairs will try and fit into this category following the death of the husband
NB it is unclear why this kind of relationship is singled out for protection.
Spouse under s 2(2)(c) → This is not a same-sex relationship because there is no sexual relationship between the wives. Husband
1 is married to Wife 1. Wife 1 marries Wife 2. Wife 2 marries Husband 2 to produce children for Wife 1’s marriage to Husband 1. Wife
2 is considered a spouse of Wife 1 and inherits on her death. Wife 1 is almost always a woman of status and power.
Example: The Rain Queen of the Balobedu community in Limpopo. The Queen enters into marriages with other women for political
purposes → the Queen’s motive is to create and secure political alliances; the wives’ motives are to win favour with the Queen. The
children of these marriages are considered the Rain Queen’s children. According to the legislation, the children are meant to inherit
from the first wife (ie the Rain Queen), but this doesn’t happen in reality SO there is a disjunct with legislation. There is also no
succession in reality → the first-born natural daughter of the Rain Queen will succeed to her position.
Example: Older unmarried women may enter into these kinds of marriages to produce children or for the wife to be of assistance in
the house.
NB it is unclear why this is singled out for protection. In reality, these women should always be considered spouses since the entire
marriage process (lobola etc) is complied with.
Confusion – The women identified in s 2(2)(b) and (c) are referred to in the Act as both spouses and descendants. There is an
internal consistency in the Act due to poor drafting. The Master’s Office decided that the best protection for women is to treat them
as spouses → this accords with Law Commission’s recommendation.
These are the most significant accommodations of ACL BUT it is not clear why these two types of spouses are highlighted.
Example case study
A is married with 4 children. He supports his widowed mother and divorced sister who stay with him. His two eldest children have
married and moved out of the home. The youngest two are still at home. A disposed of certain property in terms of customary law
testate succession to his mother and sister to ensure their security.
How Would A’s Estate Be Distributed on His Death? –
Could A’s Mother and Sister Claim from the Estate as Descendants? – No. A would not have accepted his mother and sister as
children SO they are not eligible to inherit.
Could A’s Mother and Sister Claim from the Estate as Spouses? – No. A’s mother and sister cannot fit into the definition of a
spouse.
Would A’s Mother and Sister Have Any Claim Against the Estate? – No. A’s mother and sister are not considered his descendants
or spouses, and so they cannot inherit.
Should A’s Mother and Sister Have Any Claim Against the Estate? – The benefit of focusing on the extended family is that any
duties of care are given effect to → A looked after his mother and sister and had a duty of care in respect of them.
The benefit of focusing on the nuclear family is the ease with which the estate can be divided. Casting the net wider than the nuclear
family may prejudice the nuclear family. But why and how would they be prejudiced? Why are the above two forms of spouse
recognised and no one else?
Does the Reform Act Enforce the ACL Duty of Support? – The duty of support is important in ACL → one must opt-out of the
duty of support. The duty of support was recognised in previous iterations of the Act, but not in the current Act. BUT the duty of care
was not explicitly repealed, so it is not clear why it has been lost.
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A potential drawback of recognising the duty of support is that the estate may not be large enough to accommodate all dependants.
BUT is this a legitimate reason not to recognise the duty?
Think about this critically → Why would it be good or bad? Would people be better or worse off? Are there any broader implications?
How Does the Reform Act Deal with Family Property? – The Master’s Office determines the outcome of any dispute about the
devolution of family property. This is one of the areas of flexibility in the Reform Act → if property is shown to be family property, it
won't devolve in accordance with the Intestate Succession Act.
Criticism of the Intestate Succession Act → Contains very rigid, fixed rules and doesn’t cater to needs on the ground or actual family
dynamics.
FO → In dealing with ACL, there is a measure of uncertainty. Key is preserving the wellbeing of the family.
S 5 of the Reform Act → Dispute or uncertainty in consequence of nature of ACL. In Bhe, the minority criticised the Intestate
Succession Act’s application to family property. This is one of the reasons for the Reform Act → to give the Master’s Office some
discretion regarding the devolution of family property.
BUT the Master’s Office hasn’t exercised this discretion. This can have a significant effect, but it is not pleaded well. Proving family
property requires showing family use of the property.
How Does the Reform Act Deal with Discarded Spouses? – Historically ACL marriages were not recognised. Civil marriages
nullified customary marriages. The law referred to the customary spouse as the ‘discarded spouse’ → s 22(7) of Black Administration
Act preserved the property rights of discarded spouses. If the husband died, civil and customary wives would share the estate as
customary marriages. SO the customary wife only gained rights on the death of her husband.
Note → This only applied to marriages concluded before 1988.
S 7 of the Reform Act → Property rights in relation to certain customary marriages. This is essentially a re-enactment of s 22(7) of
the Black Administration Act and only protects spouses in marriages concluded before 1988. FO: Why are only marriages concluded
before 1988 being protected?
Think about this critically → Is this protection conferred on women who find themselves in a similar position today? What protection
is offered to marriages that are voided on technicalities (eg Mayelane)? There is no discussion about whether these women deserve
protection, and whether certain classes of women are in fact protected. If the purpose of the Act is to protect women, do the provisions
live up to this purpose?
More examples
Do the provisions of the Reform Act achieve their purpose? Are women protected? Are children protected?
Example 1 – M dies, leaving 4 wives. M’s first wife has three children and the other wives have none. How would M’s estate devolve
if it was worth R100,000?
- M’s estate is worth less than R250,000 SO the Reform Act states that only the wives will inherit (R 25,000 each)
Is this fair? → The first wife has children to care for, but estate is distributed equally. The children will inherit nothing – what about
their rights? They will benefit only indirectly from their mother.
If the first wife didn’t have a valid marriage, she would get nothing, and the children would have NO benefit. This is one of the problems
of transporting common law into ACL. Common law works in a nuclear family BUT not in a polygamous marriage where the estate
must be split among wives, and the children don’t inherit. There is no consideration for the length of the various marriages or the
number of dependants → frustrates people in practice.
Example 2 – M looks after his three children, wife, mother, and sister. M dies. How would the R100,000 devolve?
- M’s estate is worth less than R250,000 SO the Reform Act states that only the wife will inherit
There is no duty of support toward sister and mother SO they will derive no benefit from the estate of someone who was supporting
them. The spouse inherits to the exclusion of other women → the nuclear family is protected to the exclusion of extended family.
Mother and sister get no benefit from someone who was supporting them.
Example 3 – T’s husband dies. She knows that she is supposed to get the house BUT her husband’s family believe that the house
belongs to the family. T is reluctant to go against the family. She does not want her children and herself to be ostracised from the
family. It is important to her that her children belong to the family. She also does not think that she has the money to pay for a lawyer.
Many women experience this. They may not know about the Reform Act specifically, but they know that the law gives them rights to
the property BUT they are reluctant to enforce their rights.
Women are forced to relinquish their property by –
- Threats of violence against them and families

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- Accusations of witchcraft → consequence is death
- Coercion by dead husband’s mother and brothers → the mother-in-law is a central figure in claiming the property
- Fear of being ostracised from the family → what is the point of getting the property if the children won't belong to the family
after?
- Accusations of going against the culture
SO does the Act actually impact people’s lives? Draw on theory from semester 1.
Himonga → Considers the limits of legislation: Legislation has it pros BUT it is not enough, and isn’t going to change practices on the
ground. Legislation must be coupled with something else, practices must be engaged to achieve change. SO if the purpose is to
protect women, the Act is not sufficient.
There are also concerns regarding accessibility → women often do not have the money to pay for lawyers. There is a sense of
exploitation: asking for advice will cost money.
SO the Reform Act cannot be considered isolation. Consider –
- Do people have knowledge of the Reform Act?
- What are the costs of enforcing the law?
Implementation of the Reform Act in Practice/Living Customary Law

Assets in a Rural Area vs Assets in the Formal Economy – Property in the formal sector is reported and administered in
accordance with the Reform Act as read with the Intestate Succession Act. Assets in the formal economy goes through the Master’s
Office, and are administered in accordance with the Reform and Intestate Succession Acts.
South Africa has strong financial regulations SO money is not released unless there is a letter of authority therefor (ie estate must be
reported). The Master’s Office says it cannot administer immovable property in a rural area → generally there is no title deed, so
immovable property cannot go through the Office, regardless of its value, and must be administered in accordance with ACL.
- SO only property in the formal economy is regulated by the Reform Act
Procedure on the Death of the Head of the Household: Control of Property –
- The widow assumes control of the homestead in the village → male primogeniture not a defining characteristic
- No heir to the house is found as long as the widow is still alive
- The widow cannot dispose of the house at will or bring a new husband into the home → obliged to pass it to her eldest son
- BUT the son’s right or claim to the house is subordinate to the widow’s right to the house for as long as she is alive
- Upon the widow’s death, the son assumes control of the house
Procedure on the Death of the Head of the Household: Responsibility for the Family –
- The eldest son assumes the responsibility for looking after other family members, eg unmarried brothers or sisters
- The son cannot displace family members from the house BUT he may bring his new wife into the house and establish his
house in the family home
- Sisters have a right to live in the property for as long as they are unmarried
- Where a house only has daughters, a close male relative would be found from another house of the extended family and
placed in the house to take responsibility for caring for family members in the house
CLASS EXERCISE
i. Explain the following concepts & provide examples of each:
a. Customary house
b. Personal property
c. House property
d. Family property
ii. Explain the principle of male primogeniture
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iii. Can the application of the Reform Act be precluded by an oral customary will? → No, oral wills not recognised as the Reform
Act is precluded only by written wills that accord with the Wills Act
iv. See case study example above: How would the estate be distributed if it was reported by A’s civil law wife B? → There is
no customary marriage because the civil marriage occurred first SO the civil wife will inherit
v. Would it be constitutional to write a will that contracts out of the Reform Act, ie provides that the estate must devolve in
accordance with the principle of male primogeniture? → Can ACL be revived? The Bill of Rights provides that a
discriminatory will can be changed BUT what about the right to culture? Reviving the principle of male primogeniture would
be difficult because of the Constitutional Court judgment and legislation declaring it unconstitutional. ALSO ACL is about
rights and duties. At the end of the day, a testator should name his beneficiaries
SOME SUMMARIES
Preservation of the family is critical. In the pre-colonial era, the family could disinherit heirs. Knowing pre-colonial principles is an
important foundation in order to correct distortions (Bhe). For the last 12 years, the Traditional Courts Bill has been criticised for
imposing common law on ACL.
There was a shift of emphasis from succession to inheritance under apartheid. The literature talks of women having usufruct (limited
real rights). The principle of male primogeniture, that men would inherit at the exclusion of women, is not based in ACL and is created
in the literature. The land issue under apartheid causes inheritance to come to the fore.
Male primogeniture is an issue under the Constitution. The Legislature doesn’t address this, and the Constitutional Court in Bhe
strikes down male primogeniture and the Black Administration Act. The Constitutional Court applies the common law and the Intestate
Succession Act as a temporary/interim measure to provide immediate relief to the parties BUT says that this must be corrected in the
long run by the Legislature.
Textbook Summary
Fundamental changes to the ACL as it infringed on the rights to equality and dignity, and children’s rights.
The Bhe judgment was followed by the enactment of the RCLSA (Reform Act), which came into operation on 20 September 2010.
The rule of male primogeniture, which over many years had been a feature of OCL of succession, was dealt a deathblow and replaced
with rules adopted from the Intestate Succession Act.
The Reform Act amends the Intestate Succession Act, the Administration of Estates Act, and the Maintenance of Surviving Spouses
Act to ensure that the rights of persons who were rendered vulnerable by the application of the rule of male primogeniture in the ACL
of succession are protected. This means that intestate heirs include –
- All descendants of a deceased person, defined in the Reform Act, irrespective of their age and gender
- The wife or wives of a valid customary marriage or marriages as defined in the RCMA
The result is that the present law of succession in South Africa is a hybrid system, which depicts features of both the common law
and ACL.
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TRADITIONAL LEADERSHIP
OBJECTIVES
- Explain the role of traditional leadership historically in customary law
- Explain the effect colonialism and apartheid had on traditional institutions
- Explain the role of traditional leadership in the constitutional era and legislation dealing therewith
- Critically discuss issues relating to traditional leadership in South Africa
→ Refer to the recognition, role, and powers of traditional leaders
→ At the end of the course, answer with reference to the specific themes of dispute resolution and land
What do ‘traditional leader’ and ‘traditional leadership’ refer to in this s?
Note: Two Opposing Camps – Civil society, which claims to represent people’s interests vs the National House of Traditional
Leaders, which claims to be the custodian of culture and to represent people’s interests.
HISTORY
The Pre-Colonial Era

A chief is a chief by the people.
Misconception – Chiefs were dictators who possessed a concentration of unchecked power.
Diffused Power – Historically, there was no real concentration of power in chiefs and there was a multi-layered system of rule. Power
was diffused and concentrated at ‘lower’ levels, in social structures such as the family and councils, which held significant authority:
- If the dispute cannot be resolved by the family, it may be escalated to the community level
- If the dispute still isn’t resolved, may go to the chief → the chief’s decision often simply reflected his council’s opinion
The Position of Chiefs – Chiefs were with the community at large, not with microscopic issues. They were advised by councillors
(largely men), and never acted alone. Councillors’ degree of influence varied.
System of Voluntary Affiliation – A chief acting against his council was considered arbitrary and unjust. This could result in the loss
of followers. Because land was not an issue, people could simply move away if they were unhappy with the chief. The power and
influence of a chief depended on the size of his community → significant check on power:
- Real accountability to the people and pressure on chiefs to rule justly → a just ruler would attract more followers
Spiritual and Ceremonial Role – In pre-colonial times, chiefs played a different (not unimportant) role as a spiritual and ceremonial
leader.
Succession – Generally eldest son of most senior wife succeeds as chief. Succession was generally through the male line BUT
succession to the position of chief was more nuanced than simply the oldest male taking the position → successors required
community support, without which power would be contested.
The Importance of Understanding the Historical Position – A fundamental objection to the Traditional Leadership and
Governance Framework Act is that it is a distortion of ACL → one must understand the historical position in order to critique the
legislation.
SO – Pre-colonial leadership structures very were flat → chiefs were not dictators, and were always advised by councils.
Colonialism and Apartheid

Indirect Rule – The State consciously removed/undermined the institution of traditional leadership → traditional leaders were
appointed and removed by the State to further the objectives of the State.
The Effect – The State appointed leaders who did not necessarily have the support of the community → this undermines the
legitimacy and credibility of traditional leaders, and changes the way people interact with traditional leadership.
Increased Powers for Traditional Leaders – The State gave traditional leaders significantly more power and authority, and
controlled land, tax, passes, etc. Traditional leaders became wealthy BUT were expected to control and administer the population on
the State’s behalf → traditional leaders become autocratic, with limitless powers over the community BUT subject to state oversight.
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The Significance of Land – Land was strictly controlled. People could not move away if they were unhappy with their traditional
leaders → traditional leaders no longer accountable to the people, but to the State. Traditional leaders were effectively immune, even
if they exploited their people or acted contrary to the community’s interests.
Incentive to Administer the State Agenda – If traditional leaders did not cooperate and further the State agenda, they would be
removed (or even killed). This becomes important later in the National House of Traditional Leaders.
Consequences of traditional leaders’ cooperation with the State
The Face of Oppression – Traditional leaders administer State law and so became the instrument through which indigenous people
were ruled (subject to State oversight).
State Manipulation of Populations – People were arranged and categorised into fixed units:
- Large populations were broken up in order to dilute their power, reconstituted, and ruled by traditional leaders that promoted
the State’s interest of controlling the population
- The State created homelands (strategic areas that could be controlled) and presided over by cooperative traditional leaders
Tribal Authorities – Subordinate to and assisted traditional leaders. Consisted of men, as women were exluded. Established as
administrative councils to administer tribes BUT functioned to subjugate the population as a whole. People were governed on the
basis of the territory they resided and authority they fell under. Traditional leaders participated because it was to their benefit →
allowed them to administer wealth.
Summary
A hierarchy is formed for the purposes of indirect leadership → complete transformation of traditional leadership structures. Traditional
leaders are given unchecked power and become central to ACL and traditional communities.
Tribal Authorities were created → aligned with traditional leaders BUT helped them to enforce State policies and the State agenda.
The State creates distinct communities (‘tribes’), which fixes people into particular areas → no more freedom of movement.
THE CONSTITUTIONAL ERA

The Difficulty in the Constitutional Era – Power is transferred through male primogeniture → initially, this seemed irreconcilable
with a constitutional democracy. The ANC initially wanted to do away with traditional leadership, since it was perceived to be the face
of oppression by the apartheid State → the movement in 1994 had to be toward a participatory democracy.
Initially, traditional leadership was not to be recognised BUT at the end of apartheid, there was a movement to the protection of
indigenous rights. Traditional leaders organised themselves:
- Claimed to be the custodians of African culture
- Distanced themselves from their role in apartheid
- Portrayed themselves as indispensable for the solidification of power in certain rural areas, particularly in KZN
→ Political consideration (internal politics)
→ No empirical evidence that this was the case
→ Failure of local government meant that traditional leaders stepped up.
SO initially there was opposition to recognition of traditional leaders BUT they were ultimately recognised due to their reorganisation,
the external climate, internal politics, and the inefficacy of local government.
SO – In the constitutional era, it is unclear what role traditional leadership can play in South Africa. How should unelected leaders be
accommodated? The Constitution recognises traditional leadership as having some role BUT does not entrench the power of
traditional leaders.
Relevant Constitutional Provisions

S 211 of the Constitution – Recognition of traditional leaders:
1. The institution, status, and role of traditional leadership, according to ACL, are recognised, subject to the Constitution
The Constitution does not recognise the powers, functions, or authority of traditional leaders. Traditional leadership is recognised
insofar as it is in accordance with ACL → the State’s elevation of the powers of traditional leaders is not in accordance with ACL. The
Constitution never sought to elevate the powers of traditional leaders, which are subject to the Constitution.
2. A traditional authority that observes a system of ACL may function subject to any applicable legislation and customs, which
includes amendments to, or repeal of, that legislation or those customs (Shilubana)
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S 212 of the Constitution – Role of traditional leaders:
1. National legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local
communities.
2. To deal with matters relating to traditional leadership, the role of traditional leaders, customary law and the customs of
communities observing a system of customary law –
a. National or provincial legislation may provide for the establishment of houses of traditional leaders; and
b. National legislation may establish a council of traditional leaders.
This is vague → traditional leaders have a role, but their functions and powers are not specified. This was done deliberately, to
recognise traditional leadership without embedding/concentrating power there.
S 40(1) of the Constitution – Government of the Republic. The three spheres of government are at the national, provincial, and
local levels → traditional leadership is not meant to replace a sphere of government, even if they function in this way in reality.
An Argument → During apartheid, there were ‘citizens’ in urban areas, and ‘subjects’ in rural areas. In the post-constitutional era,
there is one people: everyone should have a say in government and should be allowed to vote in local government. This is why
traditional leaders should not function as local government. BUT local government has broken down and so traditional leaders have
stepped up.
Note – Legislation focuses on recognising traditional leaders, rather than traditional communities. This is a problem → communities
themselves must be recognised.
SO the role and status of traditional leaders is ambiguous and vague. It was assumed that they would have an advisory role BUT this
was contested by traditional leaders.
The Traditional Leadership and Governance Framework Act

Objectives of the TLGFA – To recognise and regulate traditional leadership and existing instutitons in a constitutional democracy.
Traditional Leadership and Governance Framework Act → recognises existing institutions.
The hierarchy of traditional leadership
According to the TGLFA, every community is structured in the following way:

Considered the
King/Queen custodian of African
culture and spirituality
Principal traditional leader
Senior traditional leader
Headmen/headwomen
This is Problematic – Not all communities are structured in this way in reality. Many communities in South Africa have no hierarchical
structure at all → the family functions as the primary dispute resolution mechanism, and disputes may be escalated to community.
When the Act sets out a hierarchy that doesn’t actually exist, people move into the vacuum to assume this power.
Changes in terminology, but continuation of existing institutions
Apartheid-era Terminology Terminology under the TLGFA
Chiefs Traditional leaders
Tribes Traditional communities
Tribal authorities Traditional councils
S 28 of the TLGFA – Transitional Arrangements. The structures created in apartheid continue to exist and have force and effect:
- Any traditional leader recognised before the Act is deemed to be recognised and appointed in terms of the Act
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- Any tribal authority in existence before the commencement of the Act is recognised as a traditional council
- Any tribe in existence at the time the Act comes into operation is deemed a traditional community
- The territorial boundaries of traditional communities are those established during apartheid
SO – These illegitimate institutions and structures, which are completely distorted, are recognised AND transformed to be more
acceptable in a constitutional democracy → it was argued that non-recognition would lead to gaps.
Note → In the pre-colonial era, traditional leaders had power over people. In the colonial and apartheid eras, traditional leaders had
power over land. In the constitutional era, traditional leaders continue to have power over land.
The Nhlapo Commission on Traditional Leadership and Claims – Established to investigate the legitimacy of individuals’ claims
to traditional leadership where it is disputed by the community. Failed as a safety mechanism → not one uncontested case came
before the Commission SO almost all cases had to go to court. No check on the legitimacy of traditional leaders.
The Commission’s work has been criticised.
Pilane v Pilane 2013 (CC) → The community in question lives on the richest platinum reserves in the world, but is impoverished. The
traditional leader is the trustee of and derives sole benefit from a Trust. Some members of the community uses the TLGFA and
decides to break away from and cease affiliation with this leader. These people are harassed by police and attorneys → receive
interdicts from the High Court saying that they cannot break from the leader AND are interdicted from meeting to discuss the issue.
The Constitutional Court –
- Majority: The group called themselves a tribal authority, and are entitled to do so because the tribal authorities no longer
exist; part of ACL is having open discussions → the interdicts must be lifted to allow this group to meet
- Minority: Accountability by moving away from the traditional leader to show disagreement is no longer permitted
FO – This sort of issue should not have to escalate to the Constitutional Court to be resolved.
Further Appointments of Traditional Leaders – Generally, the Royal Family appoints the person in accordance with ACL, and this
must be recognised by the Premier → (Premier of the Eastern Cape v Ntamo 2015 (ECB)).
Transformation of traditional councils
S 3 of the TLGFA – Provides for the recognition and establishment of traditional councils BUT requires them to transform:
- Treated as democratic institutions representing the community
- Are required to transform within seven years
S 3(2) of the TLFGA → Regulates the required post-transformation composition of traditional councils:
- 33 % must be women → councils cannot be dominated by men
- 40% must be democratically elected
- 60% may be appointed by a traditional leader
TLFGA Amendment Bill → Extends the time frames for this transformation.
The legal status of traditional councils unclear → compounded by the fact that often these councils are not properly constituted:
- The Act has been a complete failure in North West
- Limpopo has held no elections at all
Even where elections are held, it is difficult to assess whether the requirements have been met and there is no way to make them
accountable → it is questionable whether the reconstitution requirements can be given effect to.
Consequences of Non-Compliance – The TLGFA silent on this matter. Statistics indicate that women constitute the majority of
rural communities BUT traditional councils largely refuse to comply with the requirement that one-third of the council be women →
there is no guidance regarding consequences of this non-compliance.
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The Importance of Transformation –
The Historical
The legitimacy of these institutions is questionable → old apartheid-era tribal authorities
Factor
The councils are often dominated by men, royal families, and people with political connections:
The Transformation - How do these councils deal with issues concerning women?
Factor - Where does the money go when these councils enter into agreements with third parties?
These are untransformed institutions
The councils exercise important (but vague) functions.
S 4 of the TLGFA – The councils:
- Assist and support traditional leaders
The Function Factor - Participate in and promote policy-making
- Perform the functions conferred by ACL, custom, and statute
The councils are funded by the State (ad hoc funding in the form of salaries) BUT are not elected and are
not accountable to the State → basically an unelected elite who can act as they please with no
accountability.
The Traditional Courts Bill (Lapsed) – Proposed that traditional councils function as traditional courts for the purpose of dispute
resolution → this bolstered the powers of traditional councils, which are untransformed institutions, and still dominated by certain
individuals. Communities were not happy about this.
Communal Land Tenure Policy – Proposed that ownership of communal land be transferred from the State to traditional councils.
This is a major development → whoever owns the land can sell it and keep the profits.
Functions of traditional leaders
S 19 of the TLGFA – A traditional leader performs the functions provided for by customary law, customs of the community and
statute.
S 20 of the TLGFA – Guiding principles for allocation of roles and functions:
(1) National government or a provincial government may, through legislative or other measures, provide a role for traditional councils or
traditional leaders in respect of –
a. Arts and culture

i. Economic development
b. Land administration
j. Environment
c. Agriculture
k. Tourism
d. Health
l. Disaster management
e. Welfare
m. The management of natural resources
f. The administration of justice
n. The dissemination of information relating to
g. Safety and environment government policies and programmes
h. The registration of births, deaths, and customary o. Education

marriages
(2) Whenever an organ of state within the national government or a provincial government considers allocating a role for traditional councils or
traditional leaders in terms of subs (1), that organ of state must –
a. Seek the concurrence of –
i. The Minister if it is an organ of state in the national sphere of government; or
ii. The Member of the Executive Council responsible for traditional affairs in the province concerned if it is an organ of
state of that province
b. Consult with –
i. The relevant structures of traditional leadership; and
ii. The South African Local Government Association
c. Ensure that the allocation of a role or function is consistent with the Constitution and applicable legislation
d. Take the customary law and customs of the respective traditional communities into account
e. Strive to ensure that the allocation of a role or function is accompanied by resources and that appropriate measures for accounting
for such resources are put in place
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f. Ensure, to the extent that it is possible, that the allocation of roles or functions is implemented uniformly in areas where the
institution of traditional leadership exists
g. Promote the ideals of co-operative governance, integrated development planning, sustainable development and service delivery
through the allocation of roles and functions
(3) Where an organ of state has allocated a role or function to traditional councils or traditional leaders as envisaged by subs (1), the organ of
state must monitor the implementation of the function and ensure that –
a. The implementation of the function is consistent with the Constitution
b. The function is being performed
(4) Where a traditional council does not perform an allocated function as envisaged in subs (3), any resources given to a traditional council to
perform that function may be withdrawn.
Another Sphere of Government? – Traditional leaders play such a big role in service delivery, has this just become another sphere
of government? Legally, traditional leaders are not recognised as a different sphere of government BUT in reality, they wield
significant power.
Advantages of Recognising Traditional Leaders as a Disadvantages of Recognising Traditional Leaders as a

Sphere of Government Sphere of Government
They are accessible because they are in the community Potential for abuse → whose interests do they advance?
Traditional leaders have stepped up following the failure of local

Not democratically elected → no legitimacy, accountability, or
government → they function as a bridge between the
checks and balances
community and access to services
Accountability of Traditional Leaders – S 10, 10A, and 12 of the TLGFA provide for the removal of kings or queens, principal or
senior traditional leaders, and headmen or headwomen. These checks and balances do not work in reality:
- Removal may be on the ground of:
→ Conviction of offence with sentence of imprisonment for more than 12 months and no option of a fine
→ Physical incapacity or mental infirmity
→ Wrongful appointment or recognition;
→ Transgression of customary law rule or principle
Example: King Goodwill Zwelithini → The King made xenophobic remarks that incited violence. The Commission wanted to
investigate BUT was told that it has no authority to investigate a king.
Example: Dalindyebo → Some men accused in the community of rape and housebreaking were released on bail. The King burned
down their houses, and had them beaten almost to death and banished. The King isn’t removed. There was a criminal trial to have
him convicted:
- The defence from traditional leaders was that he was acting in accordance with ACL and the State has no authority to
investigate this
- BUT this isn’t true → in ACL leaders acted on advice of councils
The King’s defence doesn’t stand, and he is convicted. BUT there is no accountability from the community before the criminal trial.
[FO – How far back can one go in evaluating whether conduct is in line with ACL? One cannot go back to precolonial ideas, because
things have changed.]
Pilane v Pilane 2013 (CC) → The community in question lives on the richest platinum reserves in the world, but is impoverished. The
traditional leader is the trustee of and derives sole benefit from a Trust. Some members of the community uses the TLGFA and
decides to break away from and cease affiliation with this leader. These people are harassed by police and attorneys → receive
interdicts from the High Court saying that they cannot break from the leader AND are interdicted from meeting to discuss the issue.
The Constitutional Court –
- Majority: The group called themselves a tribal authority, and are entitled to do so because the tribal authorities no longer
exist; part of ACL is having open discussions → the interdicts must be lifted to allow this group to meet
- Minority: Accountability by moving away from the traditional leader to show disagreement is no longer permitted
FO – This sort of issue should not have to escalate to the Constitutional Court to be resolved.
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Payment of traditional leaders and headmen
S 20(2) of the TLGFA – The State must allocate funding to traditional leaders and traditional councils when it allocates their functions.
The Remuneration of Public Office Bearers Act – Traditional leaders are paid by national government.
The TLGFA allows for accountability BUT this doesn’t happen in practice → traditional leaders are paid by the State, are not
accountable, and can act as they please –
- Example: King Zwelithini has a budget of R60 million and owns land
- Example: Most communities’ land is held in trust → large funding is diverted to people who are not held accountable.
Tribal levies
Tribal Levy – Personal payments of money that leaders require of people who live in traditional communities. These are controversial
because only national and provincial government has the power to tax people BUT the State hasn’t banned these levies → the
TLGFA requires these levies to be disclosed and accounted for BUT they are not banned.
Enforcement of Tribal Levies – Through confirmation of address → if one wants confirmation of address, which is critical for most
administrative processes, one must pay all tribal levies (everything is taxed).
S 4(2) of the TLGFA – Provincial legislation must require traditional council to keep proper accounting records, audit financial
statements, and disclose gifts.
S 4(3)(b) of the TLGFA – Traditional councils must meet at least once a year with community to give account of, amongst other
things, the levies received. Example → payment for:
- Access to courts
- Permission to be buried in a jurisdiction
- Confirmation of address
Sunday Times: Colonial Taxes Irk Buthelezi’s Last Subjects → Individuals were forced to pay various levies annually, including a
kraal fee for a traditional ceremony where Buthelezi celebrates the year with his subjects. Levies are also imposed for:
- An unmarried woman who falls pregnant
- Every child born out of wedlock
- Traditional weddings hosted in the area
- Sale of a cow
- Farewell fees when a villager relocates to another area
The Traditional and Khoi San Leadership Bill

Status – Passed by the NA and NCOP, and now waiting for the President’s signature. Civil society is lobbying against this.
Aims and Functions – Repeals the TLGFA. Meant to recognise Khoi San leaders within traditional structures, which are currently
excluded under the TLGFA.
Note → the TLGFA doesn’t prohibit recognition of traditional Khoi San leadership. The Bill is essentially exactly the same as the
TLGFA BUT goes further.
Issues
Difference in Treatment – Traditional leaders and Khoi San leaders are treated very differently under the Bill:
Traditional Leaders Under the Bill Khoi San Leaders Under the Bill
Recognition of traditional leaders based on old apartheid

Recognition of Khoi San leaders based on voluntary affiliation
boundaries → major pushback that the Bill is unconstitutional
Recognition based on land Recognition based on community recognition
Increased Powers for Traditional Leaders – Departments can delegate State functions (health, housing, education, etc) to
traditional leaders or councils with no guidance on:
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- Execution of functions
- Constraints
- Accountability
- Relationship between traditional leaders and the State
The Bill effectively creates a blanket ability to delegate any power or function to traditional councils with no checks and balances.
Partnership Agreements – Traditional leaders and councils may enter into partnership agreements with States and other institutions.
The preference appears to be with traditional leadership, not the community (which is bypassed). This is the clearest indication of
where the State is going → the problems of the past persist SO transformation (or lack thereof) is important.
The Bottom Line – There are no real improvements. If anything, the Bill removes the mechanisms for community participation.
GUEST LECTURE: RECONSTRUCTION AND RESISTANCE IN THE FORMER CISKEI
Focus
- Case study of a community challenging the legitimacy of a senior traditional leadership and its incumbent
- The role of new laws on traditional authority in the reconstruction of traditional authority in locations with no history of such
institutions
- How traditional leaders and government officials represent history of chieftaincy in the case study area
- How different actors involved in these struggles use different sources of power, including law, to endorse their versions of
history as means to restore their version of traditional authority
Traditional Authority in South Africa: Context

National context
The Constitution – Traditional leadership is recognised in the Constitution ‘according to customary law’, subject to the Constitution.
Legislation – Since the 2000s, many legislative proposals have aimed to formalise and centralise the power of senior traditional
leaders:
The Nhlapo Commission on Traditional Leadership

The TLGFA
Disputes and Claims
Recognised traditional leadership within the apartheid-era
boundaries and structures BUT also provides for the Established to investigate and resolve all disputes regarding
democratisation of traditional authority → 40% of traditional traditional leadership
council members must be elected and 33% must be women
BUT traditional council elections are improperly conducted or BUT the Commission not been equipped to deal with the high
have not taken place at all (eg Limpopo) → there have been no number of claims and unable to resolve many of the disputes
consequences for the defaulting councils, instead given brought to it → many of its decisions have been challenged in
extensions court (eg AmaHlati)
Additional legislation –
- The Communal Land Rights Act
- The Traditional Courts Bill
- The Traditional and Khoi-San Leadership Bill
- The Traditional Leadership and Governance Framework Amendment Bill
- The Communal Land Tenure Bill
Legislation has been severely critiqued for bolstering the powers of traditional leaders while undermining the democratic elements of
customary law and the Constitutional Court’s jurisprudence thereon –
- The Constitutional Court: [Customary] law comes from practice and practice comes from the people
Local context
The Former Bantustans – Traditional leaders have continued to strive for the reconstruction of traditional leadership and expansion
of their powers in and over local communities. The new laws affected these struggles.
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Example → In the Eastern Cape, legislation provides an impetus to traditional leaders’ actions. This welcomed by some in the Former
Ciskei, as it answers:
- The need to belong, and to be different
- Dissatisfaction with elected local government institutions
- The wish to have colonial- or apartheid-imposed leaders replaced by their own
BUT there is also severe resistance to extension of the role and powers of chiefs → during apartheid, the Former Ciskei was
characterised by:
- Forced removals
- Land dispossessions
- Betterment schemes
This resulted in communities of people from diverse origins, without shared leadership structures.
The imposition of senior traditional leaders on these communities, and the exertion of colonial administration’s influence on the
selection of headmen, has always met severe resistance throughout history in this area.
The precarious position of traditional leadership in the area is also evidenced by the fact that the Eastern Cape was one of two
provinces that rejected chieftainship altogether in 1994.
Ubukhosi in the Pre-Colonial Ciskei

Chieftainship in the Xhosa Groups – Emerged in the 16th century, when certain clans were able to subdue and dominate others.
- Chiefs held some power BUT depended on the support of the ‘clan heads’, who sat on the chief’s council
- Chieftaincy was hereditary BUT there was competition between chiefs → councillors were to dismiss a chief and have him
replaced by a rival
Land was abundant and chiefs depended on followers → people could leave and settle elsewhere or change their allegiances to
another chief.
The Mfecane (19th Century) – Population pressure increased. Land became scarce. Rivalry between chiefs of the same polity was
reduced → shifted the balance of power away from councillors and communities towards chiefs.
Chieftaincy in the Colonial Ciskei

Annexure of the Ciskei (1847) – The British attempted to introduce private property and elected representatives for the ‘natives’,
with the aim of breaking the power of the chiefs. Hereditary chiefs were replaced with elected headmen, selected by the men in the
villages subject to approval by the Magistrate.
The Natives Administration Act of 1927 – Initiated restoration of chieftaincy and the government of Africans through native law
and custom. BUT government in the Eastern Cape continued to work with the elected headmen.
The Bantu Authorities Act of 1951 – Introduced
- Tribal Authorities (with chiefs and councillors)
- Community Authorities (with no chiefs) → in ethnically diverse communities
While the Act legalised structures that were still in existence in many places, in the Ciskei, it reconstructed something that been
largely destroyed –
- Headmen became subordinated to chiefs
- Clan heads lost leverage over chiefs
- Chiefs became State functionaries with executive tasks
- Chiefs’ powers of arrest, search, and seizure increased → eroded their legitimacy in the eyes of their people
- Chiefs paid by the apartheid government
SO chiefs became more dependent on the State for their authority and material wellbeing.
Chiefs’ councils were now often made up of his personal dependents, offering fewer checks and balances on the chief’s functioning
in the interest of communities.
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Chieftaincy in the Self-Governing Ciskei

The Ciskei was granted internal self-government in 1972, with a legislature consisting of elected members and chiefs.
The Two Dominant Ethnic Groups –
The Rharhabe Xhosa The Mfengu
Composed of several distinct Nguni-speaking peoples that fled

Descended from the first Xhosa-speaking people to inhabit the
Natal during the Mfecane and entered Xhosa country around
area
1818 – 1828
Some Mfengu were fully absorbed into Xhosa communities; others lived semi-autonomously in a client-patron relationship with local
chiefs.
The Colonial Government’s Involvement – Played on Mfengu grievances over the servitude and exactions demanded of them by
the Xhosa. Drew the Mfengu into an anti-Xhosa alliance → rewarded their collaboration with large portions of Xhosa land.
The Xhosa-speaking groups resented the Mfengu –
- Collaborated with the colonial forces
- Controlled former Xhosa land
- Held the majority of professional salaried positions and headmanships → better educated and Europeanised
The 1973 Election for Ciskei Government – Strong competition between:
The Mfengu Group The Xhosa Group
Led by Mabandla → Ciskei National Party (CNP) Led by Sebe → Ciskei National Independence Party (CNIP)
CNIP won the elections by a small margin. Sebe’s new government wanted to reduce the power of the Mfengu. BUT
- Tthe majority of recognised chiefs were Mfengu
- Chiefs outnumbered elected members in the 1973 Ciskei Legislature
SO controlling chieftaincy positions was an important strategy of the new Ciskei government
ALSO the consolidation of Ciskei by the South African government led to the addition of white farmlands and an influx of people
displaced from areas that were now designated as ‘white’
New Chieftaincies – The above resulted in the creation of new chieftaincies with a territory and a following:
- Eight new Xhosa chieftaincies
- One new Mfengu chieftaincy
These chieftaincies went to Sebe’s supporters.
The Result – Sebe’s thin majority became a comfortable margin over the CNP (Mfengu), which caused many of its members to
defect to the CNIP (Xhosa).
Tribal authorities
1968 – 1994 – The tribal authorities were largely reduced to vehicles for government’s programmes, fund-raising ventures, and
directives. They had a wide range of duties for the Ciskei government BUT were provided with no means to respond to concerns and
needs of their population:
- Councillors were nominated by the Tribal Authority without consulting the community
- Headmen and sub-headmen were elected by the community BUT these positions were not coveted:
→ Large amount of work
→ Tasked with collecting levies in their villages
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The Tribal Authorities became identified with the interest of the Ciskei State → due to their limited local legitimacy, they had to rely
heavily on penalties and coercive measures. As chiefs increasingly operated as State functionaries, resistance against apartheid
included active rebellion against chiefs.
1990 – Sebe’s government was toppled by the Ciskei Defence Force, led by Brigadier Gqozo, who promised to dismantle the Tribal
Authorities system:
- All headmen were made to resign BUT chiefs were retained
- Formation of Residents’ Associations was encouraged → soon the whole chieftaincy system was on the brink of collapse
Gqozo feared the newly-established Associations’ popularity and support from militant youth SO reversed his decision –
- Banned the Residents’ Associations
- Restored the tribal system
Gqozo’s rule ended in 1993 due to his resistance to the ANC and the re-integration of Ciskei into South Africa.
Traditional Leadership in the Post-1994 Former Ciskei Area

After 1994, the ANC tried to impose its authority in the Eastern Cape and contain the powers and aspirations of the traditional leaders
by excluding them local government and development services → the Eastern Cape ANC later realised that antagonising traditional
leaders was strengthening the United Democratic Movement (UDM), which was courting traditional leaders.
The presumptions that traditional leaders bring rural votes led to the ANC’s renewed interest in the Eastern Cape chiefs → salaries
of traditional leaders were raised, some traditional leaders were awarded a place on the ANC list for the Provincial Legislature.
AmaHlathi Case Study

Background
AmaHlathi Traditional Community – 15 km north of King Williams Town in the Eastern Cape. Protracted dispute over the legitimacy
of a senior traditional leadership position and its incumbent over this community:
- Luvuyo claims to be the senior traditional leader of AmaHlathi
- Many members of the community claim that the AmaHlathi never had senior traditional leadership over them until it was
imposed by Sebe in the 1980s
The people of AmaHlathi are among the groups scattered by mfecane Natal during the colonial period, and sought refuge among the
Gcaleka in the Transkei.
History – After the death of King Hintsa (1834), some of these groups crossed the river Kei and settled in Peddie. After the War of
Mlanjeni (1850 – 1853), some Mfengu settled in Keiskammahoek and in the Division of King Williams Town. The settlement of
AmaHlathi in the Division of King Willam’s Town was probably established in 1853. In the 1950s, there were attempts to establish a
Tribal Authority with a chieftaincy over the AmaHlathi.
Hammond-Tooke – Described the AmaHlati community as the Mfengu Tribal Authority, comprising a mixed population of Mfengu,
brought together in 1957 in terms of the Black Administration Act:
- When the Tribal Authority was established, there was no chieftainship, only headmen of no royal descent
- The Mfengu overlooked their tribal differences and attempted to create a chieftaincy, with Myoli appointed as a Mfengu chief
- This failed due to lack of popular support → Myoli was instead elected as a Chief Headman of the Tribal Authority
The AmaHlathi as a Community Authority – Community members described headmen with no chieftaincy:
- Chief Headman: Tribal authority
- Isibonda (Headman): Village
- Isibindana/Ibhodi (Petty-Headman): Sub-village
BUT the Chief Headman was elected by the community → SO according to the Black Administration Act, AmaHlathi was a Community
Authority, not a Tribal Authority. It seems –
- Hammond-Tooke misnamed the community due to the attempts to create a chieftainship
- AmaHlathi only became a Tribal Authority in 1982 when Sebe created the AmaHlathi Fingo Tribal Authority and imposed
Maqoma (Xhosa) as chief over a largely Mfengu community
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Nonesi’s Reign – Intermittent. Little impact on the community. Deposed and reinstated by different Ciskei governments with their
changing attitudes toward chiefs. After the fall of Sebe and Gqozo in the early 1990s, Nonesi had no effective presence in the
AmaHlathi community.
- Nonesi’s letter of appointment refers to AmaHlathi Fingo Community Authority
- The Ciskei Administrative Authorities Act of 1984 refers to the AmaHlathi as a Tribal Authority
Under the influence of South African National Civic Organization (SANCO), the community renamed its headmen ‘chairpersons’,
which were similarly elected in each village and sub-village for 5-year terms.
The dispute
2006 – Government officially recognises Luvuyo Maqoma (Nonesi’s son) as the senior traditional leader of AmaHlathi traditional
community.
- Luvuyo allocates land and tries to convince chairpersons to become his headmen by promising them salaries
- The community refused to select a headman SO Luvuyo appoints them from the Tshawe clan (Xhosa royal lineage)
The dispute divided the community into those supporting the elected chairpersons and those supporting the new headman. Luvuyo
is supported by newcomers, labour tenants, some Tshawe, and young people who see his leadership as an opportunity for economic
gain.
Luvuyo is reported to have tried to prevent a village’s land restitution claim from being awarded to the claimants without his
involvement. The anti-Luvuyo group fears he will take power over their land, and that he is diverting development funds to himself.
2010 – When approached King Sandile of the Rharhabe, Luvuyo was not able to prove his chieftaincy. Luvuyo turned to the Provincial
Legislature.
2011 – The matter is eventually referred to the Eastern Cape Provincial Committee of the Commission on Traditional Leadership
Disputes and Claims.
2013 – The AmaHlathi Crisis Committee (ACC) is formed and lodges a claim for the disestablishment of the senior traditional
leadership of AmaHlathi traditional community.
August → The Committee convened hearings:
- The ACC asserted that:
→ The 8 villages of AmaHlathi have never had a senior traditional leadership
→ It is contrary to their custom of headmanship to find themselves imposed with one
→ The current chieftaincy in AmaHlathi was created and imposed in 1982 by Sebe
- Luvuyo argued that:
→ The AmaHlathi land belonged to Rharhabe King Ngqika and was occupied by the Xhosa groups
→ Luvuyo is a descendant of King Ngqika and that his chieftainship was confirmed by the Rharhabe house
→ The AmaHlathi community had accepted both Nonesi (the regent mother) and her son
- The ACC countered that:
→ They settled on unoccupied land awarded to them by the British for fighting on their side during the frontier wars
→ Luvuyo does not hail from a royal family, nor was he recogniSed by the Rharhabe kingship
→ Neither he nor his mother were ever recogniSed by the community
The Committee’s own research report shows that the chieftaincy of AmaHlathi created by Sebe in 1982 and that there is no evidence
of chieftaincy in Luvuyo’s family. BUT while the field report favours the ACC’s claim, the Committee recommends against the
disestablishment of the senior traditional leadership.
The Committee’s justified its recommendation on the basis that the claimants acquired the land of AmaHlathi from the colonisers →
this overlooks the historical fact that AmaHlathi is part of Ngqika’s land, from whom Luvuyo descends. The Committee cites the fact
that the Mfengu settled in AmaHlathi during the period of Jongumsobomvu Maqoma’s incarceration in Robben Island BUT provides
no evidence for this claim or why it is a significant factor.
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This is at odds with the Commission on Restitution of Land Rights’ final research report on the Cwengcwe village land claim (2012)
→ confirms Jongumsobomvu Maqoma as the son of Ngqika but locates as a chief in Fort Beaufort (about 80 kilometers from
AmaHlathi).
- The disjuncture between field report and recommendation suggests a change of heart and a concerted effort to create a
particular version of this history
October → The Premier of the Eastern Cape cited the Committee’s recommendation and dismissed the community’s claim.
2016 – The community filed an application at the High Court for the review of the Premier’s decision. The ACC argued:
- The Commission had erred in application of its mandate in terms of s 25(3) of the Framework Act → to consider and apply
the customary law and customs of the relevant traditional community when considering a dispute or claim
- The imposition of a senior traditional leader who was intermittent, ineffective, and not recognised as legitimate by the
community did not extinguish or alter their customary law
- How the community came to be on the land is not an issue before the Commission and is irrelevant to the issue in dispute
2017 – In March, the former Premier filed an affidavit outlining reasons for her decision. Most significantly:
‘The People of AmaHlathi did not abolish the customary leadership arrangement that predates their settlement on this land, as they
did not defeat the previous ‘tribe’ and subject them to their own way of life, as it was in the olden days. [Instead, by settling on the
land they] subjected themselves to the reign of those customary leadership structures that predate their settlement.’
Premier of the Eastern Cape filed a confirmatory Affidavit stating that –
- He did not make the decision under review (ie it was made by the former Premier)
- He did not oppose the relief sought by the applicants in the case
- He would abide by and honour whatever decision the Court arrives at
May → The first, second, third, fourth, and sixth withdrew from the case –
- The First Respondent: The Premier of the Eastern Cape
- The Second Respondent: The MEC of Local Government and Traditional Affairs
- The Third Respondent: The Commission on Traditional Leadership Disputes and Claim
- The Fourth Respondent: The Chairperson of the Commission on Traditional Leadership Disputes and Claims
- The Sixth Respondent: The Department of Cooperative Governance and Traditional Affairs
SO only Luvuyo (the fifth respondent) remained as a respondent.
June → The Bhisho High Court heard the review application unopposed. The Court set aside the Commission’s recommendation
and the Premier’s decision, and granted a court order to disestablish the senior traditional leadership over residents of AmaHlathi.
September → Luvuyo filed an application for the rescission of the court order.
2018 – The Community learned that the Eastern Cape Department of Local Government and Traditional Affairs defied the court order
and reinstated Luvuyo as the Chief of the AmaHlathi, on the basis of Luvuyo’s application for the rescission of the court order.
April → Legal representatives of the community wrote a letter to the Eastern Cape MEC of Local Government and Traditional Affairs
to implement the court order, noting that Luvuyo’s application for the rescission of the court order does not suspend the court order.
The Department subsequently removed Luvuyo and his iinkosana from the office.
Analysis
The AmaHlathi case highlights the following points:
The Source of Traditional Authority – The government conceives of traditional authority as deriving from land, not from the people
→ this is contrary to the notion that a chief is a chief through the people, and is a colonial invention that distorted traditional authority.
It is surprising that it is currently being perpetuated by a democratic government.
Problematic Construction – The government’s reconstruction of AmaHlathi traditional authority is ahistorical and divisive → it
overlooks the history that shaped traditional authority in the former Ciskei, including the impact of Sebe’s repressive regime which
relied on the creation of chieftaincies.
Reliance on Past Tensions – Government officials are also holding on to the historical tensions between Mfengu and Xhosa
speaking groups → Premier Kiviet rested decision largely on this division, and the historical fact that the Mfengu people fought on
the side of the British.
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Centralisation of Power – Power of the senior traditional leader over the community is centralised → the AmaHlathi community’s
articulation their governance system is in line with customary law and the Constitutional Court’s jurisprudence on customary law (ie
that custom flows from the people’s practice).
Inters of History, Power, and Politics – Different actors leverage different sources of power to assert their version of history and
leadership structure:
- Politicians and traditional leaders rely political power to support historical narratives that suit their political and economic
interests
- The Eastern Cape government seems to habitually side with senior traditional leadership, even in the face of serious
community contestation, and without any attention to accountability of traditional leaders → eg the Cala Reserve & Xolobeni
This is significant considering the government’s role in recognising traditional leaders, and the rights and resources flowing from such
recognition → this role as grown with the 2009 Amendment to the Framework Act, which attached only advisory power to the
Commission’s decisions, with the President and the Premiers making the final decisions.
Reliance on the Courts – The politicisation of chieftaincy struggles and the government’s almost indiscriminate siding with traditional
authority means that communities often have to resort to courts to claim their rights, as they struggle to win in the political arena. This
requires substantial community organizing as well as assistance from Legal Aid Centres.
Even when the communities win in court, this case shows they have not necessarily won the State’s support, which holds and wields
power as it pleases.
Conclusion
The law and these disputes all are steeped in history and historical contestations. Traditional leaders rely on a particular version of
history to claim powers they never had in the past. Various actors try to have their own versions of traditional leadership implemented.
It is largely only traditional leaders that are invited to hearings, which are held far from traditional communities. The final iteration of
the Traditional Leadership Bill is a product of what government and traditional leaders want. The people are not protected.
The law has made it very difficult for communities to remove traditional leaders if they are no longer properly performing their duties.
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TRADITIONAL DISPUTE RESOLUTION
INTRODUCTION
In attempting to pass the Bill, the government harks back to the constitutional provisions, recognition of traditional leadership, and
how the Bill will imbue constitutional values → one must keep the relevant constitutional provisions in mind:
- S 9: Equality provision
- S 25: Property rights
- S 30: Participation in the cultural life of one’s choice
- S 34: Access to courts
- S 35: Fair trial rights
Traditional Courts
The Traditional Courts Bill – A customary institution or structure, which is constituted and functions in terms of customary law, for
the purposes of resolving disputes I accordance with constitutional imperatives and this Act, and referred to in the different official
languages.
The Purpose of the Bill

To replace the current legislative framework in terms of which disputes are resolved in terms of customary law, in line with
constitutional imperatives and values → government states that the Bill will regulate traditional forums for resolving disputes and
ensure that they function in line with the Constitution.
The Bill will replace parts of the Black Administration Act.
S 2 of the Traditional Courts Bill – Objects of the Bill:
- To affirm the values of customary law and customs in dispute resolution based on restorative justice and reconciliation, and
to align them with the Constitution
- To affirm the role of traditional courts in terms of customary law
- To enhance the effectiveness, efficiency, and integrity of the traditional courts in dispute resolution
History of the Bill

Timeline
April 2008 – The Traditional Courts Bill is introduced in the National Assembly for the first time.
June 2011 – The Bill is withdrawn due to public concerns about the Bill’s content and lack of public consultation.
January 2012 – The Bill is introduced in the National Council of Provinces, triggering a nation-wide campaign to stop the Bill.
Problems with the 2008 and 2012 versions of the Bill → the public was not adequately consulted during the drafting of the Bill and
the Bill:
- Based the jurisdiction of the traditional courts on apartheid-era Bantustan boundaries
- Imposed a separate legal system on people living in the former homelands
- Ignored the voluntary and consensual nature of customary law
- Centralised power in senior traditional leaders
- Did not address discrimination against women, children, and other vulnerable groups
- Prohibited legal representation for parties, even for criminal matters
- Allowed for harsh sanctions, such as forced labour, banishment, and deprivation of customary rights (including land rights)
2014 – The Bill fails to win a majority vote by the provinces and lapses at the time of national elections.
2015 – 2016 – Government forms a reference group to work on drafting a new version of the Bill.
January 2017 – The revised Bill is introduced in Parliament, addressing some past concerns. Initially, the 2017 Bill recognised the
consensual, voluntary, and living nature of customary law. It allowed people to opt-out of traditional court processes, and included
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important protections for women and vulnerable groups. The different levels of traditional justice systems were acknowledged BUT
many of these improvements have now been undone by Parliament.
March 2018 – The Portfolio Committee on Justice and Correctional Services began public hearings. Oral submissions are presented
by selected stakeholders at Parliament. Some presenters are met with hostility, and the Committee and traditional leaders
interrogated presenters. Derogatory remarks were made to presenters during hearings and subsequently.
August 2018 – Parliament’s Portfolio Committee changes the Bill to undo many of the improvements. The Bill regresses to its older
versions → key constitutional provisions were removed:
- The opt-out clause
- Gender protection mechanisms
- Recognition of the voluntary nature of customary law
- The schedule listing prohibited conduct that infringes on dignity, equality, and freedom
March 2019 – The Portfolio Committee finalised the Bill:
- No gender protection measures
- No op-out clause
- No provisions on the voluntary and consensual nature of customary law
- Traditional courts elevated to courts of law
- Traditional leaders elevated to presiding officers
The National Assembly passes the Bill without any clause allowing people to opt-out of traditional courts → the Bill was forced through
using the Speaker’s vote to make quorum. The Bill must still be considered by the NCOP.
Key Provisions
Nature and status of traditional courts
Confusion with respect to the nature and status of traditional courts –
- S 6 of the Bill: Defines traditional courts as courts of law in terms of customary law
- S 1 of the Bill: Defines courts as courts of law in terms of s 166 of the Constitution
Traditional courts are not courts in terms of the Constitution and are not part of the ‘official’ judicial system BUT are referred to and
recognised as courts.
The confusion and lack of clarity as to the status of traditional courts could lead to contestations and possible abuse of power.
Traditional courts are not subject to the same rules and regulations as official courts of law BUT could assume those powers.
Opting in and out
Older Versions of the Bill – Did not allow opting-out.
Jurisdiction →Traditional courts had certain jurisdiction within geographical areas, and if one fell within the Court’s jurisdiction and
did not appear following a summons, one could be convicted of a criminal offence.
The traditional councils track the former Bantustans SO the jurisdictions of the former tribal authorities were carried into traditional
councils. The Traditional Courts Bill made these geographic jurisdictions the jurisdiction of the traditional courts → this caused major
uproar, as it created a separate legal system where people were forced to attend the traditional courts, even if they had been wrongly
put under a tribal authority during apartheid.
People were subject to authority that they may not recognise, and such authorities may be empowered to determine their rights.
Because the provisions of the Bill were so bad, being able to opt-out of the jurisdiction of the traditional courts was an important
safeguard, preventing people from having to experience the other harmful aspects of the Bill.
The 2017 Version of the Bill – Included the same geography as the previous versions BUT included language emphasising the
voluntary and consensual nature of customary law and the traditional courts (ie an opt-out mechanism):
4(2)(a)(iii) A traditional court may … only hear and determine a dispute … if the party against whom the proceedings are instituted agrees
freely and voluntarily to the resolution of the dispute by the traditional court in question.
After being summoned to court, one could approach the clerk and inform him of one’s decision not to have the dispute heard by the
traditional court → one could opt-out and have the clerk facilitate the transfer of the dispute elsewhere.
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Note → The traditional courts retained advisory powers under this version.
This 2017 version of the Bill was a victor for civil society, but remained contentious. Parliament did not like the opt-out clause, and it
was completely removed from the B-version of the Bill.
Gender discrimination
There are widespread concerns about gender discrimination in relation to the Bill.
Cl 5(1)(a): The Composition of Traditional Courts – A traditional courts must consist of men and women, pursuant to the goal of
promoting the right to equality → this is important because courts are law-making bodies SO if women do not participate in court,
they do not participate in law-making.
I reject this Bill because it means women will not have their cases fairly heard. Currently in my community such courts sit next to a
kraal and women are not allowed to sit anywhere near the kraal. How will our cases be heard because we can’t be present to
represent ourselves?
In previous versions of the Bill, women could be represented by their husbands according to customary law BUT were not permitted
to speak. The Department considered criticisms of this, and the Bill now says that a party to a dispute can be assisted by any person
of their choice in whom they have confidence (cl 7(4)) → BUT this will likely not be implemented in this way, though the language is
more neutral.
Note – No legal representation allowed in these courts.
Types of Matters that the Courts May Hear – When the Bill was being considered, there were concerns that certain matters around
gender-based violence and other sensitive matters are not excluded from the traditional courts (these concerns remain). The Bill
allows the courts to provide advice in relation to certain matters (initiation, family law, marriage, etc) → civil society organisations
flagged this in their submissions.
In practice, traditional courts often do not abide by the limitations set out their jurisdiction over certain matters → example: traditional
courts are not allowed to hear rape matters, but often do.
Overarching Concerns – Patriarchal versions of customary law are being perpetuated SO there are concerns about what kind of
customary law will be applied → this links to who is presented in the forum.
The 2017 version of the Bill includes positive language and oversight mechanisms with respect to gender discrimination BUT how
are these protections being implemented?
Mismatches with customary law
It is difficult to reconcile this with jurisprudence:
The Constitutional Court Parliament
Customary law is consensual and restorative Customary law is not a choice and must be enforced
While customary law is characterised as voluntary and consensual, this cannot be the case without an opt-out clause. There are
other ways the Bill demonstrates a mismatch with customary law –
Traditional Leaders vs ‘Presiding Officers’ – Power is centralised in presiding officer who is the traditional leader. There is no
unilateral decision by a judge in the traditional courts → it is a forum for discussion BUT the law does not accurately reflect this. Note
that the 2017 version of the Bill changed the language to ‘convenor’ (positive development).
Dispute Resolution Forums – In terms of customary law, there are multiple layered dispute resolution forums, not just traditional
leaders with the authority to resolve disputes.
- Old Versions of the Bill: Only the courts of senior traditional leaders were recognised → dispute resolution at lower levels
was not recognised, which is an issue, because this happens often
The system is more complex than what is acknowledged in the Bill → there are many people involved in the dispute
resolution process
- The 2017 Version of the Bill: Initially recognised the multiple layers of the dispute resolution process BUT the B-version
aligns with the TLGFA and recognises only traditional leaders
ALSO states that, once a dispute is lodged before a court, a person cannot opt-out and must move through all levels of the
process before the party can approach a magistrate → locks people into the hierarchy established by the TLGFA
*Whose version of customary law will be prioritised?
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It is only chiefs who do not enjoy the support of their people who need the government to prop them up with laws like this. This law
will add nothing to the proper functioning of good customary courts (of which there are many). Instead it props up unpopular and
autocratic chiefs and will take us back to the abuses of the apartheid era.
Checks and Balances – When people are given power, there must be a way to hold them accountable. One must legislate for ‘bad
apples’, and cannot hope that every traditional leader will be good at his job. Checks and balances –
- Cl 11 of the Bill: Review of decisions by the High Court on several grounds
- Cl 16 of the Bill: Code of conduct (must still be drafted) → the Provincial MEC responsible for traditional affairs must
investigate alleged breaches, and repercussions may include training, reprimand, or issuing of an apology
BUT the liability of traditional court members is limited (cl 15) → Any good faith act or omission by a member of a traditional court is
exempt from liability (blanket protection for good faith). This has been used in practice to allow people to escape responsibility for
certain conduct → example: King Dalindyebo who had some men accused of rape beaten almost to death (subsequently found guilty
of arson and attempted murder).
Moving Forward
Stop the Bantustans Bill Campaign – Asks the government to reconsider the current formation of the Traditional Courts Bill, and
opposes the Traditional and Khoisan Leadership Bill.
Where to From Here? – Characterising the above as a mere deadlock between the National House of Traditional Leaders and urban
civil society organisations invisibilises the real concerns. Parliament should not be prioritising the interests of traditional leaders to
the detriment of the people (8,000 vs 17 million):
- The starting point must be people in traditional communities → their lived experiences, views, and constitutional rights
- People’s non-negotiables are clear, and State legal advisors agree that they are essential for the Bill’s constitutionality (eg
opting-out)
The Bigger Picture – Research by Weeks indicates that the Traditional Courts Bill is insufficient to ensure access to justice for
people in traditional communities → a cooperative justice system is required, where traditional leaders and the State work together
with social support, involvement of local civil society organisations. There is a more complex picture that must be considered.
A Question – Why do we want people to be able to opt-out of traditional courts when people cannot opt-out of Magistrates’ Courts?
- It is not true that people cannot opt out of Magistrates’ Courts → traditional courts are often talked about with respect to
criminal disputes (ie punishment) BUT the majority of issues that come before traditional courts are not criminal
There is a range of ways that participation in Magistrates’ Courts is not directly forced → other mechanisms of dispute
resolution
- Traditional courts should not be recognised in the same way as Magistrates’ Courts, because they are different from
Magistrates’ Courts → this is what makes them good and accessible
- If people see value and legitimacy in the system, they will and do participate → SO why force the power and participation
of the traditional courts?
- Restorative justice happen by forcing people to the courts
Summary
The Bill meant to replace current legislative framework. The older versions of the Bill violated constitutional rights. There were
problematic hearings in 2018 in which presenters were intensely interrogated. The b-version of the 2017 Bill was passed because
the Speaker retrospectively cast a vote to push the Bill through. The Bill has lapsed, but the parliamentary rules are not clear in this
respect SO its revival will be based on past practice.
Key provisions –
- Definition of Traditional Courts: Traditional courts are defined as official common-law courts BUT actually fall outside this
system → could lead to abuse of power if trad courts function as courts recognised under the Constitution
- Opting In and Out: This has been removed from the present version of the Bill, which will force people to participate in the
traditional courts if summoned → people locked into courts and into old Bantustan geography
ALSO the Bill rejects the consensual natural of customary law and procedures, lessens transparency around potential abuses by
traditional courts, and maintains the links between traditional court jurisdictions and the boundaries of the former Bantustans.
Citizenship – It cannot be that, in order to practice customary law, people are forced to give up their constitutional rights.
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CUSTOMARY LAND TENURE
THE NATURE (AND DISTORTIONS) OF CUSTOMARY LAND TENURE
Theories of Land Tenure

Land Tenure – The relationship that individuals and groups hold with respect to land, right, obligations, and land-based resources.
The rules or systems that define the ways in which property rights to land are allocated, transferred, used, or managed in a particular
society.
A developed theory of land tenure…must go much further [than distinguishing mine from yours] to explain, not merely the desire for
certain things, but also why other people with similar desires, should leave the holder in undisturbed possession
Customary land rights are a form of land tenure, trying to undo a system where they were not considered a form of land tenure. It is
important to move from the premise that this is a system of land tenure, with strong rights in law. Customary land systems frame
rights differently form the common law BUT this is not less than, or inferior to, the common law → both systems must be recognised
equally.
The Question – How do customary systems articulate the basis for a land tenure system?
Land Tenure Under Customary Systems

Pre-Colonial Customary Law – Not particularly concerned with notions of property and contract (certainly not in the Western
conception). This was partly influenced by the type of economy subscribed to at the time → economic systems have a fundamental
relationship with property rights systems, because the latter are informed by the former. The economic at the time was a subsistence
economy.
The concepts of property and contract were embedded in status relationships → customary law highly evolved with respect to the
relationship between statutes and the types of relationships to property.
Bennett – Customary law was concerned ‘not so much [with] rights of persons over things, as obligations owed between persons in
respect of things’.
The Concern Under Customary Systems – The responsibilities owed between people associated with long term domestic
relationships (kin or relations through marriage) → customary law was less concerned with the ability to assert a universal right
against the wider public BUT this does not mean that customary law does not recognise ownership; it is simply more concerned with
obligations stemming from types of relationships:
- Entitlement to property was not thought of in terms of interdicts or vindicatory actions → not thought of in absolute terms
- Entitlement to property was thought of as obligations arising from family relationships and decision making → who makes
decisions is a fundamental marker of the kinds of rights people hold in property, as someone with use rights may not make
the same decisions as someone who has full ownership
The Difficulty – These systems were disrupted by the colonial and apartheid administrations. The nature of customary land rights
centred around relationships, and would have adapted as the nature of the economy and social structures shifted but for these
interruptions BUT this is not to say that the system would have been perfect → there is an inherent patriarchy, and often an inherent
hierarchy, in customary law. BUT the system was not able to figure itself out because of the disruption.
There was a close relationship between the features of social and political organisation and principles of land tenure, and traditional
governance and land systems are still inherently connected (party stemming from the apartheid legacy under which traditional
governance was absolutely attached to territory) → there was always a (generally male-occupied) position that exercised authority
over land.
Cousins – Anthropologists…attempted to identify the general features of African land tenure in the pre-colonial era … land was
plentiful … land was essential for livelihoods but had little exchange value; land was ‘vested in groups’ represented by chiefs, elders
and/or councils. There was a ‘close relationship between features of social and political organisation and principles of land tenure’.
A mythical association between ancestors and land was often present in belief systems. All members of a group had rights of access
to land, derived in the first instance from membership of the group or in some cases from political allegiance …to the political authority
of the group. Rights in land could also be obtained through marriage, migration, friendship and formal transfer.
- ‘Member of a Group’: Particular rights to land were granted by virtue of status connection
- ‘Rights in Land’: Multiple avenues by which land could be transferred
Natural development cut short
Bennett – …and as society changed in southern Africa, customary law would no doubt have adapted to new social and economic
demands. The potential for indigenous growth, however, was cut short. With colonial conquest and the introduction of a market
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economy, customary law was soon superseded by the common law, which thereafter became the preferred system for…property
transactions.
NL – We are now committed to a system rectifying the hierarchical structure of the common law vs customary law.
Distortions and Changes in Customary Land Tenure

Colonial Misconceptions – Colonial attempts to describe customary systems of land tenure fell short and distorted these systems
because they were founded on numerous fallacies/misconceptions:
- The language of ownership was universally applicable and could be imposed onto customary land tenure
- Only ‘civilised’ societies could produce the notion of ownership
Bennett: In the notorious decision, Re Southern Rhodesia (1919), the Privy Council pronounced customary interests in land
irreconcilable with ‘the legal ideas of civilised society’
- Lex nullius therefore terra nullius → facilitation of dispossession
Okoth-Ogendo on colonial fallacies
The Fallacies Underpinning Colonial Understandings of Indigenous Land Rights –
- Indigenous Law Was Not Law: Law could only originate from sovereign commands → because African systems had no
‘leader’, they could not produce law
- Indigenous Law Conferred No Property Rights in Land: Indigenous ways of using the land did not constitute a system of
property → justified imposition foreign property law
- Title Could Vest Only in the Colonial Sovereign: This underpinned the idea of indigenous communities as tenants
- Indigenous Communities Have No Juridical Persona: Indigenous communities could not hold land (property) directly as
individuals or as a collective
- African Social and Governance Institutions: Not suited to allocating and managing land or settling land related disputes
The Impact of These Ideological Fallacies –
- The status of indigenous law in relation to land is precarious
- The nature and content of indigenous land rights is distorted
- Severe tenure insecurity persists in areas where land held under indigenous law
- Public policies continue to by-pass of indigenous land adminstration
‘Communal’ Customary Tenure

‘Communal’ Customary Tenure – Misleading description introduced to ‘balance’ the over- or under-application of the concept of
ownership → assumes that entire communities hold their land communally (as a collective).
- Popular understandings of ‘communal’ suggest that communities farm land collectively and that produce is shared → this is
not the full picture, and scholars have shown that neither farming nor herding was a joint venture in pre-colonial Southern
Africa
More Accurate Understandings of ‘Communal’ –
- Bennett: ‘Communal’ is unobjectionable if it is intended to imply that all the members of a community have equal claims to
land or that membership of a political community is the basis of an individual’s entitlement to land. ‘Communal’ is also
perhaps unobjectionable if it suggests that an individual is not free to use and dispose of land at will. In other words,
landholders must obtain permission from the relevant authorities before changing the conditions of their tenure.
- Cousins: The exercise of any right was always limited by obligations and counterbalanced by the rights and privileges of
others. Individual security was great, provided that the necessary respect for the ethical code of the group was
maintained…Often a number of social personalities exercised rights and claims in the same piece of land. Land tenure was
both ‘communal’ and ‘individual’ and can be seen as ‘a system of complementary interests held simultaneously
Customary Tenure in South Africa Today

‘Communal’ and ‘Individual’ Characteristics – Land tenure in the former homelands is characterised as simultaneously ‘communal’
and ‘individual’ in character:
- Secure rights to land and natural resources derive largely from recognised and accepted group or community membership
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- Land rights are closely inter-related with social and cultural relationships more generally and the associated identities
- Tenure security is derived in large part from locally legitimate landholding rather than from the law
Cousins – Land rights in contemporary systems of ‘communal’ tenure thus remain socially embedded, involving ‘complementary
interests held simultaneously’ by members of groups. The challenge for tenure reform legislation is to give appropriate legal
recognition to the nature of such rights.
Importance of Understanding the ‘Communal’ Nature of Customary Tenure – It is important to remember that customary tenure:
- Has ‘communal’ elements → ‘communal’ as relationship-centred vs as holding all land as a collective
- Has individual elements and strong individual rights born from membership of the collective
- Can exist in areas that do not subscribe to systems of customary law → the two do not have to go together
As we move on to discuss the laws protecting land tenure rights under customary law it is important to think about how the state
understands the ‘communal’ elements of customary tenure and how that is navigated in law.
CUSTOMARY RIGHTS AND THE CURRENT SCHEMA AND PROTECTIONS
Protection for Customary Land Rights

S 25(6) – (9) of the Constitution – Tenure security:
25(6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to
the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.
25(9) Parliament must enact the legislation referred to in subs (6).
Customary Tenure and Tenure Security Rights

S 25(6) of the Constitution – Protects rights to land held under customary law, and therefore acknowledges that customary law
does confer rights in property. Seeks to correct the fact that customary systems of land tenure were interfered with and distorted so
as to deprive and dispossess people within those systems.
Fulfilling S 25(6) – Would require tenure which is legally secure and restores the security that customary land rights offer → how
can this be achieved when so much has changed
Tenure Security: Enabling Laws

- Interim Protection of Informal Land Rights Act of 1996 (IPILRA)
- Communal Land Rights Act (CLRA) + Tongoane → context: traditional leaders’ continuing jurisdiction based on geography
and the TLGFA
- Draft Communal Land Tenure Bill of 2017
The Interim Protection of Informal Land Rights Act of 1996 (IPILRA)
IPILRA was passed in 1996 in order to give effect (in the interim) to the constitutional obligation in terms of s25(6) and (9).
Interim Measure – IPILRA was intended to act as a 'holding measure' or 'safety-net' to ensure temporary legal protection for people
without formally recognised land rights while government developed more comprehensive legislation to protect and regulate
communal tenure BUT remains on the books.
S 2(1) of IPILRA – Provides that an individual may not be deprived of his 'informal rights to land' unless he consents to such
deprivation (or the government expropriates the land in question and pays adequate compensation)
The Importance of the Framing of IPILRA – Requirement of consent is a pushback against assertions seeking to undermine
customary land rights, and underscores the strength and legitimacy of customary land rights.
Informal Land Rights – Customary land rights included as ‘informal rights to land’. This is a useful, wide definition:
1. Definitions
(1) ‘Informal right to land’ means –
a. The use of, occupation of, or access to land in terms of –
i. Any tribal, customary, or indigenous law or practice of a tribe;
ii. The custom, usage, or administrative practice in a particular area or community where the land in question at any time
vested in –
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a. The South African Development Trust established by s 4 of the Development Trust and Land Act of 1936
b. The government of any area for which a legislative assembly was established in terms of the Self-Governing
Territories Constitution Act of 1971
c. The movement of the former Republics of Transkei, Bophuthatswana, Venda, and Ciskei
2. Deprivation of informal land
(1) Subject to the provisions of subs (4), and the provisions of the Expropriation Act of 1975, or any other law which provides for the expropriation
of land or rights in land, no person may be deprived of any informal right to land without his consent.
(2) Where land is held on a communal basis, a person may, subject to subs (4), be deprived of such land or right in land in accordance with
the custom and usage of that community.
(3) Where the deprivation of a right in land in terms of subs (2) is caused by a disposal of the land or a right in land by the community, the
community shall pay appropriate compensation to any person who is deprived of an informal right to land as a result of such disposal.
(4) For the purposes of this s the custom and usage of a community shall be deemed to include the principle that a decision to dispose of any
such right may only be taken by a majority of the holders of such rights present or represented at a meeting convened for the purpose of
considering such disposal and of which they have been given sufficient notice, and in which they have had a reasonable opportunity to
participate.
Note – IPILRA is very short as it designed only to be a stop-gap BUT provides a useful direction about how to gain consent. It notes
that not all people holding particular rights are the same → it is not sufficient to consult the entire community, as people who hold
land rights are affected differently by different decisions SO IPILRA distils different individuals and rights and recognises the
importance of distinguishing that different people are impacted differently.
This is missing from the model proposed by the CLRA and the Communal Land Tenure Rights Bill. If people are permitted to make
overarching decisions without consulting people who may be affected at lower levels, it will undermine decision-making component
that attaches to land rights → this is fundamental to customary law and deprives people of a core aspect of what it means to hold a
land right under customary law.
This is the danger of communal tenure and is a flaw of the CLRA and the Communal Land Tenure Bill.
The Communal Land Rights Act
The Act would have transferred title to traditional communities, and the powers of land administration and allocation vested in
traditional councils → would have granted traditional leaders and councils more extensive powers over land than provided for in
customary law.
- Title deeds of smaller landowning groups would be transferred over to larger encompassing ‘tribes’ → protection of land
rights requires interventions recognising the multiplicity of layers: a person is simultaneously an individual with rights and a
member of the collective
- The focus on the outer boundary and household is not always sufficient protection for women → the State cannot claim to
give effect to s 25(6) if it establishes a system in which women make claims to protect their land, but must compete with the
collective
It undermined the local indigenous accountability structures, and made it difficult for ordinary people to hold their traditional leaders
to account.
The CLRA was struck down by the Constitutional Court.
The Draft Communal Land Tenure Bill of 2017
The CLTB was published for comment on 7 July 2017. It is the most recent attempt by government to create legislation that regulates
communal land and provides security of tenure for those with historically insecure tenure, thereby fulfilling the states obligations under
s 25(6) of the Constitution.
The Bill is indicative of what the State thinks about customary land rights.
The CLTB Model – There is one registered owner for land allocated to an individual for residential and other purposes SO the Bill
proposes a Western conception of ownership that is concerned with the rights of persons over things → this doesn’t provide adequate
protection for land rights in customary law.
Register of Land Rights – The Bill is committed to having a register of the land rights BUT if this creates reliance on documents that
can easily fall out of date → may not be coherent with how customary law systems move and develop. This doesn’t present itself as
the best or only tool.
Questions can be raised regarding the management and upkeep of the register and the implications for secondary rights, specifically
women’s rights:
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- How does one registered owner reconcile with customary tenure being about complementary interests held simultaneously?
- How does one registered owner reconcile with the idea that customary law was concerned ‘not so much [with] rights of
persons over things, as obligations owed between persons in respect of things’
Cl 28 of the CLTB – Communities that have been issued with a deed of communal land must choose an entity to manage and
administer the land owned by the community → the choice is between a traditional council, a communal property association, or ‘any
other entity as approved by the Minister’.
SO communities can have title deeds for communal land vest in an entity which will administer the land –
- Traditional Council: Carried into post-apartheid South Africa BUT have roots in apartheid legislation → many traditional
councils remain untransformed, raising questions about their validity
- Communal Property Association: Designed to allow people to hold land together as part of the land reform process
How can communities make a choice when one of the structures on offer is not legitimate, not cognisant of the rights of women, and
not democratically elected? There is much reliance on hoping that the traditional council will contain people who will operate in a way
that considers vulnerable groups.
Requirement of Legal Compliance → The Bill stipulates that only legally compliant traditional councils and communal property
associations may be chosen to act as the land administration entity:
- Traditional councils must comply with the composition and election requirements set out in the Traditional Leadership and
Governance Framework Act
- Communal property associations must be registered with the Department in compliance with the Communal Property
Association Act
Research has shown that very few councils have actually complied with these requirements and many communal property
associations struggle to get registered. The Bill formally presents two options for communities with no clearly conceived alternative
in instances where neither a communal property association or a traditional council are an option.
The Point – This kind of framing in the CLTB and CLRA is fundamentally about collecting land and traditional governance. The model
of a traditional council and the basis of a traditional leader matter if they are given powers over land, particularly if there is the potential
to override the powers that holders of the land might have. Traditional governance structures sit at the communal, collective level. If
they are given powers that allow them to undermine the rights of individuals, the customary law land system is changed.
This is a replication of what was done under apartheid and colonialism → the fundamental relationship between who has rights to
influence land and who is recognised as leader. The issue to problematise the tension that exists if the State is not mindful of how it
grants powers and the implications it has for customary law systems.
Cl 13(a) of the Bill: Decision-Making Processes – The CLTB sets a minimum threshold of 60% → decision-making about land
related issues requires that a resolution be supported by 60% of the households in a specific ‘community’.
- Communal land cannot be sold, donated, leased, encumbered, or otherwise disposed of unless this is supported by a written
resolution supported by 60% of households in the community
This clause is problematic as it does not differentiate between different types of right holders. There is an over-reliance on the
communal conception of majority rule → no further discussion is required. This is a model that addresses only part of the picture,
only part of what it means to hold land rights under customary law, and runs the risk of over-emphasising the communal at the
expense of individual land rights.
CONNECTING THE PIECES

Legal and Political Elements – Fundamental components of citizenship and personhood. Question what it means for a person who
lives under a system of customary law to enjoy full personhood and citizenship rights → the common thread of the guest lectures are
the historical system of governance and the ways in which it responds to alteration, and how to make the system compatible with
democracy in a way that allows people to enjoy full citizen rights.
Conception of Justice – Even as new conceptions of justice are crafted, they cannot undermine people’s experience of citizenship.
Legislative processes around laws crafting fundamental aspects of citizenship must provide space for people that abide by these
systems. The process of the production of law has power, in which power dynamics play out.
If property is a part of citizenship, how do we secure and protect customary land rights? People cannot be short-changed of their
citizenship if they live under customary law.
SO the connecting loop is to think about the legacies of what it means to be a citizen living under a customary law system. Narratives
of the past matter for today.
The Point – Use the lens of citizenship or personhood to knit the concepts below together.
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Apartheid-Era Legislation Post-Apartheid The Communal Land

Legislation Rights Act of 2004
Unaccountable governance
powers TLGFA gives roles + *property rights
functions, establishes a
Deeply contested framework STRUCK DOWN
boundaries Tribal
Authority TLGFA will be repealed by
Boundaries TKLB
The Black Administration Carried across The Traditional
Act of 1951 as transitional Leadership and The Traditional Courts
arrangements Government Framework Bill of 2017
Act of 2003
*access to justice and
*governance, affiliation, and dispute resolution
identity formation
*Fundamental components of citizenship and personhood
REVISION NOTES
MARRIAGE
The RCMA comes into existence in 2000. Distinguishes proprietary consequences based on the date of marriage
- Old Marriages (pre-2000): Proprietary consequences governed by customary law
- New Marriages (post-2000): Proprietary consequences governed by the RCMA
→ Monogamous marriages governed by common law position (in community of property unless otherwise specified)
→ Polygamous marriages governed by a s 7(6) contract
The Problem – Rights are distinguished purely on the basis of the date of the marriage and when the RCMA comes into force.
Monogamous Marriages
Gumede – An old monogamous marriage, entered into before the Act, and governed by the Natal Codes → women have no rights
to property. G argues that the distinction based on date of marriage is arbitrary: marriages before the Act are governed by the Codes,
marriages after the Act are governed by common law.
The Court → All monogamous marriages are in community of property, unless otherwise specified. Amendment has yet to be effected
in the Act.
SO Authority for Monogamous Marriages – The RCMA + Gumede.
Polygamous Marriages
The Court in Gumede said that there will be problems for polygamous marriages BUT this is a legislative issue that parliament must
deal with.
Old polygamous marriages
Ramuhovhi – An old polygamous marriage. The Court does not attempt to ascertain the law, but accepts the official customary law
position that women have no rights to property. The Court held that this was untenable, and crafted an order to correct it:
The Court → Parties to an old polygamous marriage have joint rights of ownership, control, management over the property. The High
Court says that the words ‘in community of property’ and ‘out of community of property’ should be avoided – common law concepts
cannot be imported to customary law. SO do not use common law terminology.
It is not clear whether the order functions like the common law or where it fits into the existing regime.
New polygamous marriages
The RCMA requires a s 7(6) contract BUT the consequences of not having such a contract are not specified in the Act. Ramuhovhi
and Mayelane imply that the marriage will be out of community of property.
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The Problem – People in polygamous marriages can have different rights → people in new polygamous marriages without a contract
worse off than people in old polygamous marriages.
NB – Always note the date and type of the marriage, and mention authority for proprietary consequences.
CONFLICT OF LAWS
Common Law vs Customary Law

There is no legislation SO rely case law. See that one tut about this stuff –
Agreement – Look for an agreement (express or implied) → there will never be an express agreement, so look for conduct to infer
an agreement.
Factors to Consider – Focus on the agreement because the factors in law are inappropriate and v racist:
- Form/nature of transaction
- Subject matter + environment
- Lifestyle of parties
- Existence of remedy
Existence of a Remedy → This is problematic because it prejudges whether a remedy existed by choosing a system of law that
actually gives a remedy. Cannot determine this without a trial. Courts very prejudicial.
Customary Law vs Customary Law

Authority differs from the above. Typically arises in a marriage.
S 1(3) of the Law of Evidence Amendment Act – Establishes a hierarchy (one must move through the hierarchy → different to the
above, where one considers relevant factors only):
i. Agreement (express/implied) → existing relationship? Infer from conduct?
ii. If there is no agreement, consider the law of the place where the defendant resides/carries on business/is employed
→ This is arbitrary
→ Seems to come from common law (procedural) BUT this is not jurisdiction, it is choosing a system. What happens
if these are three different places? What if different systems? How do you choose?
iii. If (ii) fails, consider the law of the defendant’s tribe → this language is problematic
This whole section is problematic and difficult to implement. Should be just done away with.
AA
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2018 CONSTITUTIONAL LAW NOTES ON LAND REFORM
LAND REFORM AND THE HISTORICAL CONTEXT
Laws That Existed Prior To 1913

Prior to infamous 1913 Land Act, numerous laws passed in different parts of what would eventually become South Africa, preventing
black people from owning land.
- Many forced black people to identify with ‘tribes’ to gain social/political protection, have access to land
1913 Land Act centralised the different forms of dispossession that had preceded it. land dispossession did not start with the land
act, it simply centralised and consolidated the dispossession.
Example: Glen Grey Act of 1894. Concerned with land, labour, franchise.
Portion of land given to black me. Although it was only applied in certain areas of the Cape Colony, premise was of segregation –
- Create a black peasantry restricted to a particular geographical area
- Force black male migrants to seek employment away from their land, while requiring them to return there
Natives Land Act Of 1913

Codified and entrenched the continuous dispossession that had been occurring throughout the colonial period in the colonies and
the Boer republics. Attempted to answer the ever-present ‘native question’ that plagued the government of the day –
- Where do you put the ‘natives’?
- If you remove them, how do you rule them?
Set aside 7% – 8% of land in the Union of South Africa for ‘natives’, known as Native Reserves. Afforded limited land rights to black
people within the reserves. Sought to curb and outlaw ownership/purchasing of land outside the reserves by ‘natives’
Natives Land Act 27 of 1913
Be it follows –
- From and after the commencement of this Act, land outside the scheduled native areas shall, until Parliament, acting upon the report of the
commission appointed under this Act, have made other provision, be subjected to the following provisions, that is to say: -
→ Except with the approval of the Governor General
❖ a native shall not enter into any agreement or transaction for the purchase, hire or other acquisition from a person other
than a native, of any such land or of any right thereto, interest therein, or servitude thereover; and
❖ a person other than a native shall not enter into any agreement or transaction for the purchase, hire, or other acquisition
from a native of any such land or of any right thereto, interest therein, or servitude thereover.
Plaatje on the Native Areas
Book documents the gross act of vicious dispossession. Because the Land Act shut down and made illegal white-black relationships
such as share cropping, labour tendency, etc – black people (including families) kicked off the land and required to relocate into
native reserves.
- Native Locations reserved for the exclusive use of certain native clans
- They are inalienable and cannot be bought or sold, yet the Act says that in these "Scheduled Native Areas" Natives only
may buy land
- The areas being inalienable, not even members of the clans, for whose benefit the locations are held in trust, can buy land
therein…as long as the clans of the location remain loyal to the Government, nobody can buy any land within these areas
- Under the respective charters of these areas, not even a member of the clan can get a separate title as owner in an area —
let alone a native outsider
People could not acquire rights in land. SO people were never lifted up, escalated back to position once held. Whatever they lost,
they lost for good. They did not acquire the equivalent of what they had when they went to the reserves.
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Imposing A Single Model of Authority

Mamdani on imposing a single model
Idea that is crucial goes hand-in-hand with land is the development of a particular kind of model for governance, so development of
a particular kind of customary law.
Cannot separate land issue from development of ‘official customary law’ –
- Like all colonial powers, the British worked with a single model of customary authority in precolonial Africa
- That model was monarchical, patriarchal and authoritarian
- It presumed a king at the centre of every polity, a chief on every piece of administrative ground and a patriarch in every
homestead/kraal
Colonial powers imposed this model where it did not naturally occur.
Native Administration Act 1927
Concerned with administration of natives, governance of natives.
Adjustment and Constitution of Native Tribes, and Removal of Natives: The Governor-General may –
- Define the boundaries of the area of any tribe or of a location, and from time to time alter the same, and may divide existing
tribes into one or more parts or amalgamate tribes or parts of tribes into one tribe, or constitute a new tribe, as necessity or
the good government of the Natives may in his opinion require
- Whenever he deems it expedient in the general public interest, order the removal of any tribe or portion thereof or any native
from any place to any other place (or to any province or district)
Act was a tool used to impose the model of authority and governance that the colonial powers thought was the correct model → sets
out powers given to Governor-General, including power to craft identities SO land begins to match the governance model.
- Indirect Rule: Uses imposed native leadership structures to own benefit, gives leaders recognition, money, allows them to
rule on state’s behalf.
Effect on Identity – Interferes land AND group and community identities. This is the key issue.
Today: Not just trying to give back the land, trying to repurpose the systems of government at the time → cannot separate these out.
The idea of what belonged to whom before this interference is so obscured.
1936 Natives Trust and Land Act and creation of the Bantustans
Designed to be read together with the Natives Land Act of 1913, as if they formed one Act. Additional land made available to
accommodate the black people displaced by the restrictions introduced by the 1913 Act. Increased the total amount of land to which
Black South Africans were to be confined to about 13% of the country.
Core Purpose – Complete segregation.
There was not enough space to put all the natives. Tomlinson Commission decided more land was required for the natives. 1936 Act
designed to be read with 1913, increased the allocation to 13%.
Tenancy – Act created tenancy for people who would be living on additional land. People were now tenants of the trust, required to
pay rent to the trust. Migrant labour necessary to accompany this model, as the man was inevitably living in an urban area to send
money back to the family to pay this rent.
- As people are relocated, still not given back land rights
1940s – NP comes to power, decides to consolidate the existing reserves created in terms of the 1913 Land Act into ‘homelands’ –
one homeland for each language group. Resurgence of notion of tribal identity. ‘Homelands’ used to justify denying citizenship to
black South Africans, as they are considered citizens of the ‘homelands’. Example: All Xhosa speaking people considered citizens of
Transkei or Ciskei. Could still enter white South Africa for labour, but required to return to their homelands.
The Land Acts: Instruments of Displacement

Luthuli on dislocation from communities of living
For Africans, our country has been made into a vast series of displaced persons’ camps. Individuals are shuttled around. They are
taken suddenly out of urban areas and dumped in reserves where the chiefs do not know them and the ancestral lands have long
since gone.
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Whole towns of thousands of people – the example of Sophiatown is well known – are lifted up and thrown down elsewhere, minus
freehold rights. Individuals, townships, villages, whole tribes are picked up and put down elsewhere
Dislocating people from ways and communities of living. Very abrupt and insensitive.
Bantustans and SADT Land

Major forced removals to move people from ‘white’ areas to areas adjacent to reserves. Used the Trust established by the 1936
Native Land and Trust Act to buy up white land next to the homelands and move black people there. These areas were owned by
what was called the South African Development Trust (SADT) → people moved onto this land were SADT tenants and had to pay a
pound a year and taxes. Rangers rounded up and imprisoned defaulters including pregnant women.
1951 Bantu Authorities Act

Delineated tribal authority areas for each tribe. Major boundary disputes. Compliant chiefs were rewarded, those who opposed Bantu
Authorities demoted or given very small areas of authority.
Tribal authority areas created over many years starting from 1951 right through to 1970s → each one published in Government
Gazette.
Betterment and tribal authority areas went hand in hand. Chiefs who opposed betterment not given Tribal Authority areas. All people
forcibly removed to SADT areas put into betterment settlements.
Tribal authorities under Bantu Authorities Act were apartheid state’s response to issues of governance over rural areas.
Urban areas
No tribal authorities. Black people, through migrancy, still had to identify with one of the homelands. Unless born and lived for
generations at urban locations, you were in urban areas temporarily.
Model here is that described by Mamdani –
- Single model of customary authority that was monarchical, patriarchal and authoritarian
- It presumed a king/chief/patriarch
Always assumes that there is a (traditional) leader –
- Tribal authority is the leader, beholden to the state for its power, recognition, authority
- Essentially reward given to traditional leaders willing to be compliant with apartheid state.
These tribal authorities are a sore point for many South Africans subscribing to customary leadership –
- Those leaders who complied with the state were rewarded with not only money, but land and people
- Power of government under 1936 Act to create new tribes, force people together/pull them apart is echoed here with
rewarding traditional leaders.
Again, land and community very intimately connected.
SO tribal authorities created over many years – start 1950s, run to 1970s. Very detailed.
Betterment
Together with this imposed system of governance was also imposed system of how to govern and work land – forced villagization.
Forced people to engage with the land in a particular way. Dictate sizes of plots, areas of grazing, areas of crops, where homesteads
may be established. Did not really think through the long-term, led to a lot of erosion. People forced to live in very close proximity to
one another. No accommodation for rotation of land, people forced to overwork the land.
Traditional leaders not willing to comply were deposed or not given tribal authority areas.
Forced Removals
1960 – 1983 – 3.5 million African people forcibly removed from ‘black spots’ to SADT land on borders of Bantustans. ‘Black spots’
came about because sometimes communities of black people had asked missionaries to purchase land on their behalf and had fairly
strong rights → Force removals wanted to get rid of this entirely.
This is an incomplete number (possibly higher)
People moved to relocation camps/sites, essentially tents, pit latrines, far off beaten track. Terrible suffering and high infant mortality,
difficult to get medical assistance. Lost crops and dumped in areas with only toilets and tents.
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Division of Venda, Tsonga, Pedi and Ndebele people in Transvaal particularly vicious → all SADT land laid out according to
betterment regulations. Role of chiefs in advising land allocation where previously family based in many areas.
Apartheid state needed an overarching forced removal plan that spanned rural AND urban.
Northern South Africa – Not just moving people into ‘correct areas’, but trying to move people into ‘correct’ tribes. Tore communities
apart to create neat boxed communities.
Surplus people and dislocation
People are driven from their homes, loaded onto trucks and transported to relocation sites, their properties are numbered and
expropriated, their houses are demolished by bulldozers and they are prevented from entering certain areas, all in terms of the law.
Legislative sanction exists for every one of these procedures; in most cases more than one law can be used as authorisation for
officials. Different laws apply in the various categories.
In some the law does offer greater protection than in others. Those with title deeds are assured of better treatment than those without;
scheduled land cannot be cleared quite as easily as non-scheduled land. None of the protections that do exist can stop removals,
however. In all categories, relocation takes place in terms of the law.
Key – All relocations occurred in terms of law, sanctified by law. If law was used to effect displacement, how can law be used to
correct the effects?
Note – Traditional councils are democratic replacements for tribal authorities – overlap perfectly with the areas of the homelands,
with the boundaries. People are mobile. People in Khayelitsha who abide by customary law, but no traditional council. Democratic
structures track authoritarian apartheid structures. Poverty also tracks these boundaries.
Law Was Not Neutral

Plaatje – For to crown all our calamities, South Africa has by law ceased to be the home of any of her native children whose skins
are dyed with a pigment that does not conform with the regulation hue → law absolutely guided by regulation hue/colour, what was
deemed most correct.
WOMEN’S STATUS AND LAND RIGHTS
History of Women’s Status and Land Rights

- Even as the 1913 Land Act was diminishing the land rights of black people and entrenching dispossession – black women
were having particular experiences of this dispossession
- One of the main tools used to bring land dispossession into the lives of black women was (official) customary law
- Distorted and imposed understandings of customary practices were used to give women a certain status and to use that
status to justify their dispossession
Customary law here is official customary law – assigns specific status to black women, justifies stripping black women of their land
rights.
DISTORTIONS OF VERNACULAR LEADERSHIP, GOVERNANCE, OWNERSHIP SYSTEMS AND STRUCTURES
Okoth-Ogendo
- Describes the manner in which land rights held under indigenous law were subjected to certain distorting fallacies and
assumptions
- Points out particular fallacies that underpinned the ambivalence that the colonial officials showed towards indigenous land
rights
- Amongst these fallacies was the belief that indigenous law does not confer property rights
- Based on an understanding that property rights could only exist where there were exclusive rights of use and control
- This fallacy relied on the notion that customary communities used and controlled land communally thus precluding the
existence of land as property
Living vs Official Customary Law: Upon arrival on African shores, colonial administrators encountered a system of holding land
that did not overlap with the European model of holding land. Felt the need to shift the system ton suit them, shifted the lens of viewing
land ownership to something that looked more like a system they were familiar with.
Fallacies were myths that colonisers made up –
- Some systems did not have a sovereign

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- Colonisers needed a sovereign to confer property rights
- System could not infer rights because not law, inferior did not look like their own system
- Property rights could only exist when they were exclusive use, if no exclusive use, no land rights
Under colonialism the model adopted disguised the real nature of indigenous land rights, which should be viewed as a system of
complementary interests held simultaneously –
- Codified customary law as the outcome of a conversation between colonial officials and African male elders
- It was in the interests of both to elevate the power of chiefs, and downplay the rights of ordinary people, particularly women
- This contributed to the idea that rights in land were a male prerogative, resulting in the denial of land and inheritance rights
for women
A system based around relationships, notions of shifting rights to accommodate rights of others – skewed, misinterpreted because it
cannot give security (at least that matches the European model).
Codified Official Customary Law: Patriarchal further than its own internal patriarchy, but also because it served the white colonial,
patriarchal system. Outcome of conversations between colonial administrators and male elders contribute to Mamdani’s monarchical,
patriarchal, authoritarian model.
- Not interested in developing customary law
- Codifying a patriarchal customary law, going to have a system that is male-dominated
WOMEN’S STATUS AND ‘OFFICIAL’ CUSTOMARY LAW
- The struggles (both past and present) of women seeking to assert their land rights take place at the inters of diminished
status and dispossession
- Under customary law women had recognisable rights to land and property more broadly
- Women’s land rights were ‘individual’ (a widow’s right to fields) but balanced by the rights of the collective (land was to be
kept in the family)
- The interference of ‘official’ customary together with increasing land scarcity undermined these rights and changed their
shape in service of ‘buttressing the patriarchal authority
Regarding black women’s land rights, that decreased status is integral to dispossession. Such a persistent concerted effort to diminish
black women’s status, not only in an overarching way, but also in the most intimate and personal aspects of their lives. Not just
seeking to restore material thing (land) but also status (of all black people, not just women).
Must secure the individual for the greater good.
TAKE-HOME POINT FROM DISCUSSION SO FAR

- In conversation about land reform, it is imperative to have a better understanding of the historical context of land reform
- The Urgent Question: How are we allowing the land reform project to collapse when we operate in a historical context that
puts enormous pressure on us to rectify this?
- As we think about ways of improving the land reform project, it is critical that we understand the ways that various actors
(who stand to gain land) are positioned by the historical context
- Must be thinking about the various positionalities of various actors. Cannot just dump land on marginalised groups
THE THREE LEGS OF THE LAND REFORM PROJECT
The High Level Panel on the Assessment of Key Legislation and Acceleration of Fundamental Change
Panel functioned to assess the impact of the laws of our democracy.
Of the more than 1,000 laws passed since our first democratic election in 1994, the Panel identified certain pieces of legislation for
special consideration in three main focus areas –
- Poverty, unemployment and the equitable distribution of wealth
- Land reform, sustainable livelihoods and rural development and security of tenure
- Social cohesion and nation building
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The Panel embarked on a series of public hearings, roundtables and calls for written public submissions throughout the country to
hear from people:
- Have the laws of our democracy and their application helped or hindered us in realising the kind of society envisaged in our
Constitution?
- What are the gaps?
- Are there too many laws?
- Are many of them too complicated?
Key – Components of South African land reform programmes. This report is the most complete document on the land laws.
S 25(5): REDISTRIBUTION
S 25(5) of the Constitution – The State must take reasonable legislative and other measures, within its available resources, to foster
conditions which enable citizens to gain access to land on an equitable basis.
Note – Part of criticism levelled at state is haven’t considered other measures – relied heavily on legislative means (sometimes
successfully, sometimes not). Some policy implementations, but broad rigorous engagement of what can be met through other
measures not been fully explored.
1996 Land Reform Act (Labour Tenants Act)

Provides For – Security of tenure of labour tenants and those persons occupying or using land as a result of their association with
labour tenants, the acquisition of land and rights in land by labour tenants, matters connected therewith.
- WHEREAS the present institution of labour tenancy in South Africa is the result of racially discriminatory laws and practices
which have led to the systematic breach of human rights and denial of access to land
- WHEREAS it is desirable to ensure the adequate protection of labour tenants, who are persons who were disadvantaged
by unfair discrimination, in order to promote their full and equal enjoyment of human rights and freedoms
- WHEREAS it is desirable to institute measures to assist labour tenants to obtain security of tenure and ownership of land;
Key – Aim is restoration of position of labour tenants.
Labour Tenant – A second-generation person who provides labour on a farm in consideration for the right to live on that farm and
use a portion of it.
Idea of 1913 Land Act was to curb relationships such as labour tenancy. This is the key focus around which our programme of land
redistribution is centred. Trying to restore class of African farmers lost under 1913 Act.
S 1 of the Act – A labour tenant is:
a. A person who is residing or has the right to reside on a farm
b. A person who has or has had the right to use cropping or grazing land on the farm, referred to in (a), or another farm of the
owner, and in consideration of such right provides or has provided labour to the owner or lessee
c. A person whose parent or grandparent resided or resides on a farm and had the use of cropping or grazing land on such
farm or another of the owner, and in consideration of such right provided or provides labour to the owner or lessee of such
or such other farm
→ This includes a person who has been appointed a successor to a labour tenant in accordance with the provisions
of S 3, (4) and (5), but excluding a farm worker
SO aim of the Act is to provide security of tenure for tenants. They may be awarded a portion of land comparable to that which they
occupied as tenants on 2 June 1913.
Note – Labour tenants are different from farm workers. Basis of relationship is different – labour tenants work a portion of the land
for themselves, farm workers’ work is based on contract/predominantly for wages.
In response to this type of legislation, some farmers will end up converting their labour tenants into farm workers to avoid potential
claims by the labour tenants. SO some feel that it is not useful to make such a clear distinction between farm workers and labour
tenants.
The Basic Shape of Land Redistribution

Seeks to address (i) gross racial inequalities in land ownership inherited from the past, and (ii) underlying cause of rural poverty →
lack of access to productive land/land suitable for settlement and lack of secure rights to such land
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1994 – Initial target was to redistribute 30% of agricultural land by 1999 (adjusted to 2014).
2012 – Around 7.5% had been transferred through a combination of redistribution and restitution.
Until 2006/2007 the primary mechanisms for redistribution involved –
- Grants to land reform beneficiaries for land purchase and land development
- Establishment of legal entities to own land → eg Communal Property Associations (CPAs),Trusts
Land redistribution project very attached to approach that Rural Development and Land Department developed to allow people action
to land.
BUT restoring land needs to be accompanied by other action – not just making up for material loss, but also skills deficit resulting
from the loss.
Communal Property Associations – Mechanism for holding land as a community. Where dispossessed as a collective, form a CPA
structure that puts in a claim for land to be restored and held by the community. Democratic structure. Used for redistribution and
restitution. Some have been successful, many failed grossly. Large reason for failing is lack of state support, causing CPAs to fall
into disarray. Challenges for women – in a community with a strong patriarchal ethos, difficult to get a seat on CPA.
Progress of land redistribution
Land redistribution has proceeded at a slow and uneven pace over the past 22 years, with fluctuations both in budgets and the scale
of land being acquired and redistributed. Budgets for land reform have generally been around 1% of the national budget, and have
fallen from a peak of 1.09% in 2007/08 to 0.78% in the current financial year.
There are substantial differences in land redistribution across provinces in how much land has been acquired, how much budget
spent, number of people benefitting. Policy changes since the 1990s have changed the design and delivery of land redistribution in
several significant ways –
- The removal of a means test to target only poor households → cronyism, people benefit from reform projects when not in
dire need
- The shift away from a primary focus on settlement towards agricultural production → mechanism for assessing success of
redistribution shifts, not fair when people are not equipped with skills to make land highly productive
- The shift to an exclusively rural focus
- The introduction of state land purchase and leasehold in place of land subsidies for beneficiaries to purchase land and own
it themselves
- The introduction of joint ventures with commercial strategic partners
SO decrease in money allocated to land reform budget. Uneven quality of local/provincial arm of land reform officials.
The Pro-Active Land Acquisition Strategy (PLAS)
Adopted as policy in 2006 is currently the mechanism available for redistribution.
The State has purchased farms and allocated them to applicants on the basis of 3 – 5-year leasehold agreements, after which the
lessee is to be offered an option to purchase the farm → so no initial acquisition of ownership.
Lessees can access funds for recapitalisation and development under PLAS → BUT recent research shows that beneficiaries struggle
because of the relationship between recap funding, strategic partners/mentors, business plan –
- Recap funding needs strategic partner BUT
- To get a lease you need the recap funding
- Lease is means to access provincial support
Security of Tenure – If this is trying to restore status of labour tenants, what does it mean to only give them lease? Are you really
providing secure tenure?
- Counter-Argument: Allocating people lease agreement is a kind of safety mechanism
→ If they have ruined the farm, you have supposedly a mechanism for reallocating the farm
→ BUT given that the key aim is security of tenure, it like has a more negative than positive effect
Strategic Partners/Mentors under PLAS – Experienced commercial farmers, generally white. Not clear what kind of relationship
this develops, whether there is equal power. Is this just window-dressing?
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Questions of valuation
In the past the ANC opted for the adoption of a ‘willing buyer, willing seller’ approach to the acquisition of land for redistribution
- This has allowed unwilling sellers to hamper the acquisition of land for redistribution
→ Seller setting terms, holding state to ransom with high prices
- Recently criticised because that is not what the Constitution states/requires
ANC has begun to move away from this model. Move towards enabling valuations to take account of a range of factors other than
market value, such as
- The current use of the property
- The history of its acquisition and use
- The extent of direct state investment and subsidy in the acquisition
- The capital improvement of the property
- The purpose of the expropriation
An office of a Land Valuer-General has been established, to oversee valuations for the purpose of rates and taxes as well as to
determine compensation following expropriation. Tasked with curbing outrageous prices – shift in redistribution to be about evaluation
of land’s worth.
Where Are We with Land Redistribution?

2017 – Department of Rural Development and Land Reform (DRDLR) reported that around 8% of commercial farmland has been
transferred through all aspects of land reform together.
At the same time, some private purchases of land have contributed modestly towards changing the racially-skewed character of
landholdings in the country.
Overall, it is evident that apartheid patterns of land ownership remain largely intact, despite more than two decades of land reform. It
is not entirely clear precisely how much land reform has contributed to changing this picture.
SO redistribution project has taken a winding path to get to where it is, stills struggle to gain its actual impact. Farming takes time –
difficult to get a quick assessment of how well you’re doing. Will take time before people are established, see some return in farming.
S 25(6) & (9): TENURE SECURITY

S 25(6) of the Constitution – A person or community whose tenure of land is legally insecure as a result of past racially discriminatory
laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable
redress.
S 25(9) of the Constitution – Parliament must enact the legislation referred to in subsection (6).
This underscores requirement that secure tenure must be provided by Parliament.
Enabling Laws
- Extension of Security of Tenure Act (ESTA) of 1997
- Upgrading of Land Tenure Rights Act (ULTRA) of 1991
- Interim Protection of Informal Land Rights Act (IPILRA) of 1996
- Communal Land Rights Act (CLRA)
→ Tongoane: Context of traditional leaders and Traditional Leadership and Governance Framework Act,
Constitutional Court strikes CLRA down as unconstitutional
- Draft Communal Land Tenure Bill 2017
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IPILRA
Communal
Areas/Former
Bantustans CLRA (TLGFA)
S 25(6) Land CLTB
Laws
ESTA
Other areas
ULTRA
1997 Extension of Security Tenure Act (ESTA)

- Enacted to facilitate long-term security of land tenure and to regulate the conditions of residence on certain land and to
regulate terms and conditions for eviction
- Enacted to protect the rights of occupiers who are not owners – applicable in the main to farm workers
Deals with eviction – related protections and allows for restitution (s 4).
Kind of relationship you have toward the land distinguishable. But as far as you are not owner and facing eviction, can use ESTA.
Largely protects farm workers, can be used by labour tenants. Protects and allows for restitution. Acts as a buffer between people
who are not owners, balancing commitment to land reform.
2015 Extension of Security of Tenure Amendment Bill
Several amendments proposed to the principle Act, including –
- A new definition for ‘family’ to include the occupier’s spouse (customary, registered and unregistered marriages), child
(including adopted children), grandchildren, parents, grandparents
- The substitution of ‘subsidies’ with ‘tenure grant; to address the challenge of providing more secure long-term tenure options
- An amendment to allow for the ‘maintenance of dwellings’ of land occupiers
- An amendment to allow for the erection of tombstones and to allow occupiers and former occupiers to perform rites thereon
- Amendments to strengthen and provide clarity regarding evictions
→ The amendment in of s 9 meant that only lawful evictions would be allowed (only a court order can result in an
eviction)
→ The amendments of s 10 and 11 provided for compulsory mediation before eviction could occur
- Amendments to address the challenge of evictions carried out under unreasonable weather conditions
→ A court would determine what reasonable weather conditions were
- The establishment of structures to assist and advise the Minister in the implementation and managing of aspects in the Bill:
two new bodies would be created
→ The Land Rights Management Board (LRMB)
→ The Land Rights Management Committee (LRMC)
Subsidies – Financial support for tenure. ESTA protects fact that people are entitled to make upgrades to dwelling for dignity.
Last Bullet – Good faith attempt to buffer support available to Minister as they make their decisions. Buck stops with the Minister SO
strengthening capacity of Minister to make well- informed decisions can be powerful. BUT this may not translate into useful use of
discretion → do you help Minister to make good decisions? Or do you challenge the Minister’s bad decisions?
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1991 Upgrading of Land Tenure Rights Act (ULTRA)

Designed to upgrade the limited rights created for blacks to ownership → example: rights held in black townships and confer tribal
land to tribes. The impact of this Act on women’s land rights because of the structure of apartheid designed limited land rights for
blacks
SO allows people who held limited rights in land provided for black people to upgrade these to ownership. Really good intervention,
but did not consider that many of those rights could only be acquired by men.
1996 Interim Protection of Informal Land Rights Act (IPILRA)

Passed in 1996 to give effect (in the interim) to the constitutional obligation in terms of s 25(6) and (9). Intended to act as a 'holding
measure' or 'safety-net' to ensure temporary legal protection for people without formally recognised land rights while government
developed more comprehensive legislation to protect and regulate communal tenure BUT due to the absence of a more
comprehensive law governing communal tenure, an annual extension of IPILRA has been necessary since 1996.
- IPILRA establishes the fact that there will be an assumption that re decision to deprive someone of rights, automatically
assumed that the practice of the community is to consult the community
- Entrenches right to consultation
- Absolute given that there must be a consultative meeting where people who hold same rights as yours must discuss
- All people who hold the same kind of rights will make decisions about those rights
- Someone who might have a stronger right than yours is not the sole decision-maker
IPILRA is a marker of the kind of legislation needed.
- Still key piece of legislation for people who live in rural South African and who have not been able to make use of ULTRA,
only legislation that recognises their rights
- CLRA was a permanent law to recognise kinds of land rights recognised in customary law and other land rights BUT because
CLRA invalidated and no law to replace, we only have IPILRA
- Particularly relevant for rural people
- Lauded as having one of the best articulations of how to protect land rights → cannot be deprived without consent, proving
incredibly useful regarding extraction (mining, roads), this articulation has been the best protection
2003 Traditional Leadership and Governance Framework Act (TGLFA)

Provides the National Framework → requires provinces to produce provincial legislation; contains definitions, recognition criteria and
composition requirements.
Provisions to be noted in TLGFA –
- S 3: Composition requirements (safety valve)
- S 20: Guiding Principles for allocation of roles and functions (hidden bombshell)
- S 22: Establishment of Commission (safety valve)
- S 28: Transitional arrangements (politically controversial)
Ch 12 of the Constitution recognises customary law and traditional leaders. Security of tenure is where traditional leaders fit into land
reform –
- Traditional leadership overlaps with former homelands and the areas identified as ‘communal’
- Where there is communal tenure, most often traditional leadership
TLGFA sets out framework of form of governance that will apply in the former homelands – gives effect to constitutional recognition
of traditional leadership.
Problem: S 28 – 1951 Bantu Authorities Act established separate areas and institutions for black people. S 28 retains these structures
in the post-apartheid era, with additional requirements. The traditional councils are the grandchild of the tribal authorities – required
to have elections and 1/3 must be female, will be carried into democratic South Africa if these are met.
SO s 28 does not dismantle the artificial boundaries and groups of previous area.
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S 20 of the TGLFA: Roles and functions
Consolidates old boundaries and structures but does not provide direct powers to traditional leaders. Provides that National or
Provincial Government may provide a role for traditional councils or traditional leaders in respect of the listed areas –
Spheres of Government – If national and provincial spheres are permitted to give a role to traditional authorities, how does this fit
into the three-tier government?
- National and provincial government may pass legislation giving powers to traditional councils
- When it comes to land, there is overlap between trad governance and land reform
- If giving role in land reform, giving ability to attach land security tenure to traditional leadership → bringing them together
- State has shown that this is how they think about land → seen with CLRA: merging of people’s rights under s 25(6) and (9)
with s 20 of the TLFGA
Difficult to justify on equality/equal citizenship why for some people (ie those resident in an area subscribing to traditional leadership),
land rights are attached to traditional leadership, where s 25(6) is self-sufficient for others.
- How is it justifiable that s 25(6) rights for some have different leanings than for others?
This seems to be a blanket approach – part of it is long-standing question of traditional leaders in constitutional negotiations
- Traditional leaders wanted a very particular role and status
- The only way to approach this is the give people a choice
- Where it makes sense to people to attach their s 25(6) right to a traditional leader, they may do so
BUT this cannot be a blanket approach. In CLRA, there was a fusion of role of traditional leaders/councils with land administration
and ability of people to access s 25(6) rights.
Communal Land Rights Act (CLRA)

Struck down by the Constitutional Court.
The Act would have transferred title to traditional communities and the powers of land admin and allocation vested in traditional
councils –
- Title deeds of smaller landowning groups to be endorsed over to larger encompassing ‘tribes’
- Focus on the outer boundary and household not always sufficient protection for women.
The Act would have granted traditional leaders and councils more extensive powers over land than provided for in customary law –
- Undermined the local indigenous accountability structures, making it difficult for ordinary people to hold their traditional
leaders to account
Challenge – If you transfer ownership of a community piece of land:
- What happens to the rights and rights-holders on that community piece of land?
- What happens when ownership is transferred at a higher level to a wider body?
That would mean that communal rights were not ownership. How can there be ownership at a leadership level and to the people
living on the land?
CLRA would have dispossessed people – taken historical customary law-based ownership and diminished it to something less than.
This is effectively a form of dispossession.
Struck down in Tongoane. IPILRA designed to be temporary, but been extended to cover CLRA’s absence. Not a full law, no
regulations. So where it comes to s 25(6) rights in rural areas, there vacuum – no real law envisaged by s 25(6) and (9).
Draft Communal Land Tenure Bill (CLTB)

Published for comment on the 7 July 2017. Most recent attempt by government to create legislation that regulates communal land
and provides security of tenure for those with historically insecure tenure → fulfilling the states obligations under s 25(6) of the
Constitution.
Cl 28 of the Bill – Communities that have been issued with a deed of communal land must choose an entity to manage and administer
the land owned by the community –
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- Traditional Council
→ Think role of traditional leadership structures
- Communal Property Association (CPA)
→ Vehicle largely party of early redistribution focus
→ Holding land as a collective
→ Plagued with problems, particularly regarding receiving state support and terms of office
- Any other entity as approved by the Minister
SO CLTB is the proposed piece of legislation to fill the gap left by CLRA. Designed to protect s 25(6) rights for rural communities.
Does not depart fundamentally from model of CLRA → the State provides avenue through which traditional leadership is injected into
the conversation when it comes to s 25(6) rights.
Bill is undoubtedly problematic. Cl 28 requires the community choose the entity that will manage and administer their land → think s
20 of TGLFA, role of traditional leaders in land administration. This choice is allegedly the Department’s ‘best acknowledgment that
not all communities subscribe to system of traditional leadership’ → for those that do subscribe, choose traditional leadership; for
those that don’t subscribe, choose CPA.
This is not sufficient –
- Why limit people’s choices?
- What do these choices mean for women? → neither traditional council nor CPA is a good choice
→ Empirical evidence that traditional councils do not fulfil the 1/3 female quota, and even where this is fulfilled, women
are undermined, not permitted to speak SO formal equality (looks formally equal/representative) but no substantive
equality
→ CPAs also a challenge for women because there is no support from department to draft gender-sensitive
constitutions, and women have no voice
- Traditional councils flawed → questions about whether they are fulfilling election requirements
→ 60% of council appointed by a traditional leader
→ 40% supposed to be elected by the community
❖ Elections should be run by IEC, free and fair
❖ Many areas where elections are flawed/not happened at all
So the choice is between two pretty flawed bodies. This matters because the tendency, particularly where formalised (ie through
collective title deed), is for women’s rights to become secondary – superseded by rights of collective. Women often struggle to assert
that they have a particular right.
Example – In X community, women have first rights to a field in a community. Community gets a title deed. Portion of fields reallocated
to become residential. If the body holding the title deed is non-representative of women, what can women do about the reallocation
of the land?
- Strengthens rights of those always more powerful over those less powerful ESPECIALLY in context of s 25(6) which aims
at assisting those with vulnerable tenure
Bill tries to be cognisant of this problematic choice
Stipulates that only legally compliant Traditional Councils and CPAs may be chosen to act as the land administration entity →
Traditional Councils need to comply with the composition and election requirements set out in the Traditional Leadership and
Governance Framework Act, and that CPAs must be registered with the Department in compliance with the Communal Property
Association Act.
Research has shown that very few councils have actually complied with these requirements and many CPAs struggle to get
registered.
The bill formally presents two options for communities with no clearly conceived alternative in instances where neither a CPA or a
traditional council are an option.
How can a community member determine whether a traditional council or CPA is legally compliant? Very few councils have complied,
likewise with CPAs.
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Even though the Bill presents options, no clearly conceived alternative where neither traditional council nor CPA is legally compliant.
What happens in this case? CLTB has not full thought this out.
Where Are We with Tenure Security?

- Farm dwellers still insecure → farm evictions still take place over 20,000 people threatened by farm evictions in the Western
Cape
- Labour tenants still struggling (Msiza)
- People living in rural areas still not secure → only IPILRA holds the gap
- No permanent law to secure the land rights of people in communal areas – in the context of vast mining enterprises this
places communities in a very precarious position
SO even in spite of ESTA, which proposes to extend security of tenure, farm workers and labour tenants evicted. Labour tenants'
rights are circumvented. In spite of the laws about securing s 25(6) rights, there are still gaps.
S 25(7): RESTITUTION
S 25(7) of the Constitution – A person or community dispossessed of property after 19 June 1913 as a result of past racially
discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to
equitable redress.
SO part of the land reform project is giving back land, or providing equitable redress (not exclusively money, could be alternative
land).
1994 Restitution of Land Rights Act

The restitution of rights in land to persons or communities dispossessed of such rights after 19 June 1913. Establishment of a
Commission on Restitution of Land Rights. Establishment of a Land Claims Court.
Who can lodge a claim?
S 2 of the Act – A person shall be entitled to restitution of a right in land if:
- He is a person dispossessed of a right in land after 19 June 1913
- It is a deceased estate dispossessed of a right in land after 19 June 1913
- He is the direct descendant of a person referred to who has died without lodging a claim
- It is a community or part of a community dispossessed of a right in land after 19 June 1913
- The claim for such restitution is lodged not later than 31 December 1998
One of the early pieces of legislation from Mandela government. Technically restitution period is over – 1998 cut-off.
Requirements for lodging a claim
S 10 of the Act – Any person who or the representative of any community which is entitled to claim restitution of a right in land, may
lodge such claim, which shall include:
- A description of the land in question
- The nature of the right in land of which he/she/such community was dispossessed
- The nature of the right or equitable redress being claimed
Seems straightforward. BUT becomes a lot more difficult when you were moved several times → Which land do you claim? If you
are descendants of someone dispossessed, how do you access this information?
SO this calls for quite a deep historical investigation. Simpler if you have a nuclear family, with a set tracking system. Where you
don’t have this, it is a lot more difficult to get this information.
2013 Restitution Amendment Act

- Re-opened the lodgement period for restitution claims to allow people to put in claims until 30 June 2019
- Explicitly allows people dispossessed under Betterment to put in restitution claims
- Made adjustments to the terms of judges on the Land Claims Court
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What about treatment of existing claims? Claims in the system from the 1994 – 1998 round prioritised BUT no ring-fencing of prior
claims –
- Existing claimants argued that the Bill should have been amended to ‘ring fence’ and protect existing claims from competition
by new claims that could delay them for many years
- The proposal for ring fencing existing claims was not adopted
- Instead the law allowed the Commission to prioritise claims lodged prior to the 1998 deadline, which have not yet been
completely resolved, BUT did not guarantee this will be done
On its own, not a bad thing. Many people did not know about the restitution project, not able to put in claims in the first round. Would
welcome second round, should have access to it in s 25(7).
Disingenuous Move? – Vote-gathering, announced just prior to elections. Taken forever to resolve the existing claims, many remain
unresolved. Resolution of the claims devolves to the provincial offices – uneven approach depending on strength of office.
Enables victims of betterment to claim – not available in initial round of restitution.
Must be active protection for existing claimants – ring-fencing, any claims part of initial period cannot be held up by process of taking
new claims. Act stated prioritisation, depending on discretion – no guarantee that new claims won’t hold up old claims. Form of
protecting existing claims, but not as strong as what was being called for.
The reality of re-opening claims
Delius – The processing of current land claims could take 200 years with a cost of R600 billion, according to Treasury’s latest figures.
And should the land claims process be re-opened, 397 000 claims will be lodged, taking 709 years to process.
Commission on Restitution of Land Rights – 20 592 claims (25.87% of total land claims registered) have not yet been finalised or
the settlement agreement has not been fully implemented. Around 50% of the land already acquired for restitution has still not been
transferred to the beneficiaries. Several claimants have been waiting for over 10 years for the implementation of their settlement
agreement.
- Holdup is transferral from state to claimants
- Part of this is policy and perception
- Some people argue that state should not transfer ownership to communities, state should rather hold land on behalf of
communities
- How is this different from what happened in the past, if you don’t give back what was taken?
- Not sufficient restitution if state holds land on behalf?
Various stages before a claim is considered fully resolved. Claim can be settled, but this is not necessarily action, cannot be
considered finalised. This is why so difficult to determine numbers of success.
Urban Claims – Mostly about claiming ownership. Options are somewhat limited, as there is little you can do about urban claims
because of urban structuring and development. Urban claims mostly resolved through money → not necessarily able to offer
restoration of original land, some offers of alternative land.
Rural Claims – Some of the most difficult to process. Often about claiming labour/quitrent tenure, which are more difficult to prove.
Complex community claims. Requires proving that multiple families have history with a piece of land. Convoluted history of
homelands, impossible to track where people began. Distinction between kinds of land rights being claimed.
For restitution, a level of certainty is required so inability to definitively track the right makes the process very difficult.
System is such that it might drive people out of sheer exhaustion and frustration to take the money rather than wait for settlement.
If bulk of new claims are rural, potentially really long waiting periods.
Commission on Restitution of Land Rights – Just under 21,000 outstanding claims from first round, closed 1998.
In 2014/15 the budget for land restitution was lower than it has been since 2009/10 (in nominal terms) and since 2004/5 (adjusted for
inflation). Government estimated that 379,000 new claims would be lodged which, if existing claims are any predictor of the scale of
these, would likely cost about R180 billion.
Likely Future Scale of Restitution? – The existing claims that are not finalized (approximately 30,000) plus the expected new claims
of (379,000) make a total of potentially 409,000 claims.
Claims already settled, mostly urban claims which were settled relatively quickly, and paid out with cash compensation far below the
market value of the properties.
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Future claims are likely to be more predominantly rural and claims related to Betterment (forced villagisation in the Bantustans) which
are more complex, more expensive and more time-consuming to resolve than those already settled.
Government aims to resolve all existing and new claims (409,000) in the coming 15 years – in other words, to speed up the rate of
settling claims six-fold.
- Assuming that the new claims will be as cheap and easy to settle as past claims (which is doubtful) it would require an
annual budget for restitution of R12 billion each year over 15 years
- If land claims continue to be settled at the current rate (ie if budgets were to increase at the level of Inflation), it would take
121 years to settle the claims (both old and new claims)
Note – Always promises made around land in anticipation of elections. Always promises made around traditional leadership in
anticipation of elections. If you can make claims around this, you draw in votes. At this time, no conclusive evidence whether there is
actually an increase in support off basis of these policy promises. No commitment regarding budget.
Shifting The 1913 Cut-Off?

Argument that the 1913 date is a bit arbitrary. Leaves people dispossessed prior to this without a remedy. BUT the further back you
go, the more difficult it is to prove a claim.
- If you lift the 1913 cut-off, are you allowing for claims as far back as the arrival of the Dutch?
- How would this be proved?
- If there is a struggle to prove claims post-1913, how will claims pre-1913 be proven?
S 25(5) – (9) are about balancing certainty. S 25(1) would struggle to allay fears that lifting 1913 date opens a can of words.
Lifting the 1913 date, creates potential for conflict – massive contestation between different peoples, opening up idea that you are
beginning to track turf wars preceding colonialism.
Question of Heritage – Idea was that the lynchpin, basis on which you could make a claim pre-1913 would be centred around idea
of heritage. Limit ability to make claims to area of land being claims having to do with heritage.
Opening up the debate around pre-1913 land claims, questions around the 1913 cut-off –
- Despite former President Zuma saying during the run up to the elections that the Restitution Act would be amended to allow
people dispossessed before 1913 to lodge a claim, these amendments never took place
- The Act still would have allowed only people who lost land as a result of racially discriminatory practices after 1913 and
before 1994 to lodge a claim
Impact of the Heritage Policy that accompanies the Restitution Act –
- Minister Nkwinti said in 2014 that government is going to create a policy (and possibly a law) that recognises the claims to
land of people dispossessed prior to 1913 → this law would be separate from the Restitution Act
- This is not a law yet but a policy that is under discussion → government officials refer to this policy as ‘exceptions to the
1913 cut-off date’ or as the ‘heritage’ policy (while this policy is spoken about in reference to the Khoi San, it includes other
groups too)
Challenging The Restitution Amendment Act

Restitution Amendment Act and the ensuing legal challenge in LAMOSA Constitutional Court case and judgement. The Court made
their decision on procedural grounds –
- Related to the manner in which the NCOP conducted public participation/consultation (lacking)
- Time-frames followed were very truncated and called into question ability for meaningful consultation → particularly
regarding rural engagement with the legislation
Constitutional Court determined that the Amendment Act fell short – must return to Parliament, timelines around how it was to be
considered. Currently a Bill, just been finalised in Parliament – more rhetoric or genuine push for land reform? Must pass through
both houses.
- If it passes, new round of restitution (elections in 2019)
- If it passes, what happens?
- Do you encourage more people to join the queue when the first round has not yet been resolved?
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Claims lodged by the date of the judgment continue to exist. The court however interdicted the Land Claims Commission from
considering, processing and settling new claims for 24 months, pending Parliament’s re-enactment of the amendment act or
finalisation of those claims filed by 31 December 1998, whichever occurred first.
S 25(8): EXPROPRIATION WITHOUT COMPENSATION

Question – Is this useful?
There is something about expropriation without compensation that makes the debate a bit of a red herring. There are very big
problems in the land reform project. Part of what seems to be cynical in ruling party engaging with this is that expropriation without
compensation is a new shiny promise that draws attention away from the existing problems.
Little to go on in terms of state thinking, policy. At the moment, only have political rhetoric to go on – makes it a political conversation
with legal elements, instead of legal conversation with political elements.
Constitutional Provisions
S 25(3) of the Constitution – The amount of the compensation and the time and manner of payment must be just and equitable,
reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant
circumstances, including:
a. The current use of the property
b. The history of the acquisition and use of the property
c. The market value of the property
d. The extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property
e. The purpose of the expropriation
S 25(4) of the Constitution – The public interest includes the nation’s commitment to land reform, and to reforms to bring equitable
access to all of South Arica’s natural resources.
This is the most useful for land reform.
Existing Possibilities for Expropriation Without Compensation?

S 25(8) of the Constitution – No provision of this s may impede the state from taking legislative and other measures to achieve
land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the
provisions in this is in accordance with the provisions of s 36(1).
This is where the guess is that this might be the provision that will be tinkered with. What could be injected here is a clearer articulation
that state is expressly allowed to make use of expropriation without compensation in context of land reform.
AA
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DOL 300 3 H AFRIC AN CUS TOM ARY L AW – SEM ESTER II

CUSTOMARY LAW SUCCESION

→ Answer a problem question (see tutorial 3)

→ Undermines a constitutional recognition/protection of customary law

CUSTOMARY LAW SUCCESSION PRIOR TO COLONISATION

- Risks undermining the stability and cohesiveness of the community

- Has the potential to destabilise the family

Example: Simple family matrix

Daughter 1 Son 1 Son 2 Daughter 2

→ It is in the best interests of family to choose a different heir

→ Husband assumes control of Wife’s property

→ Often depends on who is available

- The family oversees the process of succession

→ No outside authority, no involvement from headmen or chiefs

→ Succession is a private matter that happens within the family

Inheritance and Property

→ Disinherit an unsuitable heir

Customary Law Succession vs Common Law Succession

Common Law Customary Law

Nuclear family, individualised Extended family

Focus: Obtaining rights to property Focus: Succession

No inheritance of duties Duty to look after family members is inherited

THE APARTHEID ERA

S 23 of the Black Administration Act and Regulations

i. The focus shifts from succession of status to inheritance of property

ii. Codification of male primogeniture

The migrant labour system

- Breaks down families → the basis of ACL

- Economy is individualised → moves from subsistence to cash

- Changes inheritance practices on the ground → extended families begin to be excluded

Changing practices and ossifying the law

THE CONSTITUTIONAL ERA

Bhe v Magistrate, Khayelitsha

THE REFORM OF CUSTOMARY LAW OF SUCCESSION ACT

- Protect women and children

- Give effect to the Constitutional Court’s declaration regarding male primogeniture

- Protect the best interests of the family

Provisions of the Reform Act

‘Who dies without a will’

‘Who is subject to customary law’

BUT whether a person lives according to ACL ought to be considered.

‘Devolve in accordance with the Intestate Succession Act’

- Why is the one system of law dominated by the common law?

- Is the Reform Act a reasonable and justifiable limitation on right to culture?

The Basics of the Intestate Succession Act

The Reform Act: Accommodation of Customary Law

- A woman referred to in s 2(2)(b) or s 2(2)(c)

Based in common law, but extended to accommodate ACL –

- The definition of ‘descendant’ is not limited to adoption

2. In the application of the Intestate Succession Act –

NB it is unclear why this kind of relationship is singled out for protection.

Example case study

How Would A’s Estate Be Distributed on His Death? –

Note → This only applied to marriages concluded before 1988.

Women are forced to relinquish their property by –

- Threats of violence against them and families

- Accusations of witchcraft → consequence is death

- Accusations of going against the culture

SO the Reform Act cannot be considered isolation. Consider –

- Do people have knowledge of the Reform Act?

- What are the costs of enforcing the law?

Implementation of the Reform Act in Practice/Living Customary Law

- SO only property in the formal economy is regulated by the Reform Act

Procedure on the Death of the Head of the Household: Control of Property –