Land, Power & Custom: Controversies Generated by South Africa's Communal Land Rights Act. ClaassensA and CousinsB (eds). Cape Town, UCT Press/Juta & Company, 2008. xv + 392 pp. Paperback ZAR 295, ISBN 978-1-91989-550-5.**
Published online by Cambridge University Press: 20 September 2010
This article reviews the collection of essays edited by Aninka Claassens and Ben Cousins, dealing with South Africa's controversial Communal Land Rights Act (CLRA). It comments on the implications of the CLRA for land law and reform. The background to and policy choices underlying the enactment of this piece of legislation are discussed, and the difficulties with its implementation are highlighted. It is significant that, in the case of Tongoane and Others v Minister of Agriculture and Land Affairs and Others , the constitutionality of the CLRA was challenged even before the CLRA became operative. The article discusses the main arguments raised by the constitutionality challenge, and raises further constitutionality issues. It considers the recommendations of Claassens and Cousins and makes further observations, particularly in light of the Tongoane judgment which was delivered after the book was published in 2008.
Type Review Article Information Journal of African Law , Volume 54 , Issue 2 , October 2010 , pp. 298 - 312 Copyright © School of Oriental and African Studies 2010Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)
1 Communal Land Rights Act 11 of 2004; declared unconstitutional in its entirety in the Constitutional Court decision in Tongoane and Others v National Minister for Agriculture and Land Affairs and Others, CCT 100/09, judgment delivered on 11 May 2010 (Tongoane 2010).
2 It is estimated that approximately 13 million people or 2.4 million households still reside in the former “homelands” to which the CLRA would have applied. This amounts to almost 30% of South Africa's total population. Pienaar , G “ Security of communal land tenure by registration of individualistic title: Is the Communal Land Rights Bill of 2003 the final solution? ” ( 2004 ) Tydskrif vir Hedendaagse Romeins-Hollandse Reg [Journal of Contemporary Roman-Dutch Law] 244 at 244 –45;Google Scholar Mostert , H and Pienaar , JM “Formalization of South African communal land title and its impact on development” in Cooke , EJ (ed) Modern Studies in Property Law III ( 2005 , Hart Publishing ) 317 at 317 and 319;Google Scholar Nonyana , MR “ The Communal Land Rights Bill 2002 and related legislation ” ( 2002 ) 6 Butterworths Property Law Digest 7 at 7–8;Google Scholar B Cousins “Comments on the Communal Land Rights Bill” (submission to the Portfolio Committee on Agriculture and Land Affairs, B67-2003, 10 November 2003).
3 J Love “Foreword” in Land, Power & Custom xii.
4 Mostert and Pienaar “Formalization of South African communal land title”, above at note 2.
5 A Claassens and S Ngubane “Women, land and power: The impact of the Communal Land Rights Act” in Land, Power & Custom 154.
6 Mostert and Pienaar “Formalization of South African communal land title”, above at note 2 at 317–19.
7 See in general H Smith “An Overview of the Communal Land Rights Act 11 of 2004” in Land, Power & Custom 35.
8 11678/2008 TPD, judgment delivered on 30 October 2009; endorsed by the Constitutional Court in Tongoane 2010.
9 See (last accessed 3 October 2009).
10 G Marcus “The Communal Land Rights Bill” (submission to the Human Rights Commission and the Legal Resources Centre, 20 October 2003).
11 Love “Foreword”, above at note 3 at xiv.
12 B Cousins “Contextualising the controversies: Dilemmas of communal tenure reform in post-apartheid South Africa” in Land, Power & Custom 3 at 3.
13 See further Mostert and Pienaar “Formalization of South African communal land title”, above at note 2.
14 Cousins “Contextualising the controversies”, above at note 12 at 3.
15 Smith “An overview of the Communal Land Rights Act”, above at note 7.
17 Smith “An overview of the Communal Land Rights Act”, above at note 7 at 39–40; “Memorandum on the objects of the Communal Land Rights Bill” (2003), para 1, available at: (last accessed 21 June 2010).
18 “Memorandum” id, para 2(d); confirmed in CLRA, secs 5, 6 and 8.
20 Id, para 2(f) and CLRA, sec 19(5).
22 Smith “An overview of the Communal Land Rights Act”, above at note 7 at 40.
25 The Minister of Land Affairs or someone he/she designates would have to initiate the inquiry: CLRA, sec 14(1) read with sec 15(1). For more detail, see Mostert and Pienaar “Formalization of South African communal land title”, above at note 2 at 327. CLRA, secs 14(2)(a) – (i) set out the details of the enquiry. The “options available for securing rights” must be established. Amongst others, the enquirer has to deal with conflicting rights, which may relate to conflicts between family members or tribal affiliations or, where relevant, the effect of possible restitution claims on the land and existing rights. The interests of the state must also be considered. The provision of land on an equitable basis and gender equity are further factors to be taken into account. Other categories of vulnerability (such as age or infirmity) may also be considered, as may the quality, size or location of the land to be awarded. Spatial planning, land use management and land development constitute other essential aspects of the enquiry, which will require the co-operation of local government and traditional leadership structures. The need for and extent of comparable redress is another factor to be considered. Moreover, the enquiry must concern “any other matter as prescribed or as instructed by the Minister.”
26 CLRA, sec 18. Once the land rights enquiry was complete, the enquirer would have to lodge a report with the minister, on which the minister may base any further action, once it was certain that the requirements of the CLRA and the Constitution had been met, and all relevant laws (relating to spatial planning, local government and agriculture) and the interests of the affected “old order” right holders had been considered. The process of determination was aimed at identifying the best possible solution for every holder of a specific “old order” right. Where applicable, the location and extent of the land to be transferred would have to be determined. Where boundary conflicts arose, the minister would have to clarify those boundaries.