THE RESTITUTION OF LAND RIGHTS AND THE RECOGNITION OF DIVERSE FORMS OF LAND TENURE

Abstract

South Africa’s system of land law is dominated by a civil law methodology. One of the consequences of this dominance is that only those forms of land tenure which are based on civil law concepts, for example ownership and limited real rights, have been recognised, supported and protected by the property law system. Other forms of land tenure which are not based on civil law concepts, for example statutory permits or customary law interests, have not been recognised, supported or protected by the property law system. The purpose of this article is to consider the extent to which the restitution of land rights programme challenges the property law system's bias in favour of civil law rights. This issue will be considered primarily through an examination of the judgment of the Land Claims Court in In re Kranspoort Community 2000 2 SA 124 (LCC), focusing primarily on the manner in which the court interpreted the statutory definition of a “right in land” and the manner in which the court restored land rights to the claimant community.