Communal land and tenure security: analysis of the South African Communal Land Rights Act 11 of 2004

[摘要] ENGLISH ABSTRACT: In this thesis, the Communal Land Rights Act 11 0f 2004 is analysed in order todetermine whether it can give effect to the constitutional mandate in terms ofwhich it was promulgated, namely section 25(5), (6) and (9) of the Constitution.Land policy pertaining to land tenure reform is discussed to see how and towhat extent it finds application in the Act. The time-consuming processpertaining to the registration of the community rules is investigated, and theimplications where a community fails to adhere to this peremptory provision inthe Act are explained.The thesis also analyses and discusses the functions of statutorily createdinstitutions, like the land administration committee and the land rights boards, inthe efficient management of land in rural areas. The aforementioned landadministration committee is particularly problematic, since the Act provides thatin cases where a recognised tribal authority exist, that institution 'may beconsidered as the land administration committee, subject to prescribedcomposition requirements as contained in the Act. The Traditional Leadershipand Governance Framework Act will also be discussed since it intersects withthe Communal Land Rights Act in this regard.The pending constitutional challenge which relates to this potentiallyproblematic issue, will be discussed. The constitutional challenge of the Act byfour communities' is explored in order to indicate just how potentiallyproblematic the institution of traditional leadership could be.viThis study also discusses and analyses the compromise contained in the Act,regarding the registration of the land title of a community and the registration of'new order rights in the name of individuals. In this context the impact of thisprocess on the efficacy on the current Deeds registration system isinvestigated. The Ministerial determination and its constitutional implications isyet another issue, examined in this study. All of these issues will have anegative impact on the implementation of the Communal Land Rights Act andespecially on achieving tenure security.

[发布机构] Stellenbosch University