Browsing by Author "du Plessis, Elmien"

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African Customary Land Rights in a Private Ownership Paradigm
(2013) du Plessis, Elmien; Frantz, Gino
"With the advent of constitutionalism in South Africa, customary law is elevated to a position where it now is recognized alongside legislation and the common law as one of the sources of law. This is a major shift from the previous position, where customary law was only recognized in as far as it was easily ascertainable with sufficient certainty or codified, and then only applied when it was not in conflict with the common law. Despite the constitutional imperatives for the recognition of customary law, and interpretation that is in conformity with the constitution (that includes the recognition of customary law), the courts seem reluctant to do so. This paper will look at the South African courts' interpretation of ownership of land held in terms of customary law, and will aim at providing alternative interpretations to 'ownership' of customary land. "
African Indigenous Land Rights in a Private Ownership Paradigm
(2011) du Plessis, Elmien
"It is often believed that indigenous law confers no property in land. Okoth-Ogenda reconceptualised indigenous land rights by debunking the myth that indigenous land rights systems are necessarily 'communal' in nature, that 'ownership' is collective and that the community as an entity makes collective decisions about the access and use of land. He offers a different understanding of indigenous land right systems by looking at the social order of communities that creates 'reciprocal rights and obligations that this binds together, and vests power in the community members over land'. To determine who will be granted access to, or exercise control over, land and the resources, one needs to look at these rights and obligations and the performances that arise from them. This will leave only two distinct questions: who may have access to the land (and what type of access) and who may control and manage the land resources, on behalf of those who have access to it? There is a link with this reconceptualisation and the discourse of the commons. Ostrom’s classification goods leads to a definition of the commons (or common pool resources), as 'a class of resources for which exclusion is difficult and joint use involves subtractablity'” The question this paper wish to answer is: would it be 1) possible to classify the indigenous land rights system as a commons and 2) would it provide a useful analytical framework in which to solve the problem of securing land tenure in South Africa?"