African Indigenous Land Rights in a Private Ownership Paradigm

Abstract

"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?"