<em>Land, Power, and Custom: Controversies Generated by South Africa's Communal Land Rights Act</em>, Aninka Classes and Ben Cousins (editors)

Abstract

Land, Power, and Custom: Controversies Generated by South Africa's Communal Land Rights Act Samuel K. Andoh Classes, Aninka, and Ben Cousins, editors. Land, Power, and Custom: Controversies Generated by South Africa's Communal Land Rights Act. Athens, Ohio: Ohio University Press, 2008. 392 pp. Paper. This book, a collection of articles by various authors, deals with problems associated with the passage of the Communal Land Reform Act (CLRA) II of 2004 in postapartheid South Africa. It is divided into six parts, with introductory and concluding chapters as parts one and six, respectively. The issues it raises are not peculiar to South Africa: they are relevant to most of Africa because of the common history of colonialism, which they all experienced. For South Africa, land issues have been made more complex by the intervening period of apartheid, with its virulent discrimination against blacks and the forcible dispossession and appropriation of land. The result is that, whereas in many African countries going through land reform, the countries have to deal only with "traditional" or "customary" law and imported law brought by colonizers, South Africa has to deal with apartheid-era laws too. Dealing with these issues is not easy, and if not properly handled, it can wreak havoc with the socioeconomic order, as in Zimbabwe. Part one provides the background for understanding the problems faced by South Africa, and indeed all of Africa, in relation to land reform. For starters, any attempt at land reform must begin with a clear understanding of commonly used terms, such as communal, customary, and traditional. There is a general perception that according to "customary" law, land tenure in Africa is "communal." As is made clear, the traditional or customary concept of communal land tenure is complex and cannot be easily understood with reference to ideas of freehold and leasehold. Communal land tenure is not necessarily a "collective ownership and use of all land and natural resources," as it is often understood to be; it does allow for "clearly defined individual or family rights." It is in fact a "system of complementary interests that are held simultaneously" and can embody exclusivity and common use without any conflict. What role do chiefs play in this system? Chiefs are supposedly "owners" or "trustees" of the land, but did they ever have the power to do as they pleased? or were their roles simply to ensure that their subjects' disputes in the use of the complementary interests in land did not get out of hand? Another vexing problem is what constitutes "customary" or "traditional" laws. Are they the laws that obtained before colonization? or the laws as codified by the colonial administration for its convenience? If they are what obtained before colonization, can one assume that they were static and unchanging and that one could easily go back to them? or that they are dynamic and adaptable to changing circumstances? Part two, which comprises two essays, discusses land rights and customary land law, not only in South Africa but in Africa as a whole. The complexity yet flexibility of customary land law in Africa is discussed as a backdrop to what the CLRA II seeks: to undo some of the wrongs done [End Page 83] during the period of colonization and apartheid, when Africans were dispossessed of land by conquest and force, and subsequently by law. This section examines the process leading to the passage of the bill. The contention is that the bill was not properly "tagged and thus critical consultations that could have improved it were prevented. Tagging is a process which under the South African Constitution enables a bill to be appropriately classified depending on its contents and whom it will affect. In the case of CLRA II, "tagging" it under section 75 of the South African Constitution, instead of section 76, obviated the need to consult with the provinces and take their needs into account. In an interesting development a May 11, 2010, explanatory note, issued by The Constitutional Court of South Africa (CCT100/09), has S. Ngcobo, the Chief Justice saying that "parliament followed an incorrect procedure in enacting CLARA." The CJ further stated that the failure to follow the proper procedure i.e...