Abstract
Customary land tenure is normally not based on codified or statutory sources, but stems from customary traditions and norms. When westernised courts have to interpret and adjudicate these customary traditions and norms, the normal rules of statutory interpretation cannot be followed. The court has to rely on evidence of the traditional values of land use to determine the rules connected to land tenure. Previously courts in many mixed jurisdictions relied on common or civil law legal principles to determine the nature of customary land tenure and lay down the principles to adjudicate customary land disputes among traditional communities, or between traditional and westernised communities in the same jurisdiction. Many examples of such westernised approach can be found in case law of Canada and South Africa. The interpretation of the nature of customary land tenure according to common law or civil law principles has been increasingly rejected by higher courts in South Africa and Canada, e.g. in Alexkor Ltd v The Richtersveld Community 2004 5 SA 469 (CC) and Delgamuukw v British Columbia 1997 3 SCR 1010. This paper explores the methodology the courts should follow to determine what the distinctive nature of customary land tenure is. As customary land tenure is not codified or based on legislation, the court has to rely, in addition to the evidence of indigenous peoples, on the expert evidence of anthropologists and sociologists in determining the nature of aboriginal title (in Canada) and indigenous land tenure (in South Africa). The court must approach the rules of evidence and interpret the evidence with a consciousness of the special nature of aboriginal claims and the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in. The court must not undervalue the evidence presented simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law tort case.
Highlights
The South African legal system is based predominantly on a mixture of civil law (Roman-Dutch) and English Common Law[1] principles.[2]
The trial judge of the Supreme Court of British Columbia rejected the claims of the appellants because three aspects of the evidence presented by the appellants were not regarded as sufficient proof of their land tenure rights: (a) their ancestors communally possessed and used the fishing sites and adjacent lands for hunting and gathering purposes, the appellants did not prove that they had aboriginal title over the territory in its entirety, because the judge was not persuaded that there was any system of governance or uniform custom relating to the land outside the villages
The Richtersveld saga[52] is based on a land claim which was first instituted in the Land Claims Court (LCC),[53] where the plaintiffs alleged that they have (i) a right to land based on ownership, alternatively (ii) a right based on aboriginal title allowing them the exclusive beneficial occupation and use of the land, 54 alternatively (iii) a right in land acquired through their beneficial occupation of the land for a period of longer than ten years prior to their eventual dispossession.[55]
Summary
The South African legal system is based predominantly on a mixture of civil law (Roman-Dutch) and English Common Law[1] principles.[2] South African common law principles established and applied by case law, and legislation forms part of this mixture.[3] In academic writing Roman-Dutch, European civil law and English Common Law jurists are mainly cited as authority for South African common law principles, firmly establishing the South African legal system as a mixed jurisdiction. In this respect Zimmermann observed:[4]. This paper compares the way in which predominantly westernised courts in Canada and South Africa interpret the customary values of land use in order to determine the nature of the land tenure rights
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