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Security of Tenure: The Customary/Common Law Interplay

Security of Tenure: The Customary/Common Law Interplay. Can customary land rights really compete on the same level as those of the common law? _____________________________ Samantha Woods. OUTLINE :. The Mystery of Capital The South African Context Formal Registration Rural Land Tenure

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Security of Tenure: The Customary/Common Law Interplay

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  1. Security of Tenure: The Customary/Common Law Interplay Can customary land rights really compete on the same level as those of the common law? _____________________________ Samantha Woods

  2. OUTLINE: • The Mystery of Capital • The South African Context • Formal Registration • Rural Land Tenure • Legislation • Custom • Pienaar • Cousins

  3. OUTLINE CONTINUED • Case law • International trends • Conclusion

  4. THE MYSTERY OF CAPITAL – HERNANDO DE SOTO • Economic development • The ‘West’ v the ‘East’ • Wealth creation • Securing a loan to generate capital • Requires: COLLATERAL!!! • Solution: Registered right in immovable property!!!

  5. THE SOUTH AFRICAN CONTEXT • Registerable rights: • Real right of ownership • Limited real right • = Security of Tenure • = Collateral

  6. THE SOUTH AFRICAN CONTEXT CONTINUED • Rural Land Tenure • Custom • Fragmented… • … but equal • Not registered… • … but alternatively enforced • = NO Registration • = NO Security of Tenure • = NO Collateral!!!

  7. THE SOUTH AFRICAN CONTEXT CONTINUED • Legislation • S 25(6) of The Constitution of the RSA • The Communal Property Associations Act 28 of 1996 • The Extension of security of Tenure Act 62 of 1997 • = NO Registration • = NO Security of Tenure • = NO Collateral!!!

  8. THE SOUTH AFRICAN CONTEXT CONTINUED • Gerrit Pienaar • The Registration of Fragmented Use-Rights as a Developmental Tool in Rural Areas • Custom/Statute + Registration • = Registration • = Security of Tenure • = Collateral!!! 

  9. THE SOUTH AFRICAN CONTEXT CONTINUED • Ventura/Mohamed Model:

  10. THE SOUTH AFRICAN CONTEXT CONTINUED • Ben Cousins • “Embeddedness” versus Titling: African Land Tenure Systems… • Characteristics prevent registration • Land tenure = embedded in social and political relationships = different entitlements and obligations • = NEVER Registration • - Security of Tenure????

  11. STILL TO FOLLOW: • Case Law • International Trends • Conclusion • = The End • - Thank you

  12. BIBLIOGRAPHY • Literature • Another Countryside? Policy Options for Land and Agrarian Reform in South Africa. Edited by Ruth Hall. PLAAS-UWC, 2009 • Cousins et al. Will formalising property rights reduce poverty in South Africa’s sesond economy? Plaas Policy no.18 2008 • Cousins, B. “Embeddedness” versus Titling • De Soto, H. The Mystery of Capital. Basic Book, 2000 • Pienaar, G. Registration of informal land-use rights in South Africa TSAR 2000.3 • Pienaar, G. The Land Titling Debate in South Africa TSAR 2006.3 • Pienaar, G. Aspects of Land Administration in the Context of Good Governance. PER/PEJL 2009(12)2 • Legislation • The Constitution of the Republic of South Africa 1996 - s25(6) • The Communal Property Associations Act 28 of 1996 • The Extension of security of Tenure Act 62 of 1997

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