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

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Presentation on theme: "Security of Tenure: The Customary/Common Law Interplay Can customary land rights really compete on the same level as those of the common law? _____________________________."— Presentation transcript:

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:

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12 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????

13 STILL TO FOLLOW: Case Law International Trends Conclusion = The End - Thank you

14 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 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 Pienaar, G. The Land Titling Debate in South Africa TSAR 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 s25(6) The Communal Property Associations Act 28 of 1996 The Extension of security of Tenure Act 62 of 1997


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