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| Title: | Defining the property rights of others: political power, indigenous tenure and the construction of customary land law |
| Author: | Klug, Heinz |
| Year: | 1995 |
| Periodical: | Journal of Legal Pluralism and Unofficial Law |
| Issue: | 35 |
| Pages: | 119-148 |
| Language: | English |
| Geographic terms: | South Africa United Kingdom |
| Subjects: | colonialism customary law land law |
| External link: | https://doi.org/10.1080/07329113.1995.10756461 |
| Abstract: | Constitutional recognition of indigenous law and the role of traditional authorities at last dignifies African legal culture in South Africa with the official equality it has so long been denied. One of the first questions to be confronted is how land tenure is linked to the administrative powers of traditional authorities. The new government has to disentangle indigenous land rights from a colonial legacy of indirect rule, under which political sovereignty and land ownership were intertwined. Through an examination of the case of the Hermannsberg Mission Society versus the Commissioner of Native Affairs and Darius Mogale (the HMS case) the author demonstrates how a particular, possibly erroneous, construction of indigenous law became geographically extended and imposed as legal authority for a universalized notion of 'customary tenure'. The HMS case arose after the reimposition of colonial administration and indirect rule over African communities in the Transvaal at the end of the second Anglo-Boer War, when the mission society challenged the transfer of a portion of the farm Boschfontein to the Commissioner in trust for Chief Darius Mogale and his tribe. The author concludes that recognizing the constructed nature of existing legal notions of customary tenure allows us to reopen the question of land held under communal tenure. Bibliogr., notes, ref. |
