Colonial and apartheid policies in South Africa have had lasting \u2013 and complex \u2013 impact on indigenous customary law, and with it, on indigent people\u2019s access to land.<\/p>\n
\u201cCustomary law\u201d is a general term referring to the indigenous or local customs and traditions (i.e. laws) of peoples that live communally. Under colonial rule in South Africa, customary law was given a third class status beneath western-imported British common law and Roman-Dutch civil law. Colonial rulers superficially recognized native customs, but simultaneously supplanted them with western legal concepts such as the ownership of property by a single homestead through a deed or other written entitlement. As a general rule, the colonial government acknowledged indigenous leadership structures only to the extent that it benefitted its system of indirect rule. Hence, the government drew (often with little cultural understanding) firm ethnic and geographic boundaries around tribes, instating chiefs they knew to be subservient to colonial control, and declaring that tribe members could obtain land or other resources only through these tribes and chiefs. Apartheid deepened these distortions of traditional leadership and custom, locking native people within the physical and cultural bounds of tribes and chiefs whose power had been enhanced by colonial impact.<\/p>\n
Following the dissolution of the apartheid government in the early 90s, South Africa\u2019s new Constitution of 1994 for the first time placed customary law on equal footing with statutory and common law, declaring it, like those other sources of law, independent and subject only to the Constitution itself. On one level, this was a critical step for the recognition of indigenous rights and traditions, finally elevating them to equal status with western-created legal rights. But a significant challenge arose: what, after all the years of distortion, was \u201ccustomary law\u201d anyway? Which customs and traditions were \u201ctrue\u201d and worthy of being elevated under the Constitution?<\/p>\n
This challenge has faced many African countries, and many have fallen into the trap of promoting customary law simply by recognizing the traditional leadership structures, lineages, and boundaries created by colonial governments. They have also approached custom as though it is static, seeking to impose \u2013 forever more \u2013 the same chief and traditions that existed in the 19th century. The problem, of course, is that the pyramidal structure of tribal power that facilitated colonial indirect rule was not actually indigenous, for scholars have revealed that in fact tribal leadership arrangements were often quite \u201cdemocratic\u201d and flexible. Today, determining who is leader of a tribe in South Africa has very tangible impacts: land is still owned through chiefs, meaning significant potential wealth \u2013 including mineral wealth \u2013 is held in the hands of an elite and ultra-powerful few, while the least empowered in society \u2013 the rural poor, women, and youth \u2013 have limited access to rights and resources.<\/p>\n
In South Africa, the debate over the nature of custom is being fought today between the court system and the legislature. The parliamant \u2013 perhaps influenced by powerful constituencies \u2013 has passed laws since the early 2000s solidifying the tribal boundaries and structures created by colonialism and exacerbated under apartheid. Meanwhile, the highest court, the Constitutional Court, has developed extremely forward-minded jurisprudence on the true, flexible nature of culture and \u201cliving customary law,\u201d and has sent at least one of these bills back for redrafting. The debate presents an ongoing challenge to human rights attorneys: within the muddle of legislation and court rulings, how can customary law be used to promote the rights and livelihoods of all South Africans, as mandated by the Constitution?<\/p>\n
The complexity of the issue is manifested in a bill signed into law by President Zuma this past July 1, called the Restitution of Land Rights Amendment Act. The Act re-opens a process under which citizens may claim back land that was expropriated from them decades ago under racially discriminatory apartheid laws. In theory the law could offer great opportunity to citizens to reclaim land and rectify the disparities in land ownership that persist along racial lines. Yet in reality the law may just provide apartheid-created chiefs the ability to claim vast swaths of territory for their own use (or lease to foreign mining companies), ostensibly in the name of their tribe.<\/p>\n
The legislature has spoken; it is now time for the lawyers and courts to help determine whose custom and whose law will be elevated to ensure truly equitably access to land for South African rural citizens.<\/p>\n","protected":false},"excerpt":{"rendered":"
Colonial and apartheid policies in South Africa have had lasting \u2013 and complex \u2013 impact on indigenous customary law, and […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"enabled":false},"version":2}},"categories":[18],"tags":[339,338,333,37],"class_list":["post-2561","post","type-post","status-publish","format-standard","hentry","category-lids-live","tag-access-to-land","tag-customary-law","tag-informal-justice","tag-south-africa"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/orgs.law.harvard.edu\/lids\/wp-json\/wp\/v2\/posts\/2561","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/orgs.law.harvard.edu\/lids\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/orgs.law.harvard.edu\/lids\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/orgs.law.harvard.edu\/lids\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/orgs.law.harvard.edu\/lids\/wp-json\/wp\/v2\/comments?post=2561"}],"version-history":[{"count":0,"href":"https:\/\/orgs.law.harvard.edu\/lids\/wp-json\/wp\/v2\/posts\/2561\/revisions"}],"wp:attachment":[{"href":"https:\/\/orgs.law.harvard.edu\/lids\/wp-json\/wp\/v2\/media?parent=2561"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/orgs.law.harvard.edu\/lids\/wp-json\/wp\/v2\/categories?post=2561"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/orgs.law.harvard.edu\/lids\/wp-json\/wp\/v2\/tags?post=2561"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}