Land & Custom

Customary law is an established system of immemorial rules [...] evolved from the way of life and natural wants of the people, the general context of which was a matter of common knowledge, coupled with precedents applying to special cases, which were retained in the memories of the chief and his councilors, their sons and their sons' sons until forgotten, or until they became part of the immemorial rules. [Bekker, 1989] 

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Traditional leaders in Malawi win against property developer who hid information from court

TRADITIONAL leaders in Malawi’s Chikwawa district have won a significant court victory over a developer. This after he asked for judicial help in throwing a local community off land where they have lived for many years – but failed to disclose key facts to the court. An initial injunction against the local community was granted earlier this year, but then it emerged that he hid important facts in his original application, brought without notice to the traditional community.

Traditional king ordered to appear in court and testify about his decisions

High court judge, Maphios Cheda, was faced with a tricky issue earlier this month. A group of Namibian traditional leaders, ousted by the King after allegations of misconduct and other “transgressions”, challenged the King’s decision to remove them and appoint other traditional leaders in their place. The suspended leaders said the King was of advanced age and no longer able to make decisions on his own.

The unusual court case was the result of a long-running feud within Namibia’s Ondonga traditional authority and involves senior traditional leaders and advisers to the King, the “Omukwaniilwa” of Ondonga. At some stage six of these advisers were sacked and they then asked the court to intervene.

Collective Land Ownership in the 21st Century: Overview of Global Trends

Statutory recognition of rural communities as collective owners of their lands is substantial, expanding, and an increasingly accepted element of property relations. The conventional meaning of property in land itself is changing, allowing for a greater diversity of attributes without impairing legal protection.

Land 20187(2), 68; doi:10.3390/land7020068

by Liz Alden Wily

Van Vollenhoven Institute, Leiden Law School, P.O. Box 9520, 2300 RA Leiden, The Netherlands

Received: 30 April 2018 / Accepted: 21 May 2018 / Published: 29 May 2018

The Community Land Act in Kenya Opportunities and Challenges for Communities

Kenya is the most recent African state to acknowledge customary tenure as producing lawful property rights, not merely rights of occupation and use on government or public lands. This paper researches this new legal environment. This promises land security for 6 to 10 million Kenyans, most of who are members of pastoral or other poorer rural communities. Analysis is prefaced with substantial background on legal trends continentally, but the focus is on Kenya’s Community Land Act, 2016, as the framework through which customary holdings are to be identified and registered.

Land 20187(1), 12; doi:10.3390/land7010012

The Community Land Act in Kenya Opportunities and Challenges for Communities

by Liz Alden Wily

Van Vollenhoven Institute, Leiden Law School, Box 9520, 2300 RA Leiden, The Netherlands; Tel.: +254-724-317-836

 

Customary Land Act and Regulations Now in Force in Malawi

The Customary Land Act, 2016 of Malawi commenced in March 2018.  The commencement notice was followed by Customary Land Regulations, 2018 in April 2018.

The Customary Land Act, 2016 has commenced with effect from 1 March 2018.   To further operationalize the customary land fraemwork, government gazetted on 20 April 2018 the Customary Land Regulations, 2018.

Read both on MalawiLII:

 

Court gives community right to fish without permit

Can a local community governed by a system of customary law fish in a marine protected area without a permit? In a landmark decision, the Supreme Court of Appeal (SCA) has said it can. The decision is a victory for people living in the Dwesa-Cwebe Nature Reserve in the Eastern Cape who rely on fishing.

Landmark judgment for customary rights

By Ohene Yaw Ampofo-Anti

6 June 2018

Photo of Supreme Court of Appeal in Bloemfontein

The Supreme Court of Appeal has ruled that traditional fishers do not need a permit to fish in the Dwesa-Cwebe Nature Reserve. Photo: Ben Bezuidenhout via Wikimedia (CC BY-SA 4.0)

 

Court orders tribal authority to act democratically

Do traditional leaders have to consult with their community before litigating on their behalf? On 9 March 2018, a Mahikeng High Court judgment answered this question: yes, they do.

By Ohene Yaw Ampofo-Anti

28 May 2018

Background

The Royal Bafokeng Nation (RBN) is a tribal community of approximately 300,000 people. RBN applied to court for an order declaring that it is the owner of 60 properties in North-West Province.

RBN asked for this order because, according to the title deeds, the properties are being held by the Minister of Land Affairs “in trust for” the RBN. RBN contended however, that there was no trust relationship between it and the Minister and it was the outright owner of the properties.

South Africa: Customary Initiation Bill, 2018

The South African Parliament will soon consider a new Customary Initiation Bill. 

The South African Minister of Cooperative Governance and Traditional Affairs gazetted on 16 March 2018 a notice of intention to introduce the Customary Initiation Bill, 2018 in the National Assembly.

The main objectives of the Bill are—

(a) to protect, promote and regulate initiation;

(b) to provide acceptable norms and standards with a view to ensure that initiation takes place in a controlled and safe environment; and

(c) to provide for the protection of life and the prevention of any abuse

 

[Book] African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives

African Customary Law in South Africa

Professor IP Maithufi, Dr Sindiso Mnisi Weeks, Mr Lesala Mofokeng, Dr Dial Ndima, Edited by Professor Chuma Himonga, and Professor Thandabantu Nhlapo

  • The text addresses living customary law precepts and values, offering an insightful, authentic and sensitive approach to the alignment of parallel systems of South African law. This facilitates an understanding of the true purpose, values and efficacy of customary law, and honours the important role which this system of law serves within South African society.
  • The material is presented in a clear and applied manner, in order that it should be accessible, engaging and challenging to readers.

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