Masters Degrees (Private Law)

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Browsing Masters Degrees (Private Law) by Author "Johnson, Ebrezia"

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    Communal land and tenure security: analysis of the South African Communal Land Rights Act 11 of 2004
    (Stellenbosch : University of Stellenbosch, 2009-12) Johnson, Ebrezia; Mostert, H.; University of Stellenbosch. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: In this thesis, the Communal Land Rights Act 11 0f 2004 is analysed in order to determine whether it can give effect to the constitutional mandate in terms of which it was promulgated, namely section 25(5), (6) and (9) of the Constitution. Land policy pertaining to land tenure reform is discussed to see how and to what extent it finds application in the Act. The time-consuming process pertaining to the registration of the community rules is investigated, and the implications where a community fails to adhere to this peremptory provision in the Act are explained. The thesis also analyses and discusses the functions of statutorily created institutions, like the land administration committee and the land rights boards, in the efficient management of land in rural areas. The aforementioned land administration committee is particularly problematic, since the Act provides that in cases where a recognised tribal authority exist, that institution “may” be considered as the land administration committee, subject to prescribed composition requirements as contained in the Act. The Traditional Leadership and Governance Framework Act will also be discussed since it intersects with the Communal Land Rights Act in this regard. The pending constitutional challenge which relates to this potentially problematic issue, will be discussed. The constitutional challenge of the Act by four communities’ is explored in order to indicate just how potentially problematic the institution of traditional leadership could be. vi This study also discusses and analyses the compromise contained in the Act, regarding the registration of the land title of a community and the registration of “new order rights” in the name of individuals. In this context the impact of this process on the efficacy on the current Deeds registration system is investigated. The Ministerial determination and its constitutional implications is yet another issue, examined in this study. All of these issues will have a negative impact on the implementation of the Communal Land Rights Act and especially on achieving tenure security.