About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

110 S. African L.J. 276 (1993)
Administrative-Law Controls over Chiefs' Customary Powers of Removal

handle is hein.journals/soaf110 and id is 288 raw text is: ADMINIS TRA TI VE-LA W CONTROLS OVER CHIEFS' CUSTOMARY POWERS OF REMOVAL* T W BENNETTt Professor, Department of Public Law, University of Cape Town I SECURITY OF TENURE Probably the most controversial issue being currently debated in South Africa (aside obviously from the Constitution) is land' tenure. Although opinion divides on what criteria should be used to decide entitlement to land, there is general agreement on one point: however land is distributed, and whatever form of tenure is ultimately granted, the tenure must be secure.2 In the rural areas of South Africa an African's right to land is most likely to be derived from customary law or statute; more rarely the right might be a quitrent title or common-law freehold. Of these four categories, only a common-law title offers the landholder a com- pletely secure tenure. The holder of a quitrent, customary or statu- tory right may, for any of a wide variety of reasons, be removed from the land by administrative decree. This article is concerned with customary-law tenure, more specif- * My thanks are due to Professor Hugh Corder and Cathy Powell for their help in preparing this article. t BA LLB (Rhodes) PhD (Cape Town). ' A relatively small, conservative faction would see a title deed as the sine qua non of a right to land. To them, '[all other aspects, your right to a home, to security, to independence, are ignored if you do not possess the title deed': Albie Sachs Protecting human rights in a new South Africa (1990) 117. The 'other aspects', however, are of vital concern to a large majority of South Africans. These are people who, whatever their actual relationship to the land, have no title deeds, a technicality that renders their tenure precarious in the extreme. I Hamnett Chieftainship and Legitimacy (1975) 76 and M E E Mills and M Wilson in Keiskammahoek Rural Survey vol 4 (1952) 26 reported that informants in their areas were preoccupied with the question of a secure successor in title. See further the telling description of the insecurity of rural life inJ W Harbeson 'Land Reforms and Politics in Kenya, 1954-70' (1971) 9 J of Modern African Studies 238. 2 Even the ANC concedes the need to guarantee tenure of private property. Any expropria- tion will be permissible only on grounds of public interest and against payment of compensation: Sachs op cit 113 and art 11(2), (7) and (8) of the ANC's Bill of Rights for a New South Africa (1990). The protection of private property was a predictable feature of the Bill of Rights in the South African Law Commission's Working Paper 25 Project 58: Group and Human Rights: (1989) see art 15. See, too, the revised Bill of Rights contained in the Interim Report on Group and Human Rights (1991) S 7.252 art 22. The Government's draft charter of Fundamental Human Rights, published on 2 February 1993, provides for the protection of private property and permits deprivation only through expropriation for public purposes against compensation agreed on or in cash according to market value (s 18).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most