Land Tenure in South Africa: A Brief History and Some Reform Proposals
![handle is hein.journals/jsouafl1989 and id is 673 raw text is: Land tenure in South Africa: a brief
history and some reform proposals
DEREK VAN DER MERWE*
1 Introduction
As a social institution, wrote Denman' in 1977, property is an affinity of
power and decision-making. In the more prosaic language of the law,
dominium over things facilitates imperiurn over persons.2 This is a truth
universally recognised. Since the advent of civilised society, control over the
means of producing wealth has formed the basis for exercising power over
others and asserting privileges. For more than a millennium, feudal tenure
relationships dominated European society. Political and social power was the
exclusive preserve of a privileged minority of holders of dominium in landed
property. Maitland's remark that the constitutional history of England seems
at times to have been but an appendix to the laws of real property3 probably
holds true for much of Europe. In African society too, the political power of
the chief or headman has since time immemorial been inseparably linked to
his hereditary entitlements to land.4
Modern legal and social theory (not only of the socialist variety)5 has, of
course, recognised the injustice that attaches to this phenomenon, namely
that the exercise by an individual of the entitlements that inhere in the
ownership of property (more especially land) enables him to acquire the sort
of power and control over people that normally emanates from the exercise
of public-law competences by organs of state acting in the public interest and
within a constitutional framework that guarantees accountability.6 Already in
the late seventeenth century John Locke recognised this injustice. In cham-
pioning the cause of the natural rights of man to life, liberty and estate, he
nevertheless found it necessary to caution that no Man could ever have a just
* Professor of Private Law, Rand Afrikaans University.
The Place of Property (1978) vii.
2 See too Cohen Property and Sovereignty in Cohen Law and the Social Order. Essays in
Legal Philosophy (1982) 46-47.
3 as quoted by Cohen 327 n 4.
4 See Mugambwa Land Tenure and Economic Development in Lesotho in Sanders (ed)
Southern Africa in Need of Law Reform (1981) 80 86 (quoting Cowen); Davenport Some
Reflections on the History of Land Tenure in South Africa, seen in the Light of Attempts by
the State to Impose Political and Economic Control 1985 Acta Juridica 53 53. See too Kerr
The Customary Law of Immovable Property and of Succession (1976) 25-28 30-35.
5 See, eg, Butler Marxian Concepts of Ownership in Soviet Law 1985 Columbia Journal of
Transnational Law 281 281; Osakwe General Principles of Soviet Land Law: Ownership and
Use of Land in the Soviet Union 1985 Acta Juridica 147 147.
6 Macfarlane The Theory and Practice of Human Rights (1985) 96-97 makes the same point:
The blunt and crucial point that has to be made is that beyond some not readily discernible
threshold control of productive property directly and substantiallly affects other men's lives,
whether as power consciously exerted over others or as consequences flowing from property-
holding. The etatisation of res communes and res publicae, ie the process whereby the
entitlements of use and enjoyment of the general public in these things, is replaced by the
private ownership of the state, who thus acquires the entitlements to control access and use,
is a basically similar institutional phenomenon: see Van der Vyver The Etatisation of Public
Property in Visser (ed) Essays on the History of Law (1989) 261-299.
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Land Tenure in South Africa: A Brief History and Some Reform Proposals
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