State regulation and misconstructions of customary land tenure in South Africa

The state resorts to misconstructions of customary land tenure rights in its land reform policy that emulate apartheid-era thinking, rather than facing the realities of modern-day land practices, which include collective decision making in the everyday management of land separate from the state's regulatory control. A developmental custodial state treads a thin line in the implementation of its statutory and policy interferences so as not to overstep the boundaries of existing land rights already operating under a living customary law system. Only through public participation and consultation with communities can the reasonableness of regulatory legislation and policies be accurately assessed and determined. Space must be created for all South Africans to participate in the economy to enable inclusive growth in various ways. In so doing, the state should avoid creating a hierarchy of land rights holders and should regulate the natural resource through policies that are aligned with reform objectives, without encroaching on spaces already regulated by customary and communal law systems. In this article the legal implications of applying a state custodianship approach to communal land, traditional leadership and misconstructions of customary law, and the political interpretation of constitutional land reform objectives is discussed.