Judicial Marginalization of Communal Land Tenure in South Africa: A Critique of <i>CASAC v Ingonyama Trust</i>

Abstract The South African case, Council for the Advancement of the South African Constitution and Others v Ingonyama Trust and Others ( CASAC) concerned a dispute between customary law communities and the Ingonyama Trust (the Trust). The Trust, which holds the land for the benefit and welfare of its communities sought to unilaterally convert customary land tenure to common law leaseholds. The communities successfully challenged this decision before the Kwazulu-Natal High Court and, in this case note, I appraise the court’s reasoning. Although the order was progressive, there remained space within its reasoning to affirm customary law tenure on its own accord. Instead, the CASAC court restrained the development of customary law by employing other sources of South African law – including statutory law, the common law and the Constitution – to explain and give meaning to customary law land rights. Courts must exercise caution in engaging the plurality of land tenure in post-colonial contexts: although well-intentioned, the judicial reasoning in CASAC marginalized the application and development of customary land law.