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RWAR Lunchtime Seminar Series - Bridging the Property Divide with Dr Rosalie Kingwill

22 Jul 2015 - 14:00
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Dr Rosalie Kingwill discusses some of her findings of her research on land tenure in the Eastern Cape, focusing on the legal implications of inter-generational transmission of land rights among families - a notion which diverges from both customary and common law.

Date: Friday, 24 July 2015
Time: 12h30 - 14h00 (light refreshments from 12h15)
Venue: CLS office, All Africa House, Middle Campus, UCT

Background

Post-apartheid South Africa has seen the persistence of a dualistic legal paradigm in the state’s approach to recognising rights in land; indeed the gap is widening. On the one hand, a rigorous system of land title characterised by precise and quantifiable mathematical formulae that determine whether rights are registerable and, by implication, alienable and transmissible. Registered owners have proprietary powers. On the other hand, a range of off-register rights which are unregisterable and which, by implication, are not transmissible, and lack overt proprietary content. The legal consequences are that the concept of ‘ownership’ is restricted to the former. To cross the gulf between these two legal divides is more complex than conventionally assumed. Urban titling programmes have demonstrated beyond doubt that surveying plots, registering owners and issuing title deeds does not resolve the question of unequal property rights, and in fact creates new problems. Rural group title has similarly struck numerous problems. What is needed is greater understanding of the sociological as well as legal-technical factors that contribute to the widening gap between those with legally recognised ‘formal’ rights in the form of title, and those without fully legally recognised rights, relegated misleadingly to the category of ‘informal’.

Dr Rosalie Kingwill will discuss some findings of her research on land tenure in two freehold localities in the Eastern Cape, focusing on the implications of empirically verifiable practices of inter-generational transmission of land rights among the families in her research sites. Relationships reminiscent of ‘customary’ concepts of the family are not extinguished with title. The land is viewed as family property held by unilineal descent groups symbolised by the family name. This conception diverges considerably from the formal, legal notion of land title as embodied in common law, whilst similarly distanced from official versions of customary law. This conclusion suggests that social norms play a significant role in defining the scope of property rights, rather than black-letter law. The findings challenge two misconceptions about land tenure and property rights. The first is that the legal status of tenure is the ultimate determinant of property rights in an environment of normative pluralism. The second is that the absence of full legal recognition of rights necessarily translates into absence of property. A critical marker of property is transmissibility of rights, and hence the importance of aligning land tenure and succession law. Recent developments in customary succession law suggest that there remain important unresolved issues with respect to this relationship.
 
A recent article published in Kronos, Southern African Histories (vol 40 Nov 2014) discusses some of these issues in historical perspective.

Rosalie Kingwill is a post-doctoral research fellow at the Institute of Poverty, Land and Agrarian Studies (Plaas), University of the Western Cape, where she was awarded a PhD degree in 2014. She is also an affiliate of the Centre for Law and Society. She was previously based in the Eastern Cape where she studied for her PhD under supervision of Prof Ben Cousins. She previously worked in the land sector in the Eastern Cape for thirty years, first in the NGO sector and later as a research consultant, focusing predominantly on historical and evolving land rights. For the past decade she has been a member of Leap, a learning and action research collective to promote land tenure security for the poor. She is currently one of four Leap members editing a book on land tenure from the Leap perspective.

Please RSVP to Thiyane Duda Tel: 021 650 5104.