Book contents
- Frontmatter
- Contents
- Tables and figures
- Acknowledgements
- Acronyms and abbreviations
- Map of the Cape provinces showing the location of the case studies
- Part 1 Setting the scene: land and agrarian reform in postapartheid South Africa
- Part 2 ‘Mind the gap’: discrepancies between policies and practices in South African land reform
- 4 Consultants, business plans and land reform practices
- 5 ‘Seeing like a land reform agency’: cultural politics and the contestation of community farming at Makhoba
- 6 Land reform and newly emerging social relations on Gallawater A farm
- 7 Property rights and land reform in the Western Cape
- 8 ‘Rent a crowd’ land reform at Survive and Dikgoho land reform projects
- 9 Locating policies in the daily practices of land reform beneficiaries: the Mighty and Wales land reform farms
- 10 Where are the youth in land reform? The Vuki case
- 11 Land compensation in the upper Kat River valley
- 12 In the shadows of the cadastre: family law and custom in Rabula and Fingo Village
- 13 Land reform, tradition and securing land for women in Namaqualand
- Part 3 Competing knowledge regimes in communal area agriculture
- About the authors
- Index
12 - In the shadows of the cadastre: family law and custom in Rabula and Fingo Village
from Part 2 - ‘Mind the gap’: discrepancies between policies and practices in South African land reform
Published online by Cambridge University Press: 30 May 2019
- Frontmatter
- Contents
- Tables and figures
- Acknowledgements
- Acronyms and abbreviations
- Map of the Cape provinces showing the location of the case studies
- Part 1 Setting the scene: land and agrarian reform in postapartheid South Africa
- Part 2 ‘Mind the gap’: discrepancies between policies and practices in South African land reform
- 4 Consultants, business plans and land reform practices
- 5 ‘Seeing like a land reform agency’: cultural politics and the contestation of community farming at Makhoba
- 6 Land reform and newly emerging social relations on Gallawater A farm
- 7 Property rights and land reform in the Western Cape
- 8 ‘Rent a crowd’ land reform at Survive and Dikgoho land reform projects
- 9 Locating policies in the daily practices of land reform beneficiaries: the Mighty and Wales land reform farms
- 10 Where are the youth in land reform? The Vuki case
- 11 Land compensation in the upper Kat River valley
- 12 In the shadows of the cadastre: family law and custom in Rabula and Fingo Village
- 13 Land reform, tradition and securing land for women in Namaqualand
- Part 3 Competing knowledge regimes in communal area agriculture
- About the authors
- Index
Summary
This chapter is concerned with land tenure in the Eastern Cape, with a specific focus on the problems of conjugating customary and common-law notions of ownership. It examines the complex ways in which living customary approaches to land ownership articulate with the legal prescripts of ownership in South Africa, which are derived from common law. This chapter charts the lived and living interpretations of land ownership in a selected social field1 – African freehold – drawing on evidence from two field sites, a rural locality and a suburban township. In both cases, normative practices involve a hybrid of custom and state law.
Customary practices cannot be reduced to official customary law (Bennett 2008: 138). The latter is, in any event, undergoing radical reinterpretation, in part due to the distortions imparted by Western attitudes and prejudices in the framing of customary law during the late colonial period. Customary law was subjected to the demands of a colonial state with an increasingly capitalist orientation towards productive resources. The effect was to ring-bind African customs into a body of law that was secondary to the dominant state law, which was implemented by a segregated administrative regime of native administrators and authorities. Common law evolved according to the norms and customs of colonial and apartheid society; it was insulated from the influences of African custom due to the strict separation of legal systems that was adopted in the late colonial period (Chanock 2001: 292), a tendency that still survives today. The democratisation of South African society calls for a more nuanced perspective of customary law, one which allows us to see beyond its legal status (Claassens and Mnisi Weeks 2009: 494; Mnisi Weeks and Claassens 2011: 826; Van Niekerk 2006: 12).
In the shadow of the cadastre
James Scott (1998: 49) describes the universal contest between state-imposed systems and the social systems they attempt to override. The gulf between ‘land tenure facts on paper and facts on the ground’ is widest during periods of social upheaval:
We must keep in mind not only the capacity of state simplifications to transform the world but also the capacity of the society to modify, subvert, block, and even overturn the categories imposed on it … there will always be a shadow land-tenure system lurking beside and beneath the official account in the land-records office. We must never assume that local practice conforms to state theory.
- Type
- Chapter
- Information
- In the Shadow of PolicyEveryday Practices In South African Land and Agrarian Reform, pp. 159 - 172Publisher: Wits University PressPrint publication year: 2013