Customary Law has been a subordinate element in the South African legal order in that it was subject to state legislation, certain Courts could not take judicial notice of it, and it could be applied only if compatible with principles of public policy and natural justice. These were the requirements of the so-called “Repugnancy Proviso”. In addition customary law was subordinate to Roman-Dutch common law and the common law provided the model to which customary law was expected to conform. In fact all legal analysis or comments on customary law are mediated by western legal categories.

A common misconception in relation to common property situations is that the choice of the legal form will determine whether communal property institutions function well or not. The reality is that whether good, fair management and land administration takes place or not is often largely determined by issues like the following, which can undermine effective governance and land administration irrespective of which legal entity is used:
• Do the majority of residents understand and agree with how land administration processes work?

This paper argues that the focus in the community based natural resource management (CBNRM) literature on the devolution and decentralisation of state authority and responsibility over natural resources to communities does not pay sufficient attention to the role of the state in creating and maintaining a coherent institutional environment.

This paper is concerned primarily with the functions of land administration. Its
purpose is to describe the current land administration practices as understood by
traditional structures with a view to unpacking some of the components of the existing
African tenure arrangements in KwaZulu-Natal. This, it is hoped, will help to create a
base to understand how communal land systems operate, regardless of which structure
governs them, in order to support practices that secure tenure effectively.

The paper asserts that in order to be effective it is important to work with and from existing tenure systems and to build upon them, rather than expect that they can be “demolished and replaced by efficient new systems”.  Experience both here and elsewhere in Africa also tells us that attempts to change tenure tend to result in a “defaulting” back to what is known, often with increased confusion and conflict over procedures and adjudication authorities.

A report with annexures reviewing lessons emerging Leap projects and partnerships, focusing on tenure in relation to a set of issues affecting poor people’s livelihoods and local economic development

Approaches to securing tenure have been dominated by debates about whether titling advances secure land tenure and development in developing countries or whether it is either ineffectual or detrimental to socially more relevant systems. While the policies of many developing countries, including South Africa, continue to support titling approaches to securing tenure, there is widespread confirmation in the literature that title can be problematic for poor people living in both urban and rural areas.

Simplification is a process in which all the essential provisions of an existing Legalese constitution are captured in plain language. Simplifying a constitution is more complex than simplifying the language within it. It involves digging out and putting in order the meaning of a document, as well as writing it in plain language.

This report was prepared for the Department of Land Affairs (DLA) in South Africa. In 2001 DLA set up the Communal Property Institutions (CPI) Task Team to review land reform legal entities. The purpose of the review and this report is to improve the situation and functioning of CPIs in order to move towards, rather than away from, achieving the objectives of land reform. To do this, the report covers:
• Methods of assessing and analysing cpi performance
• CPI assessment and analysis
• Offering explanations for causes of CPI problems

This report was prepared for the Department of Land Affairs (DLA) in South Africa. In 2001 DLA set up the Communal Property Institutions (CPI) Task Team to review land reform legal entities. The purpose of the review and this report is to improve the situation and functioning of CPIs in order to move towards, rather than away from, achieving the objectives of land reform. To do this, the report covers:
• Methods of assessing and analysing cpi performance
• CPI assessment and analysis
• Offering explanations for causes of CPI problems