South Africa: Upgrading of Land Tenure Rights Act - a Legal-Historical Context, and Points of Contention

analysis

There are grave concerns about the legislature and the executive rewriting an apartheid-era inherited piece of legislation into a constitutionally permissible format while ignoring the more fundamental issue of overhauling SA's tenure recordal and registration system.

While the Upgrading of Land Tenure Rights Act (Amendment Bill), currently before the National Council of Provinces (NCOP), is necessary to reduce the impact on the erasure of certain tenure rights, particularly those held by women, this draft law does not provide a long-term solution to securing tenure in South Africa.

In terms of succession and inheritance, the now-abolished colonial law, the Native Black Administration Act of 1927, implied conversion rights to property into the name of a male "head of the family". Such laws have historically been used to discriminate against women.

The colonial regimes turned some of the customary rights in South Africa into quick train deeds of grant, permissions to occupy and so on, assuming that by simply changing them into these kinds of tenure systems, it could automatically get rid of all the customary norms that sat behind them.

During apartheid's dying days, as part of the early steps toward a political settlement the Upgrading of Land Tenure Rights Act...

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