The map is not the territory: law and custom in ‘African freehold’: a South African case study

Abstract

The thesis examines the characteristics of land tenure among African families with freehold title who trace their relationship to the land to their forebears who first acquired title in the mid-nineteenth century. The evidence was drawn from two field sites in the Eastern Cape, Fingo Village, Grahamstown and Rabula in the Keiskammahoek district of the former Ciskei. The evidence, supported by evidence in other Anglophone countries, shows that African familial relationships reminiscent of ‘customary’ concepts of the family, were not, and are not extinguished when title is issued, though they are altered. Africans with title regard the land as family property held by unilineal descent groups, challenging the western notion of one-to-one proprietal relationships to the land and its devolution. By exploring the intersection between tenure, use and devolution of land, the main findings reveal that local conceptions of land and use diverge considerably from the formal, legal notion of title. Title holders conceive of their land as the property of all recognised members of a patrilineally defined descent group symbolised by the family name. Because freehold is so intimately linked with inheritance, the findings significantly illuminate the social field of gender and kinship. The implications of the findings are that differing concepts of the ‘family’ and ‘property’ are fundamental to the lack of ‘fit’ between the common-law concept of ownership and what I term in the thesis ‘African freehold’. The thesis dissects the implications of culturally constructed variability in familial identities for recognition and transmission of property. Title is legally regulated by Eurocentric notions of both family and property, which lead to significant divergence between western and African interpretations of ownership, transmission and spatial division of land. The deficiencies of the South African legal mindset with regard to property law are thus fundamentally affected by the deficiencies in recognising the broader field of gender and kinship relations. The findings fundamentally challenge the dualistic paradigm currently prevalent in much of South African legal thinking, since the factors that are found to affect land tenure relationships cannot be reduced to the binary distinctions that are conventionally drawn in law, such as ‘western’ vs. ‘customary’ or ‘individual’ vs. iii ‘communal’ tenure. Instead, the important sources of validation of social (importantly, familial) and property relationships are found to be common to all property relationships, but are arranged and calibrated according to different normative patterns of recognition. In the case of the subjects in the field sites, these do not fit into the main ‘categories’ of property defined in law. Neither of the main bodies of official law, the common law and customary law, adequately characterise the relationships among the African freehold title holders. The source of legitimation is, therefore, not the ‘law’ but locally understood norms and practices. The findings suggest that the practices of the freeholders, derived from constructed ideas of kinship and descent, have relevance for a wide range of diverse African land tenure arrangements and categories, and not only ‘African freehold’. The findings therefore have significant implications for law reform more broadly. The thesis suggests that law reform should move away from models that do not match reality, and in particular should heed the warnings that titling policies as presently designed are particularly poorly aligned with the realities presented in the thesis.