Seeking equilibrium : land rights adjudication in off-register, non-formal, or formalising contexts in South Africa
Kingwill, Rosalie
In a conventional cadastral system, land adjudication refers to the painstaking checks performed by surveyors and conveyancers to ascertain the precise spatial and textual characteristics and parameters of ownership to prevent overlaying boundaries and overlapping rights when land is subdivided, consolidated or transferred. In non-cadastred areas, or where the cadastre has lapsed, this form of adjudication does not match the tenure situation on the ground. In developing countries the majority of land rights are not exercised, transacted or captured in the cadastral system. Neither are they fully contained within traditionall systems since these have changed in response to internal and external pressures. In South Africa, tenure legacies resulting from colonial or settler interventions range from registered to off-register to informal rights, overwriting but not eliminating community rights mediated by custom (or well understood local rules or norms). New land tenure dispensations provide protective measures for informal rights and recognition to customary rights. New land administration procedures associated with the Interim Protection of Informal Land Rights Act (1996) and in the Communal Land Rights Act (2004) provide for rights enquiriess prior to land subdivision or alienation or transfer of rights, in order to establish the beneficiaries and spatial dimensions of the rights to be transferred. In spite of these reforms, there are still lingering questions about local institutional arrangements and the manner in which communal rights are to be recognised by the formal system. This paper argues that one of the neglected areas is adjudication of rights and associated land information management. Rights Enquiries do not address the range of institutional reforms necessary to align the countryys dominant Land Management institutions with off-register systems.
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