Papering over the cracks: An ethnography of land title in the Eastern Cape

• Main Author: Rosalie Kingwill
• Format: Article
• Language: English
• Published: University of the Western Cape, Centre for Humanities Research and the History Department
• Series: Kronos
• Online Access: http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S0259-01902014000100011&lng=en&tlng=en
• ISSN: 0259-0190; 2309-9585

The article addresses the dualistic legal paradigm prevalent in South Africa's approach to recognising rights in land. The system of title is characterised by precise and quantifiable mathematical formulae formalised through paper records that convey proprietary powers to registered owners. This view is contrasted with the characteristics of land tenure among African families with freehold title in the Eastern Cape who trace their relationship to their land to forebears who acquired title in the nineteenth century. The findings show that relationships reminiscent of 'customary' concepts of the family are not extinguished when title is issued. The land is viewed as family property held by unilineal descent groups symbolised by the family name. This conception diverges considerably from the formal, legal notion of land title as embodied in common law, and from rules of inheritance in official customary law. African freeholders' source of legitimation of successive rights in land is not the 'law' but locally understood norms framed within identifiable parameters that sanction socially acceptable practices. The conclusion raises broader questions about the paradigm that informs South African law reform in a range of tenure contexts, suggesting that current policies are poorly aligned with the social realities on the ground.