Suchergebnisse

Customary land tenure is normally not based on codified or statutory sources, but stems from customary traditions and norms. When westernised courts have to interpret and adjudicate these customary traditions and norms, the normal rules of statutory interpretation cannot be followed. The court has to rely on evidence of the traditional values of land use to determine the rules connected to land tenure. Previously courts in many mixed jurisdictions relied on common or civil law legal principles to determine the nature of customary land tenure and lay down the principles to adjudicate customary land disputes among traditional communities, or between traditional and westernised communities in the same jurisdiction. Many examples of such westernised approach can be found in case law of Canada and South Africa. The interpretation of the nature of customary land tenure according to common law or civil law principles has been increasingly rejected by higher courts in South Africa and Canada, e.g. in Alexkor Ltd v The Richtersveld Community 2004 5 SA 469 (CC) and Delgamuukw v British Columbia 1997 3 SCR 1010. This paper explores the methodology the courts should follow to determine what the distinctive nature of customary land tenure is. As customary land tenure is not codified or based on legislation, the court has to rely, in addition to the evidence of indigenous peoples, on the expert evidence of anthropologists and sociologists in determining the nature of aboriginal title (in Canada) and indigenous land tenure (in South Africa). The court must approach the rules of evidence and interpret the evidence with a consciousness of the special nature of aboriginal claims and the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in. The court must not undervalue the evidence presented simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law tort case

The planning of housing for informal settlements and squatter camps In South Africa approximately 7 million people live in informal settlements and squatter camps. Constitutional provisions and moral considerations necessitate the urgent involvement of different segments of society to alleviate the plight of this hapless part of the South African population. Since the early nineties the government's policy regarding squatters has changed from the criminalisation of squatting and the destruction of shelters to the acknowledgement of the right to access to adequate housing and the principle that an unlawful occupier may only be forcibly removed if alternative housing is available. This has led to a massive influx of squatters to squatter camps on the fringes of towns and cities. This article deals with the factors that lead to the establishment of informal settlements and squatter camps, the types of informal settlements and the way in which such settlements and squatter camps can be upgraded to become adequate housing. The consequences of self-help schemes and pirate urbanisation, and especially the advantages and disadvantages of such measures, are critically evaluated. The administration of housing in informal settlements by local authorities, the provision of basic services and the eventual upgrading of informal occupation to ownership are discussed. To facilitate this, the government policy regarding housing planning should be further implemented by removing practical obstacles as soon as possible.