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The introduction of the first democratic Constitution and the land reform programme in South ' Africa provided the impetus for the development of a new perception of property. In terms of the traditional private law perception property rights are reduced to abstract, scientific concepts which form part of a hierarchical system of rationally and logically related concepts and definitions, the relationships between which remain largely unaffected by social and political realities. In this view the constitutional property clause is interpreted as a guarantee of existing individual property rights against unwarranted state interference. Proponents of the traditional private law view argue that this perception of property need not be replaced by a new constitutional perception of property, because the traditional private law perception is legitimated by the fact that it developed in an uninterrupted, linear line from Roman law. It is regarded as flexible enough to adapt to new and different social and political circumstances. However, the truth is that the development of property rights was disrupted by a number of discontinuities or fundamental breaks in different periods of its development. It is argued in this thesis that the introduction of the new constitutional order in South Africa can be regarded as another of these discontinuities, and that the strict adherence to the private law perception of property may be abandoned in favour of a new debate on property where the social and political function of property is emphasised more strongly. Land reform promotes the public interest in that it ensures the equitable use, distribution and exploitation of property. In most cases the implementation of land reform necessitates the limitation of property rights. A conservative judiciary's adherence to the traditional private law perception of property may lead to a constitutional conflict between the judiciary (that aims to afford existing property rights strong constitutional protection) and the legislature (that aims to promote the public interest by implementing land reform). Such a constitutional conflict can be avoided if the South African courts adopt an approach in terms of which the social and political role and function of property in society is recognised. / Private Law / LL.D.

A thorough investigation of legislation involved in the land reform programme was conducted. This includes the Constitution of South Africa, as well as the legal frameworks that manage the land reform process. Many of the unintended results are because of misunderstandings. This study sought to clarify those misunderstandings and confusing language. The South African land reform process was excellently planned. The process is managed in three phases, namely land restitution, land redistribution and land tenure. There are some successes and failures due to the way those programmes were implemented. In order to implement and manage the land reform programmes and spatial planning on national, provincial and district level, the following plans were introduced: National Level: Pro-active Land Acquisition Strategy (PLAS) & Area-based Planning Provincial Level: Limpopo Growth and Development Strategy (LGDS) District Level: Mopani Integrated Development Plan Local Level: Greater Tzaneen Municipality Integrated Development Plan & Spatial Development Framework The study area, the Tzaneen Local Municipality, was chosen because it is home to some of the first land reform projects in South Africa, it is the district with some of the highest intensity of land claims and it offers a complete menu of land reform programmes in an advanced state on a small area. The impact that land reform has had on the spatial development in the Tzaneen Local Municipality has been studied in more detail. As the study progressed, it was realised that the impact not only stops at spatial development. The influence was much bigger than that. The local economy was affected, as were job opportunities, tourism, food security, the retail industry and even the mining industry. Such an impact is also not restricted to the Tzaneen Local Municipality. In order to control the land reform process, the government should involve the private sector in the land reform process. The moment this happens, the skills and experience locked in the private sector are transferred to the government for the benefit of all people involved in and influenced by the land reform process. An Integrated Land Reform Action Forum (ILRAF) must be established that manages the land reform process on national, provincial and local level. This ILRAF has to fulfil much the same purpose as the former Joint Monitoring Committees (JMCs) accomplished. The ILRAF must consist of all role-players within the land reform process. These include, national, provincial and local government officials, commercial farmers, key role-players from the private sector, farm worker representatives, Agri-SA, professionals such as town and regional planners and transfer attorneys, farmers? associations, commercial banks and the media to ensure transparency. In order to correct past mistakes and to ensure that the next five years of the land reform process goes off without a hitch, it is important to involve all role-players and ensure transparency throughout all decision-making processes. Key Terms: Land Reform; Agri-village; Area Based Planning; Land Restitution; Land Redistribution; Land Tenure Reform; Greater Tzaneen Municipality; Willing buyer-willing seller; Spatial Development Framework; Integrated Development Plan. / Thesis (M.Art. et Scien. (Town and Regional Planning))--North-West University, Potchefstroom Campus, 2010.

A thorough investigation of legislation involved in the land reform programme was conducted. This includes the Constitution of South Africa, as well as the legal frameworks that manage the land reform process. Many of the unintended results are because of misunderstandings. This study sought to clarify those misunderstandings and confusing language. The South African land reform process was excellently planned. The process is managed in three phases, namely land restitution, land redistribution and land tenure. There are some successes and failures due to the way those programmes were implemented. In order to implement and manage the land reform programmes and spatial planning on national, provincial and district level, the following plans were introduced: National Level: Pro-active Land Acquisition Strategy (PLAS) & Area-based Planning Provincial Level: Limpopo Growth and Development Strategy (LGDS) District Level: Mopani Integrated Development Plan Local Level: Greater Tzaneen Municipality Integrated Development Plan & Spatial Development Framework The study area, the Tzaneen Local Municipality, was chosen because it is home to some of the first land reform projects in South Africa, it is the district with some of the highest intensity of land claims and it offers a complete menu of land reform programmes in an advanced state on a small area. The impact that land reform has had on the spatial development in the Tzaneen Local Municipality has been studied in more detail. As the study progressed, it was realised that the impact not only stops at spatial development. The influence was much bigger than that. The local economy was affected, as were job opportunities, tourism, food security, the retail industry and even the mining industry. Such an impact is also not restricted to the Tzaneen Local Municipality. In order to control the land reform process, the government should involve the private sector in the land reform process. The moment this happens, the skills and experience locked in the private sector are transferred to the government for the benefit of all people involved in and influenced by the land reform process. An Integrated Land Reform Action Forum (ILRAF) must be established that manages the land reform process on national, provincial and local level. This ILRAF has to fulfil much the same purpose as the former Joint Monitoring Committees (JMCs) accomplished. The ILRAF must consist of all role-players within the land reform process. These include, national, provincial and local government officials, commercial farmers, key role-players from the private sector, farm worker representatives, Agri-SA, professionals such as town and regional planners and transfer attorneys, farmers? associations, commercial banks and the media to ensure transparency. In order to correct past mistakes and to ensure that the next five years of the land reform process goes off without a hitch, it is important to involve all role-players and ensure transparency throughout all decision-making processes. Key Terms: Land Reform; Agri-village; Area Based Planning; Land Restitution; Land Redistribution; Land Tenure Reform; Greater Tzaneen Municipality; Willing buyer-willing seller; Spatial Development Framework; Integrated Development Plan. / Thesis (M.Art. et Scien. (Town and Regional Planning))--North-West University, Potchefstroom Campus, 2010.

The introduction of the first democratic Constitution and the land reform programme in South ' Africa provided the impetus for the development of a new perception of property. In terms of the traditional private law perception property rights are reduced to abstract, scientific concepts which form part of a hierarchical system of rationally and logically related concepts and definitions, the relationships between which remain largely unaffected by social and political realities. In this view the constitutional property clause is interpreted as a guarantee of existing individual property rights against unwarranted state interference. Proponents of the traditional private law view argue that this perception of property need not be replaced by a new constitutional perception of property, because the traditional private law perception is legitimated by the fact that it developed in an uninterrupted, linear line from Roman law. It is regarded as flexible enough to adapt to new and different social and political circumstances. However, the truth is that the development of property rights was disrupted by a number of discontinuities or fundamental breaks in different periods of its development. It is argued in this thesis that the introduction of the new constitutional order in South Africa can be regarded as another of these discontinuities, and that the strict adherence to the private law perception of property may be abandoned in favour of a new debate on property where the social and political function of property is emphasised more strongly. Land reform promotes the public interest in that it ensures the equitable use, distribution and exploitation of property. In most cases the implementation of land reform necessitates the limitation of property rights. A conservative judiciary's adherence to the traditional private law perception of property may lead to a constitutional conflict between the judiciary (that aims to afford existing property rights strong constitutional protection) and the legislature (that aims to promote the public interest by implementing land reform). Such a constitutional conflict can be avoided if the South African courts adopt an approach in terms of which the social and political role and function of property in society is recognised. / Private Law / LL.D.

Cette thèse a pour objectif de fournir une analyse compréhensive des composantes de jure et de facto de la sécurité foncière des communautés locales en regard du cadre législatif, ainsi qu’une évaluation approfondie de l’interaction entre REDD+ et les accords fonciers actuels. La Thaïlande, pays dans lequel semblent coexister les droits fonciers de facto et les propriétés d’état de jure, fut sélectionnée comme cas d’étude.Deux résultats principaux ressortent de cette étude. Tout d'abord, le cadre juridique ne reconnaissant pas le droit à la propriété ancestrale a conduit à différentes situations foncières de facto pour les communautés. Certaines communautés jouissent d’une occupation de leurs propriétés foncières de facto comparativement plus sécurisée que d'autres. Deuxièmement, il apparaît que le mécanisme REDD+ n’a pas représenté une incitation suffisante pour le gouvernement Thaïlandais à résoudre rapidement ces litiges fonciers. En outre, les risques inhérents à l'insécurité foncière décourage les investissements REDD+, pouvant aller jusqu’au retrait des financements. Ainsi, cette thèse complète la littérature existante sur le mécanisme REDD+ et le foncier sur trois aspects majeurs: (1) cadre légal et foncier, (2) foncier et déforestation et (3) concurrence entre la titularisation du foncier et la mise en place de REDD+.Les implications politiques tirées de l'étude comprennent des mesures à long terme pour une réforme du régime foncier et à court/moyen terme pour une réévaluation des priorités du gouvernement afin d’assurer la cohérence des politiques vers la mise en œuvre de pilote REDD+ sous forme de paiement pour les services environnementaux (PES) et l'amélioration des structures institutionnelles. / This thesis aims to provide a comprehensive analysis of de jure and de facto tenure security of local communities in relation to domestic legal framework and a thorough assessment of how REDD+ and current tenure arrangement interacts. Thailand, a country where there is an apparent coexistence of de jure state property and de facto tenure rights, was selected as a case study.There are two primary findings emerging from the study. Firstly, the legal framework with non-recognized customary tenure led to different de facto tenure impacts in different communities. Some communities were found to have their de facto tenure comparatively more secure than others. Secondly, REDD+ could not provide sufficient incentive for the government to expedite tenure clarification. Moreover, the embedded risks of tenure insecurity discouraged REDD+ investment and led to withdrawal of the fund. The thesis contributes to the existing literature on REDD+ and tenure in three main aspects: (1) legal framework and tenure, (2) tenure and deforestation and (3) tenure clarification and REDD+ competing agendas.Policy implications drawn from the study comprise of long-term measures namely comprehensive tenure reform and short to medium-term measures, including re-assessment of government priorities for policy consistency and pilot implementation in form of payment for environmental services (PES) and improvement of REDD+ institutional structure.

Philosophiae Doctor - PhD / 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.

Until recently, there have been different and sometimes conflicting views on whether or not the communal land tenure system (CLTS) has a positive or negative impact on rural economic welfare. This study analyses some trends associated with the CLTS in the Ditsobotla area of the NorthWest province, focusing on the implications for rural economic welfare. The results of the study suggest that the CLTS is extremely important in order to sustain the rural economy, and therefore this dissertation presents developmental, policy and research options for consideration by government and other affected stakeholders for the betterment of the livelihood of people in the Ditsobotla area. The study adopts participatory research techniques in the selected villages of Springbokpan and Mooifontein. It also reflects on land tenure experiences in other African countries. The dissertation concludes with a suggestion that the South African government should engage in in-depth research programmes prior to the implementation of the envisaged communal land tenure reform legislation and that, the state should secure sufficient funding to boost agricultural activities in the area. Taking all these factors into account, a view is held that all developmental endeavours in the area must be informed by the collective participation of the affected local people, and their efforts must be united for the enhancement of their livelihood. / Development Studies / M.A. (Development Studies)

My interest in this research was to interview leaders and members of the three communities within the Elias Motsoaledi Local Municipality as well as officials of the Regional Land Claims Commission (RLCC). The purpose of the discussions was to find out how the communities involved Government when lodging land claims. The three communities are, Bakwena Ba- Kopa, Bakgaga Ba-Kopa and Masakaneng. The research yielded the following findings: 1. All the three communities followed the correct procedures regarding the relevant legislation and policies when they lodged their land claims. 2. Government played its role through the RLCC by assisting the communities in their endeavor to have their land restored. 3. In the interaction between Government and the communities challenges were encountered that at times led to the delay of the settlements. 4. When the communities keep patient during the land claim processes and Government officials are dedicated to assist the communities, the chance of positive outcomes is maximised. There is evidence that Government made progress to ensure that the affected communities have the dispossessed land restored. However, there is still a lot to be done in addressing the outstanding issues. To handle these matters, as indicated below, co-ordination and interaction between Government and the communities is crucial. One can point out these obstacles by focusing on the three affected communities respectively. Masakaneng: There is a need to tackle the challenge of the concerned group that led to the emergence of another committee in the process. This delays the formal negotiations with the municipality to help facilitate the delivery of the necessary services. Bakwena Ba-Kopa: The role-players missed the time-frames that were targeted for settlement. Government will have to speed up the matter and finalise the settlement, seeing that the beneficiaries have been waiting for many years. Bakgaga Ba-Kopa: Only portion one of RietKloof was restored to the community. The community is eagerly awaiting Government to help facilitate the restoration of the remaining portion. This community also needs to play its part in ensuring that the other sections of the land are restored. It is important that they go back to the drawing board as beneficiaries and tackle the prevailing differences so that they end up with a unanimous stand on this matter. To conclude: It is quite evident that the democratic government post-1994 is committed and prepared to restore the dignity of the black people who were forcibly removed from land they and their ancestors occupied. Government is assisting in this matter by providing all the necessary resources to ensure that land restoration is a success. For Government to succeed, the affected communities must also play their role within the parameters of the relevant legislation. This is what the land Acts expect of all the beneficiaries. / Thesis (M. Development and Management)--North-West University, Potchefstroom Campus, 2011

My interest in this research was to interview leaders and members of the three communities within the Elias Motsoaledi Local Municipality as well as officials of the Regional Land Claims Commission (RLCC). The purpose of the discussions was to find out how the communities involved Government when lodging land claims. The three communities are, Bakwena Ba- Kopa, Bakgaga Ba-Kopa and Masakaneng. The research yielded the following findings: 1. All the three communities followed the correct procedures regarding the relevant legislation and policies when they lodged their land claims. 2. Government played its role through the RLCC by assisting the communities in their endeavor to have their land restored. 3. In the interaction between Government and the communities challenges were encountered that at times led to the delay of the settlements. 4. When the communities keep patient during the land claim processes and Government officials are dedicated to assist the communities, the chance of positive outcomes is maximised. There is evidence that Government made progress to ensure that the affected communities have the dispossessed land restored. However, there is still a lot to be done in addressing the outstanding issues. To handle these matters, as indicated below, co-ordination and interaction between Government and the communities is crucial. One can point out these obstacles by focusing on the three affected communities respectively. Masakaneng: There is a need to tackle the challenge of the concerned group that led to the emergence of another committee in the process. This delays the formal negotiations with the municipality to help facilitate the delivery of the necessary services. Bakwena Ba-Kopa: The role-players missed the time-frames that were targeted for settlement. Government will have to speed up the matter and finalise the settlement, seeing that the beneficiaries have been waiting for many years. Bakgaga Ba-Kopa: Only portion one of RietKloof was restored to the community. The community is eagerly awaiting Government to help facilitate the restoration of the remaining portion. This community also needs to play its part in ensuring that the other sections of the land are restored. It is important that they go back to the drawing board as beneficiaries and tackle the prevailing differences so that they end up with a unanimous stand on this matter. To conclude: It is quite evident that the democratic government post-1994 is committed and prepared to restore the dignity of the black people who were forcibly removed from land they and their ancestors occupied. Government is assisting in this matter by providing all the necessary resources to ensure that land restoration is a success. For Government to succeed, the affected communities must also play their role within the parameters of the relevant legislation. This is what the land Acts expect of all the beneficiaries. / Thesis (M. Development and Management)--North-West University, Potchefstroom Campus, 2011