“With the lives of so many people affected, and with legislation of this kind being central to questions of governance, the Legal Resources Centre (LRC) sees it as critical to widen the debate as much as possible through publication of this book…Most struggles over land rights are not ‘anti-custom’: they often combine claims to equality and democracy with demands for a return to the consultative decision-making processes of ‘proper’ custom. The book illustrates that many rural struggles entail contestation over whose voices are heard and whose are silenced in the interpretation and making of customary law…” (Foreword by Janet Love)
Land, Power & Custom, edited by Aninka Claassens and Ben Cousins, a book arising out of research and consultations on the Communal Land Rights Act 11 of 2004 (the Act), and a joint project with the Legal Resources Centre, was launched in Johannesburg on 21st August 2008 and in Cape Town on the 25th August 2008.
The controversies generated by the Act include the reform of communal land tenure and its impacts on power and gender relations, especially for people in the rural communities of South Africa.
Land, Power & Custom includes case studies and chapters written by scholars on customary law and land rights. They argue that the Act entrenches distortions around “customs”, “traditions”, geographical boundaries and power within the systems of traditional leaderships – distortions that are the legacies of colonialisation and the history of apartheid.
At the book launch in Johannesburg, Ben Cousins stated that a commitment to enlarge the freedom of ordinary people in the rural areas drove the creation of the book.
Ms Nomboniso Gasa, Chairperson of the Commission on Gender Equality, stressed that there is no single interpretation of custom in South Africa, let alone in the whole continent of Africa, and warned against the tendencies to essentialise the meaning of living law as a way to exclude some voices and gain power.
Contributors to Land, Power & Custom include HWO Okoth-Ogendo (Professor of Public Law at the University of Nairobi), Durkje Gilfillan (senior attorney in the LRC’s Johannesburg office specialising in land reform and development), Lungisile Ntsebeza (Professor of Sociology at the University of Cape Town), Moray Hathorn (head of the pro bono unit at Webber Wentzel inc Mallinicks and a former LRC attorney), Sizani Ngubane (Director of the Rural Women’s Movement), and Henk Smith (senior lawyer in the LRC’s Cape Town office), among others.
The case challenging the constitutionality of the Act was heard in the Pretoria High Court on the 14th-17th October 2008.
The Ford Foundation and Atlantic Philanthropies, two organisations that, according to the editors, “stand out for their principled commitment to the interests of the poor and powerless”, funded Land, Power & Custom.
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