An analysis and review of the legal complexities of land governance in the context of customary law in South Africa and Zambia

Abstract

The statutory legal systems in South Africa and Zambia are generally considered superior to customary laws and practices. Despite the co-existence of legal systems in both countries, it cannot be assumed that they receive equal recognition or status. Over the years, efforts to understand customary land rights in these two countries have leaned towards the statutory legal system. Each system's assumptions and underlying principles are different and cause problems when the two interact. In particular, these conflicts are significant when applied to customary land governance, especially when it aims to provide tenure security. Therefore, the dynamics of perspectives in co-existing legal systems require deeper understanding to frame approaches that lead to the realisation of customary land rights. This thesis is a comparative study of customary land governance in South Africa and Zambia. It investigates results and provides a prescriptive framework for land governance in South Africa and Zambia. This will provide insight and draw best practices between the two legal systems. The thesis argues that insisting on western legal approaches in the governance of customary land tenure misguides the development of customary law. The thesis also critically questions the dominant application of western principles and theories in law in the governance of customary land tenure.