Land Rights in Domestic Law

There are two basic principles that underlie most national legal systems, constitutions and domestic laws on the question of land ownership.

The first is the right of private ownership. This right includes not only the right to use and enjoyment, but also the right to exclude others. Most systems of land ownership in domestic law seek to uphold and recognize this concept of private ownership, which gives absolute control and exclusive rights on the basis of legal, state-conferred ownership.

The second common and fundamental principle underlying domestic land laws is the regalian doctrine, which holds that all lands belong to the state. A corollary of this principle is that it is only by a grant from the state that land can pass into private ownership.

One can immediately sense inevitable conflicts between the two principles just mentioned. Much of the struggle on the domestic legal front has been to reform, if not change, these two principles of land ownership, which have their origins in most of the developing world’s colonial past.

There are also a number of land ownership and use patterns that form exceptions to, or mitigate, these principles. These generally fall into three categories:

1. Land as a resource with a “social function”

2. “Time immemorial” concepts and ancestral land claims

3. Collective rights to land use and/or ownership

Social function of property principle

The social function of property principle has been reflected in the constitutions and laws of countries in Africa, Asia and Latin America in recent decades.This principle is an effort to

balance recognition of private land rights with key matters of public interest, such as equity. In such situations, the state has power to expropriate private lands as long as adequate compensation is provided.There may also be a ceiling put on the size of land holdings. The box on the previous page gives an example from South Africa.

South African Constitution Section 25 -Property Rights

25.1 No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

25.2 Property may be expropriated only in terms of law of general application
a) for a public purpose or in the public interest; and
b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.

25.3 The amount of compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interest of those affected, having regard to all relevant circumstances, including: a) the current use of property; b) the history of the acquisition and use of the property; c) the market value of the property; d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; e) the purpose of the expropriation.

The Property Clause in the South African Constitution has serious implications for the South African Land Reform Process. Firstly, it protects existing property rights and entrenches the existing property holdings in South Africa. Secondly, in the promotion of the Land Reform Process the Constitution authorizes the balancing of individual interests and the public interest in controlling and regulating the use of property and the distribution of property.

South African Constitution Section 25 (4)(a)-Right to Land Reform

The public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources.

South African National Land Policy

The current land ownership and land development patterns strongly reflect the political and economic conditions of the apartheid era. Racially based land policies were a cause of insecurity, landlessness and poverty among the majority of black people and a cause of inefficient land administration and land use. The Land Reform Policy is thus fourfold:

•to redress the injustices of apartheid
• to foster national reconciliation and stability
• to underpin economic growth
• to improve household welfare and alleviate poverty

The Land Policy therefore has to deal with the following in both urban and rural areas:

• the injustices of racially based dispossession
• the inequitable distribution of land ownership
• the need for security of tenure for all
• the need for sustainable use of land
• the need for rapid release of land for development
• the need to record and register all rights in property
• the need to administer public land in an effective manner

Responsibility for Land Reform

It is the responsibility of the national government to ensure a more equitable distribution of land, to support the work of the Commission on Restitution of Land Rights and to implement a program of land tenure and land administration reform. On the other hand it is the responsibility of provincial governments to provide complementary development support.

With the trend towards land privatization, the social function of property principle has come increasingly under attack. As a result, the enjoyment of various ESC rights, such as the right to work or the right to an adequate standard of living, including the right to adequate food, is threatened.