of the implementation of the Village Land Act

homogenous societies with common values, and where the cultural control is strong, have
developed less complex systems of property rights.
Diverse African land tenure
As the societies grow more diverse and complex, the rules of property rights have to be
more explicitly stated. James and Fimbo emphasises the great diversity and variation of
land tenure systems also within societies practising customary land tenure. They stress
that there is no such thing as a corporate system of African customary land tenure.
Instead they reason that the variety of customary land tenure in Africa is as diversified as
the structure of the individual societies. “A record on African land tenure systems would
certainly differ from and be wider in scope than a record on different Western land
tenure systems.” (James & Fimbo, 1973:5) In relation to western societies, though,
African societies do share corporate values. James and Fimbo explain that the difference
lies in that law in the western context is founded on an individualistic assumption,
whereas in the African context, it is based on a collectivist organisation. (James & Fimbo,
1973:5) As land in western societies is considered capable of being owned in similar
ways as other goods, the bulk of land tenure rules are therefore concerned with an
analysis of the land rights of the individual. The emphasis is laid upon the acquisition of
rights, as well as on the methods of transferring and extinguishing these rights.
For the Africans, on the other hand, land is more than just property. “Land continues to
be the central force around which the rural people’s spiritual and cultural life is
organised. Tampering with land therefore means tampering with the social/psychological
fabric of the society“. (Commission report, 1994:119)
The land tenure rules form a part of the whole complex of culture. Contrary to the
individualistic western organisation, it is dominated by the need to protect units of groups
to specific parcels of land. The corpus of law for each group is directed towards defining
the rights and duties of everyone within the group, aiming at maintaining the interests of
that unit against outsiders. The central idea of land tenure rules have thus been one of
controls, emphasising controls, not titles, as the dominant aspect of land law. (James &
Fimbo, 1973:6) (See also chapter 2.2)
Three main forms of ownership
Keeping in mind that ownership represents a bundle of rights, three forms of ownership
appears, which will be further explained below. These are according to Demsetz,
communal ownership, private/individual ownership and state ownership. (Demsetz
1967:353) Other scholars add lack of ownership to the list. (van den Brink, 2003:4)
With communal ownership, Demsetz means rights which can be exercised by all
members of the community. No one, not even the state, have the right to interfere with
any person’s exercise of communally owned rights. As will be shown later in the chapter,
it is important to clearly define the society in order to find out the circle of beneficiaries
of the communal rights in question.
Private ownership, on the other hand, implies that the community recognises the owner’s
right to exclude foreigners from exercising private or communal rights on his territory.
Finally, state ownership implies that the state may, by way of exception, exclude anyone
from the use of a right, as long as the state follows accepted political procedures for
determining who may not use state-owned property. (Demsetz, 1967:353f)
26