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Original article (peer-reviewed)

Journal Journal of Legal Pluralism
Title of proceedings Journal of Legal Pluralism

Abstract

This article explores the complex co-evolvement between macro-structures of South African pluralistic land law, on the one hand, and micro-struggles for secure communal tenure and sustainable livelihoods, on the other. It first gives a historical overview of the emergent entanglements between state law and varieties of “customary law” regulating access to land, which defies simplistic notions of communal land tenure as a mere inversion of individual private landownership. In a second step, the long-term land struggles of the Kalkfontein communities against “their” alleged chief within the former “homeland” of KwaNdebele is used as a diachronic case study, probing the impact of, and mutual intertwining between, legal macro-contexts and shifting micro-realities of communal land tenure in South Africa’s countryside. This dialectic has ultimately led to the involvement of Kalkfontein representatives in both the successful constitutional challenge of the Communal Land Rights Act (2004) in 2010 and in ongoing political activism against the Traditional Courts Bill (2012). Against this backdrop, the text concludes scrutinising the implications that the interplay between legal pluralism and communal land tenure has had for sustainable livelihoods in Kalkfontein. Local livelihoods have been diversified and multiple, gendered and shaped by typical lifecycle trajectories, dependent on social grants and pensions and embedded, for a long time, into larger patterns of South African labour migration. As is shown, under conditions in which governance, jurisdiction and land rights have been conflated into a “communal land tenure” allegedly based on “culture” and backed by the state, political and civil rights have, in a very immediate sense, also functioned as economic and social rights.
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