Glossary
association
An organized body of people who have joined together in terms of a contract for the purpose of carrying out some common objective.
Some associations, such as the South African Medical Association, are created by an Act of Parliament. Not all associations hold land, for instance self-help associations.
Some associations have the holding of land as their main purpose: see communal property association. In order to hold land in its own name, an association must be a juristic person. This requires that the association have a constitution that can be registered and that forms a contract, and representatives chosen by the association's members, who have authority to act on behalf of the association. Proof of representation is necessary for opening a bank account in the name of the association.
by-laws
Standing rules or regulations made by a body empowered to do so, for the management of its own organization and for carrying out its business.
Municipal by-laws on such things as water supply and traffic control within their boundaries can be quite complex, but are in essence no different to the simpler community rules for land management, made by some communal property associations.
Any by-law orders something to be done or forbids that something be done, and is accompanied by a penalty for breaking rules. The penalty could be a calling to account, a warning, a fine or some other appropriate punishment.
The constitution of a communal property association may empower its management committee to make and enforce by-laws.
| Example The following clause from the constitution of a CPA empowers the land committee to make and enforce by-laws: 15. Community rulesOne of the community rules or by-laws set up by this communal property association deals with use of plantations: Use of plantations |
Cadastre; Cadastral system
Is used in the conventional sense to mean a land information system that has two key components or subsystems: a spatial component, the geometric description of the land parcels linked to the textual component, the records or registers, describing the nature of interests and ownership of the land parcels.
CPA
Abbreviation for Communal Property Association.
common property, communal property
LEAP uses common property and communal property as though they are the same thing, in the following way: Common or communal property, as people experience it in African tenure systems, is land and the natural resources found on it that are used by a more or less fixed and identifiable group of people according to the tacit (unspoken) and explicit (named openly) rules of that group.
In a CPA the common property is held by the members in association who control the use of the common pool resources and can exclude non-members from using it. The actual common property rights are exercised by individual members independently of one another. For example, a member can have exclusive use rights to a demarcated residential site or arable plot, and a shared right to grazing land.
From a legal perspective there is a difference between common property and communal property based on a very subtle difference in who owns the property and what the ownership means. Common property means property that is undivided between co-owners. Communal property means property in which the joint owners are a community, and the property is equally owned by all the members of that community.
Communal (as in communal system; tenure; land)
Is used to reflect the broadest possible interpretation of community land settlement arrangements, where land access and allocation is based on membership of a particular group or community in contrast to market-based private land transactions. The communal system refers to multiple levels of community decision making around local land issues, viz., land rights and access, spatial arrangements, land use management and governance practices.
communal property see common property
common property institutions (abbreviated to cpis)
The structures, sets of rules, traditions, customs and usages for the management of common property.
In LEAP’s work, we use the term common property institutions to cover a range of meanings within this broad definition. For example, we would regard the structures and sets of rules in a registered CPA as a set of common property institutions. We would also include land rights administration practices that are well known to people and widely used: for example, the practice in KwaZulu-Natal of asking a group of neighbours to witness demarcation of a residential site.
When new common property institutions are created under the land reform process, they are affected by and will affect all existing institutions operating in that community. As customs and usages differ widely from place to place, in each instance these should therefore be identified, possibly adapted and certainly taken into account if the new cpis are to be successful.
Communal Property Association (abbreviated to CPA)
Communal property associations are juristic persons that can acquire, hold and manage property on a basis agreed to by members of a community in terms of a written constitution, adopted and registered in terms of the Communal Property Associations Act.
The Communal Property Associations Act No. 28 of 1996 created a new form of register-able land tenure in South Africa called a communal property association, which enabled communities to take ownership of land. In the context of land reform in South Africa, communal property associations have a precise legal meaning.
In order to be registered, the constitution must be consistent with the general principles in section 9 of this Act and must address the matters in the Schedule to the Act. Communal property associations are registered with and administered by the Department of Land Affairs.
community rules see by-laws
constitution
The written agreement (or contract) that brings an association into being, defining the common objective of the people making up the association and how the association shall be organized and administered to achieve this objective.
LEAP uses the term constitution more loosely to cover all legal entity founding documents, including trust deeds, which were widely used in the past as the founding documents for community land trusts.
There are certain essential elements to a constitution: objects of the association must be stated clearly, as must the conditions for membership and the rights of members; the election of a management body and its duties; the regulation of financial matters; meetings of the membership and its powers; how the constitution may be amended and how the association may be dissolved. The power to make community rules should be included but the rules themselves form a different, more easily amended document: see by-laws. There are specific requirements for the constitution of a CPA: see Communal Property Association.
cpi
Abbreviation for common property institution.
Customary (as in customary system; tenure; principles)
Is used to reflect communal land tenure systems that are regulated by customary principles. These include layered and shared rights of land access and use, institutional nestedness of family, clan, tribe and normative values that inform the basis of resource entitlement. The principles governing land access, rights and use are well understood by a local community, but may not conform to the country’s legal procedures.
de facto rights
Rights that exist in reality or “on the ground” such as those acquired by the long-observed customs of communities settled on land.
De facto rights may be different from de jure rights and lead to disputes, or may come to be included in a formal arrangement. For example, customary marriages gave wives only de facto rights until an Act of Parliament recognized indigenous marriage laws and turned these into de jure rights.
de jure rights
Rights that exist because of formal law.
De jure rights may be different from de facto rights. The rights of members recorded in a CPA constitution are de jure rights and must therefore be fully and carefully framed.
Formal and Informal Systems
The formal system usually refers to the legally recognised system of registered rights; whilst informal usually refers to the range of off-register rights, be these former state administered “homeland” tenures, adapted customary systems or local arrangements in informal settlements. A more useful depiction of formal and informal systems is through the use of the concept of a “continuum” which is multi-dimensional. It does not polarize legal versus off-register rights as much as introduce criteria by which each are assessed in terms of degrees of formal or informal.
Freehold Tenure
The term "freehold" title will generally be avoided in this proposal due to some ambiguity around its precise legal meaning in the South African context. The term Registration of Deeds (ROD) System is preferred, particularly since the advent of group titles, sectional titles and registration of trusts.
A
B
C
Cadastre; Cadastral system
CPA
common property, communal property
Communal
communal property see common property
common property institutions (abbreviated to cpis)
Communal Property
Communal Property Association
community rules see by-laws
constitution
cpi
customary
D
de facto rights
de jure rights
F
Formal and Informal Systems
Freehold Tenure