Glossary Page 2
institution
An established law, custom, practice, system or social organization.
The term “institution” is used very differently by different people. LEAP uses this term to denote legislative and administrative structures, both formal and informal, such as government departments, committees and traditional authorities, as well as to denote the formal and informal systems by which they work. more...
institutional arrangements
juristic
Established or created by law. Pertaining to law. Legal.
juristic person
An organization that is recognized by law as having rights, duties, and the ability to carry out legal acts as if it were a natural person.
A juristic person has a life separate from its members that continues until it is legally dissolved, no matter how the membership may change. Persons who act in the name of the juristic person are elected or appointed to do so in terms of the constitution or rules of the organization. The juristic person itself is then responsible for the actions of its representatives.
Examples: a company, a church, a municipality, a communal property association.
Neither a trust nor a partnership is a juristic person. A partnership does not continue if its membership changes, but has to be reconstituted every time a partner leaves or a new partner is added. Trustees acting as Trustees and partners acting as partners also remain personally responsible for their acts and undertakings.
land tenure see tenure
lease
A contractual agreement, which may be formal or informal, for the temporary use of particular land, usually on payment of rent.
legal entity
An inclusive term used in land reform to cover the legal bodies that can own property.
Legal entities include bodies which are juristic persons, and those which are not, such as partnerships and Trusts.
The form of a legal entity affects how the property is administered and how decisions are made. For instance, where a trust is set up by a donor, the trustee or board of trustees is given ownership of the property and decides how it shall be used for the benefit of beneficiaries, who have no say in the matter and can find it very difficult and expensive to have a trustee removed by a court order.
ownership
Ownership in terms of land, as reflected in the Deeds Registry, is the highest legally protected real right. The title deed provides a very secure form of tenure because it is evidence of the boundaries of the land and shows details of the owner. The owner has the ability to use, control, transfer or otherwise enjoy the resources on that land as long as national or local law allows those activities. The owner may limit these rights by leasing the land or a particular resource on it, by agreeing to servitude, or by ceding land as collateral. Ownership may legally be taken away only by expropriation or as settlement of a debt.
procedural right
The right to proper procedures in claiming or defending a right, or in having it taken away.
The right of a member of an association to attend and vote at a meeting and the right to see minutes or financial statements are procedural rights. The right to a hearing in disputes is also a procedural right. This category of rights protects the other category known as substantive rights. See also right
Registration of Deeds System (ROD)
The ROD is used in this proposal to mean the system of national land registration in South Africa. The Deeds Registration Act requires strict compliance with standards before the Registrar will register property.
Comparison of characteristics of customary and ROD systems: The diagram below shows tenure systems on a continuum in which the extreme ends describe the characteristics of systems. Registered ownership, for instance, is highly technical and expensive, and is most appropriate for property that is to be used as a base of capital accumulation. Informal and customary tenure on the other hand requires greater negotiation and dispute resolution and is most appropriate for land that is to be used as a livelihood base in a set of relationships that constitute social capital.
right
Generally defined, a right is a just and fair claim to anything whatsoever. The word also refers to that something to which there is a just claim.
An ownership right is what the law calls a real right. The thing that is owned may be given or sold to or inherited by someone else.
If the right is a power or privilege that belongs to a person by law, nature or tradition, that is a personal right and it ends when that person dies or is removed from the position conferring that power.
Rights held in land or other resources may be real rights of ownership or may be conditional or limited. For instance, the right to use and live on a piece of land in terms of a lease comes to an end when the contract either ends or is broken. The right to use communal land depends on membership of the community and is generally also limited by rules or traditions. Zoning laws and land use planning regulations also impinge on land rights. However, all these rights are substantive rights.
substantive right
A right which has actual physical substance.
In the context of land reform, substantive rights can include a right to use an area of land for either residence, cultivation, the keeping of animals, grazing, carrying on a business or collection of produce. These rights are variable and may depend on the resources on the land, the status of the user or the land rights administration system. Substantive rights may be limited to certain times. In KwaZulu-Natal arable fields are allocated to particular families, but after the crop has been removed in winter, all the households in that group may have the right to graze their livestock on the arable fields. The rights to sell, lease or bequeath land are all substantive rights as is the right to share in profits made by its use. Loss of a substantive right makes a person poorer.
Procedural rights protect the way that substantive rights are exercised, and are therefore very important.
All these rights may be de jure, recorded and protected by law, or de facto. The complexity arising from competing rights that may be unrecorded and unclear is often difficult to unravel and often subject to dispute.
tenure
Very broadly, tenure is the right to hold or possess something. In the context of land reform, tenure means the right to occupy, use and benefit from land and the natural resources on the land.
tenure system
A tenure system is the basis on which the rights to occupy, use and benefit from land are held, for example by permission, by lease, by private or communal ownership. The tenure system also determines who has or who can get these rights.
tenure security
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trust
A trust is an arrangement set out in a written document called a trust deed, in terms of which the founder of the Trust hands over property to a group of people called trustees who administer the property for the benefit of other people (beneficiaries) for a stated objective.
Trusts are regulated by common law and by the Trust Property Control Act 57 of 1998. Except in certain circumstances, such as taxation and insolvency, trusts do not have independent legal personality, so that a trust cannot sue or be sued. Trustees acting as trustees remain personally responsible for their acts and undertakings.
Trust property is protected and must be kept separate from the personal estates of Trustees.