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The methodology used to interpret customary land tenure

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dc.contributor.author Pienaar, Gerrit
dc.date.accessioned 2012-10-23T08:09:20Z
dc.date.available 2012-10-23T08:09:20Z
dc.date.issued 2012
dc.identifier.citation Pienaar, G. 2012. The methodology used to interpret customary land tenure. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 15(3):153-183 [http://www.nwu.ac.za/p-per/index.html] en_US
dc.identifier.issn 1727-3781
dc.identifier.uri http://hdl.handle.net/10394/7553
dc.description.abstract Customary land tenure is normally not based on codified or statutory sources, but stems from customary traditions and norms. When westernised courts have to interpret and adjudicate these customary traditions and norms, the normal rules of statutory interpretation cannot be followed. The court has to rely on evidence of the traditional values of land use to determine the rules connected to land tenure. Previously courts in many mixed jurisdictions relied on common or civil law legal principles to determine the nature of customary land tenure and lay down the principles to adjudicate customary land disputes among traditional communities, or between traditional and westernised communities in the same jurisdiction. Many examples of such westernised approach can be found in case law of Canada and South Africa. The interpretation of the nature of customary land tenure according to common law or civil law principles has been increasingly rejected by higher courts in South Africa and Canada, e.g. in Alexkor Ltd v The Richtersveld Community 2004 5 SA 469 (CC) and Delgamuukw v British Columbia 1997 3 SCR 1010. This paper explores the methodology the courts should follow to determine what the distinctive nature of customary land tenure is. As customary land tenure is not codified or based on legislation, the court has to rely, in addition to the evidence of indigenous peoples, on the expert evidence of anthropologists and sociologists in determining the nature of aboriginal title (in Canada) and indigenous land tenure (in South Africa). The court must approach the rules of evidence and interpret the evidence with a consciousness of the special nature of aboriginal claims and the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in. The court must not undervalue the evidence presented simply because that evidence does notconform precisely with the evidentiary standards that would be applied in, for example, a private law tort case. en_US
dc.subject Aboriginal title en_US
dc.subject Customary land tenure en_US
dc.subject Natural law en_US
dc.subject Legal positivism en_US
dc.subject Mixed jurisdiction en_US
dc.subject Indigenous law en_US
dc.subject Interpretation (of customary law) en_US
dc.subject Evidence (of customary land tenure) en_US
dc.title The methodology used to interpret customary land tenure en_US
dc.type Article en_US


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