This paper is a comparative study of land governance in the legal systems of South Africa and Zambia. It argues that insisting on western legal approaches in the governance of customary land tenure, misguides the development of customary law.
Paper long abstract:
The statutory legal systems in Zambia and South Africa are generally considered superior to customary laws and practices. Despite the co-existence of different legal systems in both countries, it cannot be assumed that they receive equal recognition or status. Over the years, efforts to understand customary land rights in these two countries lean towards the statutory legal system. The assumptions and underlying principles in each system are different and cause problems when the two interact. In particular, these conflicts are significant when applied to customary land governance, especially when it aims to provide for tenure security. Therefore, the dynamics of perspectives in co-existing legal systems require deeper understanding in order to frame approaches that will lead to the realisation of customary land rights. This paper is a comparative study of land governance in the legal systems of South Africa and Zambia. It argues that insisting on western legal approaches in the governance of customary land tenure, misguides the development of customary law. The paper reveals how the legal systems in both countries respond to the demands of colonisation and globalisation. The paper also critically questions the dominant application of western principles and theories in law in the governance of customary land tenure.