What is the legality of state ownership of communal land

Abstract

Abstract provided by author

The legislative environment affecting the rights held by communal occupiers has not undergone significant reform since independence. It is a reflection of the pre constitutional apartheid laws and can be held as going against the purport of the Constitution. This paper starts off by discussing the legal land rights which existed in Namibia since the precolonial era, the clonial era and the post independent era. It thereby tries to establish that indiginous peoples were illegally dispossed of their allodial titlle to their land rights which they held by virtue of their customary laws by the clonial regime. International law which aims at protecting such rights will be discussed whereafter the constitutional provisions which affect colonial land rights will be interpreted progressively to prove that state "ownership" of communal is illegal, that it in fact is supposed to be owned by the communities living on it. This is further proven by the term Vest which the state uses in the Communal Land Reform Act, it will be seen that the use of such term showes that the state took caution in not saying that it owns communal land and that as such it is prove that even during the legislative process the state was aware of the fact that past injustices stripped indigenous peoples from their tilte to land and as such the state was cognisant of the fact that it cannot claim ownership of such illegally obtained title. The case of South Africa will then be looked at. This is because the two countries share a very simmilar history with regards to indiginous peoples right to land by virtue of their unwritten customary constitution. A comparison will be drawn to assess how each country dealt with this issue and whether Namibia can consequently take a few lessons from there. The last chapter will entail an evaluation of whether the Namibian governement has rightfully claimed title to communal land. This will be followed by recommendations to readress such. In the alternative it will also be recommended as to what the state can do to secure communal land rights in an improved manner in the case that we never see the day that titleship to such land is returned to the true owners. The indigenous peoples of Namibia