Contested Property: Permission to Occupy Certificates & Common Law Ownership in South Africa

The Permission to Occupy (PTO) Certificate, an apartheid statutory law that applied to communally-owned land in South Africa, entitled Africans to fewer property entitlements to land compared to the common law real right applicable on white-owned land, and shored up land dispossession in South Africa. The PTO Certificate nevertheless took on new meaning, one that continues to evolve today despite a lack of formal recognition in some instances, and despite its origin as an apartheid legal instrument. Instead, today the PTO Certificate is a marker, in practice, of full ownership, albeit one recognised in terms of indigenous law. The South African Constitution recognises indigenous law as an original source of law, akin to other sources, including the colonially-imposed common law. Despite this, courts often struggle to place indigenous law concepts in relation to common law concepts. This is partly due to the dominance of the common law property system in South African legal culture, and an inability to position land and resource governance as produced, not from an abstract title deed, but rather from everyday practice. Such is the case with the PTO certificate, used by litigants to indicate customary law ownership in disputes over land, but which has also been framed by their opponents as a vestige of the past and thus not an indicator of ownership. In my paper, I trace 30 years of litigation to assess how the PTO Certificate has been interpreted by judges. My central question is the degree to which judges facilitate legal pluralism: do judges interpret the dispute within the multiple and often contradictory normative governance frameworks underpinning the dispute, or is there a deferral to resolving the dispute within the more familiar, abstract, and less contested terrain of the common law of property?