Insecure land tenure and the impact of the national Credit Act 34 of 2005

Abstract

South Africa has come a long way since it was declared a democracy in 1994. As the saying of Jean-Baptiste Alphonse Klaar goes, "plus ca change, plus c'est la meme chose"- the more things change the more they stay the same. This dissertation considers the South African property system, specifically with reference to insecure tenure rights, where they stem from and their practical application under the current dispensation. It briefly covers the genesis of communal land systems flowing from Bantustans (also known as homelands), and the development of the laws which attempted to regulate these communal land systems. This dissertation further considers the relationship between insecure land tenure and the National Credit Act 34 of 2005. In particular, whether insecure land tenure limits the application of the National Credit Act and the achieving of its purposes. In this regard, the development of consumer credit legislation is traced back to the 1920's and up to the passing of the National Credit Act as it is known today. The National Credit Act is considered against the Constitution of South Africa, 1996 and prevailing land tenure legislation. Section 25(9) of the Constitution instructs Parliament to enact legislation that will realise the right to security of land tenure; it appears that this constitutional obligation has been a forgone dream for many South Africans who still do not enjoy secure and formalised land tenure rights. The National Credit Act aims to promote the development of a credit market that is accessible by all South Africans, and particularly those who have historically been unable to access credit under sustainable market conditions. Chapter 5 of this dissertation attempt to shed light to the seriousness of the limitations which insecure land systems has on the fulfilment of this and many other objectives of the National Credit Act. Lastly, recommendations will be put forward in an attempt to remedy the status quo in a manner that secures a permanent a solution for many South Africans.