ABSTRACT
In many legal systems land is governed by a plurality of laws, particularly in those countries encountering colonialism. Post-colonially, formal, and informal land laws continue to co-exist, often in an uneasy relationship with informal or customary laws seen as being relegated to the second division in a hierarchy of laws. In recent years, however, there have been initiatives to enhance the standing of customary laws and to reassert the value of indigenous ways of resolving land disputes. In 2014, the Pacific island country of Vanuatu took the step of incorporating customary land management into statute. The purpose was to safeguard and strengthen this form of land tenure against incursions from more formal laws introduced under colonialism, and retained post-independence, particularly leases. This legislative innovation is not an unqualified success. Indeed, concern about this law prompts the questions whether in fact it is possible to legislate for customary land tenure, and what are the consequences of doing so? In order to test the answer to these questions, a comparative approach is adopted, looking first at small island states in the Pacific, and then at the rather larger land mass of South Africa, where the 1996 Constitution conferred new formal status on customary-law ranking it on par with the common law of South Africa but subject to the constitution and legislation.
