This chapter is concerned with land tenure in the Eastern Cape, with a specific focus on the problems of conjugating customary and common-law notions of ownership. It examines the complex ways in which living customary approaches to land ownership articulate with the legal prescripts of ownership in South Africa, which are derived from common law. This chapter charts the lived and living interpretations of land ownership in a selected social field1 – African freehold – drawing on evidence from two field sites, a rural locality and a suburban township. In both cases, normative practices involve a hybrid of custom and state law.

Customary practices cannot be reduced to official customary law (Bennett 2008: 138). The latter is, in any event, undergoing radical reinterpretation, in part due to the distortions imparted by Western attitudes and prejudices in the framing of customary law during the late colonial period. Customary law was subjected to the demands of a colonial state with an increasingly capitalist orientation towards productive resources. The effect was to ring-bind African customs into a body of law that was secondary to the dominant state law, which was implemented by a segregated administrative regime of native administrators and authorities. Common law evolved according to the norms and customs of colonial and apartheid society; it was insulated from the influences of African custom due to the strict separation of legal systems that was adopted in the late colonial period (Chanock 2001: 292), a tendency that still survives today. The democratisation of South African society calls for a more nuanced perspective of customary law, one which allows us to see beyond its legal status (Claassens and Mnisi Weeks 2009: 494; Mnisi Weeks and Claassens 2011: 826; Van Niekerk 2006: 12).

In the shadow of the cadastre

James Scott (1998: 49) describes the universal contest between state-imposed systems and the social systems they attempt to override. The gulf between ‘land tenure facts on paper and facts on the ground’ is widest during periods of social upheaval: