7. Customary land holding

Customary law, in the account given by J S Fenton, is the way the old people dealt with a situation, together with the later rules the courts are still testing. It governs marriage, divorce, succession, and, above all, land in the Provinces.

Communal tenure. The paramount interest in unallocated land is held for the community. The Paramount Chief is the head, with section chiefs and town chiefs under him. Cemeteries, praying grounds and society bushes are managed for the community, not as a private estate.

Family tenure. A descent group, a family with a common ancestor, can hold a permanent interest. The family head, traditionally the eldest, now often chosen after the funeral by consensus, manages it. Age, education and wealth sometimes sway that choice. The family can enjoy the land and, as a group, dispose of it.

Individual tenure. This is the modern one, visible in the urban provincial towns. The permanent interest is in one person. It is limited to people whose personal law is customary law. A non-native cannot take a freehold in the Provinces. The interest a non-native can take is a lease, and The Protectorate Land Ordinance, 1927 is the statute that regulates tenure by non-natives.

The two systems that the statute is built around are the communal and the family systems. Individual ownership is real, but it is the exception, and it is not a way for a stranger to buy the fee simple up-country.

When you read a provincial land dispute, start with who is said to hold, and in which of these three ways. A claim pleaded as if it were a Western Area fee simple will not fit.