OPINION | SOUTH AFRICA 

State is reinforcing apartheid injustices in rural areas

Traditional leaders have jurisdiction over land within the same apartheid boundaries that were carved out under Bantu Authorities Act

Photo of Exiled Bakgatla-ba-Kgafela king, Kgafela Kgafela II
Traditional leaders have power over people who didn’t choose them, argue the authors. This is a photo of exiled Bakgatla-ba-Kgafela king, Kgafela Kgafela II. Photo: supplied
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It appears that government has no intention of undoing apartheid injustices in rural areas. Not only do post-apartheid laws reinforce apartheid tribal boundaries and governance systems that promote the hegemony of traditional leaders over communities, they also disregard the concerns of the affected communities.

In the first week of September, Parliament issued a schedule with the dates and venues for public consultations on the Traditional and Khoi-San Leadership Bill (TKLB). To the surprise of many rural communities affected by this proposed legislation, the venues made it virtually impossible for many traditional communities to participate in the process.

The venues for the hearings included Vredenburg, Caledon and George in the Western Cape, Springbok, Upington and Kimberley in the Northern Cape, Bloemfontein and Midrand, Kokstad in KwaZulu-Natal, and Graaff Reinet and Port Elizabeth in the Eastern Cape. Limpopo and North West, where millions of those who would be most affected by the TKLB live, were excluded altogether.

Moreover, the official programme for the hearings was sent to the Parliamentary Portfolio Committee on Cooperative Governance and Traditional Affairs in the first week of September, giving the committee a few days to prepare its constituencies in anticipation of the first hearing scheduled for 14 September.

The fact that the hearings were scheduled in closer proximity to Khoi and San communities is revealing of underlying political dynamics surrounding the introduction of this proposed law. Since it was first introduced to parliament in 2015 there have been strong critiques from activists in Khoi and San communities on a number of issues it raises.

The Bill has been criticised for reinforcing apartheid geography and its legacy. It does so by adopting and merely renaming structures created by colonial and apartheid laws. When the Traditional Leadership and Governance Framework Act of 2003 (TLGFA) – which the TKLB is meant to replace - was adopted, ‘tribes’ created through the Natives Administration Act of 1927 (NAA) were renamed ‘traditional communities’, while the ‘tribal authorities’ created through the Bantu Authorities Act of 1951 (BAA) became ‘traditional councils.’

This means that traditional leaders and traditional councils have jurisdiction over land and people within the same apartheid boundaries that were carved out under the Bantu Authorities Act. The people who live within these boundaries are locked under the authority of superimposed traditional leaders and traditional councils with no means of opting-out.

In this way both the TLGFA and the TKLB entrench apartheid-era divided citizenship between urban and rural citizens, with the most marginalized South Africans subjected to chiefly rule by post-apartheid law.

Government has been criticised for using the TKLB to side-step its failure to transform traditional institutions through the Commission on Traditional Leadership Disputes and Claims (Nhlapo Commission) and the traditional council elections as required by the TLGFA.

The TKLB has also been criticised for unconstitutionally providing for the discretionary allocation of governmental functions in the form of unclear ‘roles’ to traditional structures. This, in effect, could create a fourth tier of government.

Mine-hosting communities are especially critical of the TKLB for allowing traditional councils to enter into deals with companies, municipalities and “any other person, body or institution” without consulting the community. These communities are already experiencing challenges with unaccountable traditional leaders who exclude communities from the benefits accruing from mining on communal land.  

The TKLB also treats so-called African traditional leaders differently compared with Khoi and San leaders. While traditional leaders have jurisdiction over defined areas of land and the people who live on it, Khoi and San leaders are given jurisdiction only over people who choose to affiliate with them, and not over land.

In December 2015, a schedule which concentrated hearings mainly in the North West platinum belt was strongly criticised by rural activists, including Khoi and San activists. Parliament withdrew that schedule stating its intention to reintroduce a more inclusive version in January 2016. The tensions generated by the local government elections in August 2016 possibly contributed to Parliament’s decision to halt discussion of this controversial legislation which resumed only after the elections in September 2016.

However, to the surprise of many, the new schedule released just days before the proposed hearings were to begin focused on Khoi and San areas and excluded other traditional communities. Members of the Portfolio Committee on Cooperative Governance and Traditional Affairs and at least one NGO objected to the clearly unbalanced venue selection for public hearings.

A network of rural community activists from Limpopo, North West, Eastern Cape, Mpumalanga and KwaZulu-Natal, who work together under the national umbrella of the Alliance for Rural Democracy (ARD), held a workshop in Johannesburg from 7 to 9 September to prepare for the scheduled hearings.

In the workshop rural activists made it clear they would not accept the TKLB in its current form as it was not created for rural citizens, but for traditional leaders. The Bill encourages elite capture as it vests all decision-making with traditional institutions to the exclusion of communities. It was noted that the Bill will create further division between traditional leaders and rural citizens. Some questioned the relevance of the institution of traditional leadership in this day and age.

Many activists see this Bill as the government’s way of taking rural citizens back to apartheid days by resuscitating the Bantustans and subjecting them to the rule of traditional leaders with no way to opt out. Activists feel this is unfair as it will curtail their access to constitutional rights their urban counterparts can fully enjoy.

The rural activists left the workshop with plans to mobilise rural communities widely to oppose the TKLB. They remain critical of government’s tendency to involve them only at the tail-end of law-making processes, as well as of the inaccessibility of the public hearings for many affected communities.

By excluding the majority of affected communities from the consultative process of the TKLB, Parliament is effectively ignoring the outcomes of similar legislative instruments which overlooked the constitutional obligation to ensure that the public is adequately consulted in law-making processes.

The Communal Land Rights Act 11 of 2004 (CLRA), whose objective was to transfer communal land title from the state to traditional communities’ (formerly tribes), was invalidated by the Constitutional Court in 2010 on the basis that Parliament had followed the wrong procedures, including failing to facilitate public involvement in the legislative process as required by the Constitution

Similarly, the Constitutional Court in July 2016 invalidated the Restitution of Land Rights Amendment Act (2014) due to the state’s failure to satisfy its constitutional obligation to offer the public reasonable opportunities to involve themselves in legislative processes. Justice Mbuyiseli Madlanga’s judgement was delivered only a few days after the President sent the Exproriation Bill (2016) back to the NCOP and Parliament, questioning too whether there was adequate involvement of the public during the legislative process. Bizarrely, despite these rulings the schedule for TKLB hearings effectively followed the same precedent of excluding large sections of those most directly affected by the TKLB from access to the public hearings.

On 9 September, the Portfolio Committee postponed the scheduled TKLB hearings to a later date and promised to organise hearings in all nine provinces. We suspect that this change was influenced by various people, including the Alliance for Rural Democracy pointing out that the venues selected could not pass Constitutional muster.

We remain hopeful that a new and inclusive schedule will be drafted for when the hearings finally take place.

The authors are researchers with the Land & Accountability Research Centre in the Faculty of Law at UCT.

Views expressed are not necessarily GroundUp’s.

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