Once again, traditional leadership in South Africa is being tested as the proposed legislation seeks to perpetuate rural dwellers’ insecurity of land rights.
After the conquest of various indigenous tribes by settlers and colonialists, the institution of traditional leadership was transformed from being at the centre of power in traditional communities to being the proxies of the colonial government.
This fact naturally attracted the union government and then later the apartheid government. The nature of the engagements between traditional authorities and the then colonial governments was generally characterised as resisting rebellious traditional leaders by successive governments recognising and imposing their own preferred and compliant chiefs.
Instead of the traditional leaders’ power resting with the people, which had historically been the situation generally, though with some notorious exceptions, manipulations by government subverted the state of affairs by abetting and financially supporting identified chiefs.
It is no surprise, therefore, that legislation such as the Bantu Authorities Act, gave us the current iteration of traditional leadership, chosen by the state to do its bidding. After 1994, government cemented these leadership positions with their own legislation such as the Traditional Leadership and Governance Framework Act.
Government’s latest attempt to continue the legacy of the National Party is the Traditional and Khoi San Leadership Act, was signed into law last year.
The act, known as the Bantustan Act by those opposed to it, defines traditional leadership authorities and their territories on the same grounds as did the legislation under apartheid.
The most contentious aspect of the act is section 24, which gives traditional councils the power to enter into agreements with third parties, such as mining companies, on behalf of the community. The effect of this section will remove property rights from individuals and give them to a council. This is an injustice that may include deprivation of land.
Customary law recognises communal land ownership as a property right. Individual property rights to land, as per our Roman-Dutch common law, are not expressly stated. Those communal land rights resided in the chief through legislation such as the old Bantu Authorities Act, which gave them statutory powers supposedly in line with customary law.
Individuals living in those territories do not enjoy private ownership but limited tenure that they derive from the chief, headman or king. These rights are protected in law by the Interim Protection of Informal Land Rights Act.
These agreements are subject to certain conditions such as consultation and a vote at the said consultation by a majority of those in attendance. Organisations such as the Amadiba Crisis Committee, made up of members from the famous Xolobeni community, are opposed to giving the power to control their property to councils with their own sectional interests.
Like its predecessor, government is continuing the policy of treating rural dwellers like perpetual children requiring a guardian, in the form of a traditional council, to “protect” and administer their property.
Section 24, read in conjunction with section 22(1) of the Bantustan Act, paints a grim picture. Councils are accountable to the premier of the province in which they are situated and not to the community members. The rural communities, which will be affected by this legislation, are rightly outraged the legislation seeks to perpetuate the top-down relationship created by apartheid laws concerning the interaction between rural dwellers and their leaders, instead of the historically original bottom-up authority of traditional leadership.
Section 24(3)(c) of the Bantustan Act lists the conditions to which agreements are subject. In the Constitutional Court judgment in Baleni v Minister of Mineral Resources, which relied on the Interim Protection of Informal Land Rights Act, it noted that for the deprivation of communally owned land, consent and not only consultation, is required.
The Bantustan Act, in other words, is at odds with that judgment.
The act requires a mere majority vote (of the attendees at the consultation). It might be argued that this is a manifestation of consent, but in the Baleni judgment, it was shown that the customary law of some communities may require consent in the form of consensus rather than a mere majority.
The constitutional validity of the Bantustan Act is therefore at risk.
This is to be contrasted with the historical role and duties of traditional leaders. In this context, when an issue that affected the community would come under discussion, the traditional leader’s role was that of a facilitator. This is not to romanticise the historical role of traditional leadership in the event of an issue or dispute that warranted consideration by the community.
It is a historical fact. The discussion would involve the whole community based on consensus without the traditional leader even expressing his own view or imposing it on the community. The consensus around an issue culminating in a resolution would mean not a simple or two-thirds majority but a 100% endorsed resolution owned by the affected community.
This has always been a manifestation of participatory democracy at its best. Instead of creating legislation that will give more than 18 million rural dwellers secure land rights, government is moving in the opposite direction, subjecting these individuals to more insecurity.
Property rights are integral to prosperity. They should always be controlled by those who are rightfully entitled to them and not by an institution accountable, not to the people, but to government.
Zakhele Mthembu is an associate of the Free Market Foundation and a law student at Wits University. The views expressed in this article are those of the author and not necessarily those of the Free Market Foundation
