First published by Notes from the House

The Traditional and Khoi-San Leadership Bill (TKLB) and the Traditional Leadership and Governance Framework Amendment Bill were both passed by the National Assembly during 2017 and are currently before the National Council of Provinces (NCOP).

The report of the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change, which was released in November 2017, recommended that both of these Bills be withdrawn and reviewed. Nearly five months later, the Bills are still being processed by Parliament without any sign of concrete intervention.

In early April, Parliament’s Joint Rules Committee established a Subcommittee to make recommendations on processing the key findings of the report. The Subcommittee is due to report on its recommendations by 15 May. The question is whether the Bills will have gone through before the subcommittee reports, or before whatever process it recommends is finished. Both Bills have an intrinsic impact on the question of the roles and powers of traditional leadership, as well as on the role that traditional leadership could, most likely, play in upcoming developments around expropriation.

If the state proceeds with expropriation without compensation, will the land be returned to ordinary people, or will it benefit only those in power, such as traditional leaders?

The Constitutional Review Committee will soon start its public hearings about reviewing section 25 of the Constitution to make it possible for the state to expropriate land without compensation, following a motion adopted by the National Assembly on 27 February.

One of the questions put to Deputy President David Mabuza in the NCOP on 28 March was about government’s engagement with traditional leaders on expropriation of land without compensation. According to the Deputy President, traditional leaders are viewed as critical stakeholders who should be engaged at all times on the expropriation of land. This begs the question: what about rural communities and other stakeholders, such as community-based organisations and civil society? Are their concerns to be left flapping in the wind?

The Deputy President said that he has interacted with King Goodwill Zwelithini who “sounded very concerned”. He has also interacted with the National House of Traditional Leaders on their role in the process. It has been reported that he assured the Nzuza Royal House – who have claimed that their land has not been returned to them – that “the land will come back, do not despair”.

Also raised was the controversial issue of the sale of communal land by traditional leaders without consulting communities. Deputy President Mabuza said that the ownership of communal land is in the hands of communities who have entrusted custodianship of that land to traditional leadership. He has publicly declared:

“Traditional leaders cannot sell communal land since such does not belong to them as individuals, but to communities.”

Yet it is common knowledge that this practice is indeed taking place on the ground. Answering a question from MP Boingotlo Nthebe, the deputy president acknowledged that “people are starting to complain… that traditional leaders are now selling this land to private people… But as government, we have set processes in place that if you want to dispose [of] communal land for business purposes there are certain procedures that you must follow. So there should be a community meeting that grants that permission… but that process is often exploited along the way. Maybe we should tighten that,” he said.

What is also public knowledge is that people are not only starting to complain. They have been complaining for a long time about this practice. The report of the High Level Panel chaired by former President Kgalema Motlanthe quotes a resident of Mpumalanga who said:

“Rural communities still do not own land. They continue to live under an old legal system… People live on the land but they do not own the land… Instead of ordinary people getting back the land, the land is given to senior government officials and politicians. They are taking the land that is supposed to be owned by ordinary people… People continue to suffer because the land is sold… It is common here in Mpumalanga where I live that traditional leaders sell land to foreigners.”

Some traditional leaders have been signing over communal land to mining companies without consulting communities for years, without any benefits reaching those communities. Yet traditional leaders do not have any explicit legal authority to do so. They have simply assumed such powers.

Communal land cannot legally be handed over to a third party by a traditional leader or traditional council. This power lies in the hands only of the Minister of Rural Development and Land Reform who is the nominal owner of communal land.

It is questionable whether traditional councils are even legally mandated to administer communal land. As long as traditional councils fail to comply with the 2003 Traditional Leadership and Governance Framework Act (TLGFA), which requires transformation, they effectively do not have legal standing. If they have not transformed their membership to include women and elected members, as required by the Act, they are not legally valid entities and are therefore operating outside the law.

However, this has not stopped traditional leaders and traditional councils from entering into numerous mining deals. These are just a few examples of actions taken without proper authority:

• David Langa, formerly the traditional leader of the Mapela community in Limpopo, secretly signed a R175-million settlement agreement with Anglo-Platinum without consulting the community;

• The Bakgatla Ba Kgafela in the North West have been robbed of millions of rands of mining revenue through secret deals made by Kgosi Nyalala Pilane and his traditional council. Evidence unearthed at the recent Commission of Inquiry into Traditional Claims and Disputes within the North West Province, in particular those of the Bakgatla Ba Kgafela, has exposed the extent and serious impact of these dealings; and

• The Bapo Ba Mogale community trust account is missing R600-million, which according to a 2017 report by the Public Protector is attributed to the maladministration of the account by the North West Department of Local Government and Traditional Affairs and the Bapo Traditional Administration.

These deals and problems are not restricted to the Platinum Belt. A rural citizen of KwaZulu-Natal told the High Level Panel:

“We live in great hardship in South Africa. We are dispossessed of our land by development, by the mines, and we get no compensation or benefits out of the so-called development on our ancestral land. We are not consulted. We have turned into non-entities with nothing, and yet we are the rightful owners of the land. We don’t have certainty as to what is going to happen to us and our land.”

The Traditional and Khoi-San Leadership Bill and the Traditional Leadership and Governance Framework Amendment Bill cement the overreaching powers of traditional leaders and councils to sign such deals.

Clause 24 of the Traditional and Khoi-San Leadership Bill allows traditional councils to enter into partnerships and agreements with any institution. One of the new requirements introduced in the Bill is that this be subject to prior consultation with the community “represented by such council”, but this consultation requirement is weak. It does not set out the process for consultation, list any consequences for failing to carry out consultation, or adequately ensure local or village–level consultation with directly-affected individuals. Being “represented by such council” does not necessarily mean being consulted.

The Traditional Leadership and Governance Framework Amendment Bill extends the time frame within which tribal authorities established in terms of the 1951 Bantu Authorities Act must transform into valid traditional councils. In many cases effective transformation has not yet taken place over the last 14 years, but the Bill will enable questionable mining and other deals entered into by invalid councils to be pushed through regardless.

The deputy president emphasised that traditional leaders have argued strongly that expropriation of land should exclude communal land. While on the face of it this seems like a benevolent gesture, this is of grave concern because people have a range of often unwritten, but nevertheless legally protected rights on communal land. The Interim Protection of Informal Land Rights Act of 1996 was introduced to give effect to the right to tenure security in section 25(6) of the Constitution. According to this Act, people cannot be deprived of their informal land rights without their consent, except by expropriation. If the government wants to transfer title deeds to traditional leaders it will first have to expropriate all of these co-existing informal land rights.

Traditional leaders and traditional councils administer communal land and make decisions about that land without the proper authority or consent to do so. If communal land is excluded from the ambit of expropriation it could have the perverse outcome that the state transfers title of communal land to traditional leaders without first expropriating and compensating the people who are the actual owners of this land, according to customary law.

While the institution of traditional leadership is respected and recognised in the Constitution, people should be able to affiliate themselves voluntarily with a traditional leader and have full security of tenure in homes they have built up over generations. This is what living customary law entails, and is affirmed in many judgments handed down by the Constitutional Court, like the Alexkor and Bhe cases of the early 2000s. It is also affirmed by public testimonies to the High Level Panel and its subsequent findings. The deputy president’s statements stand in stark contradiction. DM

Ayesha Motala is a Research Officer in the Land and Accountability Research Centre (LARC) at the University of Cape Town.