The Maledu Judgment, delivered by the Constitutional Court in October 2018, affirms the right, contained in Section 25(6) of the Constitution, and protects South Africans whose land tenure is legally vulnerable.

Land in the former apartheid homelands is registered at the Deeds Office as belonging to the state and inhabitants of these areas do not, at present, have recorded rights to this land.

In a media statement this week, the ANC Stalwarts — signatories to the For the Sake Of Our Future document — warned that proposed amendments by the Department of Traditional Affairs to strengthen clause 24 of The Khoi-San Leadership Bill (TKLB) “will further empower chiefs and traditional leaders to sign deals without the consent of the people whose land rights are affected”.

The Stalwarts said that they welcomed the recognition of “the Khoi-San people and their leaders in the Traditional and Khoi-San Leadership Bill (TKLB) currently before Parliament. The bill goes some way towards restoring the dignity of this group of South Africans”.

However, they continued, they were “deeply concerned” that other sections of the bill related to the power over land in former “bantustans” and the rights of those who live in these regions.

“These sections give new powers to unelected people who sit on ‘traditional councils and sub-councils’, which are essentially the ‘tribal authorities’ set up under the Bantu Authorities Act of 1951.”

Clause 24 of the TKLB empowered these “traditional leaders” to sign deals without obtaining the consent of those whose land rights were undermined or dispossessed by such deals.

“This means that citizens living in these areas do not have the same rights as those living elsewhere in South Africa. The deals may be with mining companies, property developers, tourism ventures, agricultural companies, municipalities or anybody else,” said the stalwarts.

The “Maledu” judgment requires that the consent of the holders of affected “informal land rights” is required before decisions impacting on land rights can be taken.

But in an apparent attempt to undermine that Constitutional Court judgment, the Department of Traditional Affairs has in this last week proposed some last-minute amendments to strengthen clause 24 to further empower chiefs.

The Stalwarts said they intended to engage with formal structures of the ANC, both in the party and in Parliament, including the relevant sub-committee of the NEC and with ANC branches “of which we as individuals are members”. DM