While everyone was distracted by Parliament’s consideration of the Constitutional Review Committee’s report on expropriation without compensation last week, the National Assembly (NA) and National Council of Provinces (NCOP) were hard at work finalising two dangerous laws on traditional leadership.

Last-minute changes to Order Papers, additional committee meetings, and a frenetic atmosphere over the last week suggested a clear intention by Parliament to pass both the Traditional Leadership and Governance Framework Amendment Bill and the Traditional and Khoi-San Leadership Bill (TKLB) before the dissolution of parliament ahead of the election next year.

Former President Kgalema Motlanthe’s High Level Panel on the Review of Legislation last year advised that these bills be withdrawn because of their negative impact on social cohesion, inequality and land rights. Instead, the Panel’s recommendations have been deferred to the next sitting in February and the bills prioritised.

The Amendment Bill gives traditional councils a new two-year opportunity to fulfil important transformation conditions that many have failed to meet in the last 13 years. Councils are meant to include forty percent elected and one third women membership. The Amendment Bill also masks a deeper intention to legitimise agreements that have been concluded by untransformed traditional councils in the past. These include mining agreements in the Limpopo platinum belt, where no official traditional council elections have ever taken place.

The more problematic TKLB is a hefty bill that proposes to replace the entire legal framework surrounding traditional leadership institutions in the country. While the TKLB is often promoted as the first law to recognise Khoi and San communities and leaders in South Africa, this disguises its other purpose. At its core, it sets up a system where power, not accountability, defines the relationship between traditional leadership institutions and communities. The TKLB envisions that people living in traditional communities will be bound by decisions or representations made on their behalf without any concrete means for consultation, oversight, or recourse in instances where “bad apple” traditional authorities abuse their power. This is also the form of rule that will be extended to people in Khoi-San communities.

The recognition of traditional communities in the TKLB comes with further baggage. The “traditional communities” recognised in the TKLB are those previously called “tribes” under colonialism and apartheid. Tribal authorities were established for them in terms of the 1951 Black Authorities Act, and their territories eventually became the Bantustans.

Given this context, the passage of both bills through Parliament should be monitored closely.

The TLGFA Amendment Bill was passed by a vote in the NCOP on the morning of 4 December despite not being mentioned in the Parliamentary Programme agreed to on 28 November. In addition, Parliament’s YouTube live stream of the session started more than two hours late, making it difficult for people to follow proceedings remotely. By the time the video feed started, a vote in favour of the bill had already taken place. It now only awaits final passing in a plenary session of the NA and Presidential sign-off. Since Parliament enforces a “three-day rule” before bills can go up for the final debate, and the last NA plenary of the year was held on Thursday 6 December, the process has been delayed to next year.

A few steps behind, the TKLB was marred by procedural hiccups. A 4 December NCOP committee meeting on the TKLB did not appear on the parliamentary schedule until late the day before. Representatives for Free State and Gauteng were absent. Then the North West and Northern Cape mandates were disregarded because they referred to the incorrect Bill. When four provinces declared support for the Bill (Mpumalanga, Eastern Cape, Limpopo, and KwaZulu-Natal) and the Western Cape rejected it, the committee was left without the required majority of the nine provinces. In order to proceed with the TKLB’s adoption, the committee recorded the Free State’s supportive final mandate regardless of its missing provincial delegation.

Senior officials from the Department of Traditional Affairs present at the meeting indicated that the remaining stages in the TKLB’s legislative journey would be completed by the end of the week (and Parliament’s annual term). However, this did not transpire – presumably again because of the three-day waiting period.

Both the Amendment Bill and TKLB are now poised for finalisation early next year. The December bullet has been dodged, but why should we remain concerned?

Clause 24 of the TKLB remains a particular threat to the vulnerable land rights of people living in the former Bantustans. Initially, this clause granted traditional and Khoi-San councils powers to enter into agreements with any institution, including municipalities, developers and mining companies without requiring any form of consent or consultation with people who might be affected by the decision. This imbued traditional authorities with significant power, as even elected government is required to engage with people on decisions that impact them.

Moreover, without restrictions against agreements that would ignore land rights, this provision manifested the prevailing unlawful practice of traditional authorities asserting sole decision-making authority over people in traditional communities. This blatantly contravened the constitutional right to secure land tenure captured in the Interim Protection of Informal Land Rights Act (IPILRA).

These problems were repeatedly pointed out to Parliament and through some tinkering clause, 24 now contains references to consultation and majority decision-making that still fall short of the more specific land rights protections in IPILRA.

The TKLB version approved on 4 December says that clause 24 will also form the basis for reviewing past agreements by traditional councils. Many of these are legally precarious because the traditional councils lacked the authority to conclude them. However, a new caveat in clause 63(22) excludes all past agreements that were concluded in terms of legislation from this review process. Surface rights agreements in terms of the Mineral and Petroleum Resources Development Act and service delivery agreements enabled by Section 5 of the 2003 Traditional Leadership and Governance Framework Act could thus be exempted from review. The implication is that these agreements would continue to be implemented despite their precarious legality.

It is telling that Parliament has expedited these bills soon after two court victories for the land rights of people living in traditional communities. In Maledu v Itereleng Bakgatla Minerals Resources, about mining evictions in North West, the Constitutional Court ruled that mining cannot trump informal land rights such as those belonging to people in the former Bantustans. This was followed by Baleni v Minister of Mineral Resources where the Pretoria High Court confirmed that no mining right could be granted over land in Xolobeni in the Eastern Cape without applying IPILRA and obtaining full and informed consent from affected land rights holders first.

Both cases involved a traditional authority who first tried to sign the land away without any consent. If the bills become law and continue to conflate the political role of traditional authorities with control over land, these important advances in the courts will be significantly undermined.

The Constitutional Review Committee process on expropriation without compensation is not unrelated to these struggles. While a constitutional amendment may open pathways to land access in the long-term, the TKLB and Amendment Bill together firmly obstruct land tenure security for people living in traditional communities. With the public debate focused solely on expropriation, Parliament has been able to fast-track these bills with little attention to the rights and procedures being disregarded along the way. But South Africans will be paying more and more attention now as they head to the polls next year. DM

Monica de Souza Louw is a researcher with the Land and Accountability Research Centre in the Department of Public Law at UCT