Over the past week, two significant court judgments were delivered that will have far reaching implications for rural land governance in the country and the government’s prevarication on dealing decisively with the democratic rights of the more than 17-million people living in the former Bantustans, whose rights to land remains largely unsecured.
The first ruling was made by the Bhisho High court in the Eastern Cape, dismissing an appeal by the premier of the province to a 2014 court judgment that ruled that it was the customary law right of the people of Cala Reserve to elect their own headman, instead of having one imposed on them by their royal house. The royal house and the provincial government had misinterpreted the provisions of the Traditional Governance and Framework Act of 2004 and imposed a headman on the people of Cala Reserve. This was against a long held tradition of the people of Xhalanga of electing a headman, a right won through struggles since 1880 and sustained ever since. Completely disregarding this custom, the royal family, together with the local and provincial government attempted to impose a headman on the community. The appointment was not conducted in accordance with the provisions of customary law, provincial legislation nor the Constitution. Through the principled and concerted struggle of the people of Cala Reserve, the appointment of the headman was set-aside by the court, and this was confirmed by the full bench of the Bhisho High court on August 18.
Two days later, the Constitutional Court made another groundbreaking judgment on the matter between the Bakgatla-Ba-Kgafela community in the North West, and the Bakgatla-Ba-Kgafela Tribal Authority and Chief Nyalala Molefe John Pilane, the rural development and land reform minister and the department’s director-general. The Bakgatla-Ba-Kgafela community lodged a successful land restitution claim and the community went on to set up a Communal Property Association (CPA) as a landholding entity. The process of registering this CPA was, however, fraught with internal differences between the community, on one hand, and the tribal authority and Pilane on the other.
Pilane and his traditional council wanted a trust instead of the CPA. This dispute went through several processes and, ultimately, the department failed to register the CPA, taking sides with Pilane and the traditional council. The legal challenges that ensued were in essence about the CPA asking the courts for a declaration confirming that the CPA was established in compliance with the Communal Property Associations Act. The CPA also sought an order directing the director-general to effect permanent registration of the CPA. The Constitutional Court ruled in favour of the CPA last Thursday.
What both these judgments point to is a precarious state of affairs as far the rights of citizens in rural South Africa are concerned, and the role of traditional leaders, which the government seems to be forcing on those fellow citizens who reside in rural areas, without a thorough analysis of the compatibility of the institution of traditional leadership with democracy.
This begs a question; what role are leaders who are not elected meant to play in a society, and what accountability measures should be in place to facilitate this role? More poignantly, we should be asking a broader question; what notions of governance are necessary to facilitate a rapid development of rural South Africa more generally?
In pre-colonial times, traditional leaders and traditional authorities were important institutions, which gave effect to traditional life and played an essential role in the day to day administration of their areas and the lives of traditional people. The institution operated and functioned according to applicable customs, traditions and customary laws. Customary law was regarded by the members of the traditional community as binding on both a traditional leader and the people alike. Since 1994, the country has failed to ask itself some very important questions in relation to rural governance.
In relation to issues of land governance, which are essentially at the centre of both the cases mentioned above, the Constitution recognised the fluidity of the rights of rural citizens, and sought to protect them against exploitation. Section 25 (6) of the Constitution reads; “A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.” And Section 25 (9) reads: “Parliament must enact the legislation referred to in subsection.” Up to this stage, there is no legislation developed to give effect to the Section 25 (9) of the Constitution. The tenure rights of people living in rural South Africa are still as insecure now as they were before.
Attempts to regulate rural governance have been subjected to various court challenges, primarily because the African National Congress (ANC) is giving more power to traditional leaders to control the land and all matters connected to the land. The only one of these that has been made law is the Traditional Governance and Framework Act of 2003, which is essentially the continuation of the Bantu Authorities Act of 1951, in that it replaces the tribal authorities provided for by the 1951 Act with tribal councils.
The Communal Land Rights Act was declared unconstitutional by the constitutional court as it undermined the security of land tenure of rural people because it undercut all the layers of decision-making around land, except that of chiefly power. It gave traditional councils wide-ranging powers, including control over the occupation, use and administration of communal land. The ANC has introduced a number of Bills in Parliament which all seek to further entrench the power of traditional leaders over control of rural life, creating subjects out of rural citizens. There is the Traditional Affairs Bill, which seeks to synthesise all traditional leadership laws into one law. Then there is there is the lapsed Traditional Courts Bill, which, according to the justice and correctional services minister, will be introduced back to Parliament. Then there is the communal land tenure policy of the Department of Rural Development and Land Reform, which essentially gives all power over communal land to traditional leaders.
What these Bills and policies demonstrate is the commitment of the ANC government to reform in a significant way the forms of governance and land tenure rights of those living in rural areas, opening them up to abuse from traditional leaders who cannot easily be held accountable. These efforts to appease traditional leaders are informed by the belief that these leaders control the votes of the more than 17-million people who live in the former homelands. But they are a significant blight on the commitment of our government to upholding each citizen’s constitutional rights. Again, we must ask; what kind of rural governance is needed in rural areas? What roles should the chiefs play? What measures of accountability should the institution of traditional leadership be subjected to? Are rural people less human than the rest? If not, why should they be subjected to a different set of rights from those who live in urban areas? DM
Lubabalo Ntsholo is a researcher in the Economic Freedom Fighters parliamentary caucus. He writes in his personal capacity.