Opinionista Oscar van Heerden 6 November 2018

Forward ever, backwards never – tribalism has no place in modern South Africa

We have fought long and hard for the equality of all South Africans. We have fought against homelands and traditional authorities with their backward sexist and racist practices over the years. A reversal of any of these gains over the last 24 years would be a crying shame.

Tribalism is on the rise and, unless we curb it, we will soon find ourselves yet again in a society where we are contending with outdated traditions and cultures. How did this happen, and can we blame our beloved liberation movement, the ANC? Or is this the making of our government and the National Legislature, passing laws that are draconian and oppressive?

A cursory look at the recent Constitutional Court judgment and the wonderful summary thereof by Land and Accountability Research Centre (LARC) suggest that:

The Traditional and Khoi San Leadership Bill (TKLB) builds on previous bills such as the Communal Land Rights Bill of 2003, and the Traditional Courts Bill (TCB) of 2008 to re-entrench the power of traditional leaders throughout the former homelands. It gives traditional leaders and councils sole decision-making authority over the 17 million South Africans living within the tribal boundaries that make up the former homelands. These tribal boundaries were re-imposed by the Traditional Leadership and Governance Framework Act (TLGFA) of 2003.”

Why are we allowing this? What are our legislators thinking and do they fully appreciate that they are in some way going back in history? These traditional authorities were after all the result of colonial conquest and apartheid policy to divide and rule our people. They were used and abused as extensions of those abhorrent systems. And now we find ourselves having to entertain laws and bills that take us back towards those days. We must stop this immediately.

The ones yet again to suffer the most are women. Not only are they nowhere in the discussion around the land question, they are being subjected to exploitative and discriminatory practices yet again. If the ANC is true to its non-sexist principle then this cannot be allowed. I mean, one only has to ask how women will benefit from redress of the land to realise that they simply do not feature. They were not allowed in 1913 to own land, let alone to vote, and so the land question becomes a male affair.

Now we are again in a direct manner wanting to exclude them and subject them to the backward practices of sexism, chauvinistic and gender violence.

The document goes further to state:

The Traditional Courts Bill of 2012 was rejected by the National Council of Provinces, but the current Justice Portfolio Committee is arguing for its reinstatement. It would make it impossible for anyone living in a former homeland to ‘opt-out’ of being summonsed and tried by a traditional leader. The 2012 TCB would also have empowered traditional leaders to strip anyone living within their ‘tribal’ boundaries of customary rights, including land rights, but this is similarly now being proposed in the TKLB.”

This speaks directly to the arrogance we have observed displayed by King Zwelithini, even when our highest court in the land declares that a certain portion of land must be returned to their rightful owners after a successful land restitution challenge, the King declares that actually it does not belong to that family, but himself. I mean, really, where does this guy get the balls?

Similarly with his Ingonyama Trust, if he thinks his threats are going to scare us and his threats of civil war will deter us, he’d better think again. The law of the land will prevail. We cannot have a different set of laws apply to the peoples of KZN and the rest of the country, regardless of what President Ramaphosa might have promised and committed.

The TKLB purports to be about the recognition of Khoi and San communities, which is long overdue. But it also repeals and replaces the legislation dealing with all traditional leaders in South Africa. It treats Khoi and San leaders differently from the traditional leaders associated with the former homelands. Khoi and San leaders get jurisdiction only over the people who choose to affiliate with them. They do not get jurisdiction over specific areas of land. But all other traditional leaders get jurisdiction over the tribal areas delineated in terms of the Native Administration Act of 1927 and the much-resisted Bantu Authorities Act of 1951. These tribal boundaries exist ‘wall-to-wall’ within the former homelands and are deeply disputed in many instances.”

In other words, legislators are attempting to smuggle some other issues into this bill in order to give further credence to traditional leaders. I am acutely aware that we have a general election coming up but this is not the way we must appease certain groupings in our country.

Clause 24 of the TKLB provides that traditional councils, headed by traditional leaders, can sign deals binding all the people within their apartheid-era tribal jurisdictions without obtaining the consent of those whose land rights are undermined or dispossessed by such deals. The deals may be with mining companies, property developers, tourism ventures, agricultural companies, municipalities or anybody else.”

It also states that “mining houses have allegedly been encouraged by the Department of Mineral Resources to sign multibillion deals with traditional leaders. These deals are legally precarious on a number of grounds.”

In short, our people in and around those affected areas in mining settlements again are at the receiving end and not getting anything worthwhile out of these deals.

I need not remind the ANC that simple observation and indeed exile experience tells us that the two major dark spots on the African Continent are Tribalism and a distant second, corruption. It is rather apparent that we are tackling the latter challenge, but it does seem that we are falling into the trap of allowing the sprouts of tribalism in Mzansi. This is a very dangerous path we are on. So, what is at stake?

This is a fundamental betrayal of rural struggles against the Bantustans and autocratic forms of chieftains’ power. Inkosi Albert Luthuli and ZK Matthews had a vision of customary law feeding into, and becoming part of, South African law. But legislation such as the TCB and TKLB takes us back to segregated legal systems and segregated systems of property rights applying only in the former homelands. Citizenship and property rights are no longer denied on the basis of race but instead by geographical boundaries that are deeply racially inscribed. It is a return to tribalism and contrary to everything that people fought for in the struggles against colonialism and apartheid.”

Mining and the Bantustans have been the key drivers of structural inequality. This bill reinforces the modus operandi of both. It pre-empts an inclusive vision of mining that could benefit rural communities and lead to stability. The mining industry and government appear to consider it more important to cut politically connected elites into profits generated by mining than to set up a regulatory system that provides protections and oversight for the vulnerable.

So what does LARC propose is to be done?

Spread this information far and wide. Push for debates on radio stations, particular vernacular radio stations. Political parties seem to believe that traditional leaders will deliver the rural vote. Let rural voters tell them what they think about measures such as the TKLB and the Traditional Courts Bill.

Support the struggles of rural people affected by mining. Reach out to rural community groups who are waging lonely life-and-death struggles to hold on to their land. Break the divide between urban and rural spaces. Show rural people that urban people understand and support their struggles.

Reach out to those in business and in the mining industry. Challenge them to explain why they negotiate with traditional leaders rather than with the people directly affected by mining on their land. Challenge them to explain why they prefer to cut politically connected elites into mining, rather than compensate the people directly affected for their lost livelihoods and the environmental devastation that many mining projects leave in their wake.

Challenge politicians to explain why they have resorted to the same stereotypes used during colonialism and apartheid to deny black property and citizenship rights. Then and now we are told that customary systems do not deliver property rights to families and individuals. This makes their land “free for the taking”.

Then and now we are told that rural people are primarily rural subjects as opposed to “equal citizens” of South Africa.

We have fought long and hard for the equality of all South Africans. We have fought against homelands and traditional authorities with their backward sexist and racist practices over the years.

A reversal of any of these gains over the last 24 years would be a crying shame and, dare I say, to the ANC have devastating consequences for the party over time.

Forward ever, backwards never. We will not stand idly by while our gains are eroded by ill-informed parliamentarians or hidden traditionalists. This is not what the ANC is known for, or stands for. DM

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