Traditional governance has become the new talk of the South African Parliament. During Parliament’s recess, special sittings were convened to consider and rush through three controversial “Bantustan Bills”: the Traditional Leadership and Governance Framework Amendment Bill, the Traditional and Khoi-San Leadership Bill and the Traditional Courts Bill.

These bills entrench apartheid boundaries, effectively bringing back the Bantustans because they only apply in the former homelands. Therein, live approximately 18 million people who will be forced to submit wholly to the benevolence of traditional leaders as subjects with no choice of voluntary opting in or out from this system.

In “democratic” South Africa, black people are still fighting against raiding in their land from the extractives industry which sucks their mineral wealth dry, while they remain landless and poor. Black women, especially, are still fighting for their right to access and use the land and natural resources of their foremothers and forefathers.

When reading the Traditional Leadership and Governance Framework Act of 2003, together with the Bantu Authorities Act of 1951 which gave the traditional leaders of that era the right to establish land rehabilitation measures, there are many similarities. These “rehabilitation” measures such as fencing of the land and the employment of herdsman who stole cattle, only served to dispossess black people of their land, impoverishing them even further.

In the early 1940s, the idea of placing borders in South Africa that are disguised as Bantustans was developed so as to remove the only relevant means of survival. At that period there was a level of resistance but apartheid was able to use chiefs to gain access to the resources and cheap labour. The 1960s saw mass organising and resistance against Bantustans.

Black South Africans in the former Bantustans still fight this battle in 2019; under the banner of “Stop the Bantustans Bills” campaign, rural people continue to organise and resist.

The state uses colonial-era institutions by co-opting greedy and unaccountable traditional leaders to satisfy the demands of capitalists by extracting mineral resources in black rural communities. The Traditional and Khoi-San Leadership Bill (TKLB) and the Traditional Courts Bill (TCB) prove this collusion between government and big business.

The Department of Justice and Correctional Services, as well as the Department of Cooperative Governance and Traditional Affairs and the National House of Traditional Leaders are working together with capitalists to rob black rural communities of their land. The latest versions of these Bills disaffirm the efforts made by rural citizens in this battle against capitalism and dispossession.

Communities like Marikana, Xolobeni, and Makhasaneni continue to fight against the wrath of the capitalist framework, made possible by this collusion with traditional leaders to oppress rural communities. It cannot be that traditional leadership and our “democratic” government continue to put rural communities up for sale.

The TKLB passed by the National Assembly on 26 February 2019, subverts principles of democracy. It gives traditional leaders the right to engage in any partnerships and agreements with third parties without the consent of the people whose land rights are for sale. This provision under clause 24 contradicts the principles of Free, Prior, Informed Consent (FPIC) which is an internationally recognised right under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). More importantly, the Interim Protection of Informal Land Rights Act of 1996 (IPILRA) safeguards the informal land rights in communal areas with provisions for how community consultations must be carried out in the event that a community seeks to dispose of its rights in land. The TKLB does not adhere to living customary law and it is deaf to the system of accountable and participatory decision making.

The TCB is no better. According to the Land and Accountability Research Centre (LARC), the TCB was first introduced in 2008. It discriminated against women and denied people the right to opt out of their legal jurisdiction and confined them to use the courts of the traditional leaders in whose area of jurisdiction they lived.

The TCB also gave traditional leaders the right to banish people, practise forced labour and refuse people their customary rights as punishment. The violent extent of the powers granted under the TCB can be likened to those of the abaThembu King Buyelekhaya Dalindyebo imprisoned for kidnapping, arson and assault. The TCB was re-drafted in 2012; rural communities resisted yet again. This draft gave traditional courts the sole authority over jurisdiction in their geographic areas. Traditional leaders had powers to summon people since they would be the presiding officers of those courts. This draft of the TCB condoned women’s inability to represent themselves in court, and still condoned the violence that some traditional leaders practised. Institutions such as marriage would be used to strip black widows of their land rights in these traditional courts. In 2017, a revised version of the TCB was presented to Parliament which protected the rights of those marginalised because of their gender, sexual orientation, etc. This version of the TCB had an opt-out clause, giving people the right to choose which court to take their matters. It also recognised the existence of other conflict resolution forums. Irrationally, the Justice Committee dismissed this progressive version in March 2018 and the other amendments proposed. The current TCB has no opt-out clause and there is an appeals process as a means to ensure matters are exhausted internally before they are taken to the magistrate’s courts. The TCB violates both the constitution and customary law on dispute resolution within traditional communities.

Since 1994, the government has put the lives of black people on the line and continues to sell natural resources to the highest bidder. By passing the “Bantustan Bills”, the state perpetuates this legacy. According to a Daily Maverick article written by Peter Delius, the Mineral and Petroleum Resources Development Act of 2002 gives traditional leaders the right to continue to facilitate deals with mining companies without consulting the community members who have rights on the land.

Government and traditional leaders are working tirelessly to grant mining companies access to resources such as platinum, titanium, palladium, chromium and vanadium. All at the expense of poor and disremembered rural communities. A number of traditional leaders have engaged in these types of deals with third parties already, without observing customary law in how resources should be allocated: King Zwelithini through the Ingonyama Trust, Kgosi Nyalala Pilane of the Bakgatla Ba Kgafela and Kgosi Edward Mogale of the Bapo ba Mogale, among a few.

The land reform processes and land redistribution policies continue to deny black rural communities’ rights to access land and mineral resources. The supposed benefits of tourism are still only enjoyed by capitalists and the political elite. The resorts and lodges that are being built around South African such as Mkambati, Babanango or Sabi-Sabi are only enjoyed by the rich. The TKLB and TCB stand in the way of local enterprises in these rural areas; communal resources will be depleted by the proliferation of mines, lodges and other “developments”.

Traditional leadership remains a complex subject matter in rural communities that have a history of resistance. South Africa has a very vivid history of resistance against colonialists taking over land in the outskirts of the country. Areas such as the lands of amaMpondomise and abaThembu have a history of organising against such invasions. uPoqo was formed in these lands to fight against the Bantustan leaders of those days such as Chief Matanzima and the apartheid regime. Even though the Constitution protects the property rights of all people, the land and mining rights of rural communities are fair game for big business.

Traditional governance, as it stands, is a white-washed version of African leadership; these distortions will be cemented in law if the Bantustan Bills are passed.

The fight against the TKLB and TCB is a fight for rural democracy. South Africans must unite in resisting the wrath of capitalism and support rural communities in the fight against these bills.

Black people have histories hidden in these Bantustans, and the deals being signed to sell their land to capitalists will see to it that they lose more than just their homes or fields.

We must stand against the violence that rural communities face; in Xolobeni up to 12 land activists have been killed in this battle and across the country many other human rights defenders are victimised.

The struggles of land occupations in townships like Freedom Park are linked to the struggles in Xolobeni, Makhasaneni, Cala, Mapela, Bapong or anywhere else where democracy is threatened. The struggle for land is universal.

The final destination of this battle is for us to reject any system that upholds the Bantustan framework in rural South Africa, or upholds the dispossession of land, legalised first in the 1913 Land Act and continues today with the denial of land justice for the black masses of South Africa. Rural communities on 5 June, in their hundreds, showed us the way. It is a grave pity that the president of the sixth administration, Cyril Ramaphosa, failed to honour his commitment to responding to our memorandum seven days later.

It is not surprising then, that his first SONA on the evening of 20 June, was silent about the STBB campaign. We remain undeterred, however, and convicted in our resolve. We are calling on all South Africans to continue supporting rural communities until this battle against these Bantustan Bills is won! Aluta Continua! DM

Constance Mogale is a land activist, organiser and national coordinator of the Stop the Bantustans campaign. Mogale wrote this piece for the Alliance for Rural Democracy.