Rural Land Justice (Special Edition of the People's Law Journal)

APRIL 2016 PLJ PEOPLE’S LAW JOURNAL RURAL LAND JUSTiCE PLJ i PEOPLE’S LAW JOURNAL RURAL LAND JUSTICE Land and Accountability Research Centre (LARC) Funeka Miriam Mateza of Cala, Eastern Cape participates in a public hearing on the repeal of the Black Authorities Act, July 2010. — formerly the Rural Women’s Action Research Programme (RWAR) at the Centre for Law and Society CONTENTS Written by the Land & Accountability Research Centre Faculty of Law All Africa House University of Cape Town Private Bag X3 Rondebosch 7701 Cape Town South Africa Introduction: The Struggle for Land Rights in South Africa 1 Customary Law: Some Introductory Thoughts 5 Patriarchs and Pariahs: The Geography of Traditional Leadership 11 Overturning Dispossession: Land Restitution in the Post-Apartheid Era 16 Tel: +27 27 650 3360 Fax: +27 21 650 3095 Empty Promises? Big Talk as Funds for Land Reform Diminish 21 Authors and contributors: Aninka Claassens, Michael Clark, Alide Dasnois, Monica de Souza, hiyane Duda, Daniel Huizenga, huto hipe, Tara Weinberg, and Zackie Achmat. The Politics of Recapitalisation: How Land Redistribution Funds are Being Diverted to Elites 27 Special thanks to the generous contributions of LARC’s funders: Atlantic Philanthropies, Claude Leon Foundation, Heinrich Böll Foundation, Millennium Trust, and the RAITH Foundation. A Luta Continua: New Laws are a Setback for Rural Women 35 “Cleansing of the Statute Book”: Customary Law, Inheritance and the Right to Equality 41 Centralisation without Consent: Rural Communal Land Rights under Threat 47 To the Heart of Land Reform: The Bakgatla ba Kgafela CPA at the Constitutional Court 55 Mining Law: Know the Law, Know Your Rights 60 “They are Robbing Us”: How Mining is Affecting the Residents of Makhasaneni 62 Protecting the Land Rights of Rural People: Is the IPILRA the Answer? 69 Edited and published by Ndifuna Ukwazi Oice 302, 47 on Strand Strand Street Cape Town Tel: +27 21 423 3089 Fax: +27 21 423 7554 Email: [email protected] NU funders: Ford Foundation, RAITH Foundation, Hivos, Open Society Foundation, Millennium Trust, Wallace Foundation, South African Development Fund, International Budget Partnership Printed by Creda Design & layout by Chloë Swingewood he views expressed in this guide are those of the authors and do not necessarily relect those of the aforementioned funders. INTRODUCTION he Struggle for Land Rights in South Africa F rom the arrival of Dutch settlers in the Cape right through to the fall of apartheid, the expansion of colonial power in South Africa was epitomised by the growth of white-controlled territory and the corresponding loss of land by Africans. A range of treaties and laws cemented these relations, and over time radically restricted African people’s land ownership – eventually shrinking this to just 13% of the total land in South Africa (under the 1913 Natives Land Act and later the 1936 Native Trust and Land Act). The term ‘Bantustans’ was first used in the 1940s, and before long it came to denote the homelands set aside by the apartheid government for black ethnic groups both in South Africa and South West Africa. These regions were specifically designated for black people living under ‘tribal’ leadership, and were treated differently from the rest of the country. Through this project of fragmentation, the government sought to strip black people of their South African citizenship and, by extension, many of their rights. The opening lines of the 1993 Interim Constitution reincorporated the homelands into a unified South Africa. It ensured a system of elected local government, replacing ‘tribal’ governance within the former Bantustans. In section 25(6) of the 1996 Constitution, equality with respect to land rights was affirmed with the words: “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.”1 And yet, more than 20 years on, and notwithstanding the government’s plans for land restitution, the realisation of this constitutional ideal remains elusive in many rural areas, and especially for those who live in the former homelands. Several nongovernmental and communitybased organisations have expressed concern that current and proposed legislation either weakens or has the potential to 1 Section 25(6) goes hand-in-hand with section 25(9), which compels Parliament to enact the prescribed legislation. PLJ 1 In troductIon In troductIon weaken the security of land tenure of these rural communities. Given the importance of land rights in any equal and just society, this volume of the People’s Law Journal (PLJ) focuses on South Africa’s historically marginalised peoples, with particular emphasis on their (lack of ) access and rights to land. A number of articles examine the extent to which post-apartheid laws have addressed the legacy of past administrations, while some reveal the ongoing challenges confronting the residents of the former homelands today. We begin with an introductory chapter on South African customary law, in which it is argued that such a legal system should be interpreted by the judiciary as ‘living’ (and not codified). The second section then reveals how South Africa’s democratic government has come to rely on the homeland boundaries, set down by the 1951 Black Authorities Act, in its administrative mapping of traditional leaderships. Through an analysis of the Restitution of Land Rights Act – which was passed in 1994 to address the grievances of people previously dispossessed of land whether by forced removals or other discriminatory practices – the issue of land restitution in the former homelands is then brought to the fore in Chapter 3, 2 PLJ with reference to the experiences of many residents who have taken part in this drawn-out process. Chapters 4-6 focus on questions of finance, examining the limitations of restitution rights, budget allocations, and the broader financial implications of land reform for government. Chapter 7 analyses South African land reform from the perspective of rural women, with a focus on the ways in which women have navigated and negotiated the terms on which they have accessed land for themselves and their families. What follows is then an analysis of Bhe and Others v Khayelitsha Magistrate and Others, a case involving customary law and land rights which reached the Constitutional Court in 2004. Chapter 8 examines the status of communal land in South African law, drawing attention to the types of rights that individuals and groups can claim, and how land in communal areas is allocated. A second landmark case, heard at the ConCourt in 2015, is then examined. It involved the Bakgatla ba Kgafela Communal Property Association’s capacity to hold platinum-rich land on behalf of restitution beneficiaries in the North West Province. The next two sections relate specifically to mining law – Chapter 10 provides an overview of the land rights of people living in mining areas; and, through a case study of Makhaseni in KwaZulu-Natal, Chapter 11 illustrates how mining companies and traditional authorities have ignored people’s individual and collective land rights by failing to consult with them properly. This volume of the PLJ concludes with a chapter on the Interim Protection of Informal Land Rights Act (IPILRA) which, passed in 1996, seeks to provide tenure security to people with informal land rights. Debates in recent years have highlighted contradictions in understandings of who owns the land in traditional council areas, giving rise to insecurity and vulnerability among residents. This article therefore offers suggestions as to how this situation can be improved. In closing, it is important to acknowledge the authors of this publication. At the University of Cape Town, researchers based at the Land and Accountability Research Centre (LARC) – formerly the Centre for Law and Society (CLS)’s Rural Women’s Action Research Programme (RWAR) – worked in collaboration with colleagues and activists from partner organisations. Unless otherwise specified, each article in this edition was authored by the LARC team rather than by any individual researcher. PLJ 3 CUSTOMARY LAW Some Introductory houghts 4 PLJ PLJ 5 customary Law customary Law “Rural people are facing critical times when all people are free … Facing a chain of taxation, being in the position of losing rights of land without compensation, put on the street as wild animals, treated not as South Africans, forced with custom which comes from apartheid boundaries, women are not encouraged to participate in all matters freely.” Melmoth Black Farmers Association, KwaZulu-Natal (2014) A consultation between the Mohlohlo farming community and its lawyers, Richard Spoor and Steven Goldblatt, to discuss attempts by the Anglo-American Corporation to make room for a platinum mine by forcing them off their land, Mokopane, Limpopo, 2006 (David Goldblatt). W hat is customary law? How is the content of customary law determined? Since 1994, the Constitutional Court has dealt with several important questions related to customary law – in cases regarding land, marriage, divorce, inheritance, leadership, and political association. Judgments on these cases provide insight into how living customary law is developing in the Court and how its evolving content is understood and applied in relation to rural land rights. According to the ConCourt, customary law must be understood as ‘living’ – in other 6 PLJ words, it is law derived from the actual practices, principles and negotiations that people use and engage with in their everyday lives. ‘Living’ customary law is defined in contrast to an understanding of customary law that is ‘codified’ (written down) and thereby strictly defined. Such an interpretation reflects the Court’s desire to protect constitutionalism and democratic process in customary law. Several ConCourt judgments, two of which are discussed below and another on page 41, open up opportunities and spaces, sometimes unexpectedly, for ordinary people to assert Customary law of succession: The Shilubana case S hilubana v Nwamitwa, a case decided in 2008, arose from a decision made by the Valoyi royal family of the Limpopo region to award the chieftainship to Tinyiko Shilubana, the daughter of the previous chief, Fofoza. As Fofoza had fathered only daughters, when he died in 1968 the chieftainship had passed to his younger brother, Richard Nwamitwa. When the latter died in 2001, the community resolved to appoint Ms Shilubana as hosi (chief). In its resolution, the community noted that although “in the past it was not permissible by the Valoyis that a female child be heir, in terms of democracy and the new Republic of South African Constitution it is now permissible … since she is also equal to a male child.” The Premier of Limpopo Province Ngoako Ramathlodi duly appointed Tinyiko as hosi. But her cousin, Sidwell Nwamitwa, the son of Richard, challenged her appointment, saying it was contrary to customary law. The Pretoria High Court and later the Supreme Court of Appeal ruled in Sidwell’s favour. However, Shilubana successfully appealed to the Constitutional Court, where the judges found that the Valoyi royal family did have the authority to develop its own customary law of succession, adding that “the free development by communities of their own laws to meet the needs of a rapidly changing society must be respected and facilitated” (Shilubana, para 45). The judgment went on: “[A] court must consider both the traditions and the present practice of the community. If development happens within the community, the court must strive to recognise and give effect to that development, to the extent consistent with adequately upholding the protection of rights” (Shilubana, para 49). principles of democracy and accountability in customary law. These processes, however, are rarely straightforward; they have been (and will continue to be) contested, even among the judges themselves. Fortunately, the ConCourt has been developing judgments on living customary law which reflect an understanding of power relations and politics in the real world. Right: Hosi Tinyiko Shilubana was the first woman in South Africa to legally contest her right to chieftaincy after the position was assumed by male relatives. Her position was confirmed in the ConCourt. PLJ 7 customary Law customary Law Right of dissent and free association in traditional communities: The Pilane case I CAPTION? n 2009, members of the Motlhabe community in the platinum-rich North West Province wanted to break away from the Bakgatla ba Kgafela traditional community, of which they were a part, owing to problems with the chief and the administration. The provincial government advised that they take steps according to the North West Traditional Leadership and Governance Act of 2005 and the Traditional Leadership and Governance Framework Act of 2003. But before they could take these steps, their plans were opposed by the leaders of the Bakgatla ba Kgafela tribe, who applied to the North West High Court to stop the Motlhabe community from having meetings about the issue. The Court granted the interdict, partly on the grounds that the Motlhabe leaders – members of the royal family of Motlhabe village – had, contrary to certain legal provisions, referred to themselves as the “Motlhabe tribal authority” in a community notice. The High Opposite: Community members celebrate the inauguration of Hosi Tinyiko Shilubana after her appointment was upheld in the ConCourt. 8 PLJ Court and the Supreme Court of Appeal both refused leave to appeal, but the ConCourt heard the appeal and upheld it by a majority of eight judges to two. The dissenting judges, Chief Justice Mogoeng and Justice Nkabinde, suggested that courts should support and protect recognised traditional authorities, and that constitutional rights should be limited, if necessary, in order to achieve this. Chief Justice Mogoeng and Justice Nkabinde wrote: “Traditional leadership is a unique and fragile institution. If it is to be preserved, it should be approached with the necessary understanding and sensitivity. Courts, Parliament and the Executive would do well to treat African customary law, traditions and institutions not as an inconvenience to be tolerated but as a heritage to be nurtured and preserved for posterity, particularly in view of the many years of distortion and abuse under the apartheid regime. “Bearing in mind the need to help these fledgling institutions to rebuild and sustain themselves, threats to traditional leadership and related institutions should not be taken lightly. The institution of traditional leadership must respond and adapt to change, in harmony with the Constitution and the Bill of Rights. But courts ought not to be dismissive of these institutions when they insist on the observance of traditional governance protocols and conventions on the basis of whatever limitation they might impose on constitutional rights” (Pilane, paras 78-79). The two judges supported the Bakgatla ba Kgafela claim that calling a meeting of the Motlhabe villagers “had the potential of creating factions and disorder” which could make the community “ungovernable”, and noted that “[d]isorderliness is on the rise in this country and traditional communities are no exception” (Pilane, para 118). In a judgment written by Justice Skweyiya, the majority of judges dismissed this concern: “I see no reason to believe that the lawful exercise of the applicants’ rights would result in chaos and disorder. Rather, there is an inherent value in allowing dissenting voices to be heard and, in doing so, permitting robust discussion which strengthens our democracy and its institutions” (Pilane, para 69). He concluded that it was within the rights of the Motlhabe community to meet and that the law would not tolerate an attempt to silence criticism or discussion. PLJ 9 customary Law In other words, the judges differed on two questions: • What is the customary law and the traditional leadership that the Constitution says must be nurtured and preserved? • Does preserving it mean that members of the communities affected do not have the same rights and freedoms of association, speech and assembly as other South Africans? The majority found that members of traditional communities do not forfeit their constitutional rights through their membership to those communities. The way forward O ver recent years there have been several legislative efforts to reverse the democratisation project and undermine living customary law. The Traditional Leadership and Governance Framework Act (the Framework Act), the new Traditional and KhoiSan Leadership Bill (that aims to repeal the Framework Act), the Traditional Courts Bill and recent or promised amendments to a variety of land laws all show a desire to put more power in the hands of traditional authorities and traditional leaders and to make them the owners of land and 10 PLJ assets held under customary law. The new laws apply only in the areas set apart by the Bantu Authorities Act of 1951 – namely, the tribal jurisdictions that made up the former Bantustans. This geography consist of the ‘original reserves’ established by the 1913 and 1936 Land Acts, in addition to ‘the dumping grounds’ set aside for the three and a half million people who were forcibly removed from ‘white’ South Africa during the process of Bantustan consolidation. The people who bore the brunt of the Land Acts and forced removals are therefore once again being subjected, by law, and not necessarily by choice, to imposed tribal identities and allpowerful traditional leaders. This raises the fundamental question of whether ‘customary’ law can be imposed on some parts of the country and not others, or rather on some South Africans but not others – without taking into account the wishes of the people concerned. It is one thing to say that, in general, white South Africans do not live according to customary law, and that many black South Africans do. It is quite another to reduce customary law to the power of the chief, to impose it on everyone living within apartheidera boundaries, and to restrict its application to 17 million out of 54 million South Africans. New battles are likely to be waged over the mineral and land rights of rural communities, as we have seen with the platinumrich territories of the North West. They are likely to concern two questions: Who is entitled to the benefits of the mineral rights? And what is the nature and extent of the accountability of the leaders who have control? We can expect fierce disputes, since there are significant vested interests and benefits to be gained or lost in the mining sector. There is also widespread disdain for corruption and the enrichment of a few at the expense of many. Given the recent support the ConCourt has shown for democratisation processes in customary law, now is an optimal moment to bring these issues before the judges. Only five years from now, it is likely that mining rights will have been settled, land rights will have been lost, and much of the membership of the ConCourt will have changed. PATRIARCHS AND PARIAHS he Geography of Traditional Leadership T he Bantustans ceased to exist with the dawn of democracy in South Africa. Despite this, laws relating to traditional leadership and governance still, for the most part, apply in the former Bantustans, or ‘homelands’. This is important for understanding land rights in many rural areas because several laws adopted over the past 12 years have linked people’s land rights to traditional leadership. In this article we explore how, under democracy, the former Bantustans came to be the areas where laws of traditional leadership still apply. It will focus on the land-related laws which have been developed for these areas, while drawing attention to how these laws impact the ways people can exercise their rights to land. Above: A map depicting the former homelands or Bantustans - small reserves of rural land designated to black people in terms of the 1913 and 1936 Land Acts. The areas where current traditional councils govern closely mirror these boundaries. PLJ 11 PatrIarchs and ParIahs The Bantustans T o understand the significance of laws applying only to the former Bantustans, it is important to understand the history and purpose of the formation of the Bantustans, the different ways that their imposition violated people and deprived them of their basic rights, and how the maintenance of these boundaries continues to perpetuate particular forms of violence. Under apartheid, 7% of the land in South Africa was allocated to black people (in accordance with the Land Act of 1913). In 1936, the Natives Trust and Land Act increased this percentage to 13%. The apartheid government used this legislation as the basis for creating ten homelands, each for a different tribe. The creation of these homelands was incredibly violent as hundreds of thousands of people were forcibly removed from their homes. In addition, the Black Administration Act of 1927 gave the Governor General of South Africa the power to create and divide tribes, as well as to appoint and dismiss chiefs. In effect, this enabled the government to call any group of black people a tribe, to decide which tribe any individual belonged to, and to determine which individual should lead 12 PLJ PatrIarchs and ParIahs that tribe. These colonial and apartheid-era interferences had a significant impact on the relationships between chiefs and the people under their leadership, as well as how people held chiefs accountable. The laws governing traditional leaders after apartheid “Awaking on Friday morning, June 20, 1913, the South African Native found himself, not actually a slave, but a pariah in the land of his birth.” Sol Plaatje (writer, intellectual and founding General Secretary of the Native National Congress) on the Land Act, 1913. T he Traditional Leadership and Governance Framework Act of 2003 (the Framework Act) was developed “to restore the integrity and legitimacy of the institution of traditional leadership in line with customary law and practices.” This law made the chiefs, tribes and tribal authorities created before 1994 the new traditional leaders, traditional communities and traditional councils, respectively. Tribal authorities were the local governance structures in the Bantustans. Together, their boundaries made up those of the Bantustans. By converting tribal authorities to traditional councils, the Framework Act maintained the boundaries of the Bantustans. Recent laws that deal Right: Sol Plaatje, seated bottom-right, with other members of the South African Native National Congress Deputation which travelled to London in 1914 in order to challenge the 1913 Land Act (Historical Papers Research Archive, University of the Witwatersrand, Johannesburg, South Africa). PLJ 13 PatrIarchs and ParIahs PatrIarchs and ParIahs traditional councils are being treated as a fourth level of government that only applies to traditional council areas. This is made worse because a large number of traditional councils are not democratically elected. In 2015, the Traditional and Khoi-San Leadership Bill (which will replace the Framework Act) was tabled in Parliament. If this Bill becomes law, it will retain the same boundaries for traditional council areas and strengthen the powers of traditional leaders in these areas. A revised version of the Traditional Courts Bill is also expected in Parliament later in 2016. “Gone was the old give-and-take of tribal consultation, and in its place there was now the autocratic power bestowed on the more ambitious Chiefs, who became arrogant in the knowledge that government might was behind them.” Govan Mbeki (Rivonia Trialist), The Peasants’ Revolt (1964). with traditional councils have applied to traditional council areas, meaning that these laws apply to the former homelands. Although provisions in many of the provincial laws, which related to the Framework Act, allowed for changes of these boundaries, few changes have been made. The Communal Land Rights Act of 2004 (CLRA) gave traditional councils the power to administer communal land and to represent traditional communities as owners of the land. This would have allowed traditional councils control over the occupation, use and administration of communal land. The ConCourt struck down the CLRA in 2010 (see p. 50). 14 PLJ Another proposed law – the Traditional Courts Bill (TCB), first introduced in 2008 and again in 2012 – would have given traditional councils more powers. However, it lapsed in Parliament because not enough provinces voted in its favour. The TCB would have declared that: • It is a criminal offence not to appear before a traditional court once summoned; • Decisions of a traditional court have the same force as those of Magistrates’ Courts; • Traditional courts can impose punishments including unpaid labour; and • Traditional courts can revoke people’s customary rights to land and strip them of membership of their community. In Parliamentary submissions, many women living within traditional communities argued that the TCB would reinforce patriarchal power especially because traditional courts are mostly presided over by men who have the authority to limit the extent to which women can participate. The Constitution allows for national, provincial and local government. Civil-society organisations have argued that Above: Govan Mbeki, former leader of the African National Congress and Rivonia trialist. hierarchies predetermines governance structures as well as the relationship between traditional leadership institutions and the people living under this leadership. The principles of democracy, equality, and freedom to practice one’s culture of choice should decide the parameters of traditional governance and leadership. To imagine African governance systems as bound to Bantustan geographical areas is to merge understandings of African identity and rights with racist frameworks established by the discredited colonial and apartheid governments. Citizens or subjects? T he Bantustans restricted millions of black South Africans to small areas of land, they imposed traditional leadership structures in the place of government bodies that served ‘white South Africa’, and they treated people as ‘tribal subjects’ rather than citizens. The continuation of the artificial boundaries of so-called traditional areas threatens to perpetuate many of the founding values and goals behind the tribalising of black people through the Bantustans. In many ways, this use of old geographical boundaries and leadership PLJ 15 overt urnIng dIsPossessIon Law as a Tool of Dispossession • OVERTURNING DISPOSSESSION Restitution in the post-apartheid era 16 PLJ O ver the course of the past 400 years, black people in South Africa have been repeatedly dispossessed of their land, rights and livelihoods. Dispossession arose in many forms, from colonial wars of conquest to the economic forces that pushed the African peasantry into the wage-labour system on white-owned farms and mines, and the laws that were backed by the might of the colonial and apartheid governments. The 1913 Land Act was one of a series of laws that dispossessed black people of their land and rendered their rights to land insecure. One of the Act’s intentions was to further sideline African farmers and labour tenants and to force black people into becoming labourers in the cities or on the mines on terms set by white owners (Colin Bundy, The Rise and Fall of the South African Peasantry, 1979) Our Constitution recognises that it is crucial that we roll back the legacy of land dispossession which has resulted from colonialism and apartheid. The Restitution of Land Rights Act, passed in 1994, was one of the laws intended to address the legacy of dispossession in South Africa. It opened a window of five years – between 1994 and 1998 – during which people could lodge claims for land on which their ancestors had once resided. Then, two decades later, a new Restitution of Land Rights Amendment Act was passed, opening a second window from 1 July 2014 until 30 June 2019. While the restitution programme Top left: A man leaving Magopa during a forced removal, 1983 (Paul Weinberg). • The 1936 Native Trusts and Land Act increased the African reserves slightly (from 7% to 13% of the country). The 1936 Act also established the ‘6 native rule’, which meant any group of more than six black people who had purchased land together had to constitute themselves as a tribe under a chief or they would lose their land. This law distorted local and customary land systems in favour of an undemocratic model that was easier for the government to control (Aninka Claassens, has made some progress, it has also been riddled with problems. In particular, the programme has been very slow to settle and finalise claims. There remain 30,000 claims which have not been completely resolved. It is not surprising, then, that the most vocal opposition to the Restitution of Land Rights Amendment Act came from among the tens of thousands of dispossessed people who had waited almost 20 years for their claims to be settled, their land to be transferred, or their compensation to be paid out. The frustration of these claimants bubbled over at public hearings that Parliament and the Department of Rural Development and Land Reform (the Department) held on the • “Power, Accountability and Apartheid Borders” in Land, Power & Custom, 2008) After the passing of the Group Areas Act (1950) and the Bantu Authorities Act (1951), the apartheid government embarked on several waves of forced removals, lasting until the late 1980s. Bulldozers swept across cities and the countryside, inflicting violence to Black, Coloured and Indian people by destroying their homes, neighbourhoods and ways of life. re-opening of claims in 2014. One woman from Port Elizabeth said government officials had told her that, if she put in a land claim, she would receive enough land to make her “faint”. “I want to faint!” she exclaimed at the hearing. “Will I ever faint?” “A person or community dispossessed of property after 19 June 2013 as a result of racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.” Section 25 (7) of the Constitution PLJ 17 overt urnIng dIsPossessIon Land restitution: A magic solution? W ith the land redistribution and land tenure reform programmes still far from their targets, the urgency with which the state pushed through the re-opening of restitution claims was telling. It indicated that the government regards it as the answer to South Africa’s complex land reform dilemmas. But there are numerous problems that look likely to hamper the restitution programme as new claims are lodged. Among the most pressing is the lack of state funds allocated to the re-opening of land claims (see p. 21). This suggests that the government is selling empty promises. overt urnIng dIsPossessIon years. But the current budget for land restitution is much lower than this – closer to R2.7 billion per year. What does this mean? That it would take another 121 years to settle all claims. Since it would take so long to settle all the claims, the Restitution Commission will need to prioritise certain claims for settlement. People whose claims have still not been settled since 1998 have lobbied for their claims to be ring-fenced and fully resolved before new claims are settled. There are fears that, without transparent guidelines in place to decide whose claims will be settled first, the Commission will prioritise claims by people with political power behind them, such as traditional leaders. RESTITUTION IN NUMBERS (as of 1 April 2015) How long until all restitution claims are resolved? I n order to meet its goal of resolving all existing and new claims (409,000) in the coming 15 years, the government would need to speed up its settlement rate six-fold. Assuming that the new claims will be as cheap and easy to settle as past claims (an unlikely prospect), it would require an annual budget of R12 billion over a period of 15 18 PLJ 57 300 claims have already been lodged since July 2014 379 000 new claims are expected before 2019 121 years the time it would take to finalise pre- and post-1998 land claims if claims continue to be settled at the current rate The 1913 cut-off date and traditional leaders’ claims M any traditional leaders have made it clear that they intend to lodge land claims. One is due to be lodged on behalf of the Zulu king, King Goodwill Zwelithini, together with the Ingonyama Trust, for possibly the entire province of KwaZulu-Natal (KZN) – including the Durban Metro – as well as parts of the Eastern Cape, Mpumalanga and the Free State. The intention is to reclaim land taken from the Zulu kingdom during the colonial period — from 1838 onwards — first by the Voortrekkers and then by the British. Indeed, President Jacob Zuma has been encouraging traditional leaders to make such land claims. In his speech to the National House of Traditional Leaders in 2014, he told traditional leaders to get “good lawyers” so that they could put in land claims. But according to the Restitution Act, only people who were dispossessed of land after 1913 qualify for restitution. This means that if King Zwelithini were to lodge a claim for land lost in 1838, that claim would not be valid. The same of course applies to any other traditional leaders who try to claim land lost before 1913. Nevertheless, claims by traditional leaders on behalf of people still raise many concerns. Claims by traditional leaders often do not take into account the complex history of the areas from which they arise. In some cases, many different groups (families, clans etc.) have occupied the same piece of land at different points in time. The situation is particularly dangerous in places like KZN, where there is a history of violent entanglements around issues of land and traditional leadership. For example, in Babanango, a small town in KZN’s Zululand municipality, a group filed a land restitution claim and labour tenants’ claim many years ago. Authorities say that these claims are still “being processed”. King Zwelithini has recently begun laying the foundations for the building of a royal palace on the Babanango land. While the King negotiates via the Amafa Heritage Council, on the grounds that the area is an important Zulu heritage site, fences have been erected preventing the local people from accessing water and pastures for their animals. CPAs versus traditional leadership T he second window for restitution claims has been accompanied by a policy shift which, in effect, reduces the options available to would-be claimants and encourages them to identify with traditional leaders. Particularly under threat are Communal Property Associations (CPAs) which, established in 1996, ensure that land reform beneficiaries can acquire and manage land as groups. According to the Communal Property Associations Act of 1996, CPAs are intended to give effect to the democratic decisionmaking processes envisioned by the writers of the Constitution. However, two policies developed by the Department in recent years – namely, the Draft Policy Paper on CPAs and the Communal Land Tenure Policy – have sidelined CPAs in favour of traditional leaders. The Department’s policy says that no new CPAs will be established in areas where traditional councils already exist. In the Eastern Cape and North West, there are several groups of restitution claimants who have experienced severe delays, either in the transfer of land to their CPAs or the registration of the CPAs themselves (owing to objections by traditional leaders). Restitution is a vital component of South Africa’s land reform programme. And yet the reopening of the window has gone hand-in-hand with the government’s efforts to favour PLJ 19 overt urnIng dIsPossessIon How the law protects restitution claimants: • Section 18 of the Constitution protects the right to freedom of association. This means that you can choose how you want to identify yourself or your group when you make a claim. It can be a problem if a traditional leader puts in a claim on your behalf without your consent. elites, including traditional leaders and mining magnets, while sidelining the people whose ancestral land was taken from them as the result of racial discrimination. In light of the slow settlement of restitution claims and traditional leaders’ stated intentions to lodge claims, the government must 20 PLJ • To lodge a restitution claim, you do not have to align with a traditional leader, council or tribe. Section 2 of the Restitution Act confirms that the key criterion for claiming is that you must be “a person, community or part of a community dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices”. take action to protect people who lodged claims before 1998. If it does not do so, it will be in violation of section 25(6) and section 25(7) of the Constitution, which provide for security of tenure and restitution for people who were dispossessed of their land, respectively. • Note that the Restitution Act defines a community jointly of people who hold land jointly and have shared rules about how to hold, access and manage the land. The definition also provides that a community could be a part of a larger group. EMPTY PROMISES? Some tools remain open to people whose rights to restitution have been or are now at risk of being violated. Two of these tools are the protections provided for in the law and the ability to organise on a mass scale. Big talk as funds for land reform diminish G overnment says it is committed to land reform but there is not enough money in the land reform budget to deliver on these promises (and this is not the first time). When President Jacob Zuma announced in 2013 that the land restitution process would be reopened and that people would be able to lodge new claims until the end of June 2019, the government promised that it would dedicate the resources required to deal with the expected 379,000 new claims (at an estimated cost of R180 billion). Government also promised to prioritise the approximately 30,000 outstanding claims (lodged before the first deadline in 1998). However, the most recent national budget clearly shows that there is not enough money in the budget to deliver on government’s promises. The funds have not been made available T he total funding available for land restitution in the 2016/17 budget (the latest budget) of the Department of Rural Development and Land Reform (or Department) is 8% more than it was in 2015/16. The funding for land redistribution and tenure reform (grouped together in the budget) is 0.1% more than it was in 2015/2016. Such small increases mask how much the land reform budget has declined over the last six years. In fact, until this year, the land reform budget has been shrinking annually. The trend is alarming. As shown in the figures on page 22, soon after President Zuma’s government took office, the land reform budgets were increasing. However, since 2010/2011, they have decreased considerably. Overall, the land reform budget under President Zuma is far lower than the budget during most of President Thabo Mbeki’s second term. PLJ 21 overt urnIng dIsPossessIon overt urnIng dIsPossessIon 1+9 Land reform makes up 0.4% of the national budget (2016) Budget Trends for Land Restitution and Redistribution 2008-2015 (Inflation adjusted in 2015 constant Rand) 6.0 TOTAL BUDGET, R MILLIONS 5.5 Restitution 5.0 Redistribution 4.5 4.0 3.5 3.0 2.5 Government’s land reform programme includes three projects aimed at undoing the effects of land dispossession under apartheid: 2.0 2008/09 2009/10 2010/11 2011/12 2012/13 2013/14 2014/15 2015/16 3,4 2,8 2,2 • LAND RESTITUTION refers to the process of returning land to people who were dispossessed of their land under apartheid. • LAND REDISTRIBUTION refers to the process of changing the racial patterns of land ownership in South Africa. Under apartheid most black people were not allowed to own land and this project tries to rectify this. • TENURE REFORM refers to processes that try to strengthen the rights that people have over land, especially when those rights are weak as a result of apartheid. 1,6 1 Total Funds for Restitution Capital Funds for Restitution 2013/14 22 PLJ Total Funds for Redistribution and Tenure Reform 2014/15 Capital Funds for Redistribution and Tenure Reform 2015/16 PLJ 23 overt urnIng dIsPossessIon emPty P romIses? Budget trends in restitution and redistribution, 2008– 2015 T o make matters worse, the increase in funding for land restitution is mostly to pay for travel costs, research consultants and additional staff at the already overburdened Commission on Restitution of Land Rights. Only a portion of the whole ever reaches the claimants. Funds for land reform speeding up land reform, settling old land claims, and dealing with the flood of incoming new land claims. The Treasury is also unwilling to fund new schemes such as that of paying farmers 50% of the value of their land (without the farmers’ giving it up) in return for shares for a small fraction of their workers. Instead, the National Treasury is putting in only enough money for the land reform process to march on at its current snail’s pace. The budget figures clearly show that Government is not prioritising land reform even though it claims to be. I n general, land reform is not well-funded. It usually makes up about 1% of the national budget. In 2016, however, the land reform budget makes up only 0.4% of the national budget (see R. Hall, “Land reform: The Time Bomb Ticks”, PLAAS Blog: Another Countryside, February 2016). What does the lower budget tell us? T he budget suggests that, in practice, the National Treasury does not conform to the policy talk of Government. It is not prepared to fund the Department’s promises of expanding certain programmes, 24 PLJ PLJ 25 THE POLITICS OF RECAPITALISATION How Land Redistribution Funds are Being Diverted to Elites 26 PLJ PLJ 27 the PoLI tIcs of recaP I taLIsatIon the PoLI tIcs of recaP I taLIsatIon T he Department of Rural Development and Land Reform (the Department)’s only funding initiative for land reform beneficiaries, called the Recapitalisation and Development Programme (or RECAP), seems to be diverting funds away from land reform and towards a small group of commercial farmers and preferred ‘strategic partners’. According to the new land policies, the only way to acquire financial support for land received through a land reform programme is through the RECAP. The two previous grants that were awarded in terms of the land redistribution programme (the Restitution Discretionary Grants and Settlement Planning Grants) have been discontinued. In order to receive a RECAP grant you must prove that you have a business plan and a strategic partner. Empowering or exploiting? I Previous page: photo by Chris Morris (2014) 28 PLJ nstead of using the RECAP programme to help new farmers, many of these strategic partners are ‘farming’ state subsidies. A 2013 report, commissioned by the Department of Planning, Monitoring and Evaluation (DPME) in the Presidency, found that beneficiaries in North West and the Free State are particularly unhappy with their strategic partners, raising serious questions about whether they are actually empowering or exploiting land reform beneficiaries. The report investigated strategic partners attached to projects in Gauteng, North West, Limpopo, the Eastern Cape, KwaZulu-Natal and the Free State, and found that the majority of strategic partners reside in Gauteng. A number of beneficiaries said they felt strategic partners were “imposed” on them. Many beneficiaries also commented that they had little control over their own RECAP funds. February 2015 meeting of the Parliamentary Committee on Rural Development and Land Reform. “Action needs to be taken. This is wasteful and fruitless expenditure,” said one MP. “Budget is flowing but the services are not coming,” said another (Parliamentary Monitoring Group (PMG), “Public Hearings on Implementation of the Recapitalisation and Development Programme”, Public Monitoring Group, 4 February 2015: https://pmg.org.za/ committee-meeting/19977/). Misallocations The DPME report contained further alarming findings on RECAP: • The average expenditure per beneficiary in the Free State is R1.02 million, but RECAP has not created a single full-time job in the province; • RECAP swallows at least a quarter of the Department’s yearly budget; • The national average expenditure is R2.9 million per project and R463,284 per beneficiary; • The average cost per job created by RECAP is R588,284. This led to an outcry at a T he RECAP programme was launched to support people who were given land under the restitution or redistribution policies after 1994, but did not get adequate follow-up capital and support to farm productively. The DPME report shows, however, that only 29 grants in its sample went to restitution projects and 16 to land redistribution beneficiaries. In the same period, 564 grants went to new commercial ventures, most of them on land owned by government and leased to ‘beneficiaries’. So RECAP funding is more often going to new commercial projects than to land restitution and redistribution claimants (which is what it was intended for). At the February 2015 parliamentary meeting, Grain SA told MPs that only 32 of its 600 black emerging farmer members had received RECAP grants. Their 3,500 members in ‘communal areas’ were told the policy did not apply to them (PMG, “Public Hearings on Implementation of the Recapitalisation and Development Programme”, Public Monitoring Group, 4 February 2015). The South African government uses the term communal areas to refer to all land in the former Bantustans. Many of the bigger grants are going to a few people with political connections. Farmers who were already financially strong “bypassed provincial government officials and contacted senior politicians to have their farms prioritised for recapitalisation,” the DPME said in its report. Elite capture T he way that RECAP is being implemented fits the broader picture of elite capture across all aspects of land reform. Far from the PLJ 29 the PoLI tIcs of recaP I taLIsatIon the PoLI tIcs of recaP I taLIsatIon “Land reform is not only about agriculture but agriculture is a crucial component of land reform. Land reform should address the various land needs of the beneficiaries … post settlement should not only be seen in terms of the Farmer Support Programme or the existing Recapitalisation and Development Programme which targets farming with strategic partnerships.” Ad hoc committee on the legacy of the 1913 Land Act, Report, November 2014. land reform budget supporting redistribution to the poor, it entrenches inequality between the rich and poor. Land reform programmes should be geared towards redressing the terrible legacies of the dispossession of black South Africans and the persistent, unequal distribution of land and resources. But RECAP, like other land reform policies such as the Communal Land Tenure Policy (CLTP), denies the substantive land rights of people living in rural areas by making their ability to use their land conditional upon their ability to draw up a commercial business plan and the actions of imposed strategic partners (see p. 47). “I guess elite capture is part of the process,” the Department’s Director General Mdu Shabane said at the February 2015 meeting in Parliament. “We’ve seen people coming from nothing and becoming so powerful. They have a vision of saying they want to make a billion. I think that’s exactly what we want them to do. We need to restore the class of black commercial farmers destroyed by the 1913 Land Act.” With the Department determined to follow the path Mr Shabane describes, it seems they will not heed the warnings of land reform beneficiaries and the DPME report to move away from conditional funding systems with vague selection criteria and towards a comprehensive support system for a range of land reform beneficiaries, not just those on a path to commercial agriculture. Photo by Chris Morris (2014). 30 PLJ PLJ 31 the PoLI tIcs of recaP I taLIsatIon the PoLI tIcs of recaP I taLIsatIon LAND REFORM IN OUR LIFETIME? he Story of the Stellenbosch Small Farm Holdings Trust T he Stellenbosch Small Farm Holdings Trust was formed in 2003 by ten landless but highly skilled farmers. All previously disadvantaged individuals, they lacked the means to purchase land or to rent land at market rates. The Trust’s aim is to “promote, support and facilitate access to land and the use of land on an equitable basis for the benefit of the Beneficiaries”. It has been granted access to 65 ha of commonage land through the goodwill of a commercial farm operator holding a long-term lease on the land from the Stellenbosch municipality. Commonage land is municipalowned land that cannot be sold and must be used for the socio-economic benefit of the community. The farmers each occupy 5 ha where they have been growing vegetables and herbs, each for their own account. They never intend to take ownership 32 PLJ of the plots. Instead, the idea is for the site to remain in the hands of the municipality from one generation of farmers to the next. In order for this long-term goal to be achieved, however, the irrigation infrastructure needs urgent upgrading. From its earliest stage, the Trust sought to encourage the municipality to identify sources of government grant finance to equip its piece of commonage land with the infrastructure necessary for small-scale farming. In particular, they needed a water reticulation system. The Trust struggled for some time to convince the local municipality to get involved in the administration and funding of the land reform project. Back in 2006, the Department of Land Affairs, as it was then, had already indicated that, should they receive an application from the municipality to upgrade the project’s infrastructure, they would provide the funding. The Department even ringfenced around R11 million for this purpose. But the municipality never submitted an application for government funding until it was drafted on their behalf in 2008 by the University of Stellenbosch and a team of engineers. In 2011, the Department (that has since been renamed Rural Development and Land Reform) finally responded to the application. They indicated that, since the submission of the application in 2008, the policy had changed and the application now had to have “a bit more detail”. Inexplicably, and despite exasperated protests from the farmers, the Department and the municipality decided not to simply refine the application already prepared (at a cost of R300,000), but instead appoint consultants at R460,000 to redraft the application entirely. The Department paid for these consultations from its own budget. The process took several years. Although the new RECAP policy had not yet been adopted, RECAP guidelines were already published in around 2013. The requirement to work with a mentor/strategic partner had thus already emerged. However, the Department, together with the municipality and the farmers, decided that, given the level of skills of these farmers, they would not require such a partner. The development of the application proceeded. Towards the end of 2013, the completed application then went missing. It could not be established whether it had in fact been submitted or was simply waiting on someone’s desk. By the time the Department met with the farmers and municipality, all of those officials who had begun the project were no longer working for the Department. As a result, no-one knew how much money and time had been spent on the application over the previous five-to-ten years. Worse still, it was announced that the only option for the Municipality was to develop a third application for the funding, this time with a strategic partner/mentor in tow. Left with no choice, the municipality has since been forced to find a strategic partner, despite the fact that there is no need for it. Without a strategic partner, the farmers would never get access to the water they need to grow their vegetables. These are some of the struggles land reform beneficiaries face through programmes like RECAP. PLJ 33 A LUTA CONTINUA New Laws are a Setback for Rural Women S ince the end of apartheid, women in rural areas have used the Constitution to fight for their rights to land. In the negotiation of the 1996 Constitution, rural women’s organisations fought traditional leaders who argued that the right to equality should be subject to official customary law, in which only married men have rights to land. The women won that struggle, and then again when the ConCourt ruled against the chiefs’ objections to the Constitution. Since then, in case after case, the ConCourt has struck down ‘official’ customary law as discriminatory and “a distortion of the true customary law ... which recognises and acknowledges the changes which continually take place” (Bhe, para 86). But the gains women have won since 1994 are now at risk of being eroded by a set of new laws passed 34 PLJ since 2003 which centralise power in the hands of chiefs, bolstering their ability to define the content of customary law on their own, without consulting the people who are affected. Women and customary law T he new laws introduced since 2003 are based on claims that women traditionally had no land rights under customary law. But evidence shows that this is not the case. Many authors have written about how official customary law was ‘constructed’ by government officials in conversation with African male chiefs and elders. Western categories were imposed on African realities, and the rules described by male elders were the ones which became official. PLJ 35 a Lu ta con tInua a Lu ta con tInua These rules tended to exaggerate the power and status of the elders at the expense of women and young men, and were often in contradiction with actual practice on the ground. This ‘official’ and simplified version of customary law, where the male head of the household was the only owner of the land and women were seen only as wives or daughters, hid a more complicated reality in which single women could and did acquire and inherit land rights. The Black Administration Act of 1951, for instance, made the husband the only property owner 36 PLJ and stripped married women not only of their legal status but also of any legal stake in the couple’s property. And yet, traditionally, women did have primary rights to arable land, and strong rights to their houses within the extended family. Even single women were allocated land in their own right, and there are also many accounts of women inheriting land. At a local level, the official restrictions imposed on women were often challenged as being inconsistent with ‘actual custom’. But as the power of the apartheid government grew stronger, and the land base in the tiny African reserves (or ‘homelands’) came under pressure, ‘customary’ restrictions on women’s land rights came to be more strictly enforced by white government officials. Rights over fields came to be regarded as male property to be inherited by the eldest son. Linked to the mounting pressure on land was the perception, held by officials and African patriarchs, that women with independent land rights were less likely to marry and that declining marriage rates would Opposite, top: Members of the Mogopa community on their way to a meeting, 1984 (Paul Weinberg). Opposite, bottom: (from left) Beauty Mkhize, Sizani Ngubane and Jane Vilakazi, community leaders and struggle stalwarts, attend the Land Divided Conference commemorating the centenary of the 1913 Land Act, March 2013. lead to the collapse of family networks and, by extension, society at large. Both government officials and chiefs were of the view that women should be under the control of their fathers or husbands at all times, and that women with independent land rights would have sufficient agency to reject marriage. Meanwhile, a woman’s position as breadwinner through farming had begun to change as the money sent home by migrant workers replaced small-scale agriculture as the main source of household income. Men were increasingly earning the money to pay for bride wealth. No longer were they depending on, and contributing to, family networks held together by farming, marriage and the exchange of cattle. Increasing numbers of widows and deserted wives found themselves faced with eviction from their marital homes at the whim of their in-laws. Widows and wives became vulnerable to losing the homes and resources they had built up over decades of married life. But after apartheid ended and the homelands were abolished, women could finally use the Constitution to argue for the rights they had lost under ‘official’ customary law. Resistance by the chiefs D uring the mid-1990s, the Congress of Traditional Leaders of South Africa (Contralesa) and the Inkatha Freedom Party (IFP) argued that the new Constitution would “put such hallowed institutions as lobola (bride wealth) in jeopardy, open the way to allowing women to succeed to the monarchy on the same basis as men, and prevent a father from claiming damages for the seduction of his daughter” (Certification of the Constitution, para 200). During this time, Chief Patekile Holomisa, the President of Contralesa, declared: “Let us not confuse each other and misinterpret that equality shall be applicable to each and every thing. No woman can be the head of a family. The head of a family is always a man.” He added that it was “embarrassing and shocking to see women claiming to be traditional leaders”. But the Constitutional Court has ruled that the official customary law in textbooks and in laws like the Black Administration Act is not ‘true customary law’, which evolves as people change their patterns of life (see p. 41). PLJ 37 a Lu ta con tInua Women’s struggles since 1994 A t provincial meetings held to discuss the new legislation in 2002 and 2008, residents of the former homelands recounted stories of widows and unmarried mothers successfully claiming residential sites in their own right. Similar stories of women claiming, and obtaining, sites of their own surfaced in all provinces, although the pace of change seemed faster in the Tswana-speaking North West and Northern Cape than in KwaZulu-Natal. The people at the meetings often combined arguments about equality under the new Constitution with old traditions. For example, single mothers explained that the custom was that men were entitled to residential land only if they had families to support, and since many women now had children outside of marriage, they should be entitled to sites on the same basis. In 2008, less than a quarter of African women between the ages of 20 and 45 were married. Marriage rates in South Africa are very low even compared with other African countries, and have been falling for decades. At the meetings in Limpopo, a headman described how a single mother had argued strongly that 38 PLJ a Lu ta con tInua she was entitled to a site on the same basis as a male community member with a family. She said that if the tribal council refused her, they would be denying her rights under the Constitution. At the meetings in KwaZuluNatal, a headman said that he would be “less than human” if he did not allocate land to widows evicted from their marital homes. During the first round of meetings, it seemed that only ‘responsible’ middle-aged women with children to support were being allocated residential land. In some areas – for example, KwaZulu-Natal – the woman also had to have a son. This had changed by the second round of meetings from 2008. In some areas, people explained that all young mothers are now entitled to sites; in others, that any woman is now able to acquire residential land whether or not she has children to support, and whatever her age. But in other areas people said it is still very difficult for women to get sites, and impossible unless they have a son. In 2011, a survey involving 3,000 rural women was undertaken by the Community Agency for Social Enquiry (CASE) in three different areas (the Ramatlabama resettlement area near Mafikeng in North West province, Msinga around Tugela Ferry in KwaZuluNatal, and Keiskammahoek, between King William’s Town and Alice in the Eastern Cape). It confirmed the evidence from the consultation meetings, showing that, after 1994, while married women were still not acquiring land, an increasing number of widows and spinsters were obtaining land for houses (CASE, Women, Land and Customary Law, 2011). Other studies, in the Eastern Cape and Limpopo, have corroborated these results (Aninka Claassens & Sizani Ngubane, “Women, land and power: The impact of the Communal Land Rights Act” in Land, Power & Custom, 2008). A man from Keiskammahoek explained that women were not allocated residential sites previously, but that “[this situation] changed after the elections and voting – that showed everyone has rights”. In Ramatlabama, an older woman explained that: “after democracy anyone could get a stand, even a young woman could go, as long as she had a pass [I.D. document] and was independent... But before ... even me, as an [adult] unmarried woman, I couldn’t ... In my view I think it’s our Constitution that changed everything because it says that everybody has a right to shelter, education ... so it’s the government that changed everything.” Chairperson of the Rural Women’s Movement, Prisca Shabalala, speaking at the Land Divided Conference commemorating the centenary of the 1913 Land Act, March 2013. A woman in Keiskammahoek described the changing balance of power within which the changes are taking place: “You would never do that [a husband evicting his wife] to the young women of today. They would have you [as the man] arrested. They have a mindset that leans towards the law and the division of cattle, finding a way to proceed.” The views of a man in Msinga also illustrated the impact of democracy and knowledge: “[It] is because of these democratic rights … everyone has their own rights. [If I] tell my child what to do, she looks into my eyes, and says I must leave her alone... When I tell my wife that I do not understand this, she says I am abusing her daughter who also has her right to answer me. We did not know that before, we only knew that my father would have taken a sjambok and hit her hard.” Overcoming traditional stereotypes W omen’s rights to land have been changing across the former homelands since 1994. These changes were triggered by the transformation of local power relations after the transition to democracy and the new Constitution. The Constitution played an important symbolic role in affirming the values of equality and democracy of the anti-apartheid struggle. This emboldened women to assert claims to sites, and made men more receptive to their arguments. In fighting for their rights, people have been able to draw on customs which were weakened under apartheid but not destroyed. At the same time, the material positions of rural women and men PLJ 39 a Lu ta con tInua “CLEANSING OF THE STATUTE BOOK” Customary Law, Inheritance and the Right to Equality O have changed. Men, the primary breadwinners during the days of migrant labour, were hit by unemployment when the mines began to lay off workers in the 1980s. Women, meanwhile, began to acquire cash through the social grants that have come to replace income from migrant workers as the lifeblood of the former homelands. They not only qualify for old-age pensions at a younger age than men, but also receive child support grants on behalf of their children. The changes taking place are a good example of ‘living’ customary law and the development of 40 PLJ customary law in line with the Constitution. But the set of new laws introduced since 2003 have been reminiscent of the old, fixed, ‘official’ customary law. These laws reinforce authoritarian male power and the control of the chiefs and take back the definition of custom from the people. Women’s organisations have argued that the new laws relegate the approximately 18 million South Africans living in the former homelands, once again, to a separate and authoritarian legal regime, and to second-class citizenship. In order to take this issue forward, stereotypes of marriage and ownership must be questioned. We must take into account changing family forms, falling marriage rates and the independent single women who have always existed. Law and policy should be grounded in these realities, instead of in stereotypes put forward by selfinterested traditional leaders and their political lobbies. Above: A neon installation by South African artist Thomas Mulcaire at the Constitutional Court. In this case, the rallying cry 'A Luta Continua' (Portuguese for 'The Struggle Continues') is symbolic of Mozambique's war of independence. n 15 October 2005, the ConCourt decided one of the most important cases on gender equality, inheritance and customary law in South Africa. Nontupheko Bhe, a domestic worker, and her partner, Vuyo Mgolombane, a carpenter, started living together in 1990. Over the next 12 years, they had two children, both girls. Three weeks after our country’s first democratic elections on 18 May 1994, Nonkululeko, their first daughter was born followed by her sister, Anelisa, on 3 August 2001. The family home was a shack on their land in Makhaza, Khayelitsha. Ms Bhe and Mr Mgolombane worked and saved a little money to supplement their housing subsidy. They were saving to build their home. Sadly, their plans were interrupted when Mr Mgolombane died on 9 October 2002. Ms Bhe’s partner, Vuyo had not made a will, meaning he died intestate and their family home was in his name. The father of the deceased and grandfather of the orphaned girl-children, Mr Maboyisi Mgolombane, lived in Berlin in the Eastern Cape. When the grandfather decided to take their inheritance, in this case, it meant that they could lose their home under customary law. The elder Mr Mgolombane approached the Khayelitsha Magistrate’s Court relying on the customary rule stating that the oldest surviving male relative inherits when a Black African man dies without sons or brothers. This rule is known as primogeniture. The Khayelitsha Magistrate decided the case on the basis of an old colonial and apartheid law, the Black Administration Act of 1927, a law that the democratic government had not changed for ten years. In his ruling, the magistrate declared the elder Mr Mgolombane the sole heir of the shack, the land it stood on, and, the building materials for their new home. He decided he wanted to sell it all, which would have left the widow and orphans homeless. Ms Bhe, on behalf of her daughters, approached the Western Cape High Court for protection and relief. The Bhe family was joined by the Women’s Legal Centre in Court and they PLJ 41 “cLeansIng of the stat u te Book” Above: Ms Nontupheko Bhe's shack in Makhaza, Khayelitsha, 2015. 42 PLJ “cLeansIng of the stat u te Book” argued that the customary law rule that took their home away through the Black Administration Act discriminated on the grounds of gender, race, age and social status. After explaining why customary law had failed to develop, Justice Sipho Ngwenya held that the Black Administration Act was unconstitutional. He wrote that: “… a situation whereby a male person will be preferred to a female person for purposes of inheritance can no longer withstand constitutional scrutiny. That constitutes discrimination before the law. To put it plainly, African females, irrespective of age or social status, are entitled to inherit from their parents’ intestate estate like any male person. … On the facts before us, therefore … [Nonkululeko and Anelisa Bhe] are declared to be the sole heirs to the deceased’s estate and they are entitled to inherit equally.” The Bhe case was then referred to the ConCourt, heard on 2-3 March 2004 and the late DeputyChief Justice Pius Langa wrote the decision for the majority of judges. Justice prevailed and the Bhe girlchildren inherited their home in Khayelitsha where they lived with their mother. The Court’s reasoning on equality, dignity, the development of customary law and the rights of children in the Bhe case provide activists with critical education and organising tools. Building equality and dignity in our homes, schools, villages, townships, makhotla, places of worship and work, Parliament, media and even the Courts require both a social and a legal revolution. In his judgment, the late Chief Justice Langa laid a legal foundation for a social revolution in gender relations and customary law. Meanings of customary law T he ConCourt found that colonial and apartheid courts, law schools and Parliaments blocked customary law from developing as society changed. Many customs have evolved along with life; the ConCourt called this development “living” customary law, which often does not enjoy recognition in courts or among traditional leaders. Under the Black Administration Act, customary law was used by the powerful against the powerless. “… customary law was robbed of its inherent capacity to evolve in keeping with the changing life of the people it served, particularly of women. Thus customary law as administered failed to respond creatively to new kinds of economic activity by women, different forms of property and household arrangements for women and men, and changing values concerning gender roles in society. The outcome has been formalisation and fossilisation of a system which by its nature should function in an active and dynamic manner.” All the judges found that the customary law rule as applied, and the Black Administration Act, violated the Constitution. Deputy Chief Justice Langa found that the “the Act …was to become a PLJ 43 “cLeansIng of the stat u te Book” cornerstone of racial oppression, division and conflict in South Africa, the legacy of which will still take years to completely eradicate”. The Court held that: “The positive aspects of customary law have long been neglected. The inherent flexibility of the system is but one of its constructive facets. Customary law places much more store in consensus-seeking and naturally provides for family and clan meetings which offer excellent opportunities for the prevention and resolution of disputes and disagreements. Nor are these aspects only useful in the area of disputes. They provide a setting which contributes to the unity of family structures and the fostering of co-operation, a sense of responsibility in and of belonging to its members, as well as the nursing of healthy communitarian traditions such as Ubuntu. These valuable aspects of customary law more than justify its protection by the Constitution. It bears repeating, however, that as with all law, the constitutional validity of rules and principles of customary law depend on their consistency with the Constitution and the Bill of Rights.” Customary law received the protection and recognition of the Constitution. This recognition 44 PLJ “cLeansIng of the stat u te Book” required the development of customary law to promote the values and rights of freedom, dignity and equality for women and girl-children such as Nonkululeko and Anelisa Bhe. ‘Old notions of patriarchy’: Women became outlaws T he ConCourt used the work of Professor Thandabantu Nhlapo to show how women were discriminated against through the rule of men (patriarchy). Nhlapo explained that African law and custom had a traditional male bias. Colonialism and apartheid reinforced this bias by “enthroning the male head of the household as the only true person in law”. Only male household heads – meaning older men had “civic status”, controlled the family property and regarded women as children in law. He wrote: “African women… were deprived of the opportunity to manipulate the rules to their advantage through the subtle interplay of social norms, and, at the same time, denied the protections of the formal legal order. Women became ‘outlaws’.” In addressing the case of the Bhe family and women, DeputyChief Justice Langa held the following: “The exclusion of women from inheritance on the grounds of gender is a clear violation of section 9(3) of the Constitution. It is a form of discrimination that entrenches past patterns of disadvantage among a vulnerable group, exacerbated by old notions of patriarchy and male domination incompatible with the guarantee of equality under this constitutional order.” Equality is not an empty concept. Time after time, the ConCourt has asserted the right of women to equality and in the Bhe case affirming this right meant that Ms Bhe and her daughters retained their home and rightful inheritance. Dignity A frican women living under customary law were excluded from exercising their right to use, own, sell or inherit property in their own name. The Bhe family and the Women’s Legal Centre argued the fact that only elders, married men or eldest sons could control property under customary law violated the dignity of women and girls. Deputy-Chief Justice Langa supported the right of the Bhe girlchildren and women to dignity. He found: “The principle of primogeniture also violates Above: The facade of South Africa’s Constitutional Court on Constitution Hill, Johannesburg. the right of women to human dignity as guaranteed in section 10 of the Constitution as, in one sense, it implies that women are not fit or competent to own and administer property. Its effect is to subject women to a status of perpetual minority, placing them automatically under the control of male heirs, simply by virtue of their sex and gender. Their dignity is further affronted by the fact that as women, they are also excluded from intestate succession and denied the right which other members of the population have, to be holders of, and to control property.” The Bhe judgment’s emphasis on the relationship between women’s human dignity and their right to hold, control, own and inherit property as free, equal and autonomous human beings under customary law is revolutionary. In this context, women have the legal power to become economically independent, to avoid abusive relationships, to take care of themselves, or their families without needing the permission of a man. Legal power is not sufficient, the organisation of women in rural areas, informal settlements and townships is the only way to realise the promise of the Bhe judgment. PLJ 45 “cLeansIng of the stat u te Book” Protecting the rights of children under customary law N onthupheko Bhe and her partner Vuyo were not married under any legal system. Mr. Maboyisi Mgolombane argued that his grand-daughters could not inherit their home as girls or as children conceived outside a civil or customary marriage. The ConCourt made short shrift of that argument. Children from extra-marital relationships and girls, wrote the Deputy-Chief Justice, “are ordinarily not in a position to protect themselves” and they “particularly vulnerable”. The best interests of the children and their right to equality according to the Court entitled Nonkululeko and Anelisa Bhe and all other children in similar circumstances to inherit the property of their fathers. Ten judges of the ConCourt struck down the Black Administration Act and the customary law rule of male primogeniture. Or, in the words of the judgment: “The Court’s task is to facilitate the cleansing of the statute book of legislation so deeply rooted in our unjust past”. 46 PLJ A different view but the same outcome J ustice Sandile Ncgobo who later became Chief Justice took a different view from the other justices of the Court. He argued that the ConCourt had the duty to develop customary law and to do so on the basis of gender equality. Justice Ncgobo cited the Nigeria Court of Appeal in a similar case where customary law prevented women from inheriting property. Justice Tobi of the Nigerian Appeal Court held that “any custom”, “societal discrimination” or “customary law” which discriminated “on the ground of sex” was unconstitutional and “repugnant to natural justice, equity and good conscience”. CENTRALISATION WITHOUT CONSENT Communal Land Rights are under hreat A n estimated 17 million South Africans reside in the former homelands (or Bantustans) according to forms of communal tenure. Unfortunately, these people continue to live under conditions of legal uncertainty as the South African government has consistently failed to develop laws and policies that adequately capture the nuanced ways in which people experience and regulate relations of communal tenure in their everyday lives. In this chapter it is argued that many recent attempts by the government to formalise communal tenure systems in law and policy are in fact based on earlier pre-democratic models in which a small number of individuals exert power and authority over others without being accountable to anyone. Such legislation has also effectively undermined other types of community relations as well as accountability mechanisms that can facilitate more equal power relations between people living in rural areas. Communal land and power relations I n order to critically engage with the government’s attempts to come up with laws and policies for communal land, we need to think seriously about the kinds of power relations they entrench. This is especially important in the light of South Africa’s colonial and apartheid history, which distorted communal and customary land laws to suit the interests of white power and capital. Colonial and apartheid administrators not only gave traditional leaders new powers over land, but they also played down the usage, occupation and inheritance rights of most people within indigenous systems of land rights. To what extent is this history still relevant today? In the postapartheid era, have communal land policies given some people in these communities – such as traditional authorities or even men in general – the power and authority to make decisions over others without consent? Or have these laws and policies helped to facilitate more equal power relations between people, their traditional leaders, and the government? PLJ 47 cen traLIsatIon wI thou t consen t The Constitution states that: 25(6) 48 PLJ cen traLIsatIon wI thou t consen t 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. 25(9) Parliament must enact the legislation referred to in subsection (6). PLJ 49 cen traLIsatIon wI thou t consen t Land rights in the Constitution S ection 25(6) and (9) of the Constitution instruct the government to pass a law that will realise the right to security of land tenure or comparable redress (see overleaf). This means that the government must come up with a law that will give people the legal and practical ability to reclaim or defend their ownership, occupation, use of and access to land. The Communal Land Rights Act of 2004 (CLRA) E nacted in 2004, the CLRA was the first attempt by government to develop a law that would secure the rights of people living in the former homelands. However, it also undermined their rights by giving traditional councils most of the power and authority over land, including control over the occupation, use and administration of communal law. All other forms of authority, including that which derives from living customary law and indigenous accountability mechanisms, were bypassed by the CLRA. Owing to this, four rural communities challenged the CLRA in the courts. 50 PLJ cen traLIsatIon wI thou t consen t In May 2010, the CLRA was struck down by the ConCourt in Tongoane v National Minister of Agriculture and Land Affairs. The ConCourt decided that the law was unconstitutional because the government had not properly consulted affected communities during the legislative process. This came as a huge victory for rural communities across the country. The Communal Land Tenure Policy (CLTP) I n May 2014, the Department of Rural Development and Land Reform (the Department) published its latest Communal Land Tenure Policy (CLTP) for discussion and comment. The CLTP, which forms the basis for a new draft law on communal law, has not yet become law. While the CLTP outlines a nuanced history of communal land tenure, and explains the state of tenure insecurity in South Africa, the CLTP fails to translate this deep understanding of land tenure into a policy that could uphold the rights of rural people. Currently, most communal land in the former Bantustans is registered in the name of the government. The Department’s proposed CLTP makes provision for royal households and traditional councils to play a meaningful role in land ownership and administration in the former homelands. Government officials argue that their policy would be to transfer ‘the outer boundary land’ (as identified on the title deed) to traditional councils wherever these councils exist. Technically, Communal Property Associations (CPAs) and other rights holders can also have their rights recognised by the CLTP. However, since traditional councils exist wall-to-wall within the former homelands, it is likely that land will be transferred mostly to traditional councils. This will affect nearly 17 million people who live there. The CLTP proposes that traditional councils should be given ownership of communal land (and control of all developments related to the communal property – such as grazing and forests), while families and households would only get ‘use rights’ – that is, right to make use of the land. In addition, The CLTP would empower traditional councils to take charge of investment projects, such as mining and tourism ventures, that fall within their territories. The Communal Land Bill (CLB) T he Department plans on creating a national law based on the CLTP called the Communal Land Bill (CLB), which is likely to be introduced in Parliament later in 2016. Although the CLB has not been made public, government officials have said that it will give communities ownership of communal land. However, to obtain ownership of their communal land, communities will have to choose whether their land should be managed by a CPA or a traditional council (Judge for Yourself, eNCA, 30 August 2015). Serious questions have arisen over whether communities will really have a choice in terms of the CLB. This is because another government policy – the Draft Policy Paper on CPAs – discourages the registration of new CPAs in areas where traditional councils already exist. In this policy, the Department writes that “registration of new CPAs on traditional communal tenure areas [should] be carefully considered and principally discouraged” (Department of Rural Development and Land Reform, Communal Land Tenure Policy, 2013, p. 29). This would mean that traditional councils will mostly be granted the power to manage communities’ land on their behalf, with the people living in these communities having little or no power to hold their traditional councils to account. WHAT ARE CPAs? CPAs are landholding institutions created in terms of a national law called the CPA Act. Beneficiaries of the land reform, restitution and redistribution programmes who want to acquire, hold and manage land as a group must establish legal entities to do so – CPAs are one of these entities. The CPA Act provides for government registration of CPAs and also government oversight to enforce the rights of ordinary members. An important feature of CPAs is that they operate according to democratic principles including fair and inclusive decision-making processes. PLJ 51 cen traLIsatIon wI thou t consen t Problems with government’s laws and policies A huge amount is at stake if the CLTP and CLB become law. They could potentially dispossess millions of people of their land rights. Once traditional councils are granted the power to manage and control communal land on behalf of rural communities, it will be very difficult to take these powers away. 52 PLJ cen traLIsatIon wI thou t consen t The CLTP and CLB impose tribal structures over other pre-existing communities whose members may not recognise the traditional authority which has been designated by the policy. In other words, autonomous and historically constituted communities, such as trusts and role players at the household level (who in many areas make decisions about land), will be subservient to traditional councils. A key issue is that under apartheid people resisted laws and used creative methods to secure their hold on land. For example, many black people organised together and bought land by pairing with a church or missionary to act as a ‘trustee’ for their purchased land. By doing this they subverted the restrictions of the 1913 and 1936 Land Acts, and thereby collectively owned land. In addition, many communities’ informal or customary land rights have been legally recognised by different laws or contracts, such as the common law, customary law, quitrent titles, Permission to Occupy (PTO) regulations, the Upgrading of Land Tenure Rights Act, or title deeds. These laws are not respected under the CLTP and the CLB. Granting traditional authorities the power to manage and control these groups and communities’ land will violate their constitutional rights to land as protected by section 25 of the Constitution. The land rights of the most vulnerable rural South Africans are therefore at risk. The CLTP and CLB extend the rights of traditional leaders far beyond their customary role. It is not true that systems of communal ownership have historically allowed chiefs to make decisions and express power over people without their consent. Rather, rights and obligations can derive from many levels of authority in the community, the chief being just one of these. These rights and obligations derive from constant practice and mutual participation. The CLTP and CLB deny the existence of accountability mechanisms in customary tenure systems. They undermine the decision-making power of rural people and fundamentally change the administration and management of land. As it stands, the CLTP and CLB fail to hold traditional councils to principles of justice and equality that are provided for in the Constitution. Complex and contested T he CLTP and CLB are based on the idea that, prior to colonialism, traditional authorities owned land which they allocated their ‘subjects’ to use. Proponents of the CLTP claim to believe that it will rebuild what was allegedly destroyed under apartheid. However, this understanding of the past is highly inaccurate. Ironically, the authority structures and power relations envisioned by the CLTP entrench colonial laws and apartheid boundaries (see p. 11). Oral histories, indigenous knowledge systems, and academic inquiries all confirm that land rights were not vested in traditional leaders with autocratic powers but rather through access to, and authority over, land derived in socially accepted relationships. Communal land will remain a contested idea for as long as people refuse to acknowledge the complexity of land tenure systems that exist in communities across the country. There is no single model for communal land because different people manage land and its use through often localised systems of social relationships. This makes securing land rights in communal areas very complex. There is no doubt that recognising and supporting localised systems of ownership and access, in a way that fulfils the principles of equality and human rights enshrined in the Constitution, is going to be difficult. In the context of the CLTP and the CLB, South Africans thus find themselves at a critical stage in the struggle to secure the rights of millions of people living in communal areas. PLJ 53 TO THE HEART OF LAND REFORM he Bakgatla ba Kgafela CPA at the Constitutional Court 54 PLJ PLJ 55 to the heart of Land reform to the heart of Land reform CPA members and land claimants protest outside the ConCourt in support of the Bakgatla ba Kgafela CPA in Johannesburg (2015). O n 20 August 2015, the Constitutional Court delivered its landmark judgment in the case of Bakgatla ba Kgafela Tribal CPA v Bakgatla ba Kgafela Tribal Authority and Others. It came as an important victory for land claimant groups and Communal Property Associations (CPAs – see definition on p. 51) around the country as it addressed a number of serious problems faced by CPAs – especially resistance by traditional councils and mismanagement by the Department of Rural Development and Land Reform (the Department). Background T 56 PLJ he Bakgatla ba Kgafela community brought a partially successful land claim over various pieces of land in the North West. In order to be granted ownership of the restituted land, the community had to create a legal entity capable of retaining ownership of the land. In 2005, the claimant community members voted in favour of creating a CPA to hold the land. They elected a committee to run the CPA and adopted a draft constitution. The residents then made an application to have the CPA registered. However, the traditional leader, Kgosi Nyalala Pilane, was unhappy about the decision to form a CPA, as was the traditional council. Pilane wanted the community to create as a trust instead. When he voiced his dissatisfaction to Ms Lulu Xingwane, the then-Minister of Agriculture and Land Affairs, she suggested that the community register a provisional CPA in terms of section 5(4) of the CPA Act for 12 months (as opposed to a permanent CPA in terms of section 8). The Department proceeded to register the provisional CPA in line with the Minister’s instruction, in spite of internal memoranda that included a recommendation by another government official that the CPA should be permanently registered. In 2008, seven properties within the Pilanesburg National Park – that formed part of the land claimed by the community – were transferred to the provisional CPA. Thereafter, the Department had almost no contact with the community – and, significantly, it did not help the community to convert the provisional CPA into a permanent CPA. When, in 2012, the Bakgatla ba Kgafela CPA tried to prevent the construction of a shopping centre on land that it believed it owned, the traditional council argued that the CPA no longer existed. The traditional council argued that section 5(4) of the CPA Act meant that a provisional CPA is only valid for 12 months – after 12 months, if the CPA has not been turned into a permanent CPA, it no longer exists. The CPA went to court to get confirmation on its legal status. Its members were specifically worried about what would happen to their communal land if the arguments of the traditional council were found to be correct. This was the beginning of a drawn-out legal battle which eventually found its way to the Constitutional Court. What the Constitutional Court decided T he ConCourt unanimously decided that the Bakgatla ba Kgafela CPA did continue to exist and should be permanently registered. Although the main issue in the ConCourt’s decision was the technical question of whether or not provisional CPAs can continue to exist and hold land after 12 months, the decision also dealt with a range of other issues that are important for land reform. The ConCourt’s judgment, written by Judge Jafta on behalf of the entire bench, found that the purpose of the CPA Act is to enable claimant communities to form democratic institutions through which groups can acquire, hold and manage land received through the land reform programme. Referring to the CPA Act as “a visionary piece of legislation passed to restore the dignity of traditional communities” (Bakgatla CPA, para 31), the Court found the legislation to be essential in giving expression to the right to land restitution. In addition, the ConCourt noted that the CPA Act is a tool for transforming and developing customary law: “The Act seeks to transform customary law and bring it in line with the Constitution. At the same time, the Act extends the fruits of democracy to traditional communities...” The judgment confirmed the right of rural communities to choose CPAs democratically as their preferred institution to hold land. Given Minister Gugile Nkwinti’s frequent statements that CPAs should no longer be allowed in traditional areas – which was then backed up by the Draft Policy Paper on CPAs – the ConCourt’s judgment strengthens and secures the ability of land claimant groups to choose CPAs as a mechanism to hold and manage their land. There can be no doubt that [the democratic principles that CPAs must adhere to] safeguard the interests of members of traditional communities and empower them to participate in the management of a communal property. The creation of an association introduces participatory democracy in the affairs of traditional communities. All members of the community are afforded an equal voice in matters of the association and the property it holds on behalf of the community. Bakgatla CPA, para 30 PLJ 57 to the heart of Land reform How to know whether a CPA is provisional or permanent: T here are two quick ways to find out whether a CPA is a provisional CPA or a permanent CPA: • Check the certificate: When the Department registers a CPA, it issues a registration certificate which stipulates whether the CPA is permanent or provisional. • Check the registration number: Every CPA has its own registration number. Provisional CPAs have registration numbers that end with “P” (for example, CPA/07/2042/P), while permanent CPAs have registration numbers that end with “A” (for example, CPA/07/2042/A). to the heart of Land reform the CPA has applied for and been granted an extension). This interpretation would mean that if the government failed to register a permanent CPA within 12 months, the claimant community would have to start from scratch in choosing a legal entity to hold their land. And if, during this time, land had been transferred to the provisional CPA, it would probably then have lost it. On the other side of the dispute, the CPA argued that after 12 months a provisional CPA continues to exist but loses its right to manage the land. Although this interpretation would cause difficulties for claimant communities, it would also mean that they would still own the land in cases where the government fails to register a permanent CPA within 12 months. The ConCourt found the second interpretation to be correct: Key interpretations of the CPA Act S ection 5(4) of the CPA Act provides for the registration of provisional CPAs. This section was important in the Bakgatla ba Kgafela CPA case as the CPA and the traditional council disagreed over what it meant. According to the traditional council, the section stipulates that a provisional CPA ceases to exist after 12 months (unless 58 PLJ “In the context of section 5(4), reference to the period of 12 months is made simply in relation to the exercise of the right to occupy and use land. The section makes no mention of the provisional association’s lifespan at all.” (Bakgatla CPA, para 42) The judgment went on to clarify that a provisional CPA can exist, not only for more than 12 months but until it is deregistered by the Department. If the government, however, fails to convert a CPA from provisional to permanent within 12 months, the provisional CPA would not be able to exercise its right to occupy and manage the land. This is very important for other CPAs which have been provisionally registered rather than permanently registered. It means they continue to exist and puts the burden on the Department to register them properly. CPA registration A nother important finding in the ConCourt was that the Bakgatla ba Kgafela CPA should have been permanently registered. The ConCourt pointed out that the CPA had met all of the requirements in order to qualify for permanent registration (in terms of section 8). An official in the Department had also recommended that the CPA be registered because he was satisfied that the CPA qualified. The ConCourt’s interpretation of the definition of a permanent CPA in the CPA Act supported this finding. The CPA Act defines a CPA The Bakgatla ba Kgafela CPA case is a significant victory for rural communities across the country. The judgment affirms and protects the right of land claimant groups to choose which legal entity they want to acquire, hold and manage land held on a communal basis. Above: A banner voicing support for the Bakgatla ba Kgafela CPA at the ConCourt in Johannesburg (2015). as a “CPA which is registered or qualifies for registration in terms of section 8”. This, the Court found, means that if a CPA qualifies for registration (by meeting all the requirements set out in section 8 of the CPA Act) it should be registered by the Department. If a CPA qualifies for registration, the ConCourt insisted that the Department must register it. In not doing so, the Department would be failing to comply with its legal obligations. This is important for claimant communities which have struggled to establish CPAs as a result of the unwillingness or inability of the Department to register their CPAs, as it empowers these communities to insist on registration (if the CPA meets the requirements in section 8 of the CPA Act). Other important comments T he ConCourt listed the duties of the Department as set out in the CPA Act in great detail, confirming that both it and the Director-General are under a legal duty to assist and support CPAs when claimant communities have chosen CPAs as the entity they want to manage their land. This is significant in the context of the government’s recent policy developments which seek to move away from democratic land holding institutions (such as CPAs) in favour of traditional councils and traditional leaders as owners of communal land. The ConCourt highlighted that it would be inappropriate for the Department to undermine the establishment, functioning or legitimacy of a CPA where a claimant community has chosen it. This means that as long as the CPA Act remains in the statute books, government is bound to enforce it. And finally, the Department was also reminded by the ConCourt that it should not prioritise the wishes of traditional leaders over those of land claim beneficiaries. PLJ 59 cen traLIsatIon wI thou t consen t cen traLIsatIon wI thou t consen t MINING LAW Know the Law, Know Your Rights M any rural communities’ land rights are threatened by mining activities. There are different laws that apply to mining. The most important of these is the Mineral and Petroleum Resources Development Act of 2002 (or the MPRDA). The MPRDA provides some protection for the owners of land and communities who have informal or customary rights over land. However, these protections are not always very strong. This is partly because mining law gives preference to the interests of mining companies. This section sets out some of the important information rural communities should know in order to protect their land rights against mining interests. The law requires consultation with the affected community T he MPRDA states that mining companies need to have a mining licence before they begin to prospect or mine. The Act gives government 60 PLJ the power to give a mining company a mining licence. But before the government can do so the mining company has to comply with certain requirements. One of the most important is that the mining company must consult everyone who will be affected. Where people live on communal land, this includes community groups. Consultation should not consist of a mining company simply coming to a community and asking them to sign an acceptance form. The purpose of consultation is for communities to tell mining companies what they think about mining. For this reason the law requires that all mining companies tell local people about the proposed developments and explain what the impact of the mining will be on the land and the environment. People must be allowed to ask questions and raise objections. Unfortunately, consultation is not the same as consent. In terms of the MPRDA, a mining company does not need the consent of the community to get a mining licence. This means that a mining company may still get a mining licence even when a community group does not want it to. This is contrary to other laws, such as the Interim Protection of Informal Land Rights Act (IPILRA) of 1996, which requires community groups to consent to deprivations of their land rights (see p. 69). Courts have not explained how to deal with the conflict between these two laws. The MPRDA does, however, provide that if a mining company does not consult properly it should not be given a mining licence. If a community group is not consulted properly or is not consulted at all, they should contact the Department of Mineral Resources or the Department of Environmental Affairs as soon as they can. If this does not help, they can go to court to challenge the granting of the mining licence. BEWARE: Mining companies often do not consult affected communities properly or at all. Sometimes they mislead communities by giving them inadequate information. WHAT CAN COMMUNITIES DO WHEN FACED WITH MINING IN THEIR AREA? Get organised It may be useful to create a committee to represent the community’s interests. Be informed Get as much information about the proposed mining as possible. Mining companies are required to publish a number of reports before they will be granted a mining licence. A community should try to access all of these reports to make sure that they understand how mining will affect them. Demand to be consulted properly The law says that local people have to be consulted on mining developments, so communities should insist on this. Take charge of the consultation process A community should make sure that their concerns are heard. Use customary law Using customary law could allow community groups to take charge of the consultation process because it allows them to use the language that they feel comfortable with rather than the technical language mining companies use. The way communities make decisions must be respected. Litigate If all of this fails, a community group may be able to go to court to have the granting of the mining licence set aside or reversed. PLJ 61 “they are roBBIng us” “We are not happy about the mining. They are robbing us. The mine promises a lot of things but as the process continues they do not deliver anything. The mine has brought us nothing.” An elderly woman from Makhasaneni (2014) “THEY ARE ROBBING US” How Mining is Afecting the Residents of Makhasaneni I n Makhasaneni – an isigodi (a tribal ward) of the Entembeni Traditional Authority in KwaZulu-Natal’s Melmoth municipality – there is a rural community that lives on land owned by the Ingonyama 62 PLJ Trust. Most of the residents are extremely poor and are heavily dependent on subsistence farming and livestock. The apartheid government forcibly removed many members of this community from their previous homes in the 1960s to make land available for white commercial farming. The community was thus relocated to Makhasaneni and have, over the years, managed to make it a place they can call home. Left: A homestead in Makhasaneni, KwaZuluNatal (2014). When history repeats itself through other means The Ingonyama Trust and the inkosi L T ike with many people living in the former homelands, the residents of Makhasaneni have rights to occupy, use and access land under customary law. These rights have been protected in the Constitution and in a national law called the Interim Protection of Informal Land Rights Act (or IPILRA). In 2011, however, an international mining company called Jindal Africa (Pty) Ltd (or Jindal) began prospecting for iron in the Makhasaneni area. Jindal is in partnership with another company called Shungu Shungu (Pty) Ltd (which had already obtained a prospecting license over the land at Makhasaneni through the Department of Mineral Resources). The prospecting activities include exploratory drilling on pieces of land identified by the companies as potentially rich in iron ore. And yet, despite their rights, the residents reported that they had not been consulted about the proposed mining activities. When the mining vehicles arrived on site to begin the prospecting process, it was the first community members had heard of it. he mining company contended that it had been given the authority to conduct prospecting activities in the area by the nominal owner of the land (the Ingonyama Trust) and the local traditional leader, inkosi Thandazani Zulu. The Ingonyama Trust was created by the KwaZulu Ingonyama Trust Act (‘the Act’) of 1994. This law ensured that trusteeship of almost all the land in the former KwaZulu Bantustan was transferred to the Trust in the dying days of apartheid. Currently, the Trust administers 2.8 million ha of land in KwaZulu-Natal, where millions of people live. According to section 2(2) of the Act, the land is held in trust by the Zulu monarch, King Goodwill Zwelithini, for the “benefit, material welfare and social wellbeing of the members of the tribes and communities” who live on it. Section 2(8) further stipulates that “the Ingonyama shall not infringe upon any existing rights or interests”. This means that the Trust has an obligation to protect the rights of rural people living on and using the land. Although section 2(5) of the Ingonyama Trust Act clearly states that the Trust needs to obtain the written consent of PLJ 63 “they are roBBIng us” a traditional council before authorising development activities, the communities living on the land are still not always consulted. Instead the consent of a traditional leader (as the community’s representative) is often considered sufficient by external parties. In Makhasaneni, residents claim that their inkosi signed a contract with Jindal without informing or consulting them. When they called a meeting to confront him about this, the inkosi admitted that he should not have agreed to the prospecting without consulting them and agreed to “tear up” the contract. However, he never followed through on this promise and now claims that he had in fact consulted properly with the community. The community has tried to protect their land rights T he community has tried to uphold their land rights and prevent the prospectors from going ahead. A local committee even entered into a memorandum of agreement with the mining company to hold the latter accountable to the community. For the time being, residents have been able to halt the prospecting activities, but they 64 PLJ “they are roBBIng us” remain concerned that the mining company will renew its efforts soon, and thereby jeopardise the community’s rural livelihoods. How the mine has affected people O wing to Jindal’s prospecting activities, many residents have been unable to cultivate their fields, as drilling has taken place either in their field or very close by. Others have lost livestock. Some have said that the community’s ancestral graves have been harmed or destroyed. And others believe that their water sources have been contaminated by the chemicals used by the mining company. A 70-year old woman living in Makhasaneni (whose name has been withheld to protect her) had a particularly devastating story to tell. She has been living on the same plot of land, and cultivating the same small field, for over 20 years. Heavily dependent on the crops she grows to feed her 11 grandchildren, as well as five other children who are “living with [her and] do not have parents”, the prospecting quickly became nothing short of a catastrophe. She recalled: “The mine just arrived and said that they were going to start working. They started drilling in the field where I planted my vegetables. I never agreed to them using my field.” The chemicals used during the drilling destroyed her crop and irreparably damaged her field. Jindal not only failed to forewarn her of its activities but it did not even rehabilitate the land once the prospecting was complete. Instead, they paid her R5 000 as compensation. Today, she remains unable to use her field and has to rely on her neighbours who occasionally give her a little space to grow vegetables. Many of the residents who are trying to protect their land rights also speak of death threats and intimidation which many believe is linked to their resistance to the mining activities. Activists who assert the law are specifically targeted as troublemakers. Some people have even gone into hiding. In the neighbouring area of Ekuthuleni, land activists who won their right to manage restituted land through a Communal Property Association (CPA) were also subject to violence and intimidation. There, the houses of various members of the CPA were burnt down. The police have, so far, failed to properly investigate these threats. Undermining customary land rights T he Makhasaneni case study shows just how vulnerable the land rights of many rural communities are. The community has clear customary land rights and these rights have been formalised in laws like IPILRA and the Ingonyama Trust Act. And yet, despite these rights, Jindal and the local traditional leader have failed to properly consult the community about the proposed prospecting activities – thereby threatening the latter’s constitutionally protected land rights and livelihoods. The law requires proper consultation with community groups, as well as their consent, before interfering with their land rights. Although the residents of Makhasaneni’s struggle to assert their rights is far from over, the law is very clearly on their side. Above: A prospecting site where new dirt roads have been cut into the previously undisturbed communal lands around Melmoth in KwaZulu-Natal (2014). PLJ 65 “they are roBBIng us” “they are roBBIng us” QUOTES FROM MAKHASANENI RESIDENTS “We should be listened to but we are not consulted. We are not treated like people who should be consulted or have rights.” “The mine promised that they would create jobs. They said that 80% of the jobs would go to people from our community and that only 20% of the jobs would go to other people. Once they started prospecting there were very few people from our community that got employed.” 66 PLJ “The problem is that the mine says that we will be relocated. We are afraid. We plough our own food here but if we are relocated there may not be fields to plough. Some of us work here and may not be able to get work there. We are scared of being relocated to an area that doesn’t suit our needs.” “Now we are people who are like tenants. We live in fear.” “I understood that we have the right to live here but when our inkosi’s delegation told us that we have no rights it gave me a terrible fright. They said that we have no rights at all because we are not the owners of the land. They said that they have rights over the land. They even said that we must not ‘play with their land’.” “We are also afraid for the elderly people in the community who do not have the strength to relocate and rebuild. The government has built RDP houses here. In terms of government’s programme you only get one house. We have received out RDP houses so if we are relocated we have already received our grant. What will happen to the old people who have already received their RDP house?” “The mine has finished our rights. In the days of apartheid we were evicted from farms and left here. We were removed from those farms and now they are going to remove us from here. Where should we go?” “The mine came here through the amaKhosi who acted like they are the owners of the land.” “I feel like I have been hurt by the mine. When they first started drilling, they drilled in the field that I planted. They did not consult me. I just saw them drilling there. Now there is a large metal rod in the earth [to mark where the mine has found minerals]. The mine left my field fenced and now I cannot get in. Now I cannot plough my fields and cannot sell my crops anymore.” – From interviews conducted in December 2014 PLJ 67 PRO TECTING THE LAND RIGHTS OF RURAL PEOPLE Is the IPILRA the Answer? B oth the Constitution and the Interim Protection of Informal Land Rights Act of 1996 (IPILRA) recognise and protect the land rights of people living in rural areas. Under apartheid, residents of the Bantustans were deeply affected by land laws which left them vulnerable to forced removal. And yet, more than 20 years after the end of apartheid, people in these areas are still uncertain about their rights. This is partly owing to the lack of ‘formal’ documents or government registers that certify these land rights, but the situation has also been exacerbated by the government’s failure to develop laws and policies that protect and strengthen people’s rights over communal land. 68 PLJ People have secure tenure when they are legally and practically able to defend their ownership, occupation, use and access to land against interference from other people or institutions. Those who live in the former Bantustans are not always able to prevent other people or institutions from taking over land that they live on and use. People living in rural areas do not always have secure tenure. Their vulnerability is made worse when government, traditional leaders and communities all have different understandings of who owns the land and who has the legal authority to use it. For example, recently, traditional leaders in KwaZulu Natal, believing that they are the owners of the communal land within their jurisdiction, have PLJ 69 P ro tectIng the Land rIgh ts of ruraL P eoP Le P ro tectIng the Land rIgh ts of ruraL P eoP Le What are ‘informal rights’ to land? • The land rights of people who are beneficiaries in terms of a trust that was created by a law passed by Parliament. This was included to protect the rights of people living on land registered in the name of a trust, like the Ingonyama Trust land in KwaZulu-Natal. The rights of people who previously had Permission to Occupy certificates (PTOs). These are certificates that were issued by the apartheid government to show that people could use or live on specific pieces of land. The rights of anyone who has continuously lived on the same piece of land since the beginning of 1993 as if they were the owner of the land. These people are called beneficial occupiers. Clearly, the IPILRA applies in many different contexts. However, it does not provide any protection for labour tenants or anyone who has used or lived on land merely because the owner of the land has given them temporary consent. In these cases, there are other laws that provide protection – for example, the Extension of Security of Tenure Act of 1997 (or ESTA) Where land is held on a communal basis, the IPILRA says that people may not be deprived of their informal land rights in terms of customary law unless certain requirements are met. There are two important requirements: First, the IPILRA says that if the community is disposing of (selling) land in which people have IPILRA rights, the community must pay those affected appropriate compensation. Second, the IPILRA says that the community can only decide to deprive someone of their informal land right if the majority of the community agrees to this. This means that most of the people in the community that have similar rights to the person being deprived of their right must agree to the deprivation. In order to make sure that the majority of the community agrees, a community meeting must be called to discuss the possible deprivation of the land right. Section 2(4) of the IPILRA says that the community members have to be given enough notice about when and where the meeting will take place, and must be given a chance to participate in the meeting. T he IPILRA protects different types of informal and customary land rights. Here is a list of the rights that it protects: • entered into development deals and land sales without the consent of the community members living on the land. Although there seems to be confusion about who owns this land and what people’s rights are, the law is actually very clear. The IPILRA provides protection for people living in rural areas. The Constitution and the IPILRA W hen the Constitution came into effect in 1996, it protected the people living on land in the former Bantustans by recognising their rights over land. In 1996, Parliament also passed 70 PLJ the IPILRA to give effect to the Constitution’s promise to protect people whose land rights are insecure as a result of past racial discrimination. The IPILRA was intended to be a temporary law that would work like a safety net by protecting people against the deprivation of their land rights until a more detailed permanent law could be passed. The former Land Rights Bill of 1999 would have replaced the IPILRA, but it was never introduced in Parliament. The Communal Land Rights Act of 2004 (CLRA) would also have replaced the IPILRA, but in 2010 the ConCourt declared it unconstitutional, deciding that the government had not passed the CLRA properly because it did not allow people in the provinces to participate in its development. As a result, the IPILRA has been renewed by Parliament every year. Although it provides important protection to rural people, as a law it appears to be either largely unknown or misunderstood by government officials. This has meant that the IPILRA is not always used or implemented. IPILRA rights remain legally valid however, and people can insist that they have the right to say no to developments which deprive them of informal land rights. If they say no, the government or the developer must go to court to apply for an expropriation order which is an expensive and time consuming process. The right to use, live on, or access land that falls in one of the former Bantustans or that was previously South African Development Trust land. This includes customary land rights. It means that people’s rights to their household plots, fields, grazing land or other shared resources (like forests) are protected. What does the IPILRA say? T he IPILRA provides strong protections for the informal and customary land rights of rural people. Section 2(1) provides that people cannot be deprived of ‘informal rights’ to land unless they consent to being deprived of the land (or the government expropriates the land and pays suitable compensation). This means that a person can only give up their informal or customary land right if he or she agrees to give it up. • • PLJ 71 P ro tectIng the Land rIgh ts of ruraL P eoP Le P ro tectIng the Land rIgh ts of ruraL P eoP Le “The Government policy since 1994 recognised inhabitants of former homelands as the rightful owners of the land they occupy, irrespective of how the ownership of such land may be reflected in the Deeds Registry.” State Land Lease and Disposal Policy, 2013 “Our history sketches a bleak picture of several decades of forced removals. In fact, between 1963 and the late 1980s, a period where forcible evictions reached their most frequent, South Africa saw approximately 3.5 million people forcibly removed… [Professor Colin] Bundy makes the point that ‘trauma, frustration, grief, dull dragging apathy and surrender of the will to live’ are some of the effects of forcible evictions on the human conditions.” Deputy Chief Justice Moseneke, Joe Slovo judgment 72 PLJ The IPILRA defines a community as a group of people, or part of a group of people whose land rights derive from shared rules. This means that decisions can also be made at the level of sub-groups who have shared rules in respect of specific areas. The IPILRA therefore requires that when government or companies want to mine or develop land used by people with informal land rights, they have to negotiate with the people who have informal land rights and get their consent to use the land. Without the consent of the community, these developments cannot take place. They also need to pay compensation to the people who are losing their land. The IPILRA means that traditional leaders cannot make decisions about the land without the consent of the community. The need to strengthen the IPILRA A lthough the IPILRA provides important protections for the land rights of rural people, the law has various shortcomings that require strengthening or amendment. Recently, civil-society organisations have argued that the IPILRA must be strengthened and properly enforced. This can be achieved by making it a permanent law and by making more people aware of it. There is also a need to create regulations that add more detail to the provisions, as well as to create processes that must be followed by government, companies or traditional leaders if they want to use land where people have informal or customary land rights. Section 4 of the IPILRA gives the Minister of Rural Development and Land Reform the power to make regulations, but the Minister has not done so to date. The government has, however, already developed Interim Procedures Governing Land Development Decisions which Require the Consent of the Minister of Land Affairs as Nominal Owner. • their informal or customary land rights because of the protections in the IPILRA. If they did not consent to the deprivation of their rights, the deprivation is unlawful and they can fight it in court. An individual whose communal land rights are under threat can insist that the majority of the community has to consent to the deprivation. The community should be notified if and when relevant meetings are taking place, that they have the right to participate in these meetings, and that they have the right to be compensated if they are deprived of their rights. They can insist that the procedure explained in this article needs to be followed - and if not they can seek litigation. How can the IPILRA be used? K nowing how the IPILRA protects people’s informal land rights is important, but that is no guarantee that government, companies or traditional leaders will not continue to infringe upon people’s rights. If people’s informal land rights are under threat, they should: • Insist that they need to consent to any deprivation of PLJ 73