Chiefs’ “timeless custom” standing in way of land reform

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The history of forced removals and Bantustan consolidation lays bare a trajectory of both dispossession and disenfranchisement, starting with the Land Acts of 1913 and 1936 and, ironically, elaborated in a set of post-apartheid laws.

These two acts did not create dispossession in and of themselves, as this occurred earlier through the wars of conquest. They cemented the unequal and unstable outcome of black dispossession by using law to pre-emptively thwart black people’s efforts to recover from dispossession through resistance or by buying or leasing land.

The Land Act of 1913 set aside only seven percent of South Africa’s land surface for black ownership and tenancy – dense, tiny pockets of black settlement outside the cities to which people had retreated during and after the wars of conquest.

The 1936 South African Native Trust and Land Act amended the 1913 Act by adding areas of land that were de facto owned or occupied by black people or adjacent to existing reserves, bringing the land reserved for black people up to 13 percent.

That ratio was kept constant by the 1936 Land Act during the period of forced removals that followed from the 1960s.  As additional ‘white’ land was added, to create consolidated Bantustans, so areas of existing black settlement were subtracted resulting in over 3.5 million people being forcibly removed.

This process took place hand-in-glove with the imposition of Bantu authorities in 1951. The rural rebellions of the 1950s-60s were sparked by a vicious combination of cattle culling, forced removals, re-moulding of traditional authority, and redrawing of tribal boundaries to reward compliant chiefs.

Albert Luthuli in 1962 described the Bantustans as follows:

Inside this closed world there is no hint, not even the remotest suggestion of democratic rule. There is provision only for the march back to tribalism – but in a far more dictatorial form than Shaka dreamed of. The modes of government proposed are a caricature. They are neither democratic nor African. The Act makes our chiefs, quite straightforwardly and simply, into minor puppets of the Big Dictator. They are answerable to him and to him only, never to their people.

For “separate development” to take off, Pretoria offered vast tracts of land to minor chiefs to act as resettlement camps for people forcibly removed from “White South Africa”.

There are innumerable examples of Bantu authority areas delineated to reward compliant chiefs at the expense of those who refused to collaborate, and of Bantustan leaders being complicit in forced removals. The more people, the higher the revenue from tribal taxes.

“Permission to Occupy” certificates were restricted to male household heads, thereby undermining women’s prior access to land.

Black people were stripped of their South African citizenship and consigned to “homelands” governed by chiefs according to “timeless custom”.

The apartheid mythology of intrinsically separate “tribal” and “modern” realms disguised the deeply exploitative relationship between white property and power (at the centre), and black landlessness and disenfranchisement (on the periphery). This required the brutal enforcement of discriminatory laws, at the centre of which were the 1913 and 1936 land acts.

To deal with this legacy requires confronting the unequal power relations created by the two acts, in particular their consolidation of autocratic chiefly power in Bantustans.

However, the post-apartheid government has chosen to do the opposite. It has adopted a package of traditional leadership laws that vests far-reaching and unilateral powers in chiefs, including apartheid-era appointees, while re-entrenching the deeply contested tribal boundaries that made up the former Bantustans.

These laws are the Traditional Leadership and Governance Framework Act of 2003 (Framework Act); the Communal Land Rights Act (CLaRA) of 2004 (declared unconstitutional in 2010); eight provincial traditional leadership laws; the Traditional Courts Bill (TCB); and the looming National Traditional Affairs Bill.

The new laws are the product of a backlash by the chiefly lobby against their loss of power with the reunification and extension of elected local government throughout South Africa after 1994.

In response, rural people have challenged the systematic privileging of chiefly voices over theirs. Rejection of the TCB centres on the contested tribal jurisdictions and chiefly appointments it reinforces.

Over 1,400 boundary challenges have been lodged with the Commission on Traditional Leadership Disputes and Claims. In nine years it has made findings in fewer than 10 percent of cases, most of which are being contested in court.

Moreover, there has long been disagreement between rural people and chiefs over the scope and limits of chiefly power over resources in “communal” areas – rather than a conflict between rights and custom, as is often suggested. Which people, at what level, and by which processes, are entitled to decide who may occupy and use land and for what purpose? Can land be transacted or not?

At stake is control over the land rights of the 16 million people living in the former homelands and the profits from investment deals involving valuable tourism land and mineral resources, such as platinum in North West province and Limpopo, titanium in the Eastern Cape and coal in KwaZulu Natal.

Tensions bedevil the interface between land restitution, chiefly power and lawmaking. This is inevitable, given that land restitution seeks to undo the impact of forced removals whilst the new laws entrench and protect the Bantustan boundaries and tribal jurisdictions that are the very outcome of forced removals.

The Restitution Act of 1994 provides redress by transferring title deeds back to people who were forcibly removed, seeking to undo the process of Bantustan consolidation by returning people to the areas they came from.

That, however, is very inconvenient to chiefs who obtained large tribal authority areas on the back of forced removals. The Communal Property Associations Act of 1996 provides for group ownership by land reform beneficiaries.

Chiefs have attempted to block restitution and shut down potentially countervailing institutions such as Communal Property Associations and democratically elected Community Authorities. They insist that customary law forbids independent rights to land within “their” tribal boundaries. They have used the provincial laws as a basis for banning community meetings.

The re-imposition of apartheid tribal boundaries is pivotal to the coercive impact of the new laws. These boundaries serve two functions: they lock 16 million people into ascribed tribal identities, while simultaneously locking alternative institutions out of “tribal” areas. This dual function pre-empts rural people’s ability to organise themselves on any basis other than as tribal subjects.

This is similar to the 1913 and 1936 land acts, which locked people into Bantustan boundaries, and simultaneously undermined their capacity to resist by reinforcing unaccountable chiefly power.

The traditional leadership laws are a backlash against alternative forms of authority and custom that sprang to life after the advent of democracy.

Now, as in the past, a ruling elite reaches for law to bolster its contested authority and to enable the monopolisation of land and other resources at the expense of the poorest. The basis of this discrimination nowadays is no longer race but the very boundaries of the two land acts’ legacy of forced removals and Bantustan consolidation.

As long as traditional leadership laws entrench the Bantustan boundaries and prop up autocratic versions of chiefly power they make a joke of land reform.

Land reform requires tackling vested interests and structural patterns of poverty and exclusion. Far from doing this, the traditional leadership laws seek to hide and entrench continuing structural inequalities under the cloak of “timeless custom”.

opinion-grey Dr. Claassens is director of the Rural Women’s Action Research Programme at the Centre for Law and Society. This is an edited version of her paper for the Land Divided Conference (24-27 March 2013).
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