THE Traditional and Khoi-San Leadership Bill, which was made public on Friday, offers no relief to the 18 million South Africans who are still locked into regimes of traditional authority in apartheid’s former homelands. The thrust of the Bill makes it clear that government plans to forego the opportunity of a new law to give the country’s poorest people equal citizenship rights with other South Africans. The Bill makes it clear that traditional communities can exist only if headed by traditional leaders.
This Bill ensures that 18 million South Africans remain tribal subjects, not according to their choice of affiliation, but according to the tribal boundaries created during apartheid and re-confirmed and super-imposed by this Bill. The Bill boasts that its purpose is to recognise Khoi-San traditional leaders on a par with African traditional communities for the first time. Yet the Bill treats Khoi-San and African leaders entirely differently. African traditional leaders get jurisdiction over demarcated areas of land, and thereby all the people living on that land. Khoi-San leaders get no jurisdiction over land, only over people. Indeed Khoi-San traditional leaders who want to be recognised must submit lists of community members, certified copies of every person’s ID book, address, and signature to confirm their choice to be associated with that specific traditional leader.
While our government is happy to promise African traditional leaders ownership of former Bantustan land, they take a very different attitude to Khoi-San land claims. No doubt because rock-art confirms the massive historical footprint of Khoi-San ‘traditional communities’ all over South Africa.
The Bill mirrors recent legislative attempts to set the former Bantustans apart from the rest of South Africa as zones of chiefly sovereignty. One attempt was the Communal Land Rights Act of 2004 that was struck down by the Constitutional Court in 2010. Another was the Traditional Courts Bill that failed in Parliament last year when the majority of provinces refused to support it.
Together those Bills sought to lock the poorest South Africans into ascribed tribal identities and to lock democracy out. They ignored the fact, as the new Bill does, that significant numbers of African people have owned and occupied land independently of tribal control since at least the 1860s. Even the apartheid government was forced to recognise this reality. It amended the Bantu Authorities Act of 1951 to provide for ‘community authorities’ alongside ‘tribal authorities’ because, throughout South Africa, there have always been African communities without chiefs. The new Bill abolishes all community authorities in the same section that it elevates the tribal authorities of old into traditional councils.
The Bill will have a major impact on people’s ability to hold traditional leaders accountable in relation to mining deals on their land. In recent years there have been a number of court judgments interdicting community members in North West and Limpopo from holding meetings to demand accountability in relation to mining revenue. There are also judgments denying community members the legal standing to demand that tribal books be audited. These judgments reiterate chiefs’ claims that they are the only people with the official status to call meetings and to represent ‘their’ traditional communities.
Though the Constitutional Court took a different view in the Pilane v Pilane judgment of 2013, this Bill exacerbates, rather than addresses, the underlying problem. It gives traditional leaders official recognition but, no-where, not once, does it require traditional leaders or councils to consult the members of the communities they purport to represent. Even in relation to decisions that fundamentally affect people’s livelihoods and land rights.
Is it any wonder that the people of Mapela burned down the tribal offices and the empty house of Kgosi David Langa last week after he had agreed to let Anglo Platinum take over land on which a high school had been built with community funds.
Justice Bess Nkabinde quoted a proverb during the Bakgatla ba Kgafela Constitutional Court hearing earlier this year: Morena ke-morena ka-batho. A chief is a chief through the support of people.
This Bill is the opposite of that. It makes it virtually impossible for ordinary people to hold traditional leaders to account. The easy alternative is the model proposed for the Khoi-San: The jurisdiction of traditional leaders should be based on people’s choice to affiliate with them, not on entrenching and superimposing apartheid tribal boundaries.
Consensual affiliation is why customary law remains alive and relevant in South Africa today despite decades of suppression. Traditional leaders who are legitimate have nothing to fear from their jurisdiction being over people rather than land, as is proposed for the Khoi-San. People will continue to support and use institutions that serve them well.
The question is what kinds of traditional leaders need laws that default to apartheid tribal boundaries and stereotypes of unaccountable chiefly power. And why has government chosen to pander to their demands rather than to uphold the land and citizenship rights of the poorest and most vulnerable South Africans.
This article was first published on Sunday Times 20 September 2015