New bill leaves communities at leaders’ mercy

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Parliament is about to begin nationwide public hearings on a new law to regulate the roles of traditional and Khoi-San leaders. The debate, which is expected to kick off in mineral-rich North West next month, will pit rural communities against coalitions of elite power in an important battle over the right to make deals potentially worth billions.

Traditional Affairs Deputy Minister Obed Bapela and Department of Co-operative Governance and Traditional Affairs director-general Charles Nwaila introduced the Traditional and Khoi-San Leadership Bill (TKLB) to the parliamentary portfolio committee.

What is most noticeable about the TKLB is that it mirrors the failure of the earlier Traditional Court’s Bill and Communal Land Rights Act to redress the distortions and unconstitutionality of the colonial and apartheid understanding of traditional leadership and governance, and more importantly, indigenous land rights.

Specifically, the TKLB attempts to provide powers and autonomy to traditional leaders that are far greater than previous legislation. This undermines the land rights of communities affected by mining deals. Clause 24 of the bill provides for traditional and Khoi-San leaders, as well as their councils, to enter into partnerships and agreements with municipalities, the government and “any other person, body or institution”.

No consultation

The clause does not require traditional councils to consult with communities before concluding any agreements. Some deals would require sign-off by the premier of the province. Others, which fall within the ambit of national legislation, such as the Mineral and Petroleum Resources Development Act, will need the ratification of the relevant minister. But no agreements will need the consent of communities living under the authority of traditional leaders.

With the Mineral and Petroleum Resources Development Act being silent on the nature and extent of consultation required for mining agreements, this would authorise mines to enter into surface lease agreements with traditional councils. This is extremely problematic because there is also no requirement in the TKLB for the traditional council to consult those directly affected by mining before concluding such a deal. These clauses provide traditional councils with more power and authority than they have under the existing Traditional Leadership and Governance Framework Act of 2003.

It means that both the surface and mineral rights may be granted without the consent of a community, and that the mining company through an agreement with the traditional council can have the right to access the community’s land for mining to the extent necessary for mining, without consulting the community.

This is surprising considering the level of turmoil that has risen as a result of the lack of consultation and consent by mining communities in almost all mining deals. A recent example of this turmoil was seen in the rural mining community of Mapela, 20km north-west of Mokopane, in Limpopo. There the lack of consultation by chief David Langa and Anglo America’s Mogalakwena Platinum Mine boiled over into the biggest and most violent protests in the area since mining commenced there in 1993.

In North West, members of the Bapo ba Mogale community have gone to court seeking a review of a deal with the crumbling Lonmin empire for access to their land with significant compensation or community benefit.

Land rights

The Constitutional Court in the Bengwenyama judgment states that the requirement of consultation is important given the “grave and considerable invasion of the use and enjoyment of the land” that mining activities entail. The Constitutional Court held further that such consultation had to be meaningful and seek to address the impact of mining activity on the land owner and/or occupier with a view to reaching an agreement.

Ultimately, what clause 24 of the TKLB allows is for traditional councils to be a law unto themselves and to ignore community land rights granted to people in other pieces of legislation.

For example, the National Environmental Management Act requires a series of environmental authorisations and, although this does not create a right to refuse consent for mining, it does entail documenting the human impact of environmental destruction that mining entails. If this impact is found to be unacceptable, mining will not be permitted.

The Spatial Planning and Land Use Management Act provides that a mining right applicant must apply for municipal approval in terms of an agreed land use framework.

The Interim Protection of Informal Land Rights Acts provides that if the government or mining companies want to use land where people have informal land rights they have to negotiate with the people who hold such rights. More importantly, the government or mining companies have to get their consent to use the land. Unfortunately the act is not widely known or enforced by the Department of Rural Development and Land Reform.

These rights are, therefore, only rights on paper – not in reality. They will be further undermined by the TKLB enabling traditional councils to enter into mining agreements without the consent of the community.

Clause 24 of the TKLB entrenches a system of unaccountable traditional leadership and governance as it falls short of meaningfully transforming the institution of traditional leadership and governance as required by the constitution. This poses a major threat to community land rights.

 

This article was first published in Business Report on 30 October 2015

 

opinion-grey Phiwe Ndinisa is a legal researcher with the Centre for Law and Society at the University of Cape Town
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