“One size fits all” Traditional Courts Bill negates rural diversity

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The centenary of the Natives Land Act of 1913 offers the opportunity for critical reflection on its material and social legacies that continue to shape the lives of millions of South Africans. This moment also demands interrogation of current and proposed legislation on land, especially how present state interventions respond to past injustices.

The public submissions in 2008 and 2012 to Parliament on the Traditional Courts Bill (TCB) offer precisely such insights. The submissions on the TCB provide valuable insights into the diversity of experiences as people communicated in their own voices how they have accessed land and how the TCB would influence their tenure security and claims to land.

This diversity disrupts the idea that customary law can be approached through a “one size fits all” framework, as presented in the TCB, or that there is a singular experience of land rights among black people who live in rural areas. The TCB’s imposition of uniform traditional leadership structures throughout the former Bantustans destabilises existing practices of customary law, which the submissions reveal as varied and responsive to conditions in particular contexts.

Many submissions argued that because land is an entitlement under customary law, people’s claims to their land are embedded in custom. By empowering traditional leaders to be the interpreters of custom and allowing them to deny customary entitlements as a form of punishment, the TCB threatens land rights and tenure security.

Monoko Thomas Moshitoa from the Bakone Development Forum in Rakgwadi, Limpopo, described the potential effects of the TCB’s elevation of chiefly powers: “This provision is worse than anything we had under apartheid. The big stick of Bantustan chiefs was always the threat of eviction.

“But under proper customary law no one can be evicted or deprived of land unless a pitso (general meeting) of the whole community agrees. That central protection, which is at the heart of the democratic nature of customary law, is changed by this bill.. [The Bill would empower] a chief, as presiding officer of a traditional court… [to] strip people of their customary entitlements to land and other resources.”

Moshitoa, like many other authors of submissions, argued that the democratic values embedded in customary law have long promoted accountability and allowed people to influence the development of custom from the bottom up. The TCB removes these accountability structures and processes of engagement, in the process distorting the very custom that the Bill is intended to protect.

Speaking to the violent, forceful removal of people from their land under colonialism and apartheid, many submissions described the ways that land has been re-acquired through land restitution claims after 1994. In these submissions people expressed concern about the TCB’s potential to reverse democratic gains by allowing traditional leaders control over such reclaimed land.

Andries Sihlangu of the Manyeleti Land Claim group explains that the TCB “has implications for our land that we have claimed to be included under the jurisdiction of a chief who… (was) not a beneficiary to the land that is to be restored to us. All this takes us back to what we were fighting for under apartheid…[L]et the claimed land… belong to the land claimants and beneficiaries… The traditional leader must remain in power only on the land that was demarcated his jurisdiction.”

Private land owners whose land falls within the boundaries of the former Bantustans, where the TCB would have effect, argued that the Bill would perpetuate the racial discrimination and vulnerability of the past by making them subjects rather than citizens. The Moletji Community Property Association explained: “Our forefathers purchased the land we are currently occupying…[T]he apartheid regime took away our title holders’ status and put us under a chief of a tribe that we have never been part [of] and [that] did not contribute… [to the] purchase of the land…

“We do not understand why the government that we voted to replace the racist regime that hated black people in favour of whites will support a Bill of this nature that only affects Black people who own land in the rural areas, whilst white counterparts who are our neighbours are not affected like us.”

Because of the poor consultation process in the development of the TCB, the Bill does not address the complexity of land rights in rural areas and threatens the rights of all the groups described above. The experiences detailed in the submissions highlight that there is no singular tradition or custom among black people that can be reduced to one conception of hierarchy, governance and organisation, as put forward in the TCB.

Importantly, there is no “one way” through which groups and individuals have acquired and held land in South Africa. Rather, there are complex, historically rooted conceptions of and relationships to land rights around the country. These conceptions and relationships correspond with the diverse ways that Africans acquired, were stripped of, regained and retained land in different moments in South African history.

When forums for discussing the content of customary law are closed off to the majority of people living under customary law then these forums cannot be expected to reflect their realities, needs and interests. Addressing the legacy of the 1913 Land Act demands examining the processes through which land exploitation and dispossession were carried out, so as not to reproduce these processes.

Central to this is the development of inclusive consultative processes that allow legislation to respond to the challenges of land insecurity today. Consultation should meaningfully speak to the lived realities of people who were silenced under apartheid and who continue to struggle to have their voices heard under democracy.

opinion-grey Thuto Thipe is a researcher with Rural Women’s Action Research Programme, in the Centre for Law and Society at the University of Cape Town
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