“Partnership” trumps consultation in latest proposal to administer South Africa’s traditional communities

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The Traditional and Khoi-San Leadership Bill (TKLB) currently before Parliament gives sudden prominence to a new concept of “partnership” on communal land, but it makes no provision for the people living on this land to influence the shape of the deals made on their behalf.

The TKLB and is set to replace the 2003 Traditional Leadership and Governance Framework Act (TLGFA). It is currently the subject of public hearings being held across the country.

One of the significant assertions made in submissions at these hearings is that the TKLB entrenches tribal boundaries that were initially drawn as part of the apartheid homeland strategy. At stake are the rights of 18 million rural South Africans who are at risk of becoming subjects – without their consent – of traditional leaders and their councils.

Read Section 24(2)(c) here: TKLB Pg 33

Read Traditional and Khoi-San Leadership Bill here: TKLB Bill 23 of 2015

Under the TKLB traditional leaders are slated to win substantial new powers over land in the so-called ‘traditional territories’. It therefore undermines the right to own property for individuals, families, kin groups, as well as communal property associations that have regained land rights under the land restitution program.

The TKLB does not only entrench colonial boundaries, however. It adds a new dynamic to the power of traditional councils: the ability to enter into ‘partnerships’ with “any person, body or institution” (Section 24(2)(c). Over 20 years since the advent of South Africa’s democracy this is an unprecedented change. Certainly, the subtlety of this addition is a strategic move to understate its significant consequences.

We can see the uniqueness of these provisions in the TKLB by putting this Bill in the context of a long line of government funded research, bills and policy dealing with the role of traditional leaders in South Africa’s democracy and the related property rights of rural South Africans living in communal areas. These include the Status Quo Reports on Traditional Leadership and Institutions (1999), the White Paper on Traditional Leadership and Governance (2003), the Traditional Leadership and Governance Framework Act (2003), the Communal Land Rights Act (2003), the Communal Land Tenure Policy (2015), and the very recent introduction of the re-drafted Traditional Courts Bill (2017).
In this context, Section 24(2)(c) of the TKLB comes completely out of the blue. In a word query of all the documents listed above, the word ‘partnership’ is barely mentioned. For example, in all six volumes of the Status Quo reports, which are to-date the most significant research reports on the status of traditional governance in post-apartheid South Africa, the word ‘partnership’ is used only once. In the 2003 White Paper on Traditional Leadership and Governance, ‘partnerships’ are referenced seven times in reference to partnerships with elected government bodies such as municipalities and local government. ‘Partnership’ is used only four times in the 2003 TLGFA, also in reference to partnerships with government bodies.

In the TKLB, however, partnerships are referenced twenty-five times, marking both the sudden introduction of the new actors listed above as well as a substantial increase in the attention and detail attributed to ‘partnerships’ that traditional councils enter into. One would expect that the increased attention would include an obligation to consult the rural peoples whose land would be impacted by these ‘partnerships’, but no obligation exists.

Why are ‘partnerships’ introduced so significantly now, when the entitlement of traditional councils to enter into partnerships with a broad range of institutions was not an issue in past government reports, policy or bills?

One may have seen the introduction of the ability of traditional councils to enter into partnership agreements foreshadowed in a growing body of independent research that highlights an increase in partnerships between traditional councils and mining companies and the importance of the resultant revenues for traditional leaders’ personal coffers. Numerous reports by the Society, Work, and Development Institute (SWOP) at Wits University and the Land and Accountability Research Centre (LARC) at the University of Cape Town are illustrative.

A few examples from this work reveal the characteristics of these ‘partnerships’. In one example, millions of rand in mining royalties derived from the lands of the Bapo Ba Mogale community of North West remain missing. The auditor-general’s office found that the accounts of 102 traditional communities have not been audited since 1994, leaving untold amounts of royalties from a platinum mining boom that has produced unimaginable profits for a select few unaccounted for.

An attempted mining partnership to mine titanium from the traditional lands of the Xolobeni community in the Eastern Cape has led to protracted conflicts within the community.The community members who would be impacted by the mining demanded to be properly consulted and to retain the right to refuse the project. The violence spiked when the chairperson of the Amadiba Crisis Committee, Sikhosiphi “Bazooka” Rhadebe, was assassinated in March 2016. One of the partners in the plan, Australian Stock Exchange-listed Mineral Commodities Ltd., has since divested from the project.

Traditional councils are very public about their desire to enter into agreements with transnational mining companies, some of them even publishing websites inviting investors to enter into such partnerships. The homepage of the Bakgatla Ba Kgafela traditional council pronounces that their territory is “rich in natural beauty and mineral resources” ripe for exploitation. Kgosi Nyalala Pilane of Bakgatla is quoted: “We are committed to development in the region which will be catalysed through reinvestment of the area’s mineral wealth”. Despite the promise from Pilane to represent his traditional community in mining partnerships, he is alleged to have accumulated upwards of R300m in personal wealth from mining deals on traditional land.

Partnerships with the private sector are often cloaked in the language of ‘development’ and herald apparent ‘benefits’ for all. Recent history shows us that these ‘partnerships’ often exclude the people whose land and livelihoods are destroyed by extractive industries.

The Traditional Courts Bill and Living Customary Law

Recent proposed changes to the Traditional Courts Bill (TCB), introduced to the National Assembly on 30 January 2017, provide some inspiration. The TCB allows people and communities the right to decide which court will hear their disputes – traditional or state. It recognizes that communities may have leaders who are not recognized by the government and that these leaders are legitimate, rather than imposing ‘traditional leaders’ according to territorial designations deriving from apartheid. It therefore puts power back in communities.

Just as the TCB allows people to choose who their leaders are and which court their disputes can be heard in, they should have the right to consultation and the right to refuse ‘partnerships’ entered into by traditional councils.

Recent Constitutional Court Judgments recognise the role of communities in the ongoing development of ‘living customary law’. This refers to law that people use as they negotiate their daily lives in response to changing social and economic conditions. It is distinct from approaches to customary law that codify and standardise it, as it was under colonial governance structures and as it is set to remain if the current draft of the TKLB is signed into law. An acknowledgment of living customary law would certainly entail a recognition that ongoing community participation is an essential characteristic in the governance of partnerships. As we are learning in hearings around the country, rural peoples won’t sit silently as their lands are exploited in the name of partnership by traditional councils claiming to represent them. There is an urgent need to introduce clear steps to ensure that rural peoples are included in the negotiation of partnerships and that they share in profits deriving from their lands. This is the only way to recognize the role of everyday community members in the shaping and future of living customary law.

(An edited version of this article appeared in The Sunday Independent, 4 February 2017)

Read Section 24(2)(c) here: TKLB Pg 33

Read Traditional and Khoi-San Leadership Bill here: TKLB Bill 23 of 2015

opinion-grey Daniel Huizenga is a PhD candidate at York University, Toronto, Canada, and a research associate at the Land and Accountability Research Centre in the Department of Public Law at the University of Cape Town
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