Why red lights are flashing over consultation on communal land bills

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Making their way through the legislative process are nine bills of seminal significance to people living on rural communal land. The Alliance for Rural Democracy appeals to the National Council of Provinces (NCOP) in particular to uphold the constitutional rights of those most likely to be affected and to consult the communities concerned.

Parliament is processing, or is due to process, six bills that have particular significance for the rights of people living in SA’s former homelands. Three draft bills have also been published for comment. Among these are the Traditional Leadership and Governance Framework Amendment Bill and the Traditional and Khoi-San Leadership Bill, which together echo and seek to entrench important aspects of the Bantu Authorities Act that shaped apartheid.

The amendment bill has already been approved by the National Assembly and sent for concurrence to the NCOP, where the obligation to test opinions on the ground is most stringent.

The Traditional and Khoi-San Leadership Bill is likely to be finalised by the National Assembly before end-2017 and sent to the NCOP for concurrence soon after.

People living in the former homelands regard these two bills as crucial to campaigns for accountability by traditional leaders, the government and private institutions. They demand accountability and meaningful consultation on decisions about the management of revenues and other benefits flowing from the commercial and industrial use of their land. The level of public concern is evident in part in the growing frequency and intensity of protests against mines and leaders along the platinum belt that stretches across Limpopo and North West.

Many of these concerns were also voiced during public hearings of the high-level panel on the assessment of key legislation and acceleration of fundamental change, chaired by former president Kgalema Motlanthe. This panel is due to report its findings within weeks.

The Traditional Leadership and Governance Framework Amendment Bill is intended to legitimise illegitimate and invalid traditional councils that have failed to meet several transitional requirements for the inclusion of elected and women members. It hides an additional attempt to validate contested commercial deals made by invalid traditional councils without the consent of landowners and users.

The memorandum to the amendment bill admits that 13 years after the Traditional Leadership and Governance Framework Act of 2003 was implemented, traditional councils have largely still not met the composition requirements. Most councils are, therefore, not legally valid — and nor are the deals that they have signed.

If pending land laws are so fundamentally tied to the powers and status given to traditional councils and leaders …  it is crucial that people with historical land rights in the former homelands are given a chance to be heard on the bills

The amendment bill proposes a new period of one year for traditional councils to transform. How this will deal with structural problems at the heart of the failure of the act is not explained. Most serious is that the amendment bill removes the immediate consequence of illegality where councils fail to transform. It appears instead to be introducing an autocratic and unaccountable alternative to collapsing local governments.

Rather than being a technical “stopgap”, as the Department of Traditional Affairs claims, the amendment bill is likely to exacerbate confusion and abuses around governance in traditional areas. Adding to the confusion is the role of traditional institutions versus that of elected local governments. It appears that the government is creating a fourth sphere of government. The amendment bill’s provisions anticipate that the Traditional and Khoi-San Leadership Bill, which repeals the Traditional Leadership and Governance Framework Act, will also be passed later in 2017. The bill would give traditional councils sweeping powers to transact on communal land, without any obligation to consult with residents who actually hold the land rights.

The Traditional and Khoi-San Leadership Bill keeps many of the act’s fundamental principles of top-down authority, tribal jurisdictions and the centralisation of power in senior traditional leaders and councils. Yet, the bill’s provisions are even more problematic than the current act. New provisions have been introduced to give current abusive practices by some traditional authorities the veneer of legality.

One such provision is clause 24, which has survived the first round of amendments by the National Assembly portfolio committee. It empowers traditional councils to conclude agreements with any institution or entity, including mining companies, without any requirement for consultation with residents living within the boundaries of the traditional communities that make up the former homelands. This denies and undermines the land rights of people who were dispossessed of their rights during colonialism and apartheid.

Given the serious proposals contained in these two bills, civil society organisations and activists have called for thorough processes of public consultation by Parliament. Affiliates of the Alliance for Rural Democracy have sent letters to the NCOP and provincial legislatures to demand that their voices be heard. It is likely that if the bills are perceived to have been processed without meaningful public participation, they will be challenged in the Constitutional Court. The Constitutional Court has repeatedly enforced legislatures’ duties to facilitate public participation and citizens’ rights to meaningful consultation where legislation could affect their lives or livelihoods.

In 2016, the Restitution of Land Rights Amendment Act 15 of 2014 was declared invalid by the Constitutional Court in Land Access Movement of SA and Others v Chairperson of the National Council of Provinces on this issue. Justice Mbuyiseli Madlanga noted in the unanimous judgment: “This court has rejected the argument that the public need not participate in the legislative process as its elected representatives are speaking on the public’s behalf.… It is beneath the dignity of those entitled to be allowed to participate in the legislative process to be denied this constitutional right …”[p]ublic involvement … [is] of particular significance for members of groups that have been the victims of processes of historical silencing”.

Their far-reaching proposals deserve proper consideration by the public, particularly those … subject to dispossession

In Minister of Health and Another v New Clicks SA (Pty) Ltd and Others, Justice Albie Sachs noted: “The forms of facilitating an appropriate degree of participation in the law-making process are indeed capable of infinite variation. What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say.” These pronouncements are relevant for the bills pending before Parliament. Their far-reaching proposals deserve proper consideration by the public, particularly those who were subject to dispossession and imposed “Bantu authorities” during colonialism and apartheid.

Other pending bills with relevance for people in rural areas and the former homelands include the Traditional Courts Bill, Communal Property Associations Bill and Restitution of Land Rights Amendment Bill. They have been tagged as section 76 bills, a reference to the constitutional provision that sets out the process for passing laws that significantly affect the provinces and provincial government powers.

Section 76 bills must be discussed by each provincial legislature, which then puts forward a provincial mandate for consideration and negotiation in the relevant NCOP committee. The Traditional Leadership and Governance Framework Act and Traditional and Khoi-San Leadership Bill are tagged as section 76 bills. The Mineral and Petroleum Resources Development Amendment Bill is tagged as a section 75 bill that does not affect the provinces, and so circumvents the provincial mandate process, but is also currently before the NCOP.

Parliament’s constitutional duty to facilitate public participation applies whether a bill is tagged as section 75 or 76. Parliament’s houses and committees, including the NCOP and its select committees, face a daunting programme of public participation and consultation during the next period to ensure that the legislation under consideration is properly processed.

A draft Communal Land Tenure Bill has also been published for public comment by the Department of Rural Development and Land Reform, a draft Deeds Registries Amendment Bill and a draft Registration of Agricultural Land Holdings Bill.

These bills have not yet reached Parliament, but their proposals have significant relevance to the rights of rural people and communities. They also link to the proposals contained in the Traditional Leadership and Governance Framework Act Amendment Bill and Traditional and Khoi-San Leadership Bill.

The draft Communal Land Tenure Bill stipulates that only traditional councils that have met the validity and composition requirements in the Traditional Leadership and Governance Framework Act and Traditional and Khoi-San Leadership Bill are eligible to administer communal land. By providing traditional councils with another opportunity to become valid, the amendment bill is clearly preparing them to hold land on behalf of people when the Communal Land Tenure Bill is passed.

If pending land laws are so fundamentally tied to the powers and status given to traditional councils and leaders in the Traditional Leadership and Governance Framework Act and Traditional and Khoi-San Leadership Bill, it is crucial that people with historical land rights in the former homelands are given a chance to be heard on the bills. If not, the NCOP and other legislative bodies may find themselves in deep trouble.

This article was first published on Business Day on 18 September 2017

opinion-grey Constance Mogale is the national co-ordinator of the Alliance for Rural Democracy
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