Back to the bad old days

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A Bill currently before parliament promises overdue recognition for Khoisan communities and their leaders. In fact, however, the Traditional and Khoisan Leadership Bill is a smokescreen for entrenching autocratic traditional councils, which have dodged fiscal and democratic accountability for more than two decades.

The Traditional and Khoisan Leadership Bill (TKLB) referred to parliamentary committees last week should have been an opportunity to define an appropriate role for the traditional leadership guaranteed in our 1996 Constitution. What the Bill actually does is to prop up the powers of traditional councils and disguise the fact that most of them are not legally valid.

 

The Traditional Leadership and Governance Framework Act (Framework Act) of 2003 said the apartheid-era tribal authorities of old could be the traditional councils of the future provided only that 40% of their members should be elected and that a third should be women.

 

Twelve years later no elections have taken place in Limpopo.  In other provinces, elections have often been so deeply flawed that courts and government circulars have warned that the failure to comply even with these requirements has put the legal standing of existing traditional councils in jeopardy.

 

Yet the government continues to pay the salaries of chiefs and councilors, and to treat them as the only structures authorized to make decisions about mining deals and investment projects on communal land. Under the proposed TKLB they would continue to wield unconstitutional power within rural boundaries drawn under colonial and apartheid rule.

 

We face regular explosions of anger and frustration from people whose ancestral graves, fields, livelihoods and homesteads are destroyed by mining licensed by traditional councils and leaders, without community consent.

 

  • Last month, the people of Mapela in Limpopo burned down the empty house and office of kgosi David Langa after he agreed to close a high school built and paid for by the community so that Anglo Platinum could have the land;
  • The houses of traditional leaders in Bakoni in Limpopo and Bethanie in North West were burned down when the government ignored complaints about lack of accountability for mining revenue;
  • A group trying to assert their right to land returned to them under the land restitution programme came under attack in Ekuthuleni in KwaZulu-Natal last August when a traditional leader challenged their ownership and mobilised people to whom he had allocated their land against them. The homesteads of two elderly community leaders were destroyed.

In 2012 members of the Bakgatla Ba Kgafela royal family were interdicted from calling a meeting to discuss widespread and growing alarm about secret mining deals. The Bakgatla are worth an estimated R15-billion from the platinum mining taking place on their land around Moruleng in North West, but without any accounting from the Traditional Council they can only guess at their wealth.

 

When they asked a court to order that their tribal books of account should be audited as required by law, the judge refused on the basis that as mere community members they had no legal standing before the court.

 

Indeed, the judge went further than that: He awarded punitive legal costs against them for bringing the application in the first place, proving that people who dare to call traditional leaders to account risk bankrupting themselves in the process.

 

Now the Cabinet has decided to sweep its failures of accountability under the carpet of the new Traditional and Khoisan Leadership Bill, rather than attempt to address them.

 

The TKLB seeks to leapfrog backwards in time by repealing the 2003 Framework Act and giving the tribal authorities of old a second change to re-constitute themselves as traditional councils. Also, in clause 70(3), it reasserts the controversial tribal boundaries created under the 1951 Bantu Authorities Act as the domains of today’s traditional leaders.

 

If it succeeds, this Bill will deny 18 million South Africans living within the former Bantustans the option to escape their imposed status as tribal subjects.

 

The Bill makes it clear that the only communities government will recognise officially are those governed by traditional leaders. Custom and tradition are deemed to exist only insofar as they are fall within the domain of traditional leaders.

 

Why has Cabinet chosen to bolster the power of traditional leaders rather than enforce the property and citizenship rights of the poorest and most vulnerable South Africans?

 

The answer relates, at least in part, to the mining interests of senior politicians and their families. As long as senior politicians benefit from the opaque mining deals brokered by traditional leaders it is their interest to keep these deals secret, and silence opposition by those whose land is being ravaged in the process.

 

This article first appeared in City Press – 11 October 2015

opinion-grey Dr Aninka Claassens is Chief Researcher in the Centre for Law and Society at the University of Cape Town
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