The two bills default to the colonial and apartheid denial of the property rights of people who have inherited their homes and land over generations.
The Traditional Courts Bill (TCB) that the ANC pushed through the National Assembly just before the 2019 elections is suddenly on a fast track through the National Council of Provinces.
With unexplained haste, provincial legislatures have been instructed to hold public hearings starting this week, giving those most affected by the bill – the millions who live in former homeland areas – no time to make arrangements to attend to have their voices heard. To make it harder, the dates and venues for these hearings have not been finalised in most provinces.
The version of the bill adopted by the National Assembly this year was a shock to opponents because it was so similar to a 2008 version that had been taken off the table. Concerted opposition to that bill led to it being defeated – twice. First in 2011, then in 2014 when the majority of provinces refused to support it in the National Council of Provinces.
The current bill compels the 18 million South Africans living in the boundaries of the former homelands to subject themselves to a legal system where traditional leaders are accorded coercive powers that surpass any that chiefs had during colonialism and apartheid.
It obliges these citizens to appear before traditional courts once summoned, and makes it virtually impossible for them to opt out of these courts. This creates a segregated system of justice.
The people who opposed the bill in 2008 warned of its likely consequences. They said it would provide traditional leaders with impunity to profit from, and keep secret, lucrative mining and other investment deals on people’s land. Most seriously it would provide them with punitive and coercive power over community members who sought to hold them to account.
The validity of these concerns has been confirmed by a series of damning court judgments, by reports by the public protector and Human Rights Commission, by the reports of the Presidential Advisory Panel on Land and Kgalema Motlanthe’s High Level Panel plus, most recently, by the report of the Baloyi Commission of Enquiry. Among others, these document the following:
- The story of how R800-million disappeared from the coffers of the Bapo ba Mogale community near Brits. The public protector named the premier and the traditional council as being responsible. The activists who reported the issue to the public protector have been violently attacked by thugs in the employ of the traditional council.
- There have been three Constitutional Court judgments against Kgosi Nyalala Pilane of the Bakgatla ba Kgafela. The first judgment, in 2013, stopped him from interdicting community meetings called to hold him to account. The second, in 2015 stopped him from seizing control over restitution land that the community had decided should be owned and managed by an elected structure. The third, in 2018 stopped him from evicting villagers from mineral-rich land they had purchased 100 years before. Their rights had never been terminated, nor had they been offered compensation. It has been estimated that Nyalala Pilane’s actions have lost some R25-billion rand that should have accrued to the impoverished Bakgatla community. The Baloyi Commission report describes how the government has allowed Pilane to flout both company and customary accountability requirements. Those who have tried to hold him to account have been subjected to violence and punitive costs awards. This has been widely reported including by the Daily Maverick, Mail & Guardian, and GroundUp.
- The struggles of the Xolobeni community to preserve their homes and land on the Wild Coast from loss to an Australian mining company that has been found guilty of environmental transgressions on the West Coast have been relatively well documented. A traditional leader claims to be their sole legal representative while also serving as a director in the local partner to the Australian mining company. At least three anti-mining activists have died in Xolobeni. No arrests have followed.
- In November 2018, King Ndamase Ndamase of Western Pondoland signed a lease with a Chinese investment company in which he undertook to clear all the inhabitants from a 30km stretch of coastline around Port St Johns, in exchange for the low rent of R1-million per year.
- In February of this year, a judgment was handed down in the Mthatha High Court that interdicted a headwoman from demolishing the houses of women who refused to pay her R10,000 each for sites they had been occupying for many years. One of the applicants obtained her site in 1995. It has become commonplace for traditional leaders to demand such payments or to threaten confiscation of land rights.
Had the TCB already been enacted, the Mthatha women could have been forced to attend the traditional court of the very headwoman evicting them, rather than approaching the High Court. They had reported the matter to the police numerous times but to no avail. Ultimately, the Legal Resources Centre assisted them to approach the Mthatha High Court.
In the context of the bill, it is worrying that a programme to build police stations in royal palaces is being rolled out in the Eastern Cape. King Ndamase Ndamase (who signed the Chinese lease agreement for Port St Johns) is one of the royals about to obtain his own police station. It appears inevitable that complainants who report matters to these police stations would be referred to traditional courts.
Even in the face of the well-documented pattern of unlawful extortion and abuse by some, but not all, traditional leaders, Parliament has facilitated bills that provide a false veneer of legality while eliciting and enabling impunity for leaders.
The Traditional and Khoi-San Leadership Bill (TKLB) – the second of the so-called Bantustan Bills, which has already been passed by the National Assembly and the NCOP and is awaiting signature by President Cyril Ramaphosa – authorises traditional leaders to enter into investment deals with third parties without the consent of the people whose land rights stand to be dispossessed. No such powers existed under colonialism or apartheid, nor do they exist in terms of customary law, which is inherently consensual. The bill fails to include any process of expropriation or compensation for people who may lose their homes and livelihoods as a result of decisions made by traditional leaders.
The pattern of abuse that has been witnessed even before these bills have been enacted has led to increasingly desperate resistance by rural people. The bills default to the colonial and apartheid denial of the property rights of people who have inherited their homes and land over generations. They also default to the colonial and apartheid stereotype that the 18 million South Africans living in the former homelands are tribal subjects, as opposed to equal citizens. By vesting decision-making authority solely in traditional leaders they deny agency and free choice to the poorest and most marginalised South Africans. Once law enables dispossession, it must enable coercion to suppress resistance. This is where the TCB comes in.
Apartheid-era forced removals were also authorised by law, in particular the Native Administration Act of 1927. Such laws were condemned by South African and international organisations, but there seems to be little appetite to tackle this new injustice.
Many prominent South Africans provided consistent support to people under threat of forced removals. Church leaders led vigils and marches. Helen Suzman was always available as were the Black Sash and UDF leaders. Enlightened business leaders such as Tony Bloom also joined sides. Ultimately, the policy of forced removal was defeated in 1986 by the brave struggle of the Driefontein and KwaNgema communities after Driefontein leader Saul Mkhize was shot dead by a young white policeman at a community meeting.
Who can rural people turn to for help and support in 2019? Certainly not the ruling party. Without functional local branches, there is no way for ordinary people to interact meaningfully with the leadership. And besides, traditional leaders appear to have replaced rural people as the ANC’s core constituency. The ANC-aligned organisation Contralesa, which represents traditional leaders has been lobbying strongly for the bills. Nyalala Pilane, who has so much to answer for in the impoverishment of the Bakgatla, is deputy chair of the body.
Ordinary people also find themselves at the mercy of the power of large corporate interests. “Enlightened” business organisations in the post-apartheid era have not raised their voices. None have publicly condemned, or distanced themselves from the patterns of abuse that have been increasingly reported by reputable organisations and commissions. Nor have they publicly opposed bills such as the TKLB and the TCB.
Big business continues to profit from the racialised structural inequality put in place by colonialism and apartheid that is reinforced by these bills. In just one such instance, the Baloyi Commission Report names Anglo American Platinum, Brian Gilbertson’s Pallinghurst Resources and Rand Merchant Bank as parties in the blatantly unlawful looting of the assets of the Bakgatla community.
State Capture is not just about corruption. It is quintessentially about the state adopting laws and policies that reward its benefactors at the expense of the public good. These laws do just that. They reward traditional leaders and big business at the expense of black property and citizenship rights. They blatantly deepen poverty and inequality at a time when South Africa is already in crisis. People who remain complicit in the patterns of abuse that have been now been extensively documented are beneficiaries, rather than opponents, of State Capture.