Choosing chiefs over the people


BakgatlaAT a briefing on land-related legislation by Rural Development and Land Reform Minister Gugile Nkwinti earlier this month, traditional leaders claimed that a new planning law, the Spatial Planning and Land Use Management Act, undermines their authority to manage communal land.

They said that by granting local government this power, the act strips traditional leadership institutions of their powers in relation to communal land.

The act, which came into operation on July 1, aims to develop a new framework to regulate planning permissions and approvals, sets parameters for new developments and provides for different lawful land uses. It also provides clarity on how planning law interacts with other policies.

The repeal of many apartheid-era laws left SA’s planning laws fragmented and inconsistent.

However, the coming into force of the new law was overshadowed by resistance from traditional leaders, who called for the government to suspend its implementation immediately and vowed not to enforce it.

In response, Nkwinti said that the Spatial Planning and Land Use Management Act would not diminish the role of traditional leaders in decisions relating to communal land because their institutions would still be consulted.

Controversially, he assured traditional leaders that they are the “de facto owners of the land”. He explained that the government had assumed that everyone knew that traditional leaders were the legitimate owners of the land, even though this is not expressly stated in the legislation. This, he offered, could be rectified in the new act if traditional leaders so wished.

HIS comments clearly indicate what has become increasingly obvious to rural communities: the government intends to transfer communal land to traditional leadership institutions and, in the process, will not recognise the land rights of ordinary people who have invested in and occupied communal land for generations.

The government’s belief that traditional leaders are the owners of communal land is inaccurate and unlikely to hold up to constitutional scrutiny.

For many rural communities, the claims that traditional leaders are the owners of, and decision-makers in relation to, communal land is a deliberate distortion of their customary law.

Legal academics, including professors Alistair Kerr, Tom Bennet and Hastings Okoth-Ogendo, argue that the chiefs’ description of their power is incorrect. Prof Bennet says portraying chiefs as the owners of communal land is “a calculated misrepresentation” of customary law.

The perception that chiefs own the land originated during the colonial era when administrators sought to describe chiefly powers using South African common law or English law. It was done to further the political objectives of the colonial and apartheid states.

By enhancing the powers of traditional leaders at the expense of ordinary people and the alternative accountability mechanisms provided for in customary law, government officials were able to construct and strengthen their project of indirect rule.

In reality, different versions of customary law provide for decisions to be made about land allocation and use at different levels — including family, household, clan, subvillage and village level. Customary law is often characterised as a layered system rather than a system that centralises power in traditional leadership institutions.

The centralised vision of land use underpinning the government and traditional leaders’ claims does not hold true to many rural people living in the former homelands. Instead, it represents an intentional distortion that has its origins in illegitimate regimes which stripped black people of their entitlement to land.

Under apartheid, the 1936 Native Trusts and Land Act transferred most of the land earmarked for the homelands to the state, which held it on behalf of the black people who were relocated there.

Since the advent of democracy, some of this land has been restored to those who were dispossessed. Most land in the former homelands, however, is still registered in the Deeds Office in the name of the government — in nominal ownership, which does not mean the state actually owns it.

Instead, the government holds this land in trust on behalf of the people living on it. The people are the de facto owners of communal land.

AS PROF Kerr writes in his book The Customary Law of Immovable Property and of Succession, there are two types of state trusteeship: a strong version in terms of which the state owns the land on behalf of the actual beneficiaries, and a weak version in terms of which the state’s role is administrative and does not amount to ownership.

He concludes that the state’s nominal ownership of land in the former homelands is of the weaker administrative type. There are serious doubts about the government’s legal authority to give it to anyone but the people who are the underlying owners.

Prof Kerr explains that virtually all the land in the former homelands is owned by the families who have occupied and inherited it over generations. He analyses tenure security under customary law systems, and the content of statutory provisions under apartheid.

He finds that both customary and statutory law create real rights in land, that is, rights that are akin to ownership. That ownership vests in ordinary people who have occupied, used and invested in the land over generations.

Eminent historian Peter Delius supports the findings, saying “once land was allocated to households it was very unusual for it to be reclaimed by a chief”.

These conclusions were confirmed when the Constitution enshrined the underlying real rights vested in families and individuals in section 25(6) which provides that people whose tenure rights were legally insecure as result of past racial discrimination “are entitled to tenure which is legally secure or comparable redress”.

To give effect to this provision, the government passed the Interim Protection of Informal Land Rights Act of 1996, which recognises and protects people’s land rights.

Now the government seems intent on dispossessing ordinary people of their land in a manner similar to the colonial and apartheid governments. The land in the former homelands belongs to the people who live and work on it. To strip them of this right and transfer the land to traditional leadership institutions constitutes more than a second dispossession: it is a betrayal by a government that promises to secure the land rights of its people.

This article first appeared on Business Day – 15 July 2015

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