Communal Land Tenure Policy Undermines Rights of Ordinary People*

It has been a big month for advocates of communal land tenure rights. But the struggle is nowhere near over.

On 28 May, the Constitutional Court heard an important case that inevitably will set an important precedent concerning the right of groups to hold land within the boundaries of the former homelands.

And on the 29th-30th May the Department of Rural Development and Land Reform convened a huge Communal Land Tenure Summit in Kempton Park to test its legislative agenda on land rights in areas dominated by traditional leaders.

Communal Property Associations (CPAs) and community-based organisations (CBOs) representing rural land claimants gathered in Johannesburg on Wednesday in anticipation of the Constitutional Court hearing. They shared concerns and frustrations that have blocked their access to land they should own and which, in some cases, has already been assigned to them but not yet transferred.

They packed the benches of the highest court when it heard – but did not decide – the Bakgatla ba Kgafela CPA’s challenge against the DRDLR. Their counsel charged that DRDLR officials had failed to register their association as permanent – seemingly only because Kgosi (Chief) Nyalala Pilane had objected to the CPA being given the power to manage the restitution land. He wanted a trust established for this purpose.

It was all but absolute common cause that the DRDLR, in what one advocate called “a comedy of errors”, had mismanaged the matter all the while.

On Friday, many of those activists joined other concerned groups, traditional leaders and academics at the Communal Land Tenure Indaba in Johannesburg. Featuring significantly were the tensions between traditional leaders and their communities when it comes to governance of rural areas and land administration. This was especially so because the DRDLR’s proposed Communal Land Tenure Policy (CLTP) makes provision for royal households and traditional councils to have a meaningful role in land ownership and administration in the former homelands. Its premise is that this is “what people want”.

Most community representatives from such areas – especially the several where the local traditional leadership has mismanaged the community-owned land and financial resources from it – objected vehemently. That traditional leaders were bolstered by the DRDLR’s untempered and romanticised awe for the institution was evident in the contestation in commissions and the general comments session on the commission reports.

Minister Gugile Nkwinti defended the DRDLR’s proposal with statements like: “traditional leaders are the moral authority; moral authority is above political authority”. The idea that traditional leaders’ authority might supersede that of democratically elected authority is astounding, as the Department’s own acknowledgement that the Constitution should be the ultimate guide of tenure policy demonstrates. This expresses the ambivalence with which the Department approaches tenure reform.

On one hand, it appeases traditional leaders and wants to preserve a significant role for them – even transfer community land to them for them to manage for the communities. This is not the tenure security that section 25 of the Constitution requires for rural people. It would be re-dispossessing the previously dispossessed community members who currently have constitutionally protected customary ownership rights. They would lose these established rights and be given “institutional use rights” instead – a much lesser form of property right.

On the other hand, the Department states that, according to its proposed policy and draft Bill, the land transferred to communities would be managed by the body chosen by the community and could be a CPA, Trust or local traditional council. While the latter proposal sounds good, in abstract, it ignores an important detail: the power dynamics in the midst of which these decisions are to be made by the community members are by no means neutral.

The Bakgatla case illustrated just this. The facts show that the Bakgatla community resolved to manage its property as a CPA but that their traditional leader objected. For this reason, the Department would not register the CPA permanently. It said it wanted the internal community conflicts alleged (but not proven) by the traditional leader and council to first be resolved.

Though the CPA Act makes no provision for the accommodation of traditional leaders’ preferences, the Bakgatla CPA faces the prospect of losing the land transferred to it because its provisional registration was allowed to lapse. The Constitutional Court is their last hope of justice.

This raises the question: even if communities are able to independently choose in the face of counter-pressure (and, in some areas, even violence) from their traditional leaders, can Department officials be relied on to enforce their choices?

The Department’s Thami Mdontswa’s presentation of the communal land tenure policy and the minister’s opening remarks made sweeping statements about the virtues of traditional leadership. For illustration, however, Mdontswa furnished anecdotal and personal examples that ironically underscored his own predominantly urban lifestyle, conveyed personal affiliation with traditional leadership and demonstrated little understanding of the everyday experiences of most deep rural residents. As rural delegates (especially from KwaZulu-Natal) told the Department during the Indaba, despite Mdontswa’s claim otherwise, land is not obtained for “free” in areas under traditional leaders.

Most pernicious was Mdontswa’s claim that the Policy cannot reject the role of traditional councils because of “one bad apple”. Self-evidently, the 568 cases in Limpopo alone – under investigation by its provincial government for illegitimacy of the traditional leader and the community’s boundaries or land – can hardly be described as “one bad apple”.

When rural participants raised these problems, the Department repeatedly passed the buck to the Department of Cooperative Governance and Traditional Affairs. But many participants fervently argued that these issues are fundamental to the strong objections they advance against the involvement of traditional leaders and councils in land and its administration. They should therefore be addressed by the DRDLR before proceeding with its proposed Policy.

Ultimately, the point the Department seems not to have grasped is that the law is not meant to provide for best-case scenarios. When socio-political relations are good and power differentials absent, there is little need for law. Rather, it is when spaces are riddled with the degree of contestation for power and control of resources that we see in the former homelands that law is most needed. And, in that instance, law is needed to protect and support the vulnerable. Scarcely able to even conceive of community challenges with traditional leadership, the CLTP – and the Department that is proposing it – seems hard-pressed to provide such protection and support.

Hence, for ordinary rural people, la luta continua!

*This piece was initially published in The Star on 10 June 2015

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