Aninka Claassens, Nolundi Luwaya
In this time of crisis our leaders are pursuing laws that enable dispossession along the very fault lines engineered by colonialism and apartheid.
The coronavirus pandemic has vividly exposed the extent of abiding structural and spatial inequality in our society. President Cyril Ramaphosa has called this a stain on our national conscience.
But it is a stain at least partly of our own making: democratic SA has worsened the conditions that continue to condemn millions of South Africans to lives of poverty and economic exclusion.
Spatial inequality is more than just the stubborn legacy of colonialism and apartheid. A quarter century of postapartheid policy and law has prioritised elite interests to the detriment of the humanity and basic rights of millions of South Africans living in overcrowded shack settlements and desperately poor former homeland areas, especially when mining interests are at stake.
And now, under cover of the lockdown, unlawful and violent urban evictions are taking place in Johannesburg, Durban and Cape Town; rural anti-mining activists are being threatened with attempted assassinations in rural KwaZulu-Natal and elsewhere.
We know something of the plight of people living in shack settlements around the cities. Less is known about what is facing the 18-million who live in the former homelands.
Research by the reputable Southern African Social Policy Research Institute has found that the worst poverty in SA is concentrated in the former homelands, and the most desperate forms of deprivation coincide almost exactly with their boundaries.
The stark inequality has deep roots in colonialism and apartheid, which birthed a huge and violent process of social engineering intended to cement white supremacy: to destroy competition from black land buyers and black farmers in the markets; to ensure that black people had no option but to work on mines and farms for suppressed wages; to buttress the profitability of the mining economy; to deny and suppress basic political rights to citizenship and property; to enable ongoing suppression of political opposition.
The 1994 transition finally saw the Bantustans reintegrated into a unitary SA with equal citizenship for all. Yet 26 years later, a phalanx of new laws — dubbed the Bantustans bills by critics — have been rushed through parliament and signed into law by the president.
These laws reinscribe the boundaries of the Bantustans and lock rural people under the control and sole decision-making authority of traditional leaders. Particularly serious is the 2019 Traditional and Khoi-San Leadership Act which authorises traditional leaders to sign mining deals without the consent of the people whose land rights stand to be destroyed. No such autocratic power, nor legal immunity, was granted to them during either colonialism or apartheid.
These laws have been enacted in the face of sustained opposition by rural people and despite a number of reputable commissions and courts drawing attention to incidents of serious abuse under the current framework.
The Human Rights Commission issued a report on socio-economic challenges of mining-affected communities in 2018. The public protector issued a report showing how R600m was siphoned from the coffers of the Bapo ba Mogale community by the traditional council in 2017.
The high level panel led by former president Kgalema Motlanthe issued a devastating report on the pattern of structural abuse of rural citizens in 2017. It recommended that the new bills be stopped immediately, and the policy approach reconsidered.
The Baloyi commission reported on the mismanagement of billions of rand in the Bakgatla ba Kgafela area near Rustenburg in 2019. It recommended that special measures be put in place to ensure that the constitutional right to tenure security is upheld and the law governing this, the Interim Protection of Informal Land Rights Act (Ipilra), be properly integrated into the procedures for issuing mineral rights. The Presidential Advisory Committee on Land also reported in 2019, recommending too, that the Bantustan bills be reconsidered.
Most significant is the unanimous Constitutional Court judgment of October 2018 in the matter of Grace Maledu and others v Itereleng Mineral Resources and others. In this case the mining company had sought to evict surface rights holders without terminating their long-standing property rights or paying them compensation. This judgment makes it explicit that mining cannot override or trump the property rights of rural people using the surface of the land, even when they don’t have title deeds to the land.
Neither the government nor traditional leadership bodies have condemned the patterns of abuse exposed by recent reports and judgments. Instead we have seen an unseemly rush to enact laws that provide a veneer of legality to processes that dispossess vulnerable South Africans of their property rights and deny them the decision-making authority that is the hallmark of citizenship.
In March, after the start of the lockdown, mineral resources minister Gwede Mantashe published highly problematic regulations in terms of the Mineral and Petroleum Resources Development Act.
The regulations are a subversion of the Maledu Constitutional Court judgment, which found that Ipilra must be complied with when land targeted for mining is occupied or used by people with informal rights. While the regulations prescribe weak mechanisms for consultation with stakeholders, there is no requirement that those whose property rights stand to be directly affected must be separately identified, nor that their consent must be sought, or their rights compensated, as required by Ipilra.
In a time of world crisis when the poor are bearing the brunt of economic devastation, the guiding principle for the government should be: First do no harm. Yet our government is pursuing laws and regulations that deepen inequality and enable dispossession along the very fault lines engineered by colonialism and apartheid.
If the president meant what he said in his Freedom Day speech about creating a new social compact that transcends structural inequality he must ensure that all evictions are stopped, he must commit to halting the TKLA and he must seriously engage Mantashe about the regulations that skirt the judgment of the Constitutional Court.
The government needs to address the legislated inequality it has maintained over decades and the brutality it has unleashed since the start of the lockdown. It needs to respect South Africans as rights-bearing citizens who are living in conditions of appalling deprivation, and ensure that every government action confronts, rather than deepens, structural inequality.
This article first appeared in Business Day Live on 18 May 2020.
