The recent enactment of two pieces of traditional leadership legislation legitimises the suppression of free economic activity in communal areas, deprives people of access to resources and opens the way to violence against them.
The ruling ANC under the helm of President Cyril Ramaphosa has made a deliberate mistake by enacting the Traditional Leadership and Governance Framework Amendment Act 2 of 2019 (TLGFA) and the Traditional and Khoi-San Leadership Act, 3 of 2019 (TKLA). In enacting the two laws, the president has jogged the memory of the public about the ANC government’s unwavering support for traditional leaders and their autocratic powers.
This stance is seen when the state always puts traditional leaders at the centre of government projects in rural areas. Unfortunately, this often results in communities being deprived of access to resources, as well as to social exclusion and the abuse of power – as orchestrated by the state and the traditional leaders.
Rural communities and their associates reject the new “Bantustan bills”. The TKLA, for example, seeks to trample on the rights of rural people by vesting powers in traditional councils to enter into agreements without getting the consent of the people – the opposite of the Interim Protection of Informal Land Rights Act.
In February 2019, Parliament passed a motion tabled by the EFF to review section 25 of the Constitution to permit expropriation of land without compensation. The committee was subsequently appointed and solicited input from residents through public hearings and written submissions. This was discomforting to some senior traditional leaders in the country.
Zulu king Goodwill Zwelithini, a nominal owner of the Ingonyama Trust that owns almost three million hectares of land in rural KwaZulu-Natal, organised a big event for his constituency – allies, like-minded political parties and state representatives – to debate the matter. The king’s stance is that land in communal areas should be excluded from possible expropriation without compensation.
Ramaphosa felt pressure to allay the fears of Zwelithini and his fellows. The president surprisingly organised a meeting with the king and publicly announced that land in communal areas would not be expropriated from traditional leaders.
This move was unnecessary as a designated committee is already in place to deal with the issue. The president, in a way, predetermined the outcome of the process led by the review committee, of which he is not part, just to charm the king and to affirm his support for him.
In contrast, the president would not dare to listen to voices speaking on behalf of the 18 million rural people who will be affected by the enactment of the TKLA and TFGA.
On 5 June 2019, more than 1,000 representatives of rural communities across the country, supported by the Alliance for Rural Democracy, staged protest action at the Union Buildings, targeted at the president, to demand the Bantustan Bills be stopped.
This action was organised and communicated to stakeholders more than a month before it took place, yet the president did not make himself available to receive the memorandum of demands. Marchers had to submit their memorandum to a Co-operative Governance unit.
It took the Presidency three months to acknowledge receipt of the demands, and thus far the marchers have had no response.
In the Presidential Advisory Panel on Land Reform and Agriculture report published on 18 July 2019, the president was advised not to sign the bills (Traditional Court Bill, Traditional Framework and Governance Bill, Communal Property Association Bill and the Khoi-San and Traditional Leadership Bill) and stated further: “It is, therefore, crucial that government consults and engages directly, widely, meaningfully and adequately with rural communities prior to signing of the bills.”
The panel recommended the state introduce a new White Paper to clarify traditional “governance and communal land rights”. This was based on the analysis that the proposed legislations, at that time, were “inconsistent with each other” and tended to vest unnecessary powers in individuals (traditional leaders).
This advice was not taken seriously and the South African government and Parliament were negligent in their responsibility to adequately and meaningfully involve the public in the law-making processes, as required by section 72 of the Constitution.
The two Acts define the traditional community as a group of people, in rural areas, under the helm of a Khoi-San and/or traditional leader. The rural communities have no-one on their side as the enactment of the two laws seeks to rubber-stamp the status quo.
The traditional leaders will continue to enter into deals with large scale investors without community consent, collect tribal levies and incite violence on ordinary people.
This alienates those who wish to have alternative communal or individual recognition of rights. No law is in their favour.