The long shadow of apartheid legislation

New and proposed legislation does not alleviate the most pressing challenges that people in rural areas face. Instead, these laws intensify existing struggles.

This was the outcome of discussions at a workshop attended by 50 people from across North West province, representing communal property associations (CPAs), land buyers’ associations and other local organising bodies. The Centre for Law and Society and the Land Access Movement of South Africa (LAMOSA) convened the workshop to discuss the Land Restitution Amendment Bill, the Traditional Affairs Bill, the Mineral and Petroleum Resources Development Act and North West’s Traditional Leadership and Governance Act, among others.Repeatedly, participants referenced their histories in explaining their current struggles and locating these struggles in broader political, economic and social contexts. This contextualisation illustrated different types of rights to land and minerals that people in the region claim, and shone light on the different governance and leadership institutions historically rooted in the area.

Several people described feeling as though they were living in the long shadows of the colonial and apartheid-era Black Administration Act and Black Authorities Act. They continue to be forced under apartheid-era “tribal” bodies and leadership, different in name today but similar in structure and definition to their predecessors. People’s land and mineral rights continue to be determined by boundaries and leadership structures constructed during apartheid.

Several CPA members relayed their disquiet over traditional leaders claiming vast amounts of land on behalf of people who live within traditional council areas. This happens while CPAs representing people who were forcibly removed do not receive financial or human resource support from the state and many are still waiting for land transfers that have been approved by previous ministers or endorsed by the Land Claims Court. One participant captured the broader sentiment: “There are those that recognise chieftainship and those that do not. There are those of us who do not have chiefs, and have CPAs. If they [the state] are discouraging CPAs, what will happen to those communities like us without chiefs?”

Others expressed frustration and anger that, even after the end of apartheid, the land that their forebears bought in spite of systemic and structural barriers to black land ownership is still only recognised as under the guardianship of traditional leaders. In much of the platinum-rich North West, this denial of land ownership also translates into denial of the mineral wealth of the land.

Access to mineral rights emerged as a key concern. Several people brought documents showing their correspondence with different state entities, including local and provincial government structures and the Office of the Public Protector, in trying to secure state accountability. People have gone to extraordinary lengths to inform themselves about different legislation, in contexts where these texts are not easily accessible, and to put forward proposals on interventions to realise their rights.

Many indicated feeling that they have exhausted state channels and are marginalised by a system that does not value their rights as citizens. One contributor likened current restrictions on access to mineral rights as receiving your cow back without its essential organs. He argued that these new laws impose new restrictions on people reacquiring land and disproportionately disenfranchise black landowners.

A key concern emerged that traditional councils and “royal nations” act as a fourth tier of government. The Constitution provides for only three tiers of government: national, provincial and local. Examples of this problem were traditional leaders:

  • preventing meetings within their ‘tribal jurisdiction’ areas,
  • using private security agents to enforce their will over people in these areas,
  • and denying people access to local state services.

This conversation raised an important discussion about the role that the Constitution imagines for traditional leadership, and the different levels of governance that it guarantees.

The theme that emerged most clearly, and that drew the different strands of discussion together, was the need for the state to carry out meaningful consultation. This applied especially as most people regarded consultation as inadequate, if not non-existent. Countless efforts at engagement with the state have been frustrated, but people continue to collectively struggle for the realisation of their rights, dignity and means to economic freedom.

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