Proposed communal land policy could replay 1913



The  government has tried and serially failed in the 21 years since democracy dawned to resolve questions around the authority of traditional leaders in South Africa’s rural areas and, aligned to that, the forms of land ownership that should apply in the former apartheid homelands. It seems now to be gearing up to try again.

The Department of Rural Development and Land Reform hosted a communal tenure indaba in Gauteng at the end of May.

Though the giant event passed almost unnoticed by the media and general public, the indaba took place against a backdrop of intensifying debate about the ownership, use and management of communal land.

After two tough days of deliberation in focused commissions and general plenary debates, the sobering reality that emerged was that liberation would remain an empty promise until the national policy debate begins properly to address issues facing the rural poor, who constitute more than 17-million of the population and mostly live in the former homelands.

Though it was a welcome development to see some of these issues raised at the Gauteng indaba, one cannot but wonder why this rural constituency has been left out of the policy recipe for all the 21 years of the democratic dispensation.

Among the salient issues that can no longer be avoided in the policy conversation is the somewhat controversial role of traditional institutions within the context of our no-longer new democratic dispensation.

Central to the role of these traditional institutions is their highly contested authority in relation to land governance and the matter of how the relationship between democratic and traditional leadership is to be calibrated.

Post 1994, the dominant thinking within the pro-traditional leadership lobby has been the absurd notion that these traditional leaders own land, albeit in a trusteeship capacity.

This discourse has not survived the test of time and the strength of the pro-democracy lobby is unchallenged.

Historians, academics and activists have argued strongly – and on the basis of deep research – that custom favours more layered forms of tenure and ownership in which families and villages give the lead.

Under the pressure of democratic forces, institutions of traditional leadership have had no option but to switch the focus of their claim from one of outright ownership towards one of “custodianship”. But in the absence of a consistent policy lead from the government, even this paradigm has not translated into concrete substance with agreed roles and clearly limited powers.

During the communal tenure indaba the Minister of Rural Development and Land Reform, Gugile Nkwinti, championed another new paradigm. Traditional leadership institutions constitute the “moral authority” of rural communities, he postulated. And that moral authority trumped political authority, he added.

What “moral authority” really means in the context of traditional leadership institutions was not made clear. Nor is it clear whether this notion of moral authority is reality or just political rhetoric.

One thing that traditional leaders did make clear, is that they are demanding substantive land administration powers and dominion over rural communities.

As they presented their demands, the powers they claimed seemed analogous to the pre-1994 state of affairs.

Leaving aside the question of how the role is defined – whether it is absolute power, “custodianship” or “moral authority” – the stark reality is that the government, driven by sheer political expediency, has consistently sought and seems determined again to try to give traditional leadership institutions substantive powers.

The most recent published draft of the government’s proposed Communal Land Tenure Policy proposes to transfer the “outer boundaries” of all tribal land in the former Bantustans to traditional councils with people who live on that land holding only so-called institutional use rights. Under this regime, chiefs and not the people who work and live on the land, will have the ultimate right to decide what should be done with it.

This proposal gives powers to traditional leaders that the living customs of the people they seek to represent do not give them. Most alarming about the current policy is that it would be tantamount to dispossession at a scale comparable to the 1913 and 1936 Land Acts that enforced apartheid. There is no doubt our country does not need such Draconian measures after waiting 21 years for the conundrum to be resolved.

Barely two months after the indaba, however, the government’s preferred paradigm seems to have shifted full circle again as tribal leaders have become aware of the largely unnoticed Spatial Planning and Land Use Management Act, which includes clauses that could limit their power.

Defending the act, Nkwinti has shifted from the “moral authority” position towards actual authority, telling chiefs they are now considered to be “the de facto owners of the land” and promising even to take a new look at regulations promulgated to give effect to the law.

All this is unfolding while the very institution of traditional leadership faces intractable questions of legitimacy.

On one level, which is perhaps the easier to debate, traditional leaders face legitimacy questions in relation to genealogy: who is the rightful leader in a particular place and time!

A second issue affecting their legitimacy relates to how individual traditional leaders conduct themselves in the eyes of their constituencies: whether they earn or command the respect of their people.

A third and more complex face of the legitimacy conundrum relates to tribes and communities that have been moved and interspersed spatially, as a result of wars, disasters and natural population movements. The frequent result of these natural and forced movements has been a mismatch between the traditional leader, spatial jurisdiction and tribal affiliation. While these tensions probably could be resolved if communities had a choice, the policy as it stands dictates that tribal identity and allegiance go with location: where you live decides who you are and who you obey.

At the heart of this debate, irrespective of whichever side one is on, is the right of rural communities to choose how and by whom their land and development should be governed. Since the advent of democracy, the ruling party has avoided dealing decisively with this issue of roles and powers of traditional leaders. Had this political hot potato been managed in a manner that allowed the true supremacy of our constitution to prevail, this matter would have long been buried.

This article first appeared in The Daily Dispatch – 08 July 2015

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