The Traditional and Khoi-San Leadership Bill (TKLB) currently before Parliament is both dangerous and desperately last ditch. It poses a direct threat to the basic rights of the poorest South Africans – the 18 million people living in former homeland areas, where the law would apply – in that it seeks to legalise a version of unilateral chiefly authority that both Parliament and the Constitutional Court have rejected.
The Bill, which is being tested in public hearings across the country, seeks to replace the current Traditional Leadership and Governance Framework Act of 2003, which connects communal land with traditional courts by superimposing apartheid tribal identities on those living in former homeland areas.
The Communal Land Rights Act, which was struck down by the Constitutional Court in 2010, provided that traditional leaders would administer and control all land within their tribal boundaries – which exist wall-to-wall within the former homelands.
The Traditional Courts Bill, which was rejected by Parliament in 2014, would have empowered traditional leaders to strip anyone within their tribal boundaries of customary rights, including land rights, and would have made it a criminal offence to ignore a summons from a traditional leader.
Those laws reinforced both a segregated system of property rights with no ownership for families living in the former homelands and a segregated legal system with traditional courts in the former homelands, and magistrate courts for other South Africans.
We’ve been there before. The difference since 1994 is that the Framework Act shifted the basis of differentiation away from race, to geographical tribal boundaries. These boundaries are, however, steeped in race. They are the outcome of the 1913 Land Act combined with the forced removal of over three and half million back people during the process of Bantustan consolidation.
What does this mean for people on the ground?
It means that people whose forebears bought the land they farm, as in Matiwane’s Kop in KwaZulu-Natal, are told that it is ‘tribal land’ and only the chief can decide how it is developed.
It means that Chief Lunga Baleni of Xolobeni on the Wild Coast can be the director of the local mining company, and at the same time claim the sole authority to represent affected community members who oppose mining and a toll road on their land.
It means that some traditional leaders routinely apply for and get interdicts to stop community members from holding meetings, on the basis that only traditional leaders have the authority to call meetings.
The current Framework Act over-rides people’s right to define their own customary identities or affiliate with the leaders of their choice. This is particularly problematic in the northern parts of the country where Bantustan consolidation and forced removals violently reconfigured the landscape from the 1960s, through to the 1980s. The Framework Act beds down the geographical outcome of this violent history, confirming the official recognition of chiefs appointed during apartheid, and the ‘tribes’ created for them.
But recognising traditional leaders is very different to giving them powers. The Communal Land Rights Act and the Traditional Courts Bill would have given them specific powers in respect of the land and people within those boundaries, but neither could pass constitutional muster. So some traditional leaders, and specific parts of government have found ways to stretch the meaning of the Framework Act to imply that it gives traditional leaders the sole authority to represent rural communities in investment deals on communal land.
Rural people are having none of it. They insist that customary law requires chiefs to be accountable, that their authority derives from the people, not government gazette notices. They cite their basic rights as South African citizens, including freedom of association and assembly, and the land rights recognised by section 25 of the Constitution. And when their cases reach the Constitutional Court, they invariably win.
The problem is that it can take years for a case to percolate up from the lower courts, where magistrates and judges tend to default to apartheid customary law precedents that the Constitutional Court has rejected as distortions of living practice, both past and present.
As the claim to unilateral chiefly power becomes more legally precarious, so those who rely on it resort increasingly to violence, with the police noticeably absent. Examples include Xolobeni, where anti-mining activist Sikhosipi Bazooka Radebe was assassinated in March and journalists covering his funeral were violently assaulted in public view, yet no arrests have been made.
Last month at Marikana, anti-corruption activists were attacked with pangas by thugs linked directly to the Traditional Council that traded the community’s royalty rights for shares in the ailing Lonmin mining company. The activists include descendants of people who bought the land, but who now find themselves denied a share of any revenue from the platinum mining taking place on their land.
The Public Protector recently confirmed that R600 million was missing from their Bapo ba Mogale ‘tribal account’ held by North West Premier Supra Mahumapelo’s office. She said at least R80 million of that was spent on a palace for Kgosi Bob Mogale.
In Rustenburg, the Maluleke Commission investigating recurrent claims that Nyalala Pilane is not the rightful kgosi of the Bakgatla baKgafela is analyzing thousands of pages of evidence that mining revenue has been misspent or stolen.
These examples are the tip of an iceberg of disputes over failures of accountability and missing mining revenue. At the heart of such conflicts is the question whether traditional leaders have the power to unilaterally negotiate mining deals that displace people and destroy their land, keeping secret the terms of the deals and where the revenue goes.
Various traditional leaders and some in government clearly believe they do, and advise mining companies accordingly. Matthew Chadwick of Anglo Platinum said in June that the company negotiated a R175 million ‘final settlement agreement’ with Kgosi David Langa because it was required by law to negotiate with traditional leaders.
Chadwick is mistaken. There is no such law. In fact the Interim Protection of Informal Land Rights of 1996 requires the opposite. It says that except by expropriation, individuals and families may not be deprived of informal land rights, specifically including customary rights in former homelands, unless they consent.
The TKLB that is currently before Parliament would change all that.
Slipped among its 95 pages is clause 24, which empowers traditional councils to enter into partnership agreements with any person, body or institution with no obligation to obtain the consent of, or even to consult, the people whose land rights and lives are the subject of such partnerships.
This is in a context where the Auditor General’s office admits that the 102 tribal books of account in North West, where the Bapo’s millions disappeared, have not been audited since 1994.
These accounts were inherited from Bantustan administrations and are mired in maladministration and corruption. At the same time, the Provinces condone unofficial parallel accounts that escape public oversight.
Instead of addressing these acknowledged problems, the TKLB replicates the same empty formula about provincial oversight and annual audits. This could enable the law to pass constitutional muster while ignoring the mess on the ground.
When the Framework Bill was debated in Parliament in 2003, two safety mechanisms were included to address the risk that illegitimate apartheid structures would be entrenched. One was a commission to settle disputes about tribal boundaries and the legitimacy of incumbent traditional leaders; the other was a requirement that 40% of traditional council members must be elected and 30% must be women. Both have failed spectacularly.
The Commission’s rulings were soon downgraded to recommendations, allowing NW Premier Mahumapelo to reject the recommendation that Bakgatla Kgosi Nyalala Pilane be deposed. He has not yet released the recommendations about the BaPo ba Mogale, despite the millions missing from their account and explosive disputes about the legitimacy and accountability of the current tribal leadership.
The required election of councilors has often been inadequate or out of time. In Limpopo, no traditional council election has EVER taken place. This puts the legal status of current traditional councils at risk.
Behind the smoke screen that the TKLB is about rights for the Khoi-San is a last ditch attempt to bypass key constitutional protections in respect of land rights, to subvert customary law requirements in respect of consultation, and to undermine administrative justice and public finance bottom-lines.
Traditional leaders are not the primary culprits here. Instead we must look to the politicians who benefit from opaque mining and tourism deals in former homeland areas.
They have used law to try to resurrect the same forms of segregation and autocratic control that characterised apartheid, and to disguise the continuities as African custom. That disguise didn’t stick when the infamous Bantu Authorities Act was adopted in 1951 and it won’t stick now. Plus these days, we have a Constitution.