The chief problem with land rights

Since 1994, millions of black South Africans have faced being stripped of their land rights without compensation, or have already lost these rights. Yet this threat has received scant coverage in the media.

The main beneficiaries of this massive act of dispossession are traditional leaders and councils. The policy is justified by the argument that traditional leaders controlled the land in precolonial practice and customary law. This is qualified by the idea that they held the land on behalf of their subjects.

However, in the absence of a clear prescription for how subjects can control chiefs, this qualification is vague. It also assumes that black residents of the former Bantustans must hold land as communities rather than as individuals or households.

But this is a profound misrepresentation of history. Traditional leaders were made chiefs by the people. Their power was based on the size of their followings, not on control of the land.

Chiefdoms rarely formed on virgin land – they were usually established over pre-existing populations who retained their land. New settlers who moved into the area with, or after, new ruling groups, approached chiefs to ask for a place to settle. The land they were allocated was distributed to households whose residents could not be dispossessed of their fields for any reason short of treason.

This land was then passed down to new generations within households and local settlements. The chiefs did not own the land. Instead, the strongest rights to land, which many argued amounted to a form of ownership, were located at the level of the homestead or household.

The idea that chiefs were the owners of the land was a colonial invention. Colonial administrators saw themselves as taking over the role and powers of chiefs. It suited them to argue that the new colonial system had inherited control of the land from the pre-existing political leaders.

In the apartheid era, the system of traditional leadership was comprehensively reconstructed by the imposition of the Bantu Authorities Act, which drew chiefs into a tight colonial embrace. Traditional leaders were recognised, and tribal boundaries were drawn with the intention to reward those who lent support to the system and to penalise those groups who resisted.

Traditional leaders in varying degrees became chiefs selected by government and not the people. This new order expanded their power over the land and lives of their subjects. The genesis of the notion that chiefs owned the land is thus a product of colonial and apartheid ideology and intervention.

With the transition to democracy, many imagined that the inflated power of traditional leaders would be curbed, especially in relation to land.

The Constitution stated that, where racist policies under apartheid had diminished or made people’s rights to land insecure, these must be strengthened in a democratic South Africa. A central challenge was to upgrade the weak rights to land of people living under traditional leaders in the old Bantustan areas.

But, 24 years later, government is still struggling to improve the rights of ordinary people in rural areas. Since 1994, government’s various attempts to do so have been heavily tilted in favour of traditional rulers. They have been abandoned in the face of popular resistance and struck down by the Constitutional Court.

There have also been developments that have imperilled the rights of rural residents. In 1994, on the eve of the first democratic elections, the KwaZulu legislative assembly enacted the KwaZulu Ingonyama Trust Act. All the land in the former KwaZulu homeland was placed under the control of the Zulu king.

Concerned with securing the participation of the Inkatha Freedom Party (IFP) in the elections and restoring peace, the ANC did not challenge this land grab. Initially, the trust continued with the tenure systems that had existed in the homeland. But, in 2007, the trust introduced a new leasing system.

This initially applied to business sites, but has more recently been increasingly extended to residential land. Families who have lived on land for generations and regard it as their property are now treated as tenants. Rent has been imposed and “tenants” face eviction if this is not paid. Equally destructive of pre-existing rights is that, on the death of the lessee, the stands revert to the trust. This stipulation threatens to destroy the system of inheritance within families rooted in customary law.

The trust has also ignored the rights and failed to consult existing residents when allocating land for developments.

Evidence has recently come to light about some lease agreements with foreign investors. Among these are a Russian armaments factory making drones, an Indian company building a port near the border of Mozambique and another Indian company planning to install oil storage facilities on land currently occupied by people who were removed to make way for Richards Bay.

The residents also see no part of the rent that their land generates, while, in 2015, the trust received R70 million in rent from families and businesses on “their land”.

The Ingonyama Trust is by no means an isolated example. As in-depth research and recent court cases have shown, traditional leaders have been negotiating lucrative deals with mining houses in relation to the resources of the platinum belt without the consent of those living on the land. For example, the Bakgatla Ba Kgafela in North West have been robbed of millions of rands in mining revenue through secret deals made by Kgosi Nyalala Pilane and his traditional council.

Meanwhile, the Mapela chief in Limpopo secretly signed a R175 million settlement with a mining company without consulting the community. These agreements also ensure that the bulk of the revenue flows to traditional leaders and their allies rather than to their subjects.

Testimony given to the high-level panel on the Assessment of Key Legislation and Acceleration of Fundamental Change eloquently expresses the frustration and anger of many rural residents: “We are dispossessed of our land by development and by the mines, and we get no compensation or benefits out of the so-called development of our ancestral land. We are not consulted. We have been turned into nonentities with nothing, and yet we are the rightful owners of the land.”

Fortunately, mounting protests, numerous court cases and the high-level panel report have finally ensured that government pays attention, and steps have been taken to place on hold the Ingonyama Trust’s land grab. However, King Goodwill Zwelithini has made blood-curdling threats against those who challenge the trust’s claims to ownership of the land.

There are also ominous rumblings on this issue emanating from the IFP, and from the groups inside and outside the ANC in KwaZulu-Natal that are mobilising in support of former president Jacob Zuma.

There are other looming threats to these already economically and politically marginalised societies. What will be the effect on them if expropriation without compensation comes to pass? Will their land be regarded as the property of the state, as is implied by the Economic Freedom Fighters’ nationalisation policy? If so, they will suffer double dispossession – firstly by colonialism and then by populism. Or will collusion between some corporations, traditional leaders and new rural elites prevail and the historic rights of rural residents to the land finally be extinguished?

It is high time to act on the constitutional clause that obliges the state to restore degraded land rights. Some of the statements issued after the recent ANC conference on land suggest a belated recognition that the primary rights to land should be located at the household level, however, draft legislation on land rights and the recently approved Traditional and Khoisan Leadership Bill suggest that, in reality, traditional councils will exercise control.

Traditional leaders and their allies, meanwhile, are also mobilising to secure their grip on the land. It appears that sections of the ANC are once again trying to fudge the stark choice that former president Kgalema Motlanthe drew between serving the chiefs or the people. It remains an open question whether the organisation will finally find the political will to act in favour of the people.

This article first appeared in City Press on 24 June 2018.

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