Traditional Courts Bill: How to entrench inequality and a parallel reality for 18 million marginalised South Africans

By Aninka Claassens

Rural South Africans are being systematically stripped of the few residual assets they managed to hold on to despite apartheid. Members of Parliament are about to create a parallel and separate legal system that denies 18 million people the right to access South Africa’s mainstream court system.

The Traditional Courts Bill is in its final stages of enactment. Despite 18 years of heroic challenge by the people who stand most to be affected by its implementation, this deeply flawed legislation appears to be a done deal — approval by the National Assembly is imminent and a vote in the Justice Portfolio Committee scheduled for next month looks set to have the full support of ANC members of Parliament.

Previously, determined resistance by rural women and civil society groups led to a stalemate over the bill in the National Council of Provinces. In 2014, it secured a dubious place in history when it became the only bill to have been blocked by a majority of provinces despite sustained pressure from central government. Caution over the bill arose after an ANC minister and a former ANC secretary-general, both women, spoke out against it – then Minister of Women Lulu Xingwana, who lost her job thereafter, and Cheryl Carolus.

Now the bill is back, without the key element of compromise so hard-won by rural activists in the intervening years, which would have made the law palatable. The current bill no longer gives rural people the choice to opt-out of traditional courts and use other courts instead. After seeing this key provision affirmed in an amended draft, activists had their relief dashed as it was roundly rejected by the then chair of the Justice Portfolio Committee, Mathole Motshekga, in 2018.

The Traditional Courts Bill comes hard on the heels of the controversial Traditional and Khoi-San Leadership Act that will come into operation in April this year – despite petitions to the president to send it for constitutional review. The act bolsters the autocratic decision-making authority of state-recognised traditional leaders and has raised alarm in communities that have observed how some traditional leaders claim they own and control all the mineral-rich land in the former homelands.

Rural people, by contrast, argue that the Constitution and customary law support their assertion that they are the owners of the land that their families have inherited over generations and that decision-making authority over mining and other development on their land is something they are not prepared to relinquish.

This stand-off over the right to decision-making authority has seen activists assassinated, sustained violence that has forced mine closures, and has resulted in many reputable and important reports and commissions.

Among these are the Motlanthe High-Level Panel report commissioned by Parliament, the 2017 Public Protector report into the missing hundreds of millions of the Bapo ba Mogale community of Marikana, the 2018 Human Rights Commission report into mine hosting communities, the 2019 Baloyi Commission report into the mining interests of the Bakgatla tribe and the 2018 Maledu judgment of the Constitutional Court.

These have drawn attention to problems such as the sudden appearance of mining machines on community land, damages to graves, fields and houses, relocations, inadequate compensation, environmental devastation, billions in revenue unaccounted for and traditional leaders who remain in office despite popular uprisings against them.

The Constitutional Court’s 2018 Maledu judgment appeared to deal a body blow to the ease with which mining houses were able to secure lucrative contracts directly with traditional leaders – without agreement or consultation with the people whose land rights are directly affected by mining. The unanimous ruling held that mining cannot trump the constitutionally enshrined right to tenure security. It upheld that people whose informal land rights are directly affected must consent before their tenure rights can be undermined (or their rights must be expropriated through a court process).

Yet, this game-changing judgment appears to have had no impact whatsoever on our legislators, who have entirely failed to enact or develop laws to enhance tenure security and thereby level the playing fields. Instead, the Traditional and Khoi-San Leadership Act was expedited into law with unseemly haste and the Traditional Courts Bill is now being rammed through Parliament.

The Traditional and Khoi-San Leadership Act denies rural people the decision-making authority that is the hallmark of their citizenship and secures the status of traditional leaders as their sole representatives in interactions with outside agencies such as investment groups and mining companies. The Traditional Courts Bill seeks to provide the coercive power and enforcement that must follow when law denies people their property and citizenship rights.

South Africa’s decades of colonial and apartheid laws that systematically denied black people property and citizenship rights laid the foundation for it to become the most unequal country in the world. The Traditional Courts Bill entrenches inequality by creating a parallel and separate legal system for the 18 million South Africans living within the boundaries of the former homelands. Traditional leaders, further empowered by the imminent Traditional and Khoi-San Leadership Act, will preside over traditional courts that can summon and punish villagers, including by ordering them to perform unpaid labour.

The ‘opt out’ issue has been the sticking point since the South African Law Reform Commission first mooted a Customary Courts Bill in 2003. The commission presented a draft bill premised on people’s right to opt in to and use, customary courts instead of other courts. Traditional leader organisations rejected the draft out of hand because it implied people could choose to opt out of ‘their’ courts.

ANC members of the portfolio committee have insisted that no one may be allowed to opt-out of these courts despite advice from the Department of Justice and Parliament’s chief legal adviser that the right to opt-out is a constitutional requirement.

The “opt-out” issue has been the sticking point since the South African Law Reform Commission first mooted a Customary Courts Bill in 2003. The commission presented a draft bill premised on people’s right to opt in to and use, customary courts instead of other courts. Traditional leader organisations rejected the draft out of hand because it implied people could choose to opt-out of “their” courts.

A new bill based on their input was submitted to Parliament in 2008. This bill made it a criminal offence for anyone residing within the apartheid-era tribal jurisdiction of a traditional leader to refuse to appear once summoned. These disputed jurisdictions, reinforced by the Traditional and Khoi-San Leadership Act, coincide exactly with the boundaries of the former homelands. The 2008 version mandated traditional leaders to strip all villagers living within the former homelands of their customary entitlements, including land rights.

The 2008 bill elicited a storm of protest. A question raised repeatedly was why purportedly legitimate and respected leaders needed a law to force people to attend their courts? Why the extraordinarily punitive sanctions in the 2008 bill when restorative justice was claimed to be the hallmark of customary law?

Far more formal disputes have been lodged about the legitimacy of traditional leaders and the boundaries of their jurisdictions (at least 1,400) than the number of officially recognised incumbents (roughly 900). Intractable and often violent succession disputes are frequently played out in rural areas, as are hard-fought battles over mining revenue and land rights.

Section 7(9) of the Traditional and Khoi-San Leadership Act ignores South Africa’s history of traditional leadership succession challenges and criminalises anyone who is not an officially recognised traditional leader claiming to be the rightful chief. The Traditional Courts Bill now further empowers “officially” recognised leaders to deal with anyone who challenges their authority.

The reputable reports and commissions referred to tell a sorry tale of ostentatious elite enrichment at the expense of the most structurally vulnerable South Africans – those who bore the brunt of the land acts and forced removals.

Rural people are being systematically stripped of the few residual assets they managed to hold on to despite apartheid. Their already inadequate land, their rural way of life and their often-pristine environmental resources are under threat. Particularly bitter for many is that they are also being stripped of their voice and their citizenship despite their proud role in the massive anti-Bantustan protests of the late 1980s and early 1990s that helped to bring apartheid to its knees.

As South Africans, we have heard the evidence of massive self-enrichment by state officials presented to the Zondo Commission and followed the VBS looting of poor people’s life savings. We have seen state officials condemn brave and dedicated nurses and doctors, alongside ordinary people, to death so they can enrich themselves from the Covid pandemic. We are bombarded by examples that make clear the scale of corruption we face, and the scale of hunger and human suffering that results.

But there is something particularly invidious when it comes to laws such as the Traditional Courts Bill and the Traditional and Khoi-San Leadership Act. These are not the work of weak individuals who, blind-sided by greed and opportunity, have spotted a gap and simply lost their way. These are laws that have been decades in the making, which are being processed and passed by a Parliament that is meant to represent all South Africans.

They reiterate the colonial and apartheid denial of the property rights of rural people, and the colonial and apartheid insistence that rural Africans are “tribal subjects” rather than equal citizens.

As such, they blatantly flout the Constitution and will ultimately be struck down in the same way as their sister legislation was – the Communal Land Rights Act of 2004, which tried to give control and ownership of all the land in the former homelands to traditional leaders.

As these laws make their way through Parliament, where are the voices of the business leaders, big law firms, consulting companies and mining houses that insist that they opposed apartheid discrimination? Why are rural people being left to fight for their basic property and citizenship rights all alone yet again? What of the commitment of the governing party and big business to uphold and protect the Constitution? What of their commitment to address the staggering levels of structural inequality in South Africa?

The governing party has chosen an election year, 2021, to enact a bill that creates a segregated legal system for the 18 million most marginalised and impoverished South Africans. This year, 2021, is also the 70th anniversary of the much-resisted 1951 Bantu Authorities Act that delineated the tribal boundaries that now replace race as the criterion for discrimination in South Africa.

The state has chosen to flout the Constitution and entrench, rather than address, structural and spatial inequality, and big business and its law firms are turning a blind eye to legalised discrimination, just as they did during apartheid.

This article first appeared in Daily Maverick on 4 February 2021.

Dr Aninka Claassens is Chief Researcher at the Land & Accountability Research Centre at the University of Cape Town.

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