South Africa

ANALYSIS: Bantustan boundaries, alive and well in modern South Africa

By excluding communal land from the current expropriation without compensation deliberations, the ANC not only entered into an elite pact with traditional leaders, but also agreed to the effective continuation of bantustan boundaries. It’s a decision that fails the constitutionally guaranteed national commitment to land reform, restitution and equitable access to land – and leaves some 18-million rural South African residents without the security of tenure set out in Section 25(6) of the Constitution.

Land is political. And for the ANC it has often been an ideological choice of who should really stand to gain, regardless of its pro-poor rhetoric. Right now the scales are once again tipped in favour of traditional leaders, who draw their power base from presiding over communal lands, effectively the former bantustans. That is in no small part due to Zulu King Goodwill Zwelithini’s mobilisation last week, days after the start of countrywide hearings of Parliament’s constitutional review committee on a constitutional amendment for land expropriation without compensation. Against this backdrop, last week’s royal land imbizo at Ulundi touted a narrative of traditional leaders and the Ingonyama Trust being under threat, also because of recommendations by the High Level Panel to assess the impact of key legislation, chaired by former president Kgalema Motlanthe. He’s not been in traditional leaders’ good books since it emerged how he had described some of them as acting like “village tin pot dictators” during the ANC consultative workshop in May. The Zulu king’s imbizo got the ANC’s attention, more so than Contralesa’s warning against expropriating traditional communal land made during June’s land colloquium at Parliament. And so Cyril Ramaphosa, in his capacity as ANC president, reshuffled his #ThumaMina campaign diary to meet Zwelithini. Afterwards, the official message was the High Level Panel report was independent and still subject to engagement, and “the ongoing efforts to expropriate land without compensation has never been intended or targeted at communal land…” The ANC statement last Friday specifically quoted Ramaphosa saying: We have no intention to tamper with the land that is being administered by our chiefs on behalf of the people.” While the governing ANC’s relationship with the traditional leaders has often been ambiguous, it regards them as part of their voting support. And this appears to be a fundamental consideration in the governing party’s bait-and-switch approach to land – there being less than a year to go to the 2019 elections. Because nowhere in the ANC 2017 national conference resolutions is there a hint that communal land would be excluded from the three-fold approach to land reform based, alongside expropriation without compensation, on increased security of tenure, land restitution and land redistribution”. Some interesting land-linked politicking has unfolded amid the public debates and discourse on land expropriation without compensation and land reform since the ANC national conference, and February’s parliamentary motion that kick-started the current public hearings. The EFF has effectively mobilised in support of expropriation without compensation, and last week publicly garnered the support of the Congress of Traditional Leaders of South Africa (Contralesa) for its push to have all land owned by the state, effectively amounting to the nationalisation of all land. A joint land summit between the EFF and Contralesa is expected within weeks, as the ANC now is also meeting Contralesa and the National House of Traditional Leaders. But the ANC seems to have found itself on the back foot, not only in the parliamentary public hearings, but also in KwaZulu-Natal, its largest but factionalised province that had backed Ramaphosa’s rival in the party presidential contest at its December 2017 national conference. And so last week the ANC was clear in its post Ramaphosa-Zwelithini meeting: Communal land constitutes only about 13% of land. Land being targeted for compensation is the remaining 87% and all expropriation undertakings will be lawful and just in accordance with the expressions and desires of the people of South Africa.” That 13% constitutes the bantustans to which black South Africans were confined following the 1951 Bantu Administration Act, a cornerstone law of apartheid segregation following the colonial dispossession of the 1913 Natives Land Act. Those homelands, further entrenched by the 1970 Bantu Citizenship Act, fell under a series of tribal councils headed by traditional leaders, who had the nod of apartheid rulers. There were dissenters, such as Chief Albert Luthuli, who refused to resign from the ANC, and was in November 1952 removed as chief of Groutville by the apartheid government. That Bantu Administration Act, later renamed the Black Administration Act, remained on democratic South Africa’s statute books until December 2010, when the Black Administration Act Repeal Bill which Parliament had passed that September was signed into law. By that time key aspects of that apartheid-era legislation had filtered into democratic laws dealing with traditional leaders, to support them rather than communities. This includes the 2003 Traditional Leadership and Governance Framework Act, which in its transitional arrangements effectively turned the existing tribal councils into traditional councils. Fifteen years later the majority of these traditional councils at national and provincial levels have failed to meet democratic legislated requirements, including that a third of traditional council members must be women, according to the Traditional Affairs Department strategic plan tabled in Parliament earlier in 2018. Of the 467 traditional councils in seven of the eight provinces which recognise traditional leaders, only 44% were functional, according to the departmental report, with 232 traditional councils at risk and 29 dysfunctional. South Africa’s courts had to step in as communities had to resort to legal action to protect themselves and living customary law. In August 2015 the Cala Reserve community won the right to continue appointing its own headmen, when the full Bench of the Bisho High Court dismissed the Eastern Cape government’s support of a royal family decision to choose on behalf of the community. While the 2004 Communal Land Rights Act allowed traditional councils land administration rights, the Constitutional Court in 2010 declared this law invalid – after lower courts ruled in favour of communities’ arguments that giving traditional councils land administration rights undermined living customary law. The declaration of invalidity was on procedural grounds as the then land affairs minister informed the court there would be a new updated communal land rights law; eight years later this had not yet happened. The draft Bill released for public comment by the department in July 2017 has yet to come to Parliament. And the 2017 Traditional Courts Bill, which after an inclusive review included a clause allowing rural residents to opt out, has languished before Parliament’s justice committee for some 18 months. For many ANC MPs this opt-out clause is a bone of contention. It’s the third try, with the 2008 version that effectively introduced an unconstitutional different legal system for rural residents rejected outright, and the 2012 re-introduced Bill eventually being defeated just before the May 2014 elections. The bottom line? There seems to be a distinct bias favouring traditional leaders rather than communities. The High Level Panel report puts it like this: Current and proposed legislation on traditional leadership denies people living in areas under traditional leaders several constitutional rights, distinguishing them from those living in the rest of the country who enjoy the full benefits of post-apartheid citizenship. Such legislation also poses a threat to social cohesion by entrenching and promoting ethnic identities.” Still, what the current debates around land have shown is that government and the governing ANC stubbornly maintain a narrative that traditional leaders are custodians of the land and tradition and act in the interest and on behalf of communities, not themselves. This official narrative is maintained even amid public examples of disputes, frequently involving mining, like in the North West platinum belt or at Xolobeni in the Eastern Cape. There the Amadiba Crisis Committee has led the community push for sustainable tourism, rather than the traditional leadership-endorsed mining, and has taken its case to the Pretoria High Court. Such disjuncts also arose in the public hearings by the High Level Panel, as reflected in its report.

At the hearings people complained that they are currently more vulnerable to dispossession than they were before 1994. The problem is especially acute in areas where mining is taking place in former homeland areas, and in areas administered by the Ingonyama Trust in KwaZulu-Natal.

People complain that traditional leaders and officials deny their land rights (including longstanding customary rights) and assert that traditional leaders have the sole authority to sign agreements with investors in respect of communal land.”

The current public debate and focus on land, from expropriation without compensation to restitution, redistribution and security of tenure, is unprecedented. But instead of taking the cue to bring about real change in the majority of lives, particularly in rural communal areas, the ANC seems to have slipped back to what it has always relied on – rural patronage elite networks – and damage control to smooth ruffled royal feathers. DM

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