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An alliance of land rights organisations, activists and rural communities filed an application in the Constitutional Court on Monday seeking to declare the Traditional and Khoi-San Leadership Act (TKLA) unconstitutional and invalid.

The applicants are challenging the law on procedural grounds, testing parliament’s legislative public participation process.

They say the TKLA is unconstitutional because the National Assembly, the National Council of Provinces and the provincial legislatures failed to reasonably facilitate public participation in the development of the legislation.

“We do not oppose the recognition of the Khoi and San that the law gives, nor are we against traditional leadership that is democratic and accountable to the people.

“However, our lawmakers failed to listen to concerns arising from our experiences as people living in traditional communities when they processed the TKLA,” the group said.

The provisions of the TKLA had far-reaching consequences for traditional and Khoi-San communities.

In terms of section 24, a traditional or Khoi-San council can enter into a partnership or agreement with third parties without the consent of those who will be directly affected.

“This threatens the land rights of rural citizens who face dispossession of their customary and informal rights to land and property by mining companies and other developers without being afforded the opportunity to exercise their right to say no.”

The Alliance for Rural Democracy’s (ARD) national co-ordinator, Constance Mogale, is the main applicant in the case, in her individual capacity and on behalf of the ARD.

Other applicants are the Land Access Movement of SA, Duduzile Baleni and Victor Modimakwane.

Baleni is iNkosana (headwoman) of the Umgungundlovu community — often referred to as the Xolobeni community — and an applicant in her personal capacity and on behalf of the Umgungundlovu community.

Modimakwane is a member of the Bakgatla ba Kgafela community and an applicant in his personal capacity.

The applicants said section 23 repeats the flawed model of financial accountability previously provided for in the North West Traditional Leadership and Governance Act for traditional and Khoi-San councils.

“This model has proved to be ineffective, as shown by the Commission into Traditional Succession Disputes and Claims in its inquiry relating to the Bakgatla Ba Kgafela.

“The Bakgatla traditional community lost an estimated R5bn in community funds through dubious deals by traditional leadership structures operating without the appropriate oversight”

They said the notorious “D-account” model that previously applied in the North West is now applicable in all provinces.

In terms of this clause, all community money derived from any source would go into a government-controlled bank account that has no proper accountability mechanisms.

“This leaves traditional and Khoi and San communities without any concrete way of tracking deals, investments or benefits derived from their land and/or property.”



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