Illustration: KAREN MOOLMAN
Illustration: KAREN MOOLMAN

Most of SA’s newer mines are in the former bantustans, the homeland areas of the apartheid state. Somehow, in our democracy these “homeland” areas have remained intact.

This is also where communities are protesting against mining, and where people have been deprived of land, their livelihoods, health and wellbeing. With legislation soon to be passed, it seems this will only get worse, and the law will weaken the  democratic rights of some the most vulnerable people in society.

The key piece of problematic legislation that stands to be passed is the Traditional Khoisan and Leadership Bill, which is in its final stage of enactment. The parliamentary process was finalised on February 26 and it has now been referred to President Cyril Ramaphosa for signature.

This highly deceptive and potentially harmful piece of legislation appears well intentioned, but this is far from the case. Last-minute amendments rushed through parliament need to be exposed for what they are.

The bill builds on previous legislation to re-entrench the power of traditional leaders throughout the former homelands. It gives traditional leaders and councils sole decision-making authority over the 17-million South Africans living within the tribal boundaries that make up the former homelands.

The proposed legislation is about entrenching the apartheid divide by giving local chiefs complete say over their people and whittling away any democratic rights the constitution infers upon them.

The bill purports to be about the recognition of Khoi and San communities, but it also repeals and replaces the legislation dealing with all traditional leaders in SA.

It treats Khoi and San leaders differently from the traditional leaders associated with the former homelands. Khoi and San leaders get jurisdiction only over the people who choose to affiliate with them.

They do not get jurisdiction over specific areas of land. All other traditional leaders get jurisdiction over the tribal areas delineated in terms of the Native Administration Act of 1927 and the Bantu Authorities Act of 1951.

It remains a government Trojan horse promoting the interests of big business and tribal authorities at the expense of hundreds of impoverished rural communities.

The key issue is clause 24 of the bill, which provides that traditional councils, headed by traditional leaders, can sign deals binding all the people within their apartheid-era tribal jurisdictions without obtaining the consent of those whose land rights are undermined or dispossessed by such deals. The deals may be with mining companies, property developers, tourism ventures, agricultural companies, municipalities or anyone else.

This bill has been deliberately fast-tracked through the parliamentary process. The main reason is that currently traditional leaders do not have the legal authority to sign deals on behalf of their “subjects”, and certainly not without their consent. In fact, the Interim Protection of Informal Land Rights Act of 1996 provides that no-one may sign deals that affect informal land rights without the consent of the holders of the informal rights at issue.

Despite this, mining houses have over the years signed multibillion-rand deals with traditional leaders. These are legally precarious on a number of grounds, the most fundamental of which is that until clause 24 is enacted, traditional leaders simply do not have this power.

A related reason for the fast-tracking of the bill is that a number of legal challenges to such mining deals have been working their way through the courts. These challenge the manner in which the government and the mining houses have failed to follow the interim legislation and instead enabled traditional leaders to sign deals that are not monitored or audited by the government as required by law. The new bill has been rushed through parliament to head off these legal challenges. 

On October 25 2018 the Constitutional Court delivered a unanimous judgment in the matter of Maledu and Others vs Itereleng Bakgatla Mineral Resources. The judgment sets a powerful precedent that deals brokered between mining houses and traditional leaders without the consent of those directly affected infringe on the constitutional rights of people whose security of tenure is already vulnerable due to past discriminatory laws and practices.

In an attempt to preempt the impact of the Maledu judgment, the department of traditional affairs has proposed some last-minute amendments to the bill. 

Land grabs for mining firms

However, it remains a government Trojan horse promoting the interests of big business and tribal authorities at the expense of hundreds of impoverished rural communities. Democracy and the welfare of millions of South Africans are at stake.

This bill is nothing less than an attempt to facilitate land grabs on behalf of mining companies. Legislation such as the Traditional Khoisan and Leadership Bill is a step back to segregated legal systems and segregated systems of property rights applying only in the former homelands.

Ramaphosa should follow the vision and prescripts of the new constitutional order, along with the hopes and dreams of millions of South Africans, and desist from signing the bill in its present form.

The government must respect and honour the decisions and vision of the Constitutional Court, in this case the Maledu judgment, quoting Frantz Fanon: “[F]or a colonised people the most essential value, because the most concrete, is first and foremost the land: the land which will bring them bread and, above all, dignity.”

The quote “neatly sums up what lies at the core of this application”, the court said.

“Strip someone of their source of livelihood, and you strip them of their dignity too,” the court noted.

If enacted in its present form, the bill stands to strip millions of SA citizens of their dignity, contrary to the constitutional vision.

Ramaphosa is bound to uphold the constitution and ensure rural people cannot be deprived of their land and security of tenure.

• Dr Seoka is chair and Capel executive director of the Bench Marks Foundation.