David-and-Goliath battle looms over land rights
Consult or consent? A new law could allow government and traditional authorities to hand over mining and other development rights without the approval of the communities that inhabit the land
In what could be a battle of David-and-Goliath proportions, land rights activists have warned President Cyril Ramaphosa to prepare for a legal challenge to the Traditional & Khoi-San Leadership Act (TKLA), which he passed into law in November.
They argue that the legislation, which was introduced to the National Assembly in 2015, places too much power in the hands of traditional leaders and their councils. They accuse Ramaphosa of effectively signing away the democratic rights of rural people.
However, in a media statement the presidency says the act seeks to "transform traditional and Khoi-San institutions in line with constitutional imperatives and restore the integrity and legitimacy of the institutions of traditional and Khoi-San leadership in line with customary law and practice".
The legislation, it says, "protects and promotes the institutions of traditional and Khoi-San leadership".
Khoi and San activist and former member of the Eastern Cape legislature Christian Martin welcomes the signing of the bill into law.
"I know the president applied his mind and got relevant advice. However, within the Khoi and San communities there are those who are not happy with the law, for reasons known to them. What we are saying is that we are part of the indigenous culture of the people of SA and we respect the signing of the law."
He and other Khoi and San activists camped outside the Union Buildings in November 2018 to call on Ramaphosa to recognise the Khoi and San as the first indigenous people in SA.
But Nolundi Luwaya, director of the Land & Accountability Research Centre at the University of Cape Town, says there are grounds to launch a legal challenge to the act. "We are disappointed that the president has signed the bill into law. We had hoped that he would send it to the Constitutional Court for a review," she says. "The legislation raises constitutional questions about the land rights of people in rural areas. Our concern is that the law provides traditional authorities and their councils with far-reaching powers when it comes to a decision on land rights."
Luwaya says the Interim Protection of Informal Land Rights Act (Ipilra) is the only legislation that provides protection to people who hold land rights under the customary system. "What Ipilra says in the main is that nobody can be deprived of land rights without their consent."
The TKLA, on the other hand, says there needs to be consultation before traditional authorities enter into deals with property, mining and investment companies. "Do you see where the tension arises? The Ipilra says ‘consent’ while the TKLA says ‘consult’. We are worried the TKLA will give the protection of the law to abuses."
Luwaya says this is a high-stakes matter, as mining and other companies are prepared to spend "billions of rands" to set up operations on prime rural land.
The Xolobeni community in the Eastern Cape’s Pondoland is well aware of this tension. The Amadiba Crisis Committee (ACC) was set up in 2007 by villagers to fight titanium mining in the area.
ACC spokesperson and community member Nonhle Mbuthuma tells the FM the community is "disappointed and angry" at Ramaphosa for rushing the process. "[The act] takes away power from the people and gives it to traditional authorities, some of whom are not even elected by the people but by the state."
She adds: "We understand the rush in signing the contentious bill into law: the government is trying to undermine a court judgment that was delivered in November 2018."
Mbuthuma is referring to the Xolobeni residents’ victory over government and a mining company. The court ruled that in terms of the Ipilra the minister of mineral resources may not grant mining rights without the full consent of customary communities.
Mbuthuma’s antimining stance has pitted her against the government and her tribal chief, who allegedly accepted a directorship in the mining company and a new vehicle in exchange for approving the deal. Mbuthuma says the TKLA does not serve the interests of those living in rural areas.
"The law is about the selfish interests of those in power. This is a Bantustan law, an apartheid-era legislation, which has no place in a democratic SA," she says, adding that the law will no doubt be challenged "all the way to the Constitutional Court".
The co-operative governance & traditional affairs ministry supports the act, says spokesperson Lungi Mtshali. "This is probably one of the most widely consulted-upon bills. It went through all the necessary processes before it was passed.
"I think it goes a long way [along] the journey that was started by [former president Nelson] Mandela in 1996 to recognise Khoi-San traditional leaders."
On fears that the law gives far-reaching powers to traditional leaders at the expense of their subjects, Mtshali says only: "We work closely with traditional leaders to make sure the communities they represent benefit."