Christi van der Westhuizen
Christi van der Westhuizen

You have no right to own land if you’re black and rural

Powerful lobby groups regularly sound alarm bells when the torpid rate of land reform fleetingly raises the possibility of land expropriation and, with it, the spectre of the violation of white farmers’ property rights.

In reality, it is black, rural, poor South Africans who are already being deprived of the right to own property, even communally. In this year, the centenary year of the infamous 1913 Land Act, people’s land rights continue to be violated only because they are black and rural.

Therefore, black, rural South Africans are not only being threatened with the revocation of their democratic rights as citizens, through legislation such as the Traditional Courts Bill, but also the deprivation of the right to land ownership, which their urban counterparts, irrespective of race, enjoy.

This is possible due to the Traditional Leadership and Governance Framework Act of 2003 and the Community Land Rights Act (CLaRA) of 2004. In 2010, the Constitutional Court declared CLaRA invalid due to lack of public consultation but without addressing the applicants’ argument that the act denies secure tenure to the 16 million people living in the former Bantustans.

CLaRA’s unconstitutionality created a legal lacuna. Section 25 (6) of the Constitution requires that Parliament passes a law to rectify insecure legal tenure brought about by past racially discriminatory laws or practices.

This legislative gap was raised with minister of land reform and rural development Gugile Nkwinti at the recent Land Divided academic conference. The conference, hosted on March 24-27 in Cape Town, looked at the century-long aftermath of the 1913 Land Act, the law at the heart of colonial dispossession of black people.

Nkwinti responded to delegates with some puzzling answers. According to him, the Spatial Planning and Land Use Management Bill, currently in the National Council of Provinces, partly serves as CLaRA’s “replacement”. However, the bill does not address the issue of security of tenure on communal land.

Despite stating repeatedly that land ownership is approached as part of a “single four-tier system”, he then conceded that “sensitivities” have led to the treatment of communal land tenure in a separate, forthcoming policy.

In accordance with the 2011 Green Paper on Land Reform, people should enjoy “institutionalised use rights” on communal land. “Institutionalised” here refers to “traditional institutions”.

Nkwinti insisted that his department wishes to protect the rights of women- and child-headed households. But it transpired that the “sensitivities” he referred to are in fact chiefs’ ambition to have all communal land under their control.

That this is the thrust of the laws on “traditional governance” adopted since 2003 is confirmed by two developments. Firstly, Section 28 (5) of the 2003 framework act abolishes elected community authorities in favour of unelected traditional leaders.

Community authorities were the triumph of rural black people over the apartheid regime’s attempt to corral them under imposed tribal authorities headed by compliant chiefs. Tribal authorities were created by the Black Authorities Act of 1951.

Due to the concerted resistance of rural black people against imposed tribalisation, the apartheid regime in 1964 amended the Black Authorities Act to allow for elected community authorities.

An example of such a community is Driefontein, where people of different ethnic groups came together in 1912 and bought a section of a farm near Piet Retief in today’s Mpumalanga on which they settled. This they did, ironically, on the advice of Pixley ka Seme, a founding member of the then South African Native National Congress, today known as the ANC.

The Driefontein community has now been left in the lurch as the ANC government’s 2003 framework act unilaterally abolished community authorities. Neighbouring chiefs have swooped in to do what they could not achieve under apartheid: impose chiefly authority over people who do not acknowledge them as such.

The irony could not be more bitter: the Driefontein communal landowners successfully resisted the apartheid regime’s attempt to forcibly remove them in the 1980s just to have to fight against subjection to undemocratic traditional leadership in a democratic South Africa.

A second, equally grave development involves the Communal Property Associations Act of 1996, which allows recipients in land-reform processes to jointly own land through Communal Property Associations (CPAs). But a ministerial moratorium has halted the transfer of title deeds to CPAs of land won through restitution and redistribution. The effects on communities have been devastating.

Nkwinti told the conference that not “only traditional leaders have a problem with the CPA Act. It is a wrong model from us as government … you have the communal area and part of it … is excised by apartheid [and] they moved people … to another place. Came 1994, people are able to claim the land back. They are not coming back home, they’re coming back creating a communal area within a communal area … what we are doing is to correct that. We are asking lawyers to look at whether that can be done retrospectively. We say if you are coming back to this land, which was part of that whole, you can’t create a new communal area. That is why chiefs and people are conflicted … ”

The amendment to the CPA Act will therefore not address the very real problems with the act, such as that it does not empower individuals, but it will disallow CPAs within the borders of the former Bantustans. In this way, traditional leaders can impose control over all land and people in the former Bantustans, even victims of forced removals who in many cases resisted chiefs that collaborated with the apartheid regime.

This monthly column appears in the print editions of the Independent Newspapers’ dailies and is made available by the Open Society Foundation for South Africa to monitor the health of our democracy.

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    • Sterling Ferguson

      @Beddy, one has to give Christi credit for writing about a taboo subject that’s whispered about in black Africa, but the subject of feudalism isn’t openly discussed in black Africa. The shocking part of the whole matter of feudalism is the ANC wants to pass a law to give the feudal lords more power over the people.

    • Tofolux

      @Len, there is something called intellectual honesty and one would expect this honesty to run through every human being. The irony however is that some of our ”white” counterparts believe that they have some sort of clearance to be dishonest and disingenuous, this even whilst they pose questions at their fellow non-white countrymen. Can I say, your bias is quite obvious. But can I ask, why this perpetual dishonesty amongst all of you?

    • http://southafricana.blogspot.com Dave Harris

      @Sterling Ferguson
      Once again, please educate yourself first on feudalism before spreading misinformation. When one is indoctrinated with an apartheid education, the capacity to think critically is severely hampered, and so one can only perceive other cultures through jaundiced eyes. http://en.wikipedia.org/wiki/Feudalism shows:
      “Feudalism was a set of legal and military customs in medieval Europe that flourished between the 9th and 15th centuries, which, broadly defined, was a system for structuring society around relationships derived from the holding of land in exchange for service or labour.”
      So unlike the tyranny of feudalism, rural villages in indigenous cultures throughout the world operate on vastly different principles, and lived in relative peace and harmony with each other and the environment for THOUSANDS of years!!!

    • Sterling Ferguson

      @Dave Harris, part of what you are saying is true about feudalism in Europe, but feudalism existed in Russia, China and Japan. As a matter of facts, the Japanese in the late 19th century abolished feudalism after they started to modernize that country. In Russia feudalism wasn’t abolished until the 20th century. The feudalism system that existed in Europe and Asia is the same system that exist in Africa today.

      The difference between African feudalism and the European feudal system, the Europeans made their land productive and in Africa, the tribal lords haven’t made their land productive. In Mandela’s book he talks about the people living on the tribal land that went to work in the mines had to send money back to the tribal chiefs. The tribal chiefs had the biggest houses and largest cars on the tribal land. The tribal chiefs in Africa are ones that traded off their people into slavery and sent them to the new world. You should read the book by Gustavus Vassa a slave that was shipped from Africa wrote about what was going on in Africa.

      Finally, in the new world,land and aristocracy was never allowed to exist in the US and Brazil, but slavery did existed. The landowners with vast estates controlled these estates like tribal chiefs. One finally question, why the Zulu trust doesn’t produce anything on their land?

    • http://southafricana.blogspot.com Dave Harris

      Mandela’s reference to corruption among tribal leaders was during colonialism and apartheid, when the white regime did all in its power to control them – that is the corruption that Mandela speaks out against, not the foundation on which African culture is built on!
      Now if you claim, Africans could not make the land productive because of tribal chiefs, then how could these indigenous cultures thrive for thousands of years before colonialism?! What you fail to understand is wisdom of African and other indigenous cultures that, unlike western culture, is not based on greed and over consumption, but the philosophy of UBUNTU – an ancient African word meaning ‘humanity to others’. It also means ‘I am what I am because of who we all are’. Ubuntu is unfortunately grossly misrepresented and marginalized by western western society and corporate mainstream media for the obvious reasons.

    • Mara

      Christi I am not sure what makes you think you know what is gong on in rural South Africa and you show total misunderstanding of the communal land system in our country. I for one will tell you that, at present, most rural families have adequate plots of land, and if they want they get allocated amasimi, bigger tracks of land that they can use for farming. It is a fact that, the day the law is changed then that will be the day our people will be landless. I come from the beautiful Transkei, with our fertile soil and the wild coast, I assure you that if the law is changed, most of the people who will buy the land will be rich people, thereby driving people away from their ancestral land. At the moment however, everyone has a size able piece of land and in rural communities the spirit of Ubuntu is alive and no greed. Always amazes me when people own like 5 farms and some as lifestyle farms, no sharing of the land whatsoever, sorry but tht is not our way of life

    • Sterling Ferguson

      @Mara, the system you are describing is a feudal system because the people living on this land don’t own nothing and can never grow. These small plots that these families are farming don’t produce enough food to feed the people in the cities. Most of these people are at the mercy of the tribal chiefs, and these people are like the European serfs. You aren’t looking at the whole picture, and the feudal system in SA/Africa is retarding Africa developing. The system of Land and Aristocracy is a system doing more to keep the masses in poverty than any system in SA.

    • Pingback: New policies undermine security of tenure | Custom ContestedCustom Contested()

    • Siya

      Sorry to be irrelevant, but I looked on the internet and perhaps I’m not searching well enough, but I cannot find any information about the registration of residential land in rural areas. What is the process? What does a poor rural person do to have the land in his/her name title deed wise, once having bowed and probably had to give expensive gifts to their traditional leaders to attain space in which to live in. Do they hold any proof beside our well known system of “word of mouth”- after long discussions with traditionalists as stubborn headed as some but not all of traditional leaders?

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