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.



Christi van der Westhuizen

Dr Christi van der Westhuizen is an award-winning political columnist and the author of the book Working Democracy: Perspectives on South Africa's Parliament at 20 Years, available for download...

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