Looming land disaster

‘The more that policy changes in South Africa, the more it is the same.” These words are from Govan Mbeki’s seminal book on rural resistance, The Peasants’ Revolt. Of course, Mbeki was referring to policy shifts within the framework of segregation and apartheid, which were premised on white supremacy. In the post-apartheid era white domination and its crippling legacies are under attack from progressive government policies, and Mbeki’s words no longer apply.

Or do they? Two Bills before Parliament give new life to one of the “pillars of apartheid”, the Bantu Authorities Act of 1951, which the apartheid government used as a means of bringing traditional leaders under their control.

It was implementation of this law that provoked the Pondoland rebellion of 1960, the subject of Mbeki’s book.
The Traditional Leadership and Governance Framework Bill deems existing tribal authorities to be “traditional councils”, and last-minute amendments to the Communal Land Rights Bill provide that these councils will have land allocation, administration and ownership powers and functions in communal areas.

Ironically, traditional councils will have greater powers over land than those they enjoyed under apartheid, when final authority for the issuing of permits to occupy communal land lay with magistrates or commissioners.

The Traditional Leadership Bill does provide that 30% of the membership of these traditional councils must be women, and that 25% must be elected. A four-year transition period for this transformation is allowed. The government may feel that this “democratises” these bodies and makes them compatible with the Constitution. However, the Bill provides no sanctions if traditional councils fail to comply, and in any case these are half-hearted measures that will not guarantee the accountability of these bodies.

Control over land may be the sweetener that induces traditional leaders to accept the Traditional Leadership Bill, which closes the door on their campaign to have greater powers within local government structures. From the state’s point of view, it may appear to be an effective cost-saving measure, since traditional leaders are already paid salaries. This government seems set on absolving itself of the responsibility for and expense of land administration in communal areas.

For rural people, however, the proposal is an unmitigated disaster. In many areas chiefs will continue to charge people large amounts of money for land allocations, and to make land rights conditional upon people continuing to be their “subjects”. Women’s land rights will continue to be governed by “customary law”, which makes them dependent on men and vulnerable to loss of their land and other property on divorce or the death of their husbands.

In some areas traditional leaders do enjoy support and have legitimacy, and perform important local administrative functions. But these proposed new laws give people no choice as to whether or not they want traditional councils to administer land, and offer no protection against possible abuse. They subvert the fundamental principle of democracy — the right to choose.

The Communal Land Rights Bill is deeply anti-democratic in other ways, too. It gives extraordinary powers and almost unlimited discretion to the minister of agriculture and land affairs to make decisions on the nature and content of people’s land rights. The minister will decide the boundaries of communal land to be transferred from the state to communities, who will get what rights within this land and whether or not to individualise the tenure system. The people whose land rights are to be determined in this manner are neither consulted, nor is their consent required, in relation to these crucial decisions.

The drafters of the Bill might argue that community members have a central role to play, in drawing up “community rules” that regulate land use and land administration by traditional councils. However, the Bill does not say how these rules are to be adopted. Without strict requirements for transparency and oversight by officials, it is likely that existing power holders (like chiefs) will simply write the rules to suit themselves.

Why have the provisions for community participation (contained in previous versions of the draft Bill) been removed? Probably because the government has come to understand that such participation would stall the implementation of the law. In particular, it would call into question the underlying paradigm, that of “transfer of title” of communal land from the state to communities.

Transfers are likely to exacerbate existing disputes over land boundaries and generate new disputes on a massive scale. A draconian law (which the Communal Land Rights Bill is) allows for the top-down imposition of “solutions”, whether or not people agree with the minister’s decisions.

Not only is the Bill anti-democratic in its content — the process of developing and enacting it has been deeply flawed. As the memorandum to the Bill makes clear, the only rural constituency that has been consulted to any great extent is the traditional leader lobby. The vast majority of rural people know nothing about it, and will have little opportunity to make their voices heard before it is rushed through Parliament.

Historically the African National Congress has always been divided on the issue of traditional leadership, with both pro- and anti-chief positions being articulated by members and leaders. On the one hand, there is the tradition of supporting popular struggles against tribal authorities, as in Pondoland and Sekhukhuneland in the 1950s and 1960s and in Lebowa, Venda and Bophutatswana in the 1980s.

On the other hand, there is an inclination on the part of party leaders to engage in the realpolitik of high-level negotiations and alliances, as in the early 1990s, when chiefs were wooed by the ANC.

Which tendency will dominate in the parliamentary debates on these two key pieces of legislation? Since ANC party lists for the upcoming election are not yet finalised, now is not an easy time for party members to challenge decisions from on high.

But the democratic rights of one-third of the population, those still living within the former homelands, are at stake. Are there enough true democrats left in the ANC to challenge these fatally flawed Bills, and to press the government to convene a clear, transparent and fully consultative process for the drafting of legislation on these vital issues?

Professor Ben Cousins is the director of the Programme for Land and Agrarian Studies (Plaas), of the school of government at the University of the Western Cape. Aninka Claassens is a consultant for Plaas

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