/ 23 October 2008

‘New land Act like apartheid’

The land ownership rights of about half of South Africa’s population hinges on a landmark court action heard last week. Four communities from three different provinces are challenging the constitutionality of the controversial Communal Land Rights Act (Clara) in the Pretoria High Court.

The Act will affect about 21-million people living under traditional leadership, by handing control of their communally owned land over to traditional leaders for administration. The intention of the legislation — scheduled to come into effect at the end of this year — is to give millions of rural South Africans security of tenure.

The communities of Kalkfontein, Makuleke, Makgobistad and Dixie from Limpopo, Mpumalanga and North West, argue that Clara is invalid and unconstitutional and will take them back to ”apartheid-era tribal units”.

”The restitution process has already established the communities’ property rights,” said legal resource attorney Henk Smit. ”Under Clara it will now be redefined, taken away from the communities and placed under a larger tribal authority.”

The applicants argue the Act will give traditional leaders undemocratic and unprecedented powers and undermine women’s rights and black ownership of land.

”We submit that the evidence shows that far from securing the applicant communities’ land tenure, Clara actually undermines their tenure and makes it more insecure,” the communities argue. ”This applies at both community and individual levels.”

Critics pointed out that Clara reinforces the old tribal boundaries created by the architects of apartheid.

Each community embroiled in the suit has their own unique story of how the new Act will upend their lives.

In the case of the Kalkfontein community they fear that an undemocratically elected chief will steal the land, which they won back in 1994, from them. Over the years the community has petitioned to divorce themselves from the tribal authority but without success.

Under Clara the Kalkfontein community would fall under this unwanted authority and would be denied its right to hold full title, secure rights of use and administration to its land, custom law expert professor Thandabantu Nhlapo, from the University of Cape Town, argued.

The Dixie community farm borders the Kruger National Park, Manyeleti Game Reserve and Sabie Sands Reserve. The community fears that its valuable land will be sold out from under it as the tribal authority cuts deals with developers. The farm was originally placed under the jurisdiction of the Mnisi Tribal Authority in the Fifties even though it had no historical association with the Mnisi.

Under Clara, land use and development of the farm would potentially fall under the jurisdiction of a traditional council, taking away the Dixie community’s right to decide what to do with its land.

The Makuleke community, famous for winning back its land in the Kruger Park, is also worried about the Act. The Makuleke community was placed under the jurisdiction of the Minga Tribal Authority during their forced removal. As part of their restitution settlement, the Makuleke were granted rights to the Nthlaveni area.

But Clara would remove the land from the control of the Makuleke community’s democratically constituted communal property association and place it in the hands of a traditional council, Nhlapo argued. ”The destruction of land-holding instruments of the local community, and placing control in the hands of a larger institution would inevitably undermine the tenure security of members of the local community.”

”The Act will undermine our rights that we won in the restitution case,” said Eric Tivani, the chairperson of the Makuleke community’s property association.

The association also said that Clara discriminates against black property owners because whites do not have to deal with a tribal authority and have full title to their land.

The applicants argue that Clara was rushed through Parliament ahead of the elections in 2004 without following the proper procedure in the National Council of Provinces and that public hearings as required by the Constitution did not take place.

The communities fear that the Act will render the tenure of women more insecure in the same way that colonial and apartheid laws gave rights exclusively to men.

In reply the government argued that Clara will secure land tenure for millions of South Africans and allow them to use their land as security. In court papers the state argued ”the instigators of the attack on Clara chose, as their flag-bearers, four communities or sub-groupings as applicants who can be described as either disgruntled, a-typical, or in some respects non-functional communities or sub-groupings within larger communities.”