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05 Sep 2012 10:38
Conflicts of interest, says Nolundi Luwaya, stand in the way of fair land distribution. (University of Cape Town)
Traditional leaders are making land administration decisions based on powers they deem to be "customary" but that were given to them under colonialism and apartheid. The Traditional Leadership and Governance Framework Act of 2003 opened the door for traditional leaders and councils to play a role in land administration.
However, the Communal Land Rights Act of 2004, which would have provided the legal authority for this to happen, was found to be unconstitutional in May 2010.
In the absence of robust legislation regulating this terrain, traditional leaders are exercising powers unlawfully, as the examples from Mpumalanga below show.
These realities will be worsened if the Traditional Courts Bill is passed. In the KwaShongwe area, community members had been paying levies for land allocated to them by a chief. A mining company gave money to a new chief in exchange for the land on which the community members were growing their crops. Nineteen people were evicted and not compensated for their loss.
Uninformed is unprotected
Most rural people do not know that they can be protected from illegal evictions. In the case of land that has been occupied informally, rights are protected through the Interim Protection of Informal Land Rights Act of 1996. However, without access to justice, rural people are left without relief when their land rights are violated. These land administration practices override existing consultative systems of customary land administration, as some traditional leaders centralise power in their own hands to sell land to outsiders. Such conflicts of interest will be exacerbated by the Traditional Courts Bill, which will give the very authorities administering the land the power to single-handedly develop and administer customary law.
Rural people, with few resources and little power, will be rendered defenceless against dispossession by chiefs, compromising their livelihoods. The four communities that successfully challenged the Communal Land Rights Act in the Tongoane case did so because of prior experience with apartheid-imposed chiefs who had undermined their land rights. In Kalkfontein, Mpumalanga, community members are descendants of black land owners. However,their title deeds were no protectionwhen an imposed chief sold over 1 000 plots of their land to outsiders and instituted a reign of terror with the backing of the KwaNdebele government.
They and other applicants in the case argued that the Communal Land Rights Act would resuscitate the very same chiefs and authorise historic power abuses. This story is not uncommon, as would-be chiefs have asserted themselves over significant tracts of land in private hands.
Before the 1913 Land Act outlawed black landownership, many people clubbed together to buy land. These groups were called "black spots" and formed community authorities to oversee their jointly owned property. In the shift to democracy these landowners thought that they would be free of the impositions of self-asserting chiefs. The Bantu Authorities Act of 1951 created tribal authorities. Community authorities were born from hard-won battles not to be forced under the rule of tribal authorities by the apartheid government. However, the Traditional Leadership and Governance Framework Act attempts to do away with community authorities in favour of traditional authorities. This has given chiefs renewed confidence to impose themselves on communities, in effect retribalising them. In the case of landless chiefs, the government seems willing to give them land, even if it belongs to private land-holders administered through community authorities and Communal Property Associations.
In a bitter twist, the apartheid ideal to have no black communities without a chief ruling over them is now being realised in democratic South Africa, because these community
associations are at present being forced under traditional leadership by the democratic government. The problem of illegal land allocations in rural areas also has serious implications for people's right to housing. Salome* wanted to access a house as part of a local housing project in the Eskhwahlane area. She was told that she first had to pay R800, which she could not afford as she is unemploye and survives off a disability grant.
She and others in a similar position approached the chief for permission to clear a vacant plot so that houses could be built for them there. Although the chief gave them the go-ahead, members of the chief's council, who were managing the housing project, later chased them off the cleared land. The lack of regulation of land access results in arbitrary distribution and opens the door to corruption, such as when traditional leaders and members of traditional councils allocate land to their kin and friends. When traditional authorities determine who gets land and who does not based on who can pay (the most) money, one of the main justifications for the perpetuation of "communal land tenure" falls away. This justification, which the above examples expose as false, is that communal tenure means that poor people can obtain land without much money.
In the former homelands, where unemployment exceeds 72%, the primary income is from social grants. This is barely enough to sustain families, let alone cover the arbitrarily
determined amounts that traditional chiefs charge for housing plots. At its Polokwane National Conference in 2007, the ANC resolved to "ensure that the allocation of customary land be democratised in a manner which empowers rural women and supports the building of democratic community structures at village level, capable of driving and co-ordinating local development processes".
It also resolved to "further engage with traditional leaders … to ensure that disposal of land without proper consultation with communities and local governments is discontinued". However, the department of rural development and land affairs has failed to introduce legislation to deal with current problems or to give effect to the right to tenure security set out in section 25(6) of the Constitution. There is an urgent need for regulation that recognises people's overlapping rights as individuals and families as well as their customary rights to participate in decisions that affect their land rights, at both family and village level. That rural citizens' land rights and livelihoods are still being compromised by the unchecked powers of traditional authorities is a travesty that must be ended.\
* Name changed to ensure her safety.
Nolundi Luwaya is a researcher in the law, race and gender research unit at the University of Cape Town
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