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Frameworks on land rights need to evolve and be updated

The issue of land ownership and the rights to land should not be “put into a rural box” for nongovernmental organisations to deal with, according to experts. Rather, common ground should be sought between affected communities and the wider society.

The Wits Institute for Social and Economic Research’s (Wiser’s) third panel in its series of Public Positions on History and Politics took on the issue of land ownership and rights to land. On Monday evening, the politically motivated colonial assumptions affecting land claims were debated.

The backdrop to the discussion was the recent reopening of land claims and the Rural Development and Land Reform Minister Gugile Nkwinti’s proposals for new forms of ownership of commercial farm land.

These recent events have also seen countervailing land claims by, for example, the Zulu king Goodwill Zwelithini kaBhekuzulu and the Nhlangwini royal house.

The Zulu king is claiming land under the control of the Zulu kingdom in 1838, while the Nhlangwini royal house has said it is claiming land for all the “original and indigenous African inhabitants of Natal” – land stretching from south of the Uthukela River to Port St Johns in the Eastern Cape. 

Evolution of ownership There are other significant claims such as the Nxamalala clan – of which president Jacob Zuma is the most prominent member – which is claiming several farms comprising of prime agricultural land in the Natal midlands.

Using Aninka Claassens’s paper, Communal Land, Property Rights and Traditional Leadership, as a springboard, the discussion – which featured panellists such as gender politics and cultural issues researcher Nomboniso Gasa and mining and rural transformation researcher Gavin Capps – touched on the evolution, or lack thereof, of land ownership and tenure laws and the lingering, problematic notion of “custodianship” as it relates to African land ownership.

Claassens explained that there were three main laws to be considered when framing the discussion on land ownership.

The first was the Traditional Leadership and Governance Framework Act of 2003, which “takes the tribal boundaries of the 1951 Bantu Authorities Act and makes those the traditional council boundaries of the future”.

The second is the Communal Land Rights Act of 2004, which “transfers title to all the land in the former Bantustans to traditional communities headed by traditional councils”.

The third was the Traditional Courts Bill “which reinforced the construct of unilateral chiefly power within those tribal boundaries that coincide with the boundaries of the Bantustan, enabling chiefs to order forced labour and the power to take away customary entitlement such as land rights”.

Claassens explained that the vesting of power in traditional leaders has been deeply disputed historically in places such as Mpondoland, Sekhukhuneland, and the Baforotsi areas, while the laws had been opposed. 

Bantustan power dynamics The Communal Land Rights Act was struck down in its entirety by the Constitutional Court in 2010 and the Traditional Courts Bill did not get enough support in Parliament. “The basis on which they have been contested by organisations such as the Alliance for Rural Democracy,” Claassens said, “is not because people are anti-custom, but because strong opponents feel the laws have nothing to do with custom but with Bantustan power dynamics defeated by rural people in the uprisings of the 1980s.

“My argument is that key features in these land claims are derived directly from two key, politically-motivated colonial assumptions.

“First, was that customary systems of land rights did not constitute property rights, asserted as a basis to justify white confiscation of African land. This is reiterated in the land claims we see now. There is also the assumption that chiefly power was despotic and that it was the only power that Africans can understand, used to justify the governor-general as supreme chief above all Africans.”

Gasa said common and universal citizenship, which the Constitution speaks of, meant that people had the right to choose affiliation and disassociation at will, from cultural identity or anything else.

“The Traditional Local Government Framework Act of 2003 was not accidental,” she said. “People thought this affirmation of colonially prescribed culture had something to do with the vote, but that was a little part of it. There is a much bigger project that is a social re-engineering of identities for the purpose of economic interests, self-interests.

“One of the disturbing things coming out of public discourse and Claassens’s paper is this notion of custodianship, that Africans need custodianship. We need people to hold land in trust for us. Even this 51% land reform project that Nkwinti is talking about on behalf of farmworkers, that land will go into trust. It is a re-assertion of the Smuts dream. It is the infantilisation of Africans.”

Capps began by explaining that the frenetic growth of the mining industry – especially that of platinum in the 1990s, was at the heart of South Africa’s changing political economy.

He argued that “the consolidation of the South African state after 1910 and the whole series of legislation which laid down the spatial, social and racial divisions of the South Africa” was inherited by the 1994 dispensation. “Chiefs played an important role in the functioning of the system. People were forced to leave the land through taxation and the chiefs were the tax collectors. This is part of their legacy despite the changes experienced in 1994,” he said.

Capps said it was key to consider that the platinum belt, which accounts for over 80% of the world’s platinum reserves, fell within two former homelands (Bophuthatswana and Lebowa). He said homelands were turning from places of the production of migrant labour and the dumping ground of the unemployed into new frontiers for the economy. This was explicitly noticeable in the mining of platinum, especially.

“If you’re a capitalist and you want to get a mineral out of the ground, standing between you and that mineral is some kind of land owner or occupier,” Capps said. “Your job, as much as possible working with the state, is to remove that barrier because that barrier is a barrier to accumulation. I don’t think that there is ever one single interest that is able to drive things through, but we have to see the things going on at the moment in terms of these general tendencies.”

From the floor, Colin Haskins said he had not heard much about the first nation status of the Khoisan and their claims to land in the discussion, while Jane Barrett from Cosatu said because there were no easy reference points on these issues, there was a problem for the trade union movement in reaching a quick consensus about what was to be done in light of the Nkwinti announcement.

She reiterated Capps’s point about the issue not being “put into a rural box” for NGOs to deal with, but for common ground to be sought between affected communities and the wider society.

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Kwanele Sosibo
Kwanele Sosibo
Kwanele Sosibo is the editor of Friday, the arts and culture section of the Mail and Guardian.

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