Several traditional leaders recently announced their intention to lodge restitution claims to vast and overlapping swaths of land. They include the Zulu king, leaders of the Hlubi, Rharhabe and Thembu, and President Jacob Zuma’s nephew Simphiwe Zuma, on behalf of the KwaNxamalala clan.
King Goodwill Zwelithini has announced that his claim goes back to 1838 and covers all the land owned by the “Zulu kingdom” before the wars of conquest. Major cities and towns are included within these “tribal claims”.
Jacob Zuma, in his speech opening the National House of Traditional Leaders, encouraged traditional leaders to take advantage of the newly amended Restitution of Land Rights Amendment Act and put in claims. The amendment reopens the window for lodging restitution claims, but retains the restriction that dispossession must have taken place after 1913.
Yet hints by Zuma that this date is negotiable have led to an avalanche of claims by traditional leaders going back into the mists of time.
The problem is that different groups occupied the same land at different times, as wars raged and people moved around. Without a cut-off date, it is unclear which of these competing claims would take precedence. Also, overarching identities such as Zulu and Xhosa were, and are, widely disputed by groups who were subsumed within these identities during colonialism and apartheid.
Linking land ownership to tribal identity in this way will fan the flames of deep and ongoing contestation over state-imposed tribal boundaries and identities. The overlapping nature of the claims announced so far indicates the risk of the process spinning out of control and degenerating into ethnic violence.
How has it come about that massive tribal land claims are being announced just as we celebrate 20 years of democracy? The story goes back to the Communal Land Rights Act (CLRA) of 2004, which was struck down by the Constitutional Court in 2010. That Act, like this year’s amendment, was a sop to placate the chieftainship lobby in the run-up to national elections. The amendment takes a more circuitous approach than the CLRA, presumably to avoid a similar constitutional challenge.
Both pieces of legislation were meant to placate traditional leaders up in arms about land reform intended to deliver ownership to elected bodies, especially within the boundaries of the former Bantustans. Lobbies such as the Congress of Traditional Leaders of South Africa and the Houses of Traditional Leaders argue that independent ownership rights undermine their authority and that the land should be transferred to them instead.
Accordingly, the CLRA provided for the transfer of title from the state to “traditional communities” headed by such leaders. This sparked an immediate outcry from rural organisations and civil society: legislation enacted in 2003 entrenches the controversial tribal boundaries imposed by the apartheid-era Bantu Authorities Act of 1951 as the boundaries of today’s “traditional communities”.
In effect, the government was preparing to transfer title to all the land in the former Bantustans to traditional leaders. Seventeen million South Africans have built their homes on and invested in this land.
The CLRA went further. It provided that the minister of land affairs could determine that title deeds vested in groups within those boundaries must be transferred to larger encompassing “traditional communities”. This sparked outrage among independent groups who had already purchased land or held it through exemptions from the Land Acts, and from those who had acquired ownership because of land reform after 1994.
But opposition to the CLRA was not limited to those with independent ownership rights. People on state-owned “communal” land argued that the Act centralised power in the “traditional councils” in ways that undermined decision-making at family and village level. They argued that decision-making is a key component of customary land rights and would be undermined by the CLRA.
Land that is held and managed at different, coexisting levels of social organisation encourages accountability and mediates power. When unilateral authority is vested at the apex of superimposed “tribes”, these internal balancing mechanisms are undercut.
In 2010, the CLRA was struck down on the grounds that the parliamentary process to enact it was too rushed. The Constitutional Court refused to rule on the substantive argument that the Act undermined rather than enhanced tenure security. There appeared to be no need to do so, because the minister of rural development and land reform, Gugile Nkwinti, submitted that he was not in favour of the CLRA’s approach, and would introduce new legislation as a matter of urgency.
Four years later, no such legislation has been introduced and recent policy announcements entrench the CLRA model. This posits that ownership of the “outer boundaries” of communal land will be transferred to traditional councils, whereas those living within such boundaries are entitled only to “institutional use rights”, subject to the overarching tribal ownership.
The government is backing chiefs in their insistence that all land in the former Bantustans should belong to them. And more than that: that the existence of countervailing independent land rights is “inimical to custom” and must be done away with.
But there are several factors that will make it very difficult for this model to work. The first concerns the historical record. Like it or not, significant numbers of black people managed to club together and buy land by either pre-empting or subverting the restrictions of the Land Acts.
Much of this was subsequently subsumed within the Bantustans and has been fiercely defended against counterclaims by superimposed traditional leaders in the intervening decades. However inconvenient to the chiefs, that history cannot be wished away.
Nor can the property rights created during that process be destroyed without due process of law. The same applies to the property rights of the hundreds of elected communal property associations who claimed and were awarded restitution and redistribution land under post-1994 land reform.
Section 25 of the Constitution goes further than protecting existing property rights: it also creates rights to restitution and tenure security for those who suffered historical racial discrimination. Herein lies the rub for the government. It has changed direction and no longer supports land ownership by ordinary South Africans. But it remains bound by the Constitution and its own laws.
These laws create the right to restitution and provide for land to be transferred to individuals and elected communal property associations. But affidavits by senior officials show that Nkwinti has bowed to pressure from traditional leaders and imposed an unofficial moratorium on such transfers, stretching back 10 years.
This makes the land department vulnerable to legal action to enforce the clear rights that exist in law. Hence the Restitution of Land Rights Amendment Act’s opening of a new window for lodging claims. Soliciting counterclaims that complicate otherwise clear-cut rights claims is a way of pre-empting pending legal action without having to spell out the underlying intention. Besides, promising (just before elections) that more people will get a bite at the restitution cherry can hardly backfire politically.
But none of that anticipates and explains the scale of the recent spate of tribal claims going much further back in history than the official 1913 cut-off date. These raise the stakes considerably, as Nkwinti appeared to concede when he sought to distance himself from them at the press conference after his budget speech.
They are bound to reignite dangerous underlying tensions, such as those to do with the disproportionate benefits given to the Zulu king, compared with others, which include the trusteeship of large swaths of KwaZulu-Natal through the Ingonyama Trust.
Many of the tribal boundaries in KwaZulu-Natal and other areas are contested. The prospect of land transfers will bring these dormant disputes to life. A consolidated Zulu claim may seek to get around that problem, but it is likely to raise many others, including opposition by chiefs who have lost control to the Ingonyama Trust.
Then there are the transprovincial tensions raised by the Hlubi, Rharhabe and Thembu claims.
It is ironic that laws and policies adopted over the past 10 years re-entrench two flawed colonial constructs that were pivotal to our history of racial dispossession.
The first is that customary systems of land rights do not constitute property rights for their members. This was used to justify the appropriation of African land by the colonial state.
The second is the colonial insistence that the chief’s power was despotic. This was used to justify the power of the British governor general as the “supreme chief” to redraw tribal boundaries and appoint and depose chiefs at will.
These distortions serve a similar purpose today, justifying the denial of the ownership rights of ordinary rural people, as well as the increasingly autocratic leadership style of the president.
Zuma is playing with very high stakes, in much the same way that the Inkatha Freedom Party guaranteed itself a place at the negotiating table by stoking ethnic violence in the 1980s.
Will dealing with the fallout be his post-retirement project?
This article is an edited version of a paper given at the Public Positions on History and Politics series of seminars at the University of the Witwatersrand, a programme organised by the Wits Institute for Social and Economic Research (Wiser), the department of political studies at the university and the History Workshop.
Aninka Claassens works in the department of public law at the University of Cape Town.