The Traditional Leadership and Governance Framework Act, coupled with the Mineral and Petroleum Resources Development Act, undercuts the land rights of people living in the former homelands. (Delwyn Verasamy/M&G)
A man sitting next to me at a land workshop in Rustenburg last month asked me whether the problems on the platinum belt meant, as some younger delegates alleged, that Nelson Mandela had indeed sold black people out during the negotiations leading up to the 1994 transition to democracy.
He said people were talking about being evicted by mining companies from land they had owned for generations; of waiting more than 20 years for land restitution; of government officials blocking their claims and stealing their land.
My connection with the man goes back to the 1980s when I was a field worker for the Black Sash and he was one of the Mogopa leaders who resisted forced removal from their land near Ventersdorp. He and others were ultimately removed at gunpoint on February 14 1984. Brick houses were bulldozed as their owners were carted off in government trucks. Their land was restored to them in 1994 but now they are struggling to hold to account diamond mines on their land.
President Cyril Ramaphosa’s recent announcement that the ANC would spearhead the amendment of section 25 of the Constitution to enable land redistribution appeared to confirm my friend’s dread that Mandela had indeed betrayed black South Africans by agreeing to the property clause in the first place.
I doubt this was what Ramaphosa intended to convey. It appears that the levels of pain and despair expressed at the public hearings conducted by the constitutional review committee precipitated Ramaphosa’s statement. The ANC was publicly humiliated in the hearings, which played into the hands of opposition parties, particularly the Economic Freedom Fighters (EFF) but also the Democratic Alliance.
In many hearings, no context was provided about what section 25 of the Constitution means. The nature and scope of the possible amendments was not discussed. But in a departure from past practice, every speaker had to say upfront whether they were for or against its amendment. Black people who spoke against amending the Constitution were booed. People who wanted to talk about what had gone wrong with land reform, and how this should be fixed, felt they had to start their remarks by agreeing that the Constitution must be amended.
This binary approach handed the hearings to the EFF and the DA on a plate. The EFF claimed that it was championing “radical change”, whereas the DA championed “property rights for all”. As the party in power, the ANC was left with egg on its face as people’s terrible experiences with failed and, in many areas, nonexistent land reform poured out.
While the review committee chairperson struggled to control the hearings, EFF leader Julius Malema stepped in to control the crowd. But after a while Malema sat back and let Vincent Smith be seen to struggle and fail to assert his authority.
Parliamentary public hearings are not meant to be party political theatre. The Land and Accountability Research Centre at the University of Cape Town has monitored hundreds of public hearings and never before seen parliamentarians use them to lobby voters in this way. Ordinarily, MPs sit and listen rather than rile the crowd. When organisers failed to provide food for people who had travelled long hours to get to the venues, the EFF and the DA dispensed food and party regalia.
Ramaphosa confirmed the party political nature of these hearings by making his pre-emptive announcement about the ANC’s decision to support an amendment to section 25 of the Constitution before the review committee report to Parliament.
This kind of damage control will only dig the ANC deeper into the trap that the EFF has set for it. The ANC will need the EFF’s support to reach the two-thirds majority to amend the Constitution. If the EFF continues to set the agenda, as it has done so far, the next issue will be state ownership of all expropriated land.
State ownership is the system the National Party put in place for the homelands to be created. It enabled dispossession during apartheid, which is still continuing.
Under the post-1994 laws, licences to mine in former homelands supersede the customary ownership rights that people have inherited over generations to their homes, fields, grazing land and the graves of their ancestors. The holders of mining licences confiscate the land rights of rural communities.
Since customary rights are not recognised as property rights and the department of mineral resources routinely ignores the requirements of the Interim Protection of Informal Land Rights Act of 1996, they are not even expropriated. The Act requires that people with informal rights to land must consent to any decision affecting those rights. If they refuse, those rights must be expropriated with, for now, at least, the payment of compensation.
The dispossession under way today is made possible by the interplay between the Mineral and Petroleum Resources Development Act of 2002 and the Traditional Leadership and Governance Framework Act of 2003. In combination, these laws deny the property rights vesting in black South Africans in the former homelands in favour of mining licences issued by a state that nationalised mineral rights with the mineral Act.
These people are being routinely stripped of the residual assets they managed to salvage from colonialism and apartheid. This is more far-reaching than expropriation without compensation because it is premised on the denial of the ownership of land they have inherited over generations. What is denied is not worthy of expropriation and compensation.
What have sectorial interest groups who propound their belief in property rights and the free market economy — such as Business Leadership South Africa, the Minerals Council and the ever-strident Institute of Race Relations — had to say about this ongoing dispossession of the property rights of the poorest and most vulnerable South Africans? Nothing.
When apartheid ended and to buy influence with ANC leaders and their allies, it was worth it for mining companies to cut prominent figures into the mining industry with the 26% black ownership share required in terms of the mineral Act. White mining capital decided it could live with the Act and the Mining Charter if that was the key concession the new government demanded of them. They even, in many instances, let the department of minerals and energy dictate who their black economic empowerment partners would be.
By 2000, the mining boom had shifted from the depleted gold reserves of the Witwatersrand to the rich platinum deposits in North West and Limpopo — the former homelands of Bophuthatswana and Lebowa — where land and citizenship rights are circumvented by the way in which the traditional leadership Act has been interpreted and used by government. This law superimposes contested tribal boundaries and identities created under apartheid on all the people living in the former homelands.
The traditional leadership Act undercuts the property rights of rural people to their platinum-rich land and consigns them to the status of tribal subjects, bound by the decisions of traditional leaders with unaccountable powers.
Concerted opposition did stop two laws that would have compounded this marginalisation. The Communal Land Rights Act (Clara) of 2004 was struck down by the Constitutional Court in 2010, and the Traditional Courts Bill of 2008 could not muster the required support of the majority of provinces in Parliament. But they are both back before Parliament with a possibility of being passed before the 2019 election.
And the government has continued to treat traditional leaders as though they do have the sole authority the Traditional Courts Bill and Clara would have given them to sign mining deals binding the land rights of rural people without consulting. But the government has conceded that many of these mining deals are legally precarious because the Bill and Clara have not survived.
To head off any potential challenge and to provide a veneer of legality to mining agreements signed without consultation, consent or compensation, the ANC is attempting to push various Bills through Parliament.
The motivation for a proposed amendment to the traditional leadership Act includes the concession that decisions of traditional councils may be legally vulnerable, but the proposed Traditional and Khoi-San Leadership Bill, which would replace the traditional leadership Act, goes much further.
It is justified as providing recognition to Khoi-San traditional leaders for the first time, but hidden in its 99 pages is clause 24, which would authorise traditional leaders to sign deals with third parties binding the land rights of all those within their apartheid-era boundaries, without their consent. This has been happening and the clause is necessary only because there has been no legal authority underpinning it.
All that the Khoi-San Bill can do is buy time for these mining deals because it will also be struck down in time as abrogating the property rights and tenure security promised by section 25 of the Constitution. That is, if section 25 survives the amendment.
I told my friend from Mogopa that it was not Mandela who had betrayed the people but those ANC leaders who put the minerals Act and the traditional leadership Act in place, and have grown staggeringly rich from mining deals at the expense of the impoverishment and property rights of the rural people whose homes and livelihoods are being destroyed.
If the ANC cared, it would stop the Khoi-San Bill, not amend the property clause.
Aninka Claassens is director of the Land and Accountability Research Centre in the department of public law at the University of Cape Town