Land rights and democracy:

The Communal Land Rights Bill

Aninka Claassens (Independent consultant on land and tenure issues)

Inkosi Patekile Holomisa (Congress of Traditional Leaders of South Africa and MP for the African National Congress)

Harold Wolpe Memorial Trust forum meeting

Iziko Museum, Cape Town, 10 February 2004

SUMMARY NOTES

ANINKA CLAASSENS

The Communal Land Rights Bill is fundamentally flawed and it will weaken the rights of 15 million South Africans if it is passed in its current form. Among other things, it imposes traditional councils as the bodies to administer land in communal areas. This provision was only introduced in October. Prior to that, the Bill provided for elected land administration committees on which no more than 25% of the members could be traditional leaders. Public hearings were held less than three weeks later in November. There was an outcry from the Human Rights Commission, the Commission on Gender Equality and others. The only constituency to support this provision was traditional leaders.

In some areas traditional leaders are popular, in others they are not. But the Bill imposes those councils right across the country as the land administration structures. Rural communities opposed the provision because they have seen certain traditional leaders selling land rather than keeping it in communal ownership and allocating use rights to community members. Rural people did not want their land rights to stem from being subjects, they wanted independent rights. Rural women said the provisions would reinforce patriarchal power relations and reverse hard-won gains. There are many cases of widows being thrown off land after their husbands have died and divorced women losing everything after their marriages have ended. New amendments provide for more rights for women, but women would have to go to the courts to enforce them. We already have an equality clause in the Constitution, but it is of no effect unless it is enforced. The Bill intervenes to reinforce the power of traditional leaders over land, and therefore over the people who live on the land. It reinforces a set of parameters around which the day-to-day struggles of life are fought.

The question is: are all traditional leaders oppressive? No. Customary law does not necessarily suppress women, and it has changed. Is it better to provide for greater equality between men and women, or is it better to replace customary law with Western common law? Of course it is better to have customary law. Many people against the Bill are in favour of traditional land rights, but institutionalising the powers of traditional leaders on this matter would be the death knell of the responsiveness of customary law. The Bill cuts the nexus which makes traditional systems responsive, and replaces this with state power. It bolsters traditional leaders by giving them state power. People without independent land rights are vulnerable. Statutory control over land administration would provide traditional leaders with a guaranteed resource base, regardless of whether their subjects support them or not.

An inkosi derives his support from the support of his people. This is at the heart of traditional systems. But the Bill will have the effect of ensuring that traditional leaders no longer derive power from freely given support, but from control over land. Why, if traditional leaders already enjoy freely-given support, should the structures be imposed? People should have the right to choose. Various traditional leaders have said it is wrong to counterpose democracy with traditional leadership. They ask whether elections every five years would really be better than traditional systems which develop over time. Many democratically-elected communal property associations are just as bad as bad traditional systems, and many traditional systems are extraordinary and impressive.

Yet the very traditional leaders who make the argument about the direct democracy and consensus inherent in well-functioning traditional systems, also support those provisions in the bill which deny rural people the right to choose the structure that will administer the land.

In making the argument about direct democracy, they overlook the fact that some traditional systems were subverted by colonialism and apartheid. The issue is not just about who should administer land rights, it is also about where rural people place themselves on the continuum of individual and communal land ownership, and about the possibility that where they place themselves may change over time. In some very communal areas, people do not believe that land should be bought and sold and there are strongly vested communal land rights. In others, land is bought and sold through informal land sales which are witnessed by local structures.

The Bill seeks to vest land rights in communities, and makes individuals’ land rights dependent on continued membership of that community. This may lead to abuses of power. The alternative is to vest land not in communities, but in those who hold the land at present. Let the majority of residents call the shots about how they want their land to be managed, and where they place their land rights in the continuum between more and less communal or individualised.

Another reason to keep land vested in the people living on it, relates to the implementation of tenure reform – a notoriously expensive and difficult process. In November 2003 the Department of Land Affairs (DLA) said R68 million would be required to implement the Bill. In January 2004, DLA said the cost would run to seven or eight times that figure – half the current departmental budget. DLA is already unable to raise enough money for restitution and redistribution.

Implementing the Bill is likely to trigger serious boundary disputes. It seeks to vest the land in a ‘community’, but what community will that be? – a vast kingdom in the Eastern Cape, or a village, or a community which lost land, or the traditional community? The process of defining boundaries will have to go into past identity and ethnic differences, it will take us back to defining land rights on the basis of ethnicity rather than current occupation and use.

The Bill has imposed community transfers and traditional leaders as land administrators. Because this version of the Bill was lodged in October, there has been no opportunity to debate the changes. DLA said in January that, if the Bill were passed, it would only be implemented in 2005. But it has been rushed through Parliament as a section 75 Bill (dealing with national issues) when it should be a section 76 Bill (one which deals with a matter affecting the provinces).

This Bill is not just about land rights, it is about caring for land rights to address poverty rather than rushing the Bill through Parliament in this form as part of a pre-election deal to secure the ANC the support of traditional leaders.

PATEKILE HOLOMISA

I am an ANC member of Parliament, but have not been invited in that capacity. The relevant parliamentary committee chairpersons are the spokespersons on this Bill.

When I entered this room, it became clear that the audience does not understand what a traditional leader is. I say so because of the composition of your audience. It became clear from when I entered that my position is not understood. I think I am in a foreign land here. I have had to cast aside my modesty because when a traditional leader enters a room, people greet him in the manner to which he is accustomed. Fortunately you are not the lawmakers (but indirectly you are). We are talking about a matter of life and death to me as an African and a traditional leader. I have become tired of this debate. It should not be taking place in Parliament but in the villages that you say you are talking about. I hope you will understand the kind of boredom that I feel for this matter.

The Communal Land Rights Bill is supported by traditional leaders and the ANC portfolio committee. Traditional leaders would have preferred a simple declaration that those communities and tribes who occupy land are the owners of that land, and that the money should be spent only on resolving disputes where the occur. The Bill will be a waste of money because this land is already occupied, it is already being administered by the tribes through their traditional leaders. It would have been an unpardonable negation of African custom if the government were to strip the African people of ownership of the land. It would have been a negation of what the ANC stood for before the Natives Land Act.

We are talking about very little land, and it is land that is already occupied as if the people living on it are the legal owners. Most people living in these areas do not know the Minister of Land Affairs is supposed to hold their land in trust. This is the land into which people were dumped under apartheid, and successfully defended against colonialism under Sekhukhune, Ceteswayo, Sobhuza, Hinsta, Sindile, Faku, Stuurman and others. Many of these African leaders and their descendants suffered personally at the hands of the colonialists or incarcerated or exiled. Yet you hear very little of these historical facts about how these leaders defended the land from present-day politicians. The memory of these African leaders has not been lost to the people. In our African languages we continue to refer to those places by names like Thembuland, even though they are now officially known by the names of the relevant district council. The boundaries of these lands extend much further than those defined by the colonists. All of the land belongs to them, and they guard their ancestral land jealously.

The Bill does not seek to do more than is intended, it does not seek the redistribution of the entire land mass of South Africa. It confirms the long-standing historical fact that African ‘communal land’, people and traditional leaders are inseparable in an African setting. It seeks to pass the land to its owners through land allocation committees. When I ask the elders in my community whether people’s land should be governed by a committee or by traditional leaders, they ask how this land administration can be done without traditional leaders playing a leading role. The traditional leader is the father of the people as a father is to a family – people look up to him. Democratic decision making? Should one of the children perhaps be the head of the family? The people understand that the best way of doing these things is through the traditional system of governance, because traditional leaders are in the best position to determine what is best for the people. If a traditional leader does not lead in a good way, then there are traditional ways of dealing with him. Criticism of traditional leaders focuses on those who were used by apartheid. But some leaders, lawyers and judges were also used by apartheid.

The powers and duties of these land allocation committees will be performed by traditional councils where one exists. The composition of the traditional councils is specified as including women, state functionaries, the private sector, the disabled as well as traditional leaders. Sixty percent of the council is to consist of traditional leaders and people appointed by the traditional leaders, and a third of the membership must be women and other vulnerable groups. The Bill seeks to balance the interests of the people and traditional leaders. The councils must comply with the Constitution. It does not matter how powerful a traditional leader is, if he violates any of these things, something will be done. Many people, even Aninka will tell you that traditional leadership and leaders are not bad, but they continue to chip away at the institution of traditional leadership.

Land allotments traditionally favoured married women, because they were expected to have children. Colonialism forced the land to be registered in the name of the man, and the Bill seeks to correct his. It is asserted that African women are perpetual minors, but a distortion of our cultures has resulted in these things. Not everyone is entitled to communal land – you must have dependants to qualify – a man who is married and has children normally qualifies automatically. A bachelor does not automatically qualify – he will be asked what he wants the land for. Unmarried women who have dependents are entitled to land if it is established that the dependants depend on her for sustenance. Married women are expected to have children. The fact that ‘permissions to occupy’ (PTOs) were registered only in the name of the man is a colonial distortion, both the adults and the children should be registered.

Opponents of the Bill must be careful not to offend the spirits of the African people by denigrating traditional leadership. Whatever we do we must not incur the wrath of our ancestors. Those who tend to label traditional leaders as corrupt tend to use this label as generally indicative of traditional leadership. Traditional leaders are not inherently corrupt and undemocratic. Democracy was not imported by Europeans – they destroyed it. Any traditional leader who does not push forward the interests of the people is you are no longer entitled to be a traditional leader. Every leader must comply with Bill of Rights and Constitution.

When I walked in you were supposed to stand up and salute me, especially when I stood up to speak. If a person were to spend a month or a week or a year in a traditional area, that person cannot claim to have understood everything about the place. The people may have listened to you quietly, but you cannot understand them because they do not lead the kind of life you lead. This is annoying paternalism. Land activists apparently concerned about land must campaign for the redistribution of the land currently in the hands of the white minority. Land rights activists should campaign for this as vigorously as they have against the Bill.

Aninka talks about the imposition of traditional leadership on rural communities. But they are administering land there already, regardless of what the law says, and regardless of the fact that the Minister is the nominal owner of communal land. When it comes to a request for an allotment of land, it does not matter whether or not the traditional leader likes the applicant, except where traditional leaders are corrupt, and that is an aberration. We do not want the sale of communal land, of tribal land, but remember that only 13% of the country’s surface was allocated for communal land. If we were to sell that land, most of the land would belong to the financial institutions owned by whites. Any traditional leader who sells land must be dealt with. On the matter of widows and divorcees thrown out of homesteads on the deaths of their spouses or divorces – land is allocated because there is a wife. The land and homestead belongs to the wife and the children, they own it. Anyone who removes them is wrong, this is a distortion of African custom.

Aninka laments that women have to go to the courts to enforce their rights, but what right is not enforceable through the courts? How can you complain that you can go to court? Why would government not want to support traditional leaders? The relative peace you find in the countryside is due to the fact that people respect their values and rights and culture. How can government be denied the opportunity to enhance that? Aninka says all traditional leaders are corrupt, and that the system must be subject to electoral systems imposed from elsewhere. Is she saying that all the kings were corrupt and despots? All of the things that were said about traditional leaders were negative. The fact that so little is heard about positive experiences is confirmation of the general rule that traditional leaders are ruling people according to their wishes. No news is good news. There are challenges I wish government would take up – I wish there were consultations in every village about the Bill.

Aninka says traditional leaders’ powers would be bolstered and this would perpetuate a feudal system, but traditional leaders do not refer to the people they lead as subjects. They speak about ‘the people of my father’ (the father having died). Our system is not feudal, you found feudalism in Europe. Westminster owns the land on which the British Parliament is built – that is feudalism.

On the subject of communal property associations – Aninka was one of the people involved in passing this law. Everybody wants to be a chief, so there is chaos. These leaders use the money to buy themselves things instead of developing the land and the people. These associations mean that the rights people enjoy in communal land vest in the individual rather than the community. We are encouraged to live like whites, to have nuclear families, rather than the situation where everyone is hungry or everyone enjoys plenty.

Are rural communities going to be used as pawns in the election? All the parties supported the Bill – perhaps because they do not want to offend traditional leaders. Not all the parties are motivated by trying to get votes for themselves. They understand that at last something is being done to restore the dignity of African people. The recognition of the communal land tenure system will make it difficult for people to sell land. Most of the land from Port Nolloth to KwaZulu-Natal is either leased by Europeans or has been bought by foreigners. The land along the Transkei coast is the only part which has been protected because it is land under the control of traditional leaders. There is no truth in people saying that government wants to divest itself of responsibility to develop those areas by putting them in private hands. Service delivery is taking place. It remains the responsibility of government to provide.

DISCUSSION

· I felt a bit wounded because I wondered whether I have been guilty of a failure to appreciate the values of one of the speakers. Chief, please don’t feel that your audience has been disrespectful, by people listening quietly without heckling, and then applauding at the end, you have had the best of treatments here.

· Inkosi Holomisa, I don’t think you have addressed Aninka’s fundamental point which is people’s right to choose which institution will administer their land. You seem to feel traditional leadership is not undemocratic, but if a majority of people in a particular site believe they do not want their traditional leader to administer their land, they should have a choice in the matter. You have misrepresented an aspect of the Bill – there are wall-to-wall tribal authorities, and these are deemed to be traditional councils. Where there are people placed under the jurisdiction of traditional leaders, they have no say. There is a contradiction between what you say and freedom of choice. Your speech was eloquent and moving, but it dodged the real issue.

· The chief said it is wrong and unlawful for women losing land through divorce or death, but why are there so many cases of this?

· Inkosi Holomisa made a point about this involving small pockets of land, but 15 million people is around half the African population. I am unclear about the position of collateral in this – if you have no ability to use property or any other possession you are unable to raise money. How will this kind of ownership work? Will an individual be able to raise capital to start a small business?

· Traditional leadership played a role in the resistance against colonialism, but you have raised the fact that there were abuses under apartheid and that the law provides for action against abuse. If abuses are exceptions, how do you respond to the law having to provide for abuses? The relationship between traditional leaders and people is structural, and communities do not have structural power. The communities were not consulted on the Bill. We therefore support debate in the provinces, so that the law that emerges has the support of the people it affects.

Patekile Holomisa: I appreciate the respect shown to the speakers, this was in line with your culture, I was pointing out that you did not stand up and say ‘Diliz’ Intaba’ when I walked in. I am talking to people who do not have understanding of Africans. Lots of people were dispossessed but we are talking here about Africans. Does the Bill reinforce the powers of traditional leaders, does it bolster them? Yes. Aninka and others say the Bill gives traditional leaders powers they did not enjoy under apartheid, and they are lamenting the fact that an African government is giving them powers. I have been to rural areas in Zambia. There the squalor in the rural areas is worse than in the cities because the democracy that brought in corrupt local councillors over traditional leaders spoilt the system. Opponents of the Bill say people should be able to choose who will administer their land, but the system is already in place. I would be seen as a madman if I called a meeting to ask whether there should be an elected administration or pre-colonial traditional leadership. People would ask me ‘what is the point?’ Only if it is found to be working against the interests of the people will the law be changed.

This idea that formalising the role of traditional leaders in land administration is an imposition is not reasonable. Property is owned by the tribe. If there is no problem, what do they have to be told? That just because whites do not have traditional leaders, therefore Africans must be told they should not have traditional leaders either? On the subject of wall-to-wall traditional leaders, I do not know of any part of the country that did not have traditional leaders, except those parts where the land was taken away. There is nothing wrong with government setting up a traditional institution that is in keeping with the Bill of Rights and the Constitution. The reality about widows and divorcees losing land is that this takes places because courts have distorted the true law. Properly applied, this cannot happen, it is not in line with the original intent of the customary law. Expelling widows and divorcees is breaking the law. On the matter of private property: most of the land in South Africa is owned by the financial institutions: the houses you have, even pensions are owned by banks, and most banks are owned by whites. The communal system does not allow the sale of land, therefore it is not conducive to the interests of investors who want certainty in order to satisfy the bank. The system does provide security so that the land cannot be taken away. It does not secure the interests of the banks. The land must not go out of the hands of communities. Most of these people are poor, it would be easy for them to put up land as collateral for loans, but they will lose it. In Kenya, the Masai have come back to claim their land, and they are ignoring title deeds. When all of South Africa is redistributed equitably, the poor will lose the little land they have. The law needs to protect people against abuses of power. These traditional councils are subject to the Bill of Rights and the Constitution, and any other laws, as well as community rules. If a traditional leader were to break any of these laws, he will be subject to the provisions of the law.

Aninka Claassens: Approaching this by saying that traditional values can only be understood and valued by Africans raises a can of worms about whether it is possible for outsiders to understand any values. I agree that this debate should be happening in the villages of the country, but you are saying there is nothing to debate because you say it would be absurd because the people in those villages would not want to choose anything else. Government and traditional leaders are saying there should be no debate because they claim to know what people would choose. Rural people should be able to choose on the basis of their experience. If these traditional leaders are so popular, then they should have nothing to worry about. They should not shy away from being chosen to administer land, or not. It is inappropriate for me as a white person to speak on this subject. It is more appropriate for Africans to speak, and also because what they have to say could not so easily be dismissed on the grounds that it is being said by a white person. Why is the Bill being rushed through Parliament, why is it not being debated in the provinces?

Patekile Holomisa: We would welcome the debate at the village level, not in the capitals of the provinces.