THE HOUSE OF TRADITIONAL LEADERS OF KWAZULU NATAL
PRESENTED BY INKOSI B N MDLETSHE, MPP
MEMBER OF THE EXECUTIVE COMMITTEE OF THE HOUSE OF TRADITIONAL LEADERS
CAPE TOWN - FEBRUARY 18,1998

At the outset the House of Traditional Leaders of KwaZulu Natal wishes to express its appreciation for this opportunity of presenting its view to the Portfolio Committee on Land Affairs of the National Assembly We appreciate the fact that this portfolio committee is taking a direct interest in the development of policies. We do not feel that the development of policies and the drafting of legislation in matters as conflict-ridden as those relating to land should remain the exclusive prerogative of Government's departments. Parliament, as the representative of the people should, in our opinion, have a leading role in the development of policies in conjunction with the affected interests.

The issue affecting land affairs are numerous and multi-faceted. The House of Traditional Leaders of KwaZulu Natal will limit its inputs to those policy aspects which more immediately affect traditional leaders in general and those of KwaZulu Natal in particular. However, we are aware that land is a continuum and it is difficult to isolate the policy consideration of any of its segments outside the parameters of a comprehensive land management plan. Nevertheless, the administration of land at the level of traditional communities has sufficiently defined features and characteristics which justify distinct attention.

Traditional leaders are very concerned by the fact that after almost four years into the new democratic dispensation the Department of Land Affairs has not yet developed a clear policy in respect of what was once referred to as "tribal land". The White Paper does not deal adequately with tribal land and almost omits its consideration in spite of the fact that this land is the largest segment of land in the country. We must regard this omission as a policy choice and must wonder about its meaning. What is the significance of the fact that we cannot identify a single public document produced at the Department of Land Affairs in which the policies affecting the land of the traditional communities are spelt out?

The present policy vacuum must be assessed against two elements. Firstly the importance of land for the survival of traditional communities and secondly the paradoxical and deplorable situation of tribal land in the present constitutional scheme. Land issues are central to traditional leadership and to the traditional model of societal organisation. It is also central to the definition of the cultural and social equilibria of the new South Africa. In fact, traditional communities as well as traditional mores are based on the shared ownership of the land and the role of traditional leadership in its administration. We regard access to land not as a mere property right but as the most fundamental human right. Moreover it is land that defines a community and one would not be exaggerating in saying that a community and its land are one, united by a mystical relationship which ties together past, present and future generations. In our view, traditional leadership remains the final expression and the custodian of this relationship.

The shared ownership of land is at the basis of our social communalisms, culture of uBuntu and deep seated sense of social solidarity. The essential feature of traditional communities is the self-administration of land which is assigned by the community, via the action of traditional leadership, to each of its members to meet his or her needs. It is not surprising that even the father of modern communism Fredric Engels regarded African traditional communities as an exemplary society in which real freedom and liberty is achieved by prioritising social dynamics on the basis of the contribution which each individual can make and of the needs that he or she may have.

The cultural and social function of the institution of communal property has not yet been sufficiently explored by the official academia. Indeed the entire history of land settlement in South Africa has not been the object of complete academic research, and yet it underpins the core of our historic background and our present day social tensions. It shall suffice to say that the institution of communal property and that of traditional leadership are two sides of the same coin and neither of them could survive without the other. Unfortunately the prevailing legal system has not yet recognised communal property and this is making it more difficult to fully acknowledge the role of traditional leadership.

The failure to recognise communal property is perhaps the heaviest legacy of colonialism and racial oppression persisting to this day, and it is discouraging that after almost four years the first black Government of the country has done nothing to reverse it. The erstwhile KwaZulu Government and the KwaZulu Natal Government have been committed to counter this legacy and promote a process in which traditional leadership and communal property can receive joint recognition and protection. We have also been committed to reverse colonial dynamics which to this day are at play in so far as, with the exception of KwaZulu Natal, all the land of traditional communities belonging to the majority of the South African people is still classified as State property.

Colonialism brought and foisted on African realities a foreign legal system with only two types of property, namely private and public property, and imposed on the whole of the country the eminent domain of the Grown. Accordingly, colonial land settlement took place on the basis of land titles issued to individuals against the Crown's eminent domain. The issuance of land titles to settlers led the black majority to be confined to thirteen per cent of the national territory. This percentage was then increased to the present day seventeen per cent. However, the land retained by black people after colonial invasion fell within the Crown's eminent domain and was classified as public property even though it was held by its rightful owners as communal property.

Colonialism refused to acknowledge that in terms our indigenous law the whole of the community owns the whole of the land, and translated its ignorance in this respect in the statement that black people have no land ownership law but only land tenure law. As racial discrimination gradually replaced colonialism, the theory of black perpetual minority gave a new justification to the failure to recognize land title to traditional communities To reflect the reality of communal enjoyment, the land was often organized in public trusts, and then became the public property of the erstwhile Self-governing Territories and TBVC states. The interim Constitution transferred the land back to the central Government as its public property and the final Constitution has left this situation unaffected.

Moreover, for some inexplicable reason the prevailing constitutional interpretation does not recognise that tribal land affairs are a necessary component of the provincial legislative competence on indigenous and customary law and has accordingly totally centralised this function. In KwaZulu Natal this restrictive and unreasonable interpretation of the Constitution has been challenged by the Act establishing our House of Traditional Leaders which spells out that tribal land is part of our competence on indigenous and customary law

We are committed to an outcome results which ought to become rational policy if this Government and its Department of Land Affairs ever come to their senses. We are committed to ensure that title to the so-called tribal and vests in Traditional Authorities and the land is regulated and administered in terms of communal law, which eventually must be recognised by the prevailing legal system. To this end, the erstwhile KwaZulu Government adopted the Ingonyama Trust Act to hold our land and commence a process to return it to our traditional communities as communal property. The Ingonyama Trust Act became the centre of a major confrontation between the central and the provincial Governments which was finally settled by virtue of the amended adopted by this Parliament which created the basis for a consensus process between our Province and the central Government aimed at transferring land title from the Trust to the communities which rightfully own the land. The process of land surveying necessary for the issuance of titles was commenced five years ago and is now close to completion.

We hope that central Government will not create obstacles to the transfer of title to Traditional Authorities which will sanction that our initiatives have set KwaZulu Natal several years ahead of the rest of the country in the process of returning land title to our people. However, there is still great uncertainty about how this process will take place and we are appalled by the fact that the Minister of Land Affairs has thus far stalled this process not having yet appointed the members of the Board which in terms of the new amendments has the responsibility of administering the Ingonyama Trust. This is a very serious omission which should be investigated by the Portfolio Committee on Land Affairs

We must also mention how in the KwaZulu Natal Constitution which was unanimously adopted but not certified, we had provided for a third gender of property in addition to private and public property, namely communal property as defined by our Zulu indigenous and customary law. As our provincial Constitution was not certified, communal property is not yet recognised. Nevertheless, our Province and our House has rejected the Communal Property Association Act of 1996 which established a different and very pernicious type of joint ownership, which resembles the Soviet models of indirect land administration by the State. This Act provides for the land to be held by the community established as an association under a constitution drafted by the State. Both this constitution and the land would be administered by a functionary of the State who would effectively replace traditional leadership with respect to land administration.

We are also concerned about the attitude of the Department of Land Affairs in respect to land programmes as they relate to tribal land. Simply put, tribal land is optimally redistributed and allocated. However, the recent amendments to the Ingonyama Trust Act have subjected our land to land programmes, in spite of the fact that the issues of redistribution, allocation and restitution should not arise if the intention is that of returning title to Traditional Authorities. Therefore one may fear that the Department of Land Affairs might have a different agenda.

As Traditional Authorities are statutory bodies, their holding t1tle would establish their land in a position not dissimilar to that, of municipal property. However, we totally reject a policy which is increasingly rumored to be the Department's hidden agenda, namely that once Traditional Authorities are replaced by elected municipalities, the non-allocated land will be transferred to the municipalities as public land which land allocated by means of PTO or even mere non-adversarial occupation will be transformed into individual private property.

We look with great concern at the proposals of transforming our communal property into alienable freehold which underpins the policies of the White Paper on Land Affairs. The majority of our people often have nothing but their communal right to stay on, and enjoy their land for their sustenance. They would be prone to sell their land for a small price. If this were to happen, they, their children and grandchildren would be left with no future but that of the urban despair which breeds criminality, drug and substance abuse and the breakdown of human values. The erstwhile KwaZulu Government was sensitive to the need of providing security of tenure, and it was the first to legislate the recordability of PTOs and to provide for their alienation among the members of the same community. This latter provision was not ratified by the then State President.

In KwaZulu Natal we have landless communities whose need must be addressed. It is important that the cut off date for land restitution be moved beyond the 1913 cutoff deadline on the basis of a flexible system which identifies unproductive tracks of land, absentee and charitable owners as possible references for land reform and redistribution. We believe that 1913 is a deadline which caters more adequately for the Eastern Cape historical realities than the KwaZulu Natal ones, for some aspects of land expropriation followed a North-South descending pattern ranging from the beginning of the century to 1913. The Zulu revolt of 1906 was partly also motivated by dispossession of land taking place at that time, which, given the price of human lives paid in that revolt, it would now be unconscionable to leave unaddressed. As far as KwaZulu Natal is concerned, the cutoff date should be brought back at least ten years, say 1903. Moreover, one may note that in 1913 Black people were confined to a mere 13% of the national territory, which was then increased to 17%. Unless we go beyond the 1913 cutoff deadline, we would be redistributing land only within this fraction of the national territory.

Finally, it must be stressed that the land of traditional communities should be considered already perfectly allocated and should not be part of the land programmes aimed at redistribution and restitution. It must also be noted that when title is issued to members of communities it reduces the rights of their nuclear and extended family who, in a regime of communal property share in the right of use of the family head. Some of the pending legislation in Parliament refers to nuclear families which also does not cater for the extended family.