Communal Land Rights Bill

Madikwe is an area in the Northwest Province that forms part of Moses Kotane Municipality. There are communities in this area that are affected and suffering because of the 'Black Administration' and/or the Tribal Authorities Acts (no.38 of 1927, no.68 of 1951 and no.23 of 1978), which forced them together under one tribal authority, whereas historically and traditionally they do not belong to one tribe or fall under one traditional leader.

The matter here is not a question of inter-tribal conflict but the imposition of an inappropriate tribal structure on our communities.

The following is a list of the communities in question:

Ramotlhabye

Silkaatskop

Nooitgedagte (Sesobe)

Hartebeesdorin

Debrak

Davidskatagel

Mankaipaa

Vogelstruisdraai (obakeng), and

Molatedi (Naauwpoort)

In order to understand how this Bill will actually exacerbate the problems already existing in our community, allow me to paint a picture of the situation in which we find ourselves. Please do not be surprised if you find this confusing for the situation is indeed very confusing. Nevertheless I will attempt to make the main points as clear as possible.

These are the communities involved:

Debrak is part of Barokologadi community living on their own private land; Davidskamagel and Hartebeesdorin are also part of Barokologadi community, living on state land;

Nooitgedacht are part of Baphalane community living on state land; Mankaipaa are Bafurutshe community are living on state land; Ramothabye and Silkaatskop are two communities living on two different privately-owned lands.

All these communities have been forced together under Barokologadi tribal authority. Obakeng are a Barokologadi community living on state land who were forced under an alien chief, Matlapeng of Batlokwa tribal authority at Naawpoort (Molatedi).

Barokologadi is a community that is presently involved in a land restitution case involving land in and outside Madikwe game reserve and through this process we came into working contact with land rights NGOs and became aware of this Communal Land Rights Bill through them. Because of the problems painted above, the Barokologadi together with other affected communities arranged a workshop with the help of NGOs to discuss this Bill, in the hope of finding some provisions that would help alleviate our problems. No government department was involved in this meeting. The workshop took place on 10-11 April 2003 at Mankaipaa village. There was a follow-up workshop with other communities from other provinces at Kempton Park in August 2003 where this delegation participated m discussion on a previous draft of this Bill.

The problem with these workshops were the many changes to the draft Bill within a short space of time, which did not give communities sufficient time to interrogate the various versions of the Bill.

Although the above-mentioned communities were engaged in the discussion of the Bill, they are just a tiny part of Moses Kotane municipality. We believe that most of the communities in our area are not aware of this Bill, because there was no consultation from the government side.

May we also highlight our belief that separate consultation with chiefs is not the same as consultation with communities.

We appreciate the government's effort in bringing forward this Bill, which gives us hope that Black people in South Africa will eventually own land. However, we are concerned that it refers only to the 13% of land presently occupied by Black people, while the 87% is still in the hands of the minority. All in all this Bill is going to add further confusion rather than bring about solutions to our situation, given the conditions we find in our area.

Our submission will focus on the following sections of the Bill:

1. Section 1, Definition of Community

2. Section 17, Land Inquirer - Powers and Duties

3 Section 18, Transfer of Communal Land

4. Section 21(2), Land Administration/Traditional Councils

5. Section 18 (4) (b), Determination by Minister (Women)

Section 1, Definition of Community. Given the cluster of people and groups mentioned above, the critical question is, who can be regarded as a 'community',

e.g. Ramotlhabye and Silkaataskop groups own land privately, but fall under Barokologadi tribal authority, which is based on state land. Can the two groups, who are not Barokologadi, be regarded as communities in their own right under this Bill, even though they fall under the larger Barokologadi group of the chief, or is the whole cluster of groups to be regarded as a single community because they fall under one traditional council?

Section 17, Land Inquirer - Powers and Duties. In such a case, will the land inquirer consult all the affected groups, e.g. Mankaipaa group, which is on state land but does not belong to the main group, historically or traditionally, except through the clustering brought about by the various Black Authorities Acts? Our fear is that the land inquirer in this case would consult only with the chief and the main group, and leave out the groups most directly affected, e.g. Mankaipaa and Obakeng, who will never know about the report that seals their fate by virtue of being under this traditional council. There should be provision in this Bill to help these groups who are presently fighting to be freed from the jurisdiction of alien traditional council, imposed by the apartheid government, to challenge the inquirer's report and present their position.

Section 18, Transfer of Communal Land. As indicated earlier, this Bill will add further confusion to the existing problems in our area. This may be illustrated by reference to the Baphalane community, who reside on state land Noitgedacht, under the Barokologadi tribal authority. The Baphalane community have recently had their restitution claim and tenure upgrade case resolved. As part of this process, the community formed a Communal Property Association (CPA) to which was transferred the ownership of the land that was restored along with the land they currently occupy. This was done without any involvement of the tribal authority. The chief of the Barokologadi is now querying this process and wants to take over control of the CPA and of the restored land. This Bill, through section 21(2) gives him powers to override the arrangements created by DLA through the restitution and tenure reform programmes. This is an obvious recipe for conflict. There is a major contradiction between these democratic arrangements, so recently created, and the powers now being given to the chief over all land within the tribal area. Furthermore, does this suggests that the Bafurutshe at Mankaipaa, who live on state land and were forced under the jurisdiction of the Barokologadi tribal authority, can now also apply for tenure security on the land they occupy Can the same be said by the Barokologadi group on state land at Obakeng under alien chief Matlapeng of Batlokwa tribe at Naauwpoort?

Section 21(2), Land Administration Committee/Traditional Council. The problem here is that the traditional council that will take over the powers and duties of the land administration committee has a composition which is not consistent with the principle of democracy, in that 40% of its members are to be elected members and the majority are to be appointed by the Chief. This is discrimination against communities where traditional councils exist, for those communities without traditional councils will establish land administration committees where 100% of members are democratically elected. A further problem is that the community has no power to replace the council if it is found to be incompetent or corrupt.

Land administration by traditional councils bring about the following problems:

people are charged levies in order to gain residential sites and other services, monies which are seldom accounted for; a chief of Batlokwa, on the privately owned land, giving sites to people not on his land but on the state land that were forced under his jurisdiction as a result of the Black Authorities Act, leading to overcrowding and the destruction of the sustainability of the land and the livelihood of the people, e.g. Barokologadi group at Obakeng.

People at Ramotlhabye and Silkaatskop who live on privately owned land are charged levies for services. People on private land are denied the power to administer their own land because they fall under the traditional authority.

Section 18(4)(b), Determination by Minister (Women). Women face serious problems under communal tenure. We are concerned that this section of the Bill states that the Minister may confer 'new order rights' on women. The word 'may' gives the impression that this may not be enforced.

The present land reform programme is slow and frustrating. If the current Bill becomes law, the situation will get worse, since DLA has always complained of insufficient capacity to deal effectively with the land reform programme, especially as an estimated 20,000 communities need tenure upgrading.