NATIONAL LAND COMMITTEE
SUBMISSION ON THE COMMUNAL LAND RIGHTS BILL
11 November 2003
PORTFOLIO COMMITTEE ON AGRICULTURE AND LAND AFFAIRS
CAPE TOWN
BACKGROUND TO THE NATIONAL LAND COMMITTEE (NLC)
Seven land rights NGO’s covering most parts of South Africa constitute the National Land Committee. The main objective of the NLC is to struggle for the transformation of land ownership and bring about people centered rural development. The NLC also implements programmes of government aimed at improving the lot of poor landless people. these engagements take forms such as initiatives to intervene in farm evictions, restitution claimant’s support, and the implementation of the Redistribution programme. In the past 20 years or so the NLC has assisted to build and support landless people’s organisations and their capacities to gain access to make productive use of the land.
The National Land Committee (NLC) and the Programme for Land and Agrarian Studies (PLAAS) of the University of the Western Cape, established the joint CLRB project to facilitate the participation of affected communities on the processes around the transformation and reform of communal land tenure, and to specifically engage with the Communal Land Rights Bill (CLRB). To date over 90 communities have been consulted through this project and views of the participants are published and available on request from PLAAS.
The NLC has also participated on the parliamentary hearings around the Traditional Leaders Governance Frame Work Bill. In that connection, we made strong submissions around the need to democratize land administration and control. We were assured by the chair person of the Portfolio Committee on local government and constitutional development that our concerns around the powers and roles we believed that the Bill may give to the Traditional Leaders was misplaced. We were doubly assured that the legislature had no intention of conferring such roles, functions and powers on Traditional Leadership, and we believed him. As we shall show in this submission, that promise has now been broken and the matters we warned against in the Traditional Leadership bill have now been transferred to the CLRB and we are forced to ask whether the Chairpers of that Portfolio Committee was taking us for a ride? We must also ask whether this does not raise important questions about how seriously the public’s view are taken by the parliamentary processes. Are we being called to make submissions to legitimize processes which we cannot influence?
Let it be said at the outset that the NLC is not anti-institution of Traditional Leadership. The NLC is, furthermore, acutely aware of the knee-jerk rejection of things "African" on the basis of Eurocentric value systems and world outlooks. The NLC is, further, acutely aware that the institutions of Traditional Leadership, like all African institutions, were deeply affected both by colonialism and apartheid.
In other words, the task of transforming South Africa into a better place after the ravaging of colonialism and apartheid requires that all institutions be transformed in line with the democratic ethos developed over the long struggle for justice and dignity.
Colonial and Apartheid Legacy
Both colonialism and apartheid impacted heavily on the total organisation of the lives of the colonized people. There are three key implications:
Any transformation of the communal areas must deal with these related questions, in an integrated fashion.
After the Africans lost the wars against land dispossession, 87% of the SA land was left in the hands of the settler colonialists - which is to day about 60 000 white people. Africans were forced into 13% of the inferior lands in what was then called reserves, later "homelands". It was from this "human dumping" ground that White South Africa sourced cheap or even slave labour to develop the white economy as exemplified by the development of mining, agriculture and industry. Furthermore, cheap labour was sourced for domestic use by the white victors. Our people stopped being citizens and were turned into servants or "hewers of wood and drawers of water", as Dr Verwoerd candidly told all and sundry. We were a defeated people!
The former homelands are characterized by poverty, more than 70% of the poor live in rural areas. Overcrowding is another feature, as is the poor quality of land. This reality, therefore, points to the centrality of land redistribution as a key intervention to ensure the transformation of life in the communal lands.
The colonialists had to find ways of keeping the "Natives" under check. To do this systems of governance which initially benefitted those who practiced them, where destroyed and manipulated to serve colonialism and apartheid. The key target was the institution of Traditional Leadership. This is true of all colonial experiences in Southern Africa. Prof Mamdani in his seminal book CITIZENS AND SUBJECTS shows clearly how the colonialists implemented their "Indirect Rule", through the capturing of the institutions of Traditional Leadership. Instead of serving, the people and evolving with time as any social institution does, Africans were "frozen" in frameworks of oppression and in effect became conduits of "decentralised despotism" governed by the colonialist version of "customary law." This version of native laws in some instances served to entrench some of the more backward social realities, such as the treatment of women and limited their access to resources. We know that the PTO’s actually exclude women from land ownership, this was not the case for instance in the Nama people where women were equal players on matters of land administration and landownership (Women, Power and Authority, Meer at al, 1997).
Accompanying with this onslaughts on an African way of life, Traditional Leaders were turned into paid servants of colonialism and apartheid. Those who aligned themselves with the liberation movement where deposed and puppets were installed. All Traditional Leaders where under the control of the White Commissioner, who could appoint and dismiss these leaders at will. All this was prescribed in law.
The negative role of Traditional Leaders were forced to play is graphically reported by the late Govan Mbeki in his classic book THE PEASANT REVOLT. In the book Mbeki shows how the Homeland system was forced on the peasants living in reserves, and how the Traditional Leaders where forced to choose between the interest of peasants and taking on the role of being agents of apartheid. Some chiefs sided with the people, many others did not. The result of this imposition was widespread revolts, deaths, executions and burning os fields and huts and political exile for some Traditional Leaders. Mbeki, records struggles in Witsieshoek, Marico, Sekhukhuneland, KwaZulu Natal and in the then Transkei between 1946 and 1962.
There is no reason to suggest that the institution of Traditional Leadership would not have developed with time to accommodate the modernist sentiments of "Equality and Liberty" or simply modern democracy, which would take the African peculiarities into account. But apartheid destroyed this possibility.
The development of the chieftaincy as agents of "decentralised despotism" occurred in an environment of generalised subjugation of Africa. The white population played this role of ‘despotism" in "Urban" South Africa and on farms. In other words, the resolution of these issues is interlinked. It would be a mistake to think that we can democratize the institution of the Traditional Leadership without fundamentally transforming land, inequality and the enormous power wielded by racist white farmers in South Africa, who occupies more than 85% of the land.
In Mandela’s 1962 speech at the trial for inciting African workers to strike and leaving the country without a passport, he reflected as follows:
"Many years ago, when I was a boy up in my village in the Transkei, I listened to the elders of the tribe telling stories about the good old days, before the arrival of the White man ...... then the country was ours, in our own name and right. We occupied the land, the forests, the rivers; we extracted the mineral wealth beneath the soil...... The land, then the main means of production, belonged to the whole tribe, and there was no individual ownership whatsoever ...."
Mandela then went to talk about how the Kgotla/Pitso/Imbizo was the expression os a democratic process then practiced on the basis of equality of all citizens (this of course excluded women in most instances), which is not different from the most celebrated ancient Greek or Athenian Democracy.
Mandela so much admired these systems of African governance that it actually inspired him to fight for the liberation of the oppressed.
‘In such a society are contained the seeds of revolutionary democracy in which none will be held in slavery or servitude, and in which poverty, want and insecurity shall be no more. It is the inspiration which, even today inspires me and my colleagues in our political struggle."
It is important that the inspiration is on the basis of "seeds" of "revolutionary democracy", contained in those early African societies. There is nothing in Mandela’s formulation, which suggests that we must return to some "pristine" past. We are rather implored to take what is good from the past and fashion it with what is good in our present to make a better society.
7. THE CLRB BILL AND IT’S WEAKNESSES
The CLRB as it stands does not take us very far away from the colonial constructed reality, which we have shown was to turn the African institutions into part of the oppressive machine. The Bill does not make a clear break with the painful past; instead it seeks to legitimise it in a manner that insults the memory of those who died resisting the colonial destruction and dis-figuring of the African institutions. The Bill, in its current form, would signify victory of colonial designs over the people’s spirit for change and dignity. It would, like the overall land reform programmes be an extension of both colonial and apartheid rule.
Before we deal with some of the key concerns we have with the Bill let us outline the main principles the NLC believes Communal Tenure Reform should build on:
It is our view that the current Bill does not address these principles.
8. KEY CONCERNS WITH THE BILL
8.1 The Process Towards the Bill
It is not an exaggeration to say the process around this Bill has been shrouded in secrecy, uncertainty and rapidly changing versions, which have made meaningful engagement almost impossible. We could about 12 versions. As we all know, these hearings were only announced two weeks ago and the current version has provisions, which were not contained in the earlier drafts. In short, the process towards this Bill was deeply flawed and contrary to the spirit of openness and transparency encouraged by government. It is our experience that the overwhelming majority of those the Bill will affect, have not been consulted.
8.2 The Unchecked Powers of the Minister
The Bill gives the Minister unchecked powers Section 18(2) gives vaguely defined powers to the Minister to "transfer", "subdivide" and to allocate communal land without consultation with the affected communities. This is tantamount to turning communal land into private property of the state through the powers and functions of the Minister. The only participation anticipated by the Bill is around the Land Rights Enquiry that precedes the Minister’s decision. The Enquirer’s Report is not made public, nor is there a provision to effect objections to the report; this is critical since the Minister’s decision based on the Enquirer’s Report, Section 18(1).
The earlier version of the Bill actually made provision for community objections, and the need for the report to be made public. Also, in the previous version of the Bill the community and not the Minister triggered the land transfers. It is not clear why the change was effected, but its effect is to deny people a right to participate on matters which directly affect them and this is contrary to the spirit of good governance.
8.3 The Bill Imposes Traditional Councils on Communities
Section 21(2) says, :If a community has a recognised traditional council, the powers and duties of land administration committees of such community may be exercised and performed by such council." the definition section also makes this point clear, that where traditional councils already exist they will now inherit the powers of land administration and there are not traditional councils, land administration committees will perform this role.
These provisions do not give communities a choice as to what forms of institutions they would prefer to administer their land. It must be remembered that the existing Traditional or Tribal Councils were products of colonial and apartheid intervention and we have seen that they are plagued by legitimacy crisis’s.
The CLRB now gives Traditional Councils powers and functions not intended by the Traditional Leadership Governance Framework Bill. As we said earlier, the Chairperson of that Portfolio Committee confirmed this. There is no other way to describe this provision other than to say it is introduced through the backdoor. The question again is why?
The provisions of the TLGB for "democratization" of the institutional of Traditional Leadership are actually hugely inadequate and cannot be in the strict interpretation of democracy be called "democratic". They set out measures to protect the rights and powers of the chiefs over their subjects. The 40% elected and 30% quota for women are pointers to what can be done but we are not there yet. It is not even clear how the 30% quota of women would be chosen. Is it through democratic elections or are they appointed by the Traditional Leadership structures?
If anything, on the strength of this provision this Portfolio Committee should withdraw this Bill! If this Bill goes through in its current form, it could only spell disaster for the rural poor reelecting as it does a continuation of the colonial practice of deciding for the people and imposing systems and rules.
If one reads these provisions, together with those around the powers of the Minister we have a situation where all the democratic rights of the affected people are taken away and they are treated no better than Subjects without Citizen’s rights.
Effectively these provisions take away the key element of any democratic system - the right to have a choice based on the popular will of the people.
"Customary Law" currently governs life in communal areas. Amongst these is the belief that women cannot inherit from the estate of their late husbands. Land access is also difficult for women. There are no guarantees that the Traditional Councils with the 30% women representation would actually protect the rights of women. The current Bill does not give clear guidance around how to protect the rights of women. The previous Bill did make mention of the need to protect fundamental human rights, including "the right to equity, especially gender equality in respect of the ownership, allocation, use of, or access to land" (August 2002 Version, Section 2(h)). That version also gave guidance around how to circumvent the possibility of discrimination on the basis of "customary law". These safeguards are not contained in the current Bill.
Where the bill makes provision for women in terms of new order rights by the Minister, this provision has to be balanced against old order rights, and these are generally held by men.
8.4 Comparable Redress Does not Redistribute Land
The Constitution of the country makes provision for comparable redress where tenure rights cannot be strengthened where people currently living or historically had rights. this constitutional imperative recognises that alternative land may be required to effect this intention,. However, the current Bill does not provide adequate guidance as to what and how comparable redress would be determined and furthermore, it relies on the discretion of the Minister to discharge this constitutionally sanctioned right.
The Bill does not deal with the fact that communal lands are overcrowded, infested with overlapping claims and in need of urgent "de-congestion". The Minister is not given enough rights, for instance, to expropriate adjacent private land to satisfy land needs in the communal areas. This is the most efficient way of not causing huge social relocations as a result of the need for tenure reform. In other words the current land ownership patters are not touched. Communal tenure reform, if it is to be of any value, needs to take into account the broader land reform environment.
8.5 The Bill Perpetuates Inequalities
The Bill in its current form will only exacerbate the land reform crisis in South Africa. This crisis is manifested by the fact that very little land has been redistributed to the landless in the past 9 years. To date only about 2,7% has been redistributed; the RDP promised 30% in the first five years. So at this pace it is conceivable that we shall take up to 100 years and more before we reach just the 30% target.
The land reforms have failed to curb the power of racist white farmers who continue to treat farm workers as slaves. The current Bill is also poised to entrench the "subject" status of those living on communal land. The Bill perpetuates the undemocratic systems created by apartheid and colonialism. As we have seen, the Bill also undermines community rights to choice, which is a fundamental aspect of any democratic system. It can be said that whilst the existing farm tenure arrangements are codified in the Extension of Security of Tenure Act (ESTA) so too will the CLRB maintain the semi-feudal relations created by colonialism and apartheid in communal areas. This Bill will trap millions of poor people outside of a system of democratic rights enjoyed by other citizens.
9. RECOMMENDATIONS
Andile Mngxitama
Land Rights Co-ordinator