INTRODUCTION
The Coalition of Traditional Leaders composed of the National and Provincial Houses of Traditional Leaders, the Congress of Traditional Leaders of South Africa and the Royal Bafokeng Nation, (hereinafter referred to as the Coalition) is pleased to note that government has taken account of the representations we made on behalf of our people regarding the contents of the Communal Land Rights Bill, 2002 (Government Notice 1423 published in Government Gazette No. 23740 of 14 August 2002). We also note with approval that, contrary to the procedure followed in respect of the 2002 Bill, the Department has made a real effort to consult more widely.
Before commenting on the contents of the Bill itself, it is necessary for us to first discuss the fundamental factors that need to be taken into consideration in coming to decisions affecting the lives of our traditional communities. Unless decisions regarding community land are taken against such a background, errors are possible that could have long-term negative consequences for the future of our communities.
African direct democracy is superior at the local level
Once again we are compelled to raise the issue of traditional decision-making processes. We do so on this occasion in defence of the Department of Agriculture and Land Affairs and the government who have wisely decided to transfer legal ownership of the traditional community land back to the people who were dispossessed of their property by the colonial and apartheid governments. They have also gone part way, but not quite far enough, towards restoring decisions over land right use to the traditional communities themselves.
There has been uninformed criticism in the press of the proposals contained in the Bill regarding the role of Traditional Councils in the management of land rights on behalf of their communities. What is not understood is that Traditional Councils are directly accountable to their people, who participate in decision-making on all major matters, such as the fundamental basis on which land rights are to be dealt with in the community. Traditional leaders are not entitled to make decisions that are contrary to the will of the people. They do not have the powers of elected politicians to seek approval from a bare majority of the people in a community and then proceed with unpopular measures despite the opposition of a large section of the community. African democracy requires traditional leaders to seek the consensus of the community before proceeding, which means that everyone must agree. In coming to decisions, communities are guided by age-old customs and traditions that have served them well in the past. In respecting their traditions, our communities avoid the errors that can be made by officials and politicians who are not fully familiar with all the facts, and who do not have the time to familiarise themselves with the differences in the views held by different communities, and the reasons for those differences.
Switzerland is the most advanced country practising direct democracy and it is significant that land use is one of the most important issues on which the people continue to exercise their right to direct decision-making. Their decision-making systems have their roots in the ancient tribal origins of the Swiss people and at the local level these processes are far more democratic than the representative democracy found in other Western countries. The Swiss communities have very strong views about the protection of the traditions and cultures of their communities. They know, as African communities know, that the only way to preserve culture and tradition is to retain decision-making within the community, especially as far as land rights are concerned. Switzerland is a good example of how the distinctive character of communities can be retained without sacrificing the need to modernise and achieve sound economic growth.
The Department of Land Affairs has obviously now taken these factors into account and is to be congratulated on its vision and understanding of the real needs of the people. The fact that this Bill does not form part of an integrated framework for the most effective management of the affairs of traditional communities should not be seen as the fault of this department and is an issue that will require further inter-departmental co-operation.
An integrated dispensation for traditional communities
In our various submissions on White Papers and Bills we have repeatedly stressed the need for an integrated dispensation for the management of the affairs of traditional communities. We have pointed out that Traditional Leadership is the only institution recognised in the Constitution of the Republic of South Africa that does not have its powers, duties and functions described in the Constitution and that this omission needs to be rectified in order to properly resolve many of the problems that the omission has created. We have described how the problem can be solved and government has on various occasions promised to change the Constitution to include the sections that should have been there at the outset.
In our submissions we have pointed out that the most workable, beneficial and logical dispensation for traditional communities is for the traditional authorities, or traditional councils as they are now called, to constitute the local governments in their areas. They would then not be subordinate to municipalities but function side by side with them, co-operating in all matters of mutual interest in the same way as neighbouring municipalities do. The great benefit of our proposed dispensation is that as local governments the traditional councils will give dedicated attention to the specific needs of their communities, which tend to differ from the needs of urban communities, and to actively work for the most rapid possible economic upliftment of their people.
It will be recognised, as we will point out in our specific comment on its provisions that some aspects of the Bill do not fit well with the integrated dispensation we seek for our people.
We find it necessary that we make it absolutely clear that as traditional leaders of this land, we shall resist with all our might, as we have always done, any attempts, from whatever quarter, to undermine the institution of traditional leadership. It does not matter that such attempts are cloaked in the name of democracy or gender equality.
THE RIGHTS OF WOMEN AND THE YOUTH
We maintain that the African traditional way of governance is more democratic and inclusive than the received system of representative democracy. Our cultures and customs evolve with the times. The participation of women and the youth in decision-making processes and forums is increasingly becoming a common feature of life in the rural communal areas. Due to the fact that the determining factor is the question of need, unmarried women do qualify for land allocation whenever they prove, like everyone else, that they have the means to sustain themselves and have dependents to support. Married women enjoy equal access to family allotments as husbands. We accordingly do not object to the registration of allotments in the names of both spouses.
All of this happens not because of pressure from eurocentric pressure groups who have no understanding of African democracy and whose lifelong goal is the destruction of the African way of life as epitomised by the institution of traditional leadership.
We are aware of allegations of abuse of power by some of our own colleagues. We are aware also of the ill-treatment by some men, women, including widows and children by some men, in the name of culture. Such actions on the part of traditional leaders and men in general are inexcusable and as the Coalition we condemn them. They are a violation of our customs which call on society to come to the defence of the weak, the poor, the vulnerable and destitute.
The solution to such problems does not lie in the demonisation of ubukhosi and African cultures and the concomitant adoption of western culture, characterised as it is by selfishness, greed and a lack of humanity. The solution lies in the rediscovery of who we are, what our customs stand for and the promotion of the positive elements inherent in them. As stated earlier we will not relinquish our responsibilities as custodians of our ancestral lands. We are unable to forget how our fore-bears acquired and defended the little pieces of land that we still occupy.
It is a fact that in traditional communities the women, youth and the disabled people have always been integral part of the community. The youth are part of the existing families. However, in keeping with the modern trend, we do accept in principle that there should be direct representation of women and the disabled bodies which serve the communities.
We commend the Ministry and the Department of Land Affairs for finally coming up with a law which will remove the stigma of colonialism and apartheid, in the form of the vesting of our people’s land in the state. We envisage a stage when the administration of our lands will be completely in the hands of their owners without state involvement.
THE LAND RIGHTS BOARDS
We do see the need for a structure to be put in place in order to facilitate the transfer of the land to its owners and the implementation of this law in its initial stages. Therefore, it is on this basis only, that we support the establishment of the Land Rights Boards. We see the Boards as structures of a limited duration which, when their job is done, will be phased out and the Traditional Councils will perform the said duties. The Bill does not deal with the matter of the role of the kings and reigning queens. These are the primary custodians of the lands of our kingdoms. We propose, therefore, that the kings and reigning queens must be automatic members of the Boards operating in their areas of jurisdiction.
As there had been no clarity as to what the land dispensation would be post -1994, the erstwhile Kwa-Zulu administration set out to protect the land that is traditionally the land of the Zulu by establishing the Ingonyama Trust. It had always been the intention that traditional communities would be allowed to acquire ownership of their communal lands while maintaining the Zulu King as the traditional custodian of those lands.
THE NEED FOR MORE LAND
According to African culture and the history of our lands you cannot separate the land, the people and the traditional leadership. The three are inextricably bound together. To seek to separate them would be disastrous and a recipe for unnecessary conflict.
The land in question is only part of the 13% of South Africa’s land mass which was left for the occupation of Africans. It is too little, too overcrowded, barren and eroded in most parts. Much more simplified methods must be devised by the Ministry and the Department for the
acquisition of more land for the people living in these overcrowded areas.
COMMENT ON THE SUBSTANCE OF THE BILL
The Coalition welcomes the recognition given by this section to communities in the laws of South Africa, and in the entirety of the Bill, to the ancient property rights of the traditional communities, which have been under threat for centuries and subject to dispossessions that have left the communities with small remnants of the land that was originally theirs. However, we have a reservation in respect of the requirement that a Traditional Community should have to register rules before acquiring legal status. A Traditional Community is a fact, in the same way that a person is a fact, and property ownership should relate to existence and not to specification of rules. The reason we mention this is that the land ownership rights of well-established and known Traditional Communities should be recognised without the necessity for compliance with the stipulated formality. There is nevertheless no objection to requiring a Traditional Community to register rules before dealing with that property in view of the difficulties that may otherwise be experienced by the Registrar of Deeds or the courts. If a Traditional Community does not intend to sell or mortgage any of its land, or incur liabilities, it should not be required to register the prescribed rules in order to be recognised as a juristic personality for purposes of owning land.
The Coalition welcomes the fact that recognition can be given to communal land rights by registration but is concerned that the Traditional Councils, in respect of traditional community land, are to play a less prominent role than we suggested. Traditional Councils have, throughout the ages, been the custodians of community land and should remain so. The criticisms that are often levelled at Traditional Leaders regarding their custodianship of community land are never based on any real evidence or event. Assumptions which are made have no validity. This does not mean that Traditional Leaders never make errors in handling land issues. However, they cannot continue to make mistakes if they wish to retain the respect of their communities. The pressure on Traditional Leaders to act fairly and equitably is much greater than it is on elected politicians. The reason is that they live in their communities, the members of their communities are free at any time to raise their concerns in community meetings, and the community members have direct access to them at all times. Elected politicians, however, are not similarly accessible and are only accountable to voters at election time and thereafter to their respective political parties.
We propose that Traditional Councils have a much greater responsibility regarding the recording of communal land rights and in the transfer of those rights.
3. Section 6 – Transfer of Communal Land
This section gives the Minister the power to decide upon the land rights of communities in terms of section 18 of the Bill, subject to the conditions contemplated in that section. It also empowers the Minister to have a communal general plan prepared and approved, have the plan registered, transfer communal land rights to "the person or persons entitled to such rights", and to do anything else necessary to give effect to the Minister’s determination.
Our concern with this section is that it makes no mention of community participation in the process. Communal property in traditional community areas already has rights attached to it. The rights do not have to be created, they merely have to be established and documented, and the Traditional Leaders have the greatest amount of knowledge regarding those rights in their respective communities. Chapter 5 provides for the conduct of land rights enquiries and the appointment of a "land rights enquirer" but even there the accent does not fall on the need to establish existing rights.
The powers given to the Minister in terms of this section should relate to process, transparency, and above all, the establishment of the existing rights of members of communities. The Minister should not have the power to change rights and the Traditional Leaders, as custodians of land rights, should play a major role in the identification and documentation of existing rights. Any community member who disagrees with a finding should have a right to object and receive a hearing, and if still not satisfied should have a right of appeal to the courts.
The powers of the Minister, in terms of this section, should consequently be more clearly defined and circumscribed.
4. Section 14 – Land rights enquiry
This section places an obligation on the Minister to institute a land rights enquiry prior to securing old order rights or transferring communal land to a community or person or determining comparable redress. The section describes the matters that must be covered during the enquiry but makes no mention whatsoever of a role for Traditional Councils in establishing or describing the existing rights within their particular communities.
We suggest that a much more practical approach would be to involve the Traditional Councils as primary suppliers of information regarding existing land rights. The Bill could, in fact, allow those Traditional Councils that wish to do so to provide complete details of the land rights within their communities as well as details of any rights that may be in dispute.
Soliciting the assistance and active co-operation of the Traditional Communities and their Councils will expedite the vesting of communal rights in communities and members of communities and allow for a more rapid resolution of the problematical land issue. It is not necessary that the Minister and her department should play a dominant role in the process.
5. Section 16 – Notice of land rights enquiry
Although this section requires the Minister to publish a notice of an enquiry and invite interested parties to participate, this will not result in an adequate process for the establishment of existing rights. As stated previously, the rights already exist and merely have to be discovered and documented. The section also requires that determinations made consequent upon a completed land rights enquiry have to be published. There is no provision for objections to be lodged against the determinations. It is surely not envisaged that communities should be compelled to accept whatever is determined by the Minister on the advice of the land rights enquirer
6. Section 17 – Powers and duties of land rights enquirer
The powers granted to a land rights enquirer in this section are too extensive and should be limited by a proper description of the nature of the information that will be required for purposes of the enquiry. The section should also describe the process that the enquirer should go through before utilising the powers granted in the section. The powers granted to the Minister in terms of section 17 (3) need to be circumscribed.
7. Section 18 – Determination by Minister
We regard the process described in section 18 as undemocratic in that the views of the communities do not appear to be given sufficient weight in the determination of land rights. We reiterate once again that in all Traditional Communities the members of the communities themselves are capable of identifying and describing the existing rights. According to the wording of this section, there appears to be a possibility that the land rights enquirer or the Minister may wish to change existing land use rights without reference to the affected community and without their consent. This should not form part of the process of formalisation of the rights of Traditional Communities.
The Coalition is totally opposed to section 18 (4) which requires the Minister to "take into account the Integrated Development Plan of each municipality having jurisdiction" and the right which this section seeks to give to municipalities and other land use regulators to "reserve a right to the State including a municipality and stipulate any land use or other condition which in her or his opinion is necessary –
The Coalition is in the process of negotiating with government to have Traditional Councils recognised as the official local governments in the Traditional Community areas. It would therefore be incorrect for this Bill to grant existing municipalities rights over our community land. We are of the view that the community land should be viewed as private land and that if the State wishes to utilise any part of the land in future for public purposes it should go through the process of expropriation. This will ensure that the communities are not subjected to frivolous identification of pieces of their land in terms of this section.
8. Section 19 – Content, making and registration of community rules
In the case of Traditional Communities it will be necessary to write down or codify the existing rules. These are rules that have been handed down over the centuries from previous generations. They will be different in different communities and government should not attempt to compel the communities to standardise their rules. Such rules are evolutionary and adapt to changing circumstances. It must be remembered that the members of Traditional Communities regard their land as private land whatever the colonial or apartheid powers might have believed. It is therefore not incumbent upon the government to prescribe to the communities in what manner the land is to be utilised. Sections 19 (3) to 19 (5) should therefore be altered to give recognition to this fact. It is surely not a matter for a government official to prescribe to a community how its private affairs should be conducted on its own land.
9. Section 21 – Establishment of land administration committee
Section 21 is unclear in various respects and we are of the view that it should be clarified and written in sufficiently clear language so that everyone who reads it can understand it. Section 21 (2) states that
"If a community has a recognised traditional council, the powers and duties of the land administration committee of such community may be exercised and performed by such council." (emphasis added)
The definition of a "land administration committee" in section 1 is very clear that the term means:
"(a) a traditional council in respect of an area where such a council has been established and recognised..."
In order to avoid confusion we therefore propose that the wording be altered to the following:
21.(1) A community that does not have a recognised traditional council, or has a recognised traditional council that declines to perform the functions allocated to it under this Act, must establish a land administration committee which may only be disestablished if its existence is no longer required in terms of this Act.
21.(2) If a community has a recognised traditional council, the powers and duties of the land administration committee of such community shall be exercised and performed by such council, except if the traditional council declines to perform such functions.
Section 21 (4)(b) requires traditional councils to follow "norms and standards and a national policy with regard to communal land rights, to effect uniformity across the nation". As previously stated, the administration of land rights in the various communities needs to be as diverse as the communities themselves. Insistence on uniformity will prevent innovation and change and will trample on the cultures and traditions of the communities. This sub-section should therefore be removed from the Bill.
10. Section 22 – Composition (of land administration committee)
The prohibition on membership of a land administration committee by a person holding any traditional leadership position as contained in section 22 (2) of the Bill appears to be unwarranted. There is no objection to a stipulation that if the functions of a land administration committee are not performed by a traditional council, a person holding a traditional leadership position must be elected to a land administration committee in the ordinary way.
Section 22 (5) will make land administration committees clumsy and very difficult to convene. There appears to be no good reason why all the bodies mentioned in the sub section should be represented on all the committees across the length and breadth of South Africa.
11. Section 23 – Term of office (of land administration committee members)
This section needs to be amended so as not to apply to traditional council members who constitute land administration committees.
There appears to be no reason why a Land Administration Committee or a Traditional Council acting in that capacity should have to apply for consent to a Land Rights Board for the right to dispose of communal land, especially if the purchaser is a community member. Such a requirement would not be included in legislation relating to land-owning trusts, companies, close corporations or individuals as expected of communities in terms of section 24 (2). The communities should surely have the unimpeded right to deal with their property. The fact that the communities have been denied property rights for centuries does not warrant the imposition on them of conditional rights. That fact surely demands that they should be granted property rights without impediments attached. Section 24(2) should therefore be deleted.
It is assumed that section 24 (3)(a)(i) does not require a land administration committee to dispossess existing land rights holders in order to re-allocate those rights to alternative holders. If there is vacant land without rights attached there should be no problem in meeting this requirement, but if not the committee will face a dilemma. The section should be changed to stipulate that the requirement is subject to the availability of land that is free of rights.
Section 24 (3)(f) should be deleted or changed so as to make clear that it does not apply to traditional community areas under the jurisdiction of Traditional Councils. In Traditional Council areas, once the necessary changes have been made to the Constitution and relevant laws, the Traditional Councils will have full responsibility for the provision of services and the planning and development of the communal land of the communities.
13. Section 28 – Powers and duties of (Land Rights) Board
Section 28(2)(d) states that "A Board or any Board member acting in her or his official capacity may, in the exercise of a power or in the performance of a duty of a Board –
The power described above is unacceptable. What is acceptable is that a Board or Board member should be entitled to request the calling of a meeting of a community or land administration committee for the purpose of discussing matters related to their land that are clearly set out in the request. It would be unthinkable for a Department that deals with companies to attempt to give powers to officials to routinely call meetings of the shareholders or directors of such companies in order to discuss their affairs.
As stated earlier the Land Rights Boards should be of a limited duration and their functions should be limited to the facilitation of the initial implementation of the Act and the transfer of land to communities. Kings and queens will be members of the Boards.
The Communal Land Rights Bill is intended to secure the rights of traditional communities and the KwaZulu-Natal Ngonyama Trust appears to perform that function satisfactorily for its beneficiaries. As stated earlier in this comment, there is no good reason why there should be uniformity regarding such matters throughout South Africa. If there are communities within the area of the land falling under the Trust that wish to disaffiliate from the Trust, they can approach the Trust to cede land to them in their capacity as beneficiaries, and if the Trust consents it can do so subject to whatever conditions it wishes to impose. It is significant that the KwaZulu-Natal Ngonyama Trust land had to be specially mentioned in section 2 of this Bill as it is no longer state land. It was ceded to the beneficiaries of the Trust and is therefore now private land. Before the Minister can dispose of the Land in terms of this Bill, even to beneficiaries of the Trust, we contend that the Minister would first be compelled to expropriate the land before being in a position to apply the provisions of the Bill to it. The alternative would be for the Minister to reach an accommodation with the Trust regarding the transfer of Trust land. If such an accommodation has already been reached, section 33 should be deleted and the wording of section 34.(a) should be changed to read "such Board, when transferring KwaZulu-Natal Trust Land to a community or person in terms of section 6."
14. Offences
Section 41(1) seeks to make "undue influence" a criminal offence. This is a valid reason, if proved, for a person to escape the obligations of a contract but it is surely taking matters too far to designate it as an offence that can result in a fine or two year’s imprisonment or both. Is an official who "unduly influences" a land administration committee or a Land Rights Board to be subject to the same penalties or is the penalty to be reserved for anyone that disagrees with an official?
______________________ ___________________
INKOSI MB MZIMELA ADV/NKOSI SP HOLOMISA
CHAIRPERSON CO-CHAIRPERSON
COALITION COALITION
Dated this day the 13th November 2003 in CAPE TOWN