The following report replaces the report of the Portfolio
Committee on Rural Development and Land Reform published in the ATC dated 27
August 2010; item 2, page 2516 under Committee Reports.
“Report of the Portfolio Committee on Rural
Development and Land Reform on the Black
Authorities Act Repeal Bill [B 9 – 2010] (National Assembly – sec 76),
dated 25 August 2010:
The Portfolio Committee on Rural Development and
Land Reform having considered the subject of the Black Authorities Act Repeal Bill
[B 9 – 2010]( (National Assembly – Section 76), referred to
it and classified by the Joint Tagging Mechanism (JTM) as a Section 76 Bill,
reports the Bill without amendments. The Committee further reports as follows:
1. Background
The Black Authorities Act, No 68 of 1951 (hereinafter
BAA) was one of the legislative cornerstones of apartheid engineering which
sought to control communities of black people. It laid the foundation for the
establishment of statutory tribal, regional and territorial authorities to administer
the affairs of black people; and also defined the functions of those black
authorities. It has remained a symbol of past racial divisions and
discrimination and is entirely repugnant to the values and human rights
enshrined in the Constitution of the
The Black Authorities Act Repeal Bill [B 9 – 2010],
tabled in Parliament on 7 May 2010, seeks to repeal the BAA thereby removing it
from the statute book. Subsequent to the briefing by the Department of Rural
Development and Land Reform, the Portfolio Committee on Rural Development and
Land Reform invited public comments on the Black Authorities Act Repeal Bill [B
9 – 2010]. It received five written submissions and seventeen expressions of
interest to make oral submissions. On 20 and 21 July 2010, it conducted public
hearings on the Black Authorities Act Repeal Bill and heard submissions and
testimonies from representatives of rural communities and organisations. The
public hearing process was followed by consideration of the Bill and
deliberations on the submissions received by the committee.
This report outlines an overview of key issues arising
from the submissions received by the committee and further provides an account
of the committee’s consideration and deliberation on submissions received, and
on the Bill.
2. Overview of submissions
received by the Committee
2.1 Law, Race and Gender Research Unit
The Law, Race and Gender Unit (LRG), based within the
·
Would the repeal on
its own be sufficient to undo the legacy of the BAA?
·
Will additional
processes be needed, and what would this entail?
The LRG argued that a set of post -1994 legal
provisions further entrenched the legacy of the BAA. Some of the post apartheid
legislative developments were regarded as problematic and controversial. The
Traditional Leadership and Governance Framework Act 41 of 2003 (TLGFA) was
cited as an example. LRG submitted that Section 28 of the TLGFA entrenches the
apartheid era tribal boundaries and authorities in rural areas; and perpetuates
and legitimizes those boundaries and authorities associated with the BAA.
The TLGFA entrenches the BAA provisions as follows:
·
It gives
traditional councils the very kinds of unaccountable governance powers they had
as traditional authorities under BAA.
·
It preserves and
entrenches the obsolete and repugnant boundaries, authority structures and
power relations between traditional leaders and their subjects.
·
It permits
possibilities of collection of taxes and levies by the traditional councils
(section 4(2) and (3) (note that the Constitution [section 43 and 104] vests
these powers to National and Provincial spheres of government). It was argued
that this provision is in contrast with the provisions of the White Paper on
Traditional Leadership and Governance, which discourages imposition of taxes
and levies by traditional authorities.
The submission highlighted to the portfolio committee
the Constitutional Court’s hearing on the Communal Land Rights Act 11 of 2004
(CLARA). Deputy Chief Justice Dikgang Moseneke expressed concerns regarding the
use of BAA as a platform for land reform. LRG contended that the repeal of the
BAA falls short of what is required to address the legacy of apartheid in rural
areas of
The LRG, therefore, asked parliament to note the
following:
Ÿ
That the Black
Authorities Act Repeal Bill mentions the cut-off dates for continued existence
of the old community, regional and other authorities mentioned in section 28(5)
and (6) (a) of the TLGFA; but that
process is incomplete.
Ÿ
The irony of
repealing the BAA, whilst its key provisions live on in new legislation as
illustrated above.
Ÿ
The concerns of the
Ÿ
Addressing the
legacy issues requires the attention of the Portfolio Committee on Justice and
Constitutional Development as well as that of Cooperative Governance and
Traditional Affairs.
2.2 Mr. Thabang Motsoeneng
Mr. Motsoeneng, in his personal capacity, emphasised
the constitutional rights of the rural people; in particular, the Bill of
Rights. He located his submission within the discourse of law and the impact of
Roman Dutch Law on indigenous and customary practices. He argued that the
repeal of the Black Authorities Act should give due regard to the realisation
of the constitutional rights of people in rural areas. The following
propositions were highlighted:
Ÿ
Enactment of laws
that would give effect to secure land rights and dignity for people living in
rural area.
Ÿ
Availing financial
resources for food production to the rural poor.
Ÿ
Collaboration of
traditional councils and municipalities to ensure development of rural areas.
2.3 Silwanendlala Farmers Agricultural
Cooperative (Ltd)
The submission from the Silwanendlala Farmers
Agricultural Cooperative illustrated the experiences of the rural people in the
Matsamo Tribal Authority,
Silwanendlala asked parliament to ensure that government put in place
mechanisms that:
Ÿ
Stop tribal
authorities from implementing old apartheid laws.
Ÿ
Ensure that new
laws are based on a consultative process that takes into consideration views of
the public, especially the rural poor.
Ÿ
Prohibit tribal
authorities from interfering with development in rural areas.
Ÿ
Release title deeds
of land occupied by the rural people.
2.4 Rural Peoples Movement (
The Rural Peoples Movement was of the view that the
BAA together with its Tribal Authorities must cease to exist.. It argued that
the BAA undermined the dignity of black people in
Ÿ
Clustering of black
people and imposing chiefs on them.
Ÿ
A system of
imposing taxes and levies to the rural people.
Ÿ
Establishments of
Ÿ
Divisions and
disunity among black people.
The Rural Peoples Movement was concerned that new
pieces of legislation such as the
Traditional Courts Bill (TCB) and new legislative developments
entrenched the BAA provisions.
2.5 Land Access Movement of
Land Access Movement of South Africa (Lamosa) welcomed
the repeal of the BAA. The submission illustrated frustrations and confusion on
the role of traditional authorities legislated for by the BAA. The case of
Barokolokgadi of Melorane was presented. Due to forced removals from their
ancestral land, different communities were clustered to live together, despite
the absence of history of prior links or connection among those communities.
They were further subjugated to tribal authorities to whom they did not have
any allegiance.
The Barokolokgadi community received their ancestral
land under the land restitution programme, which transferred land to the
Barokolokgadi Communal Property Association. Though the community does not
recognise the tribal authority, they cannot escape the authority of the chief.
The Barokolokgadi’s attempts to be an independent community were all in vain
because the North-West Provincial Government believed that “the traditional
authority cannot be dismantled, lest floodgates of problems are opened, and
this would create administrative problems” (North-West Provincial Government,
2009).
In order to ensure that the repeal of the BAA is
meaningful, Lamosa called for parliament to:
·
Amend Section 28 of
the TLGFA.
·
Not to pass the
Traditional Courts Bill
·
Government should
stop tribal authorities and chiefs from imposing levies and taxes.
2.6
After the promulgation of the BAA, many tribal leaders
‘congested’ Sekhukhune District and the apartheid government preferred certain
leaders to others in order to further its own objectives in the former
homelands. A number of changes occurred, including forced removals, change in
governance of the homelands, introduction of taxes, and payment of Trust money.
A major challenge today relates to the abuse of power and imposition of taxes
by those institutions of tribal authorities. One of the examples given was the
so-called ‘car levy’ by the tribal authority.
The provisions of the TLGFA give tribal authorities
(in their new name as traditional councils) more powers than they had
previously. This should be amended to transform the power imbalances and adopt
a transformative approach to the traditional authorities.
2.7 Rural Women’s Movement
The Rural Women’s Movement (from
Ÿ
The chief’s
unilateral decisions about the use of land and other community resources.
Ÿ
The chief appointed
19 people as the Traditional Authority to conduct the
Ÿ
The injustices
occurring under the traditional courts.
Ÿ
The poor are fined
heavy penalties up to R1000 for the trespass of livestock into the fields.
An appeal was made to parliament to disband the
current Traditional Authorities and Courts and create structures that provides
government services to communities.
2.8 Daggakraal Committee of 12
The repeal of the BAA was welcome. However, a major
concern was that the BAA still resided within the TLGFA which stripped the
Kalkfontein their status as a Community Authority. The TLGFA gives chiefs’
authority over the community authorities even if they had existed independent
of any traditional authority. There was
an appeal from this group that:
Ÿ
Parliament repeals
the TLGFA or amends its section 28.
Ÿ
Disestablish tribal
structures associated with the BAA.
2.9 Kalkfontein B and C Trust
Kalkfontein community, represented by Mr. Tongoane, is
one of the communities that challenged CLARA at the
2.10 Farm Evictions and Development
Committee
Farm Evictions and Development Committee, represented
by Ms. Maria Mabaso supported the repeal of the BAA. Their major problem is
that the Tribal Authority, an institution that was legislated under the Black
Authorities Act, imposed levies and taxes to rural communities. The following
are the kinds of taxes and levies imposed on rural people:
Ÿ
If a girl becomes
pregnant, parents of the girl child pay amounts ranging between R200-R1000 to
the chief (only levied to the parents of a girl-child).
Ÿ
When a widow has to
remove her mourning dress, she pays a tax/levy ranging between R300 – R1000 to
the chief.
Ÿ
Development tax - for example, each family pays R500 for
the construction of roads etc.
Ÿ
When land reform
beneficiaries acquire land (either redistribution or restitution), as subjects
of a chief, they are compelled to pay levies for access to their own land.
Ÿ
Rural communities
fund the costs of private legal matters of chiefs. For example, they pay a fee
of R150.00 per person.
Ÿ
For weddings and
unveiling of tombstones, a family pays a levy between R300 and R1000.
Ÿ
An example in
Emakhuzeni – each household pays R50 towards the education fund for the chief’s
child.
Ÿ
Other taxes - Horse
tax (chief’s car), tax for the traditional skirt of the chief, palace and many
others.
2.11
Cala University Students Association (CALUSA) and
Siyazakha’s submission of Tsengiwe case study illustrated a need for the repeal
of the BAA. The submission showed that the BAA gave birth to Tribal Authorities
that were different from people’s local customs. The local custom and practice
in Cala was to elect their own headman. But the Eastern Cape Provincial
Leadership and Governance Act of 2005 forbids this practice.
The submission illustrated the tensions and conflicts
in many communal areas in the former homeland areas as is the case of Tsengiwe,
CALUSA and Siyazakha elaborated on tensions existing
between the TLGFA and other legislation on local government. They emphasised a
need to clarify roles of municipalities and chiefs at a local level. Their
greatest concern was that whilst the Constitution seeks to entrench democracy
by encouraging direct community participation, TLGFA gives more powers to
Chiefs.
2.12 Bakgatla Ba Kautlwane
The submission stressed the frustrations by the Bakgatla
Ba Kautlwane who, under the apartheid government, were forced into the
authority of the Bakgatla Ba Kgafela (paramount chiefs). The authority of the
Bakgatla Ba Kgafela was imposed on the Ba Kautlwane people. The impacts of
being wrongfully subjected to other chiefs were that:
Ÿ
Their land
restitution claim was registered under the Bakgatla Ba Kgafela who do not have
legitimate restitution claim on the claimed land.
Ÿ
Misuse of revenue
generated from mineral resources. The proceeds do not benefit the broader
community of Ba Kgatla, but the Chief.
They key message from the Bakgatla Ba Kautlwane was
that they were concerned that some of the new legislation such as the TLGFA
entrenches the BAA by reinforcing the status of some Chiefs on people who do
not recognise them. They argued that those kinds of laws make it difficult for
people like them to challenge abuse/s of power.
2.13 South African National Civic Organization
–
SANCO welcomed the repeal of the BAA but raised
concerns about some of the ‘cruel and unscrupulous’ pieces of legislation that
emanated from the BAA. Those pieces of legislation included the TLGFA, CLARA,
TCB and the Eastern Cape Provincial Traditional Leadership Act of 2005. It
argued that those pieces of legislation were based on the old defunct and
notorious apartheid laws. Major concerns revolved around the traditional
authorities that remained untransformed. Despite provisions of the manner of
composition of traditional councils in the TLGFA, SANCO expressed concerns with
regards to the election of traditional councils, imposition of levies and
betterment claims. It presented examples of areas where these processes are
flawed and the effects of BAA will be felt long after it has been repealed;
more especially in areas such as Qawukeni, Tsholomnqa, Mooiplaas and Kwelera,
Kolomane village, and Gwatyu. SANCO recommended that parliament should repeal
the BAA and seek measures to amend the TLGFA and TCB.
2.14 Ms. Maria Mateza
Ms. Mateza, a
trained black female farmer, bought a piece of agricultural land in 1983. The
land did not form part of any traditional authority. Realising that Ms. Mateza
owns that land, the Chief of Gcina Tribal Authority began claiming that he
owned the same land on which she farmed and she was evicted. She was informed
that as a woman she could not own any land. She attempted in vain to claim the
land in terms of the Restitution of Land Rights Act, 22 of 1994. However, she
was informed that government only took claims of people who were dispossessed
by Whites. In 1990s, she was promised financial compensation but she found it
unsatisfactory as a farmer. She now lives in a shack, a life that she is
unaccustomed to. She blames this on the ruthless chiefs and the fact that she
is a woman. She urged parliament to repeal the BAA in its entirety.
2.16 Ilizwi Lamafama Small Farmers
Ilizwi Lamafama Small Farmers Union (ILSFU)
represented 3000 members from 44 villages in
2.17 Access to Ancestral land by Ramunangi
Family
The submission by the Ramunangi family highlighted the
issue of disputes around access to ancestral sacred site. According to the
family tradition and customs, the site is very important for communication with
their ancestors and God. The tribal authority, associated with the BAA, has
permitted development of a picnic site on this piece of land. The development
is interfering with the cultural and religious practices of the Ramunangi
family. The family argued that the TLGFA
gives powers to traditional councils, which make it difficult for the rural
poor to challenge the decisions of the tribal authorities/traditional
councils.
2.18 Legal Resources Centre
The
repeal of the Black Authorities Act signals one of the significant final steps
in removing the traces of parliamentary sovereignty and ‘indirect rule’ from
democracy. However, if the repeal is to be more than a mere symbolic act, it is
crucial that the Act that fills the void left by the repeal be true to the
principles of our constitutional democracy. The repeal should, as far as
possible, ensure that the damage caused by the BAA is undone.
The LRC referred the committee to the ANC 52nd
National Conference Resolutions (Polokwane), particularly resolution 84 under
social transformation. The resolution noted the importance of strengthening the
voice of rural South Africans, empowering poor communities and building the
momentum behind agrarian change and land reform. It also advocated for
democratization of allocation of customary land in a manner that empowered
rural women and supported the building of democratic community structure at
village level.
The LRC further drew a link between some new
legislation and the BAA, particularly the TLGFA and the TCB. The TLGFA allows
for the tribal authorities established under the BAA to continue. The LRC
submitted that the BAA did not represent living customary law and unless that
happens, any new legislation will be unconstitutional. Furthermore, the TCB
links to the BAA in the sense that it defines the traditional leader as
presiding officer, representation of parties by a Spouse, and provides no right to opt out. The LRC urged
parliament to consider a process of meaningful engagement by relevant
parliamentary portfolio committees on these issues or else the legacy of the
BAA will live continuously.
3. Key issues emerging from consideration
of the Bill and public hearings
Submissions from interested members of the public and
other organizations also showed widespread support for the repeal of the Black
Authorities Act. The repeal of the Black Authorities Act was also seen as one
of the significant final steps in removing traces of parliamentary sovereignty
and indirect rule from democracy. However, the committee remained concerned
with the legacy of the Black Authorities Act, 1951.
The following section summarises some of the pertinent
issues that the committee considered when deliberating the Black Authorities
Act Repeal Bill:
·
The Black
Authorities Act gave the State President the authority to establish “with due
regard to the native law and custom” tribal authorities for African tribes as
the basic unit for administration. Those tribal authorities have now been
transformed into traditional councils for the purposes of Section 28 of the
Traditional Leadership and Governance Framework Act, Act No. 43 of 2003. The Traditional Leadership and Governance
Framework Act, 2003 entrenches the apartheid era tribal boundaries and
authorities in rural areas.
·
Tribal
authorities/Traditional Councils were given extensive powers over the lives of
the rural people. Submissions by the representatives of rural communities
illustrated how rural people, under the current system, are subjected to
different kinds of levies by the tribal authorities; for example, the so-called
‘car levy’ for the chief, development tax, and many other forms of levies and taxes.
It emerged that the Traditional Leadership and Governance Framework Act, 2003
perpetuates these structures and their unaccountable powers that were created
by the Black Authorities Act, 1951.
·
In deciding on the
Communal Land Rights Act, the
·
Discrimination of
women on access to land in their own right as well as the right to represent
themselves during proceedings of the traditional courts were some of the
critical issues submitted by the members of communities to the committee.
4. Recommendations
The Portfolio Committee having considered the Black
Authorities Act Repeal Bill [B 9 – 2010] submits the following recommendations:
·
The National
Assembly should consider initiating a legislative review of the pieces of
legislation that entrenches the provisions of the Black Authorities Act, 1951.
For example, the Traditional Leadership and Governance Framework Act, 2003.
·
The National
Assembly should also consider referring issues regarding the legacy of the
Black Authorities Act, 1951 to the relevant portfolio committees such as
Cooperative Governance. Those issues include imposition of levies by the Tribal
Authorities and discrimination of women with regards to access to land.
Report to be
considered.”