ACL SECOND SEMESTER1 November exam: what to expect Sindiso’s section (based on sections 1, 2 and 6 of Course Outline) = 2/3 of the

paper (40/60 marks) It will most likely comprise of both theory and practical/applied Qs:   25% pure theory (probably from first term); (10 marks) 25% legal analysis (probably legislative/policy analysis from second term, in light of Constitution and case law); (10 marks) 50% theory, law and policy (Constitution, legislation and case law, living customary law and policy debates), and legal reasoning/application of law and theory to a fact pattern. (20 marks)

For the latter question in the May Test (i.e. Q.2), we were provided with a framework of what to make sure to include in our answers – follow it!  Sindiso has no problem with you structuring your answer according to that frame, especially not if it helps you answer the question more fully than you would otherwise do. The frame is there to help you; she wants you to do well!

Chuma’s response to a question about her section in the November exam (20 marks): “Anything’s possible. Problem question? Essay question? Anything’s possible.”

6. TENSIONS BETWEEN LEGAL REGULATION AND GROUNDED REALITIES Introduction and Overview In this section we’ll be looking, on one hand, at official legal regulation, and on the other, at regulation in terms of living customary law. We’ll try to see to what extent they are in tension. We’ll look both at the top-down, statutory and policy framework, and at the living customary law position. What combines the two, other than the fact that they are in fact interlinked in reality, is also the historical background of legal regulation and living law. We will look at the legal framework and the politics of power, as well as customary law principles, negotiations and practices in the context of three subsections: 1) Traditional Authority, Institutions and Boundaries. 2) Land and Resource-Management 3) Customary Dispute Resolution Mechanisms

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This set of notes only contains Sindiso’s second semester section (section 6 on the course outline). Chuma’s second semester section has been included in the amended first semester notes.

Recently legislated African Customary law 1) Traditional Leadership and Governance Framework Act 41 of 2003, and its provincial subordinates (and their regulations): - North West Traditional Leadership And Governance Act 2 of 2005 - Traditional Leadership and Governance Act 4 of 2005 (Eastern Cape) - KwaZulu-Natal Traditional Leadership and Governance Act 5 of 2005 - Limpopo Traditional Leadership and Institutions Act 6 of 2005 - Free State Leadership and Governance Act 8 of 2005 - Mpumalanga Traditional Leadership And Governance Act 3 of 2006, - Northern Cape Traditional Leadership and Governance and Houses of Traditional Leaders Act 2 of 2007 2) Communal Land Rights Act 11 of 2004 (important not only in terms of its content, but also in that it was found unconstitutional) 3) Interim Protection of Informal Land Rights Act 31 of 1996 4) Mineral and Petroleum Resources Development Act 28 of 2002 (this is a ‘hot topic’ in the context of the South African economy) 5) Traditional Courts Bill B15-2008

Other relevant legislation (which we won’t focus on much): National House of Traditional Leaders Act 10 of 1997 Remuneration of Public Office-bearers Act 20 of 1998 Municipal Systems Act 32 of 2000 Intergovernmental Relations Framework Act 13 of 2005

The Legal Framework There is no easy way of reconciling the legal framework, which demands certainty and clarity, with traditional institutions that are somewhat amorphous or nebulous. Also, in the context of trying to balance people’s interests (say, between the traditional authorities and the community), we must ask whether the government is striking the right balance. So if we’re talking about the democratic right to participation (as was the case in Tongoane) then we need to ask whether the right balance is being struck. We must also ask whether or not the approach taken is too top-down, when in fact customary law should be a bottom-up system. Are these institutions not aimed at centralising a system which is by nature more decentralised? So if we consider the fact that living customary law is actually made and negotiated by the community through practice, then we must ask how authority can be centralised in that context. Are these institutions ‘uncustomary’ in the way in which they are envisaged or articulated in the legislation?

The piece of legislation which we are going to lack at first is the Traditional Leadership and Governance Framework Act (TLGFA) 41 of 2003. For context, we will look at the Black Authorities Act 68 of 1951, and by manner of example, provincial legislation subordinate to the TLGFA.

Constitutional Framework We should keep the constitutional provisions relevant to customary law in the backs of our minds, which deal with the extent to which traditional authorities are to be accommodated and provided for through national legislation, and the extent to which rights and freedoms recognised by customary law are legitimate provided that they are consistent with the Bill of Rights. Section 39(3): The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.’ Section 211(1): recognises the institution, status and role of traditional authorities observing customary law; Section 211(2): provides that they function subject to any applicable legislation and customs; Section 212(1) and (2): foresee national legislation providing for role at local level, establishment of provincial houses of traditional leaders, and national council of traditional leaders dealing with matters affecting traditional leadership, role of traditional leaders, customary law and customs of communities observing a system of customary law. Section 211(3): ‘The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.’

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1. Traditional Authority, Institutions and Boundaries2 a) Introduction Our focus here is the Traditional Leadership and Governance Framework Act 41 of 2003, and by manner of example, provincial subordinates (and their regulations). Other relevant legislation includes: National House of Traditional Leaders Act 10 of 1997 Remuneration of Public Office-bearers Act 20 of 1998 Municipal Systems Act 32 of 2000 Intergovernmental Relations Framework Act 13 of 2005

Here is a summary of the ‘live issues’ relevant in this section: Do we retain tribal boundaries and traditional authorities? When you look at the Traditional Leadership and Governance Framework Act, you see that this was a question they had to confront.

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6B in the course outline, but was done first.

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If not, how do we do them over or rectify their assignment? If so, what should be their relationship with local and other government? Key terms: Status and Role; Decentralisation/Cooperation/Partnership Governance – the idea that traditional authorities collaborate with government; institutionalisation/ support/promote; appointment/election; authority/control; self-determination.

We’ll deal with the substance and implications of the legislation, but that’s not to suggest that just because the legislation is completely fucked, there is some sort of easy answer. But yes, it’s true that the government has adopted a model which is top-down, centralised and errs on the side of traditional leadership. Government has perpetuated a model which was imagined and sustained under colonial and apartheid times, of a single individual holding communities together through that individual being the primary authority. We start by looking at the background to the TLGFA, namely, the Black Authorities Act of 1951 and its varied effects on traditional society.

b) Black Authorities Act 1951 i) Imposed authorities and boundaries Sections 2 and 3 permitted the State President to establish ‘tribal authorities’ to govern over ‘tribes.’ Sindiso argues that because tribes were invented entities, this legislation had the effect of establishing and entrenching false borders. In fact, already under the Black Administration Act of 1927, the government had provided for the mixing and matching of tribes, and for the establishment of new tribes which in some cases comprised of a bunch of people thrown together who had nothing to do with each other. It allowed the Governor-General (as the ‘supreme chief) to mix and match tribes and put them under one authority, elevating some and demoting others, under section 3(5). As it happened, this meant that some legitimate traditional leaders were not recognized, while other illegitimate leaders were recognized, because they were complicit with the state. Section 4 describes what the tribal authorities – established to oversee these tribes – were supposed to do. Section 4(1)(a) said that a tribal authority was to ‘generally administer the affairs of the tribes and communities in respect of which it has been established’; section 4(1)(b) said that a tribal authority was to assist a traditional leader in performance of ‘powers, functions or duties conferred or imposed upon’ the traditional leader ‘under any law’. So basically, this turned traditional leaders into state instruments. Sections 8 and 9 provided for treasuries to be established into which customary and statutory tribal levies, fees, fines, property gains and profits from all these had to be collected. We’ll return to this later. So the Black Authorities Act was the piece of legislation which basically founded the fictitious structure of homelands – language-based, independent countries within South Africa. As the Constitutional Court said in Tongoane:

Africans were losing their citizenship in South Africa. these steps were a necessary prelude to the assignment of African people to ethnically-based homelands.’ . but rather what the government felt should be happening. . . they were largely invented and imposed. tribal authorities were to ‘advise and assist the Government and any territorial or regional authority . They undercut the give-and-take nature of customary society. ii) Authorising forced removals In terms of s 4(1)(c). [among other things] the development and improvement of any land within [their areas of jurisdiction]’ Another term for this improvement is ‘betterment’or forced removals.‘Under apartheid. in connection with matters relating to . … According to this plan. ensuring that the agricultural land was some distance away from dense population. This is a succinct way of saying that the important question was not what customary law required.’ Mosii v Motseoakhumo 1954 (3) SA 919 (A): ‘the Chief owes allegiance to the Crown only. .’ iii) Invented and imposed tradition Were these ‘powers. . It also left a majority of them without legally secure tenure in land.’ Of course.’ The government came up with the idea to forcibly remove people and put them in townships. functions or duties’ customary? Clearly not. This contributed significantly to the slowing down of agrarian activity. on whom their power and authority depended. In Rex v Kumalo and Others [1952] 2 All SA 9 (A): It was held that because the chief received a written appointment under Section 2 (7) of the Black Administration Act he had a responsibility to recognise and follow the rights and responsibilities that come with the position. There is some precedent regarding the fact that the powers provided by the law were all that the traditional authorities were meant to observe. what this meant was that by assuming this citizenship. subject to the provisions of this Act – generally exercise such powers and perform such functions and duties as within the opinion of the Governor-General fall within the sphere of tribal administration and as he may assign to that tribal authority. there would be no African people in South Africa. but merely to the government. as all would assume citizenship of one or other of the newly created homelands … . as chiefs no longer had to be accountable to their people. Testimony was given by the chief headman of the Clau Clau Native Reserve that they ‘must obey law of White man. As section 4(1)(d) provided: A tribal authority shall. described by the Court in Tongoane as follows: ‘The forced removals of African people from the land which they occupied to the limited amount of land reserved for them by the apartheid state resulted in the majority of African people being dispossessed of their land.

The Act makes our chiefs. but the whole legislative framework governing customary law. regional and territorial authorities to (amongst other things) generally administer the affairs of Blacks’ and that ‘The Act was a legislative cornerstone of apartheid by means of which Black people were controlled and dehumanized. Their attempts to substitute dictatorship for what they have efficiently destroyed do not deceive us.’ iv) Objections ‘we all know full well that no Chief can retain his post unless he submits to Verwoerd. quite straightforwardly …. . It is both obsolete and repugnant to the values and human rights enshrined in our Constitution. in any sense of the term. and in its place there was now the autocratic power bestowed on the more ambitious Chiefs.. it was recognised that the ‘Black Authorities Act.’ (Albert Luthuli. and many Chiefs who sought the interest of their people before position and self -advancement have … been deposed . No. who became arrogant in the knowledge that government might was behind them. ‘ 3 See Sindiso’s parliamentary submission on the Repeal Bill at the end of this section. The whites have made a mockery of the type of rule we knew.1962) ‘Gone was the old give-and-take of tribal consultation.. . representative or democratic. The Peasants Revolt. the proposed Bantu Authorities will not be. and is reminiscent of past divisions and discrimination. established statutory ‘‘tribal’’. into minor puppets and agents of the Big Dictator. Let My People Go.36. No.. which addresses not only the Bill. Verwoerd’s Grim Plot. 68 of 1951 . 1964) v) Repeal3 The Black Authorities Act was repealed in 2010 and in the Memorandum to the repeal.Monakgotla v Minister of Native Affairs 1959 (1) SA 686 (T): ‘*the chief+ is responsible for maintaining law and order and for carrying out the instructions and requirements of the Government. Thus.’ (Govan Mbeki. They are neither democratic nor African. May 1959) ‘The modes of government proposed are a caricature. They are answerable to him and to him only.’ (Nelson Mandela. never to their people..

with an emphasis on the top structures rather than on the bottom-up processes. . regional and other authorities mentioned in s 28(5) and s 6(a) of the Traditional Leadership and Governance Framework Act 2003. We’ll deal in some detail with what community authorities are. there is actually such a qualification). The important thing to notice here is the circularity of the definitions – in attempting to define terms it uses the very words those terms contain. What this means in practical terms is that tribal authorities become the default structure of rural governance among customary communities. what if the customary law system that exists in a particular community works on a bottom up basis. What we see here is an assumption. without defining them.’ It’s interesting that the senior traditional leader doesn’t have to be recognized as such in terms of this Act. as it is the founding legislation for the recognition and regulation of traditional authority. over which a senior traditional leader will now be given jurisdiction. c) The Traditional Leadership and Governance Framework Act (TLGFA) This is a very important piece of legislation. or within whose area of jurisdiction a number of headmen or headwomen exercise authority.’ One thing to note in the repeal is that even in the Memorandum it observes that the old community. Either way.’ ‘“senior traditional leader” means a traditional leader of a specific traditional community who exercises authority over a number of headmen or headwomen in accordance with customary law. or exercises authority within the area of jurisdiction of. have expired. because there are no longer these community authorities. or so this definitional provision suggests (as we’ll see later. a senior traditional leader in accordance with customary law. there is the assumption that there has to be a traditional leader. either that there will be a top-down system where a senior traditional leader puts in place headmen or headwomen in his area of jurisdiction. and (b)is recognised as such in terms of this Act. or that there will be headmen and headwomen that exist in a particular area.As the Constitutional Court held in Tongoane: ’the Black Authorities Act established a tribal structure for the administration of African people in African areas. i) Section 1: Definitions Section 1: ‘“headman or headwoman” means a traditional leader who(a) is under the authority of. So the question arises.

(b) senior traditional leadership. utilised or practised by traditional communities. under this legislation. chiefs were banned because such a hierarchical structure simply didn’t exist. senior traditional leadership aligns with what the legislation calls a traditional community – a tribe. The legislation seems not to make provision for such a possibility.The important thing is that there is a hierarchy here. who had not had chiefs over them before. particularly because traditional communities are themselves defined in terms of traditional leaders. But now. would now have a right to exist over these headmen and headwomen. “Queenship” and “principal traditional leadership” were new inclusions introduced by the Amendment Act of 2009. the suggestion is that any traditional leaders which had previously in terms of old legislation been given authority over these areas. a more macro level. there is the following important clause : .or without a senior traditional leader? Would we not require different wording to capture such a situation? Consider this example. and (c) headmanship. the circularity of this is striking. and is recognised in terms of this Act. there is the category of ‘principal traditional leader’ who will also have within his authority a number of tribes – this possibly aims to recognize those leaders short of kings in a hereditary sense. such as in the Eastern Cape example. but who do in fact have a number of traditional communities in their sphere of authority. In terms of jurisdiction: headmanship aligns with a ward. The person who has within his kingdom a number of traditional communities (tribes) or senior traditional leaders (chiefs) is a king or queen. as we’ve said. However. some of these positions might be missing. what if in terms of living law there is no such hierarchy? In some communities. a village or a sub-community.’ What are each of these? Senior traditional leadership refers to chiefdom. with a number of tribes within its jurisdiction. in terms of customary law of the traditional community concerned.’ “Traditional leadership” is defined as ‘the customary institutions or structures.’ Again. In the Eastern Cape. or customary systems or procedures of governance. and principal traditional leadership is at a level somewhat akin to the kingship level. particularly in the former Ciskei. recognised. But. Section 8 speaks about the specific traditional leadership positions which exist: ‘the following leadership positions within the institution of traditional leadership are recognised: (a) Kingship or queenship. Section 1 then defines a “traditional leader” as ‘any person who. (aA) principal traditional leadership. holds a traditional leadership position. Having said that.

in accordance with the guidelines issued by the Minister by notice in the Gazette. although they vary. This takes us back to the Black Authorities Act. the status. or add anything to. By now we should be starting to see stark continuities between the former and the present.’ What this hints at is the fact that traditional leaders’ status is actually dependent on the governments’ recognition more than on the people’s particular sense of what the traditional leadership position is. we are forced to ask: what about communities that don’t necessarily have a formal traditional leadership structure? There is a requirement of consultation with the community concerned in terms of the provincial laws. What’s striking here is. (2) (a) A traditional council consists of the number of members determined by the Premier by formula published in the Provincial Gazette. ii) Section 2: Community constitution Section 2 is also in a sense a definition section. and secondly. but such traditional title does not derogate from. firstly. . Again. insofar as it describes how a community comes to be recognized. Section 2: (1) A community may be recognised as a traditional community if it (a) is subject to a system of traditional leadership in terms of that community’s customs. and encourage gender equality etc. and (b) observes a system of customary law. the circularity which we’ve already discussed. the preeminence of traditional leadership.‘Nothing contained in this Act may be construed as precluding members of a traditional community from addressing a traditional leader by the traditional title accorded to him or her by custom. where the traditional leaders’ position was at the behest of the state. iii) Section 3: Composition sections Section 3: (the underlined section has been added by Amendment) (1) Once the Premier has recognised a traditional community. that traditional community must establish a traditional council in line with principles set out in provincial legislation. Another qualification is that these communities must comply with the Bill of Rights. after consultation with the provincial house. role and functions of a traditional leader as provided for in this Act.

And so the boundaries which existed for tribes as they were established by the apartheid government are entrenched in this framework. is deemed to have been recognised as such in terms of section 9 or 11. These sections suggest that communities could decide to come together to form the structure of a traditional community.. Section 28(3): any ‘“tribe” that. and 40% of the members of the Traditional Coiuncil are elected. is deemed to be a traditional council . In other words. immediately before the commencement of this Act. the one on the right is of homelands as they existed in 1986. One might argue that this creates an ‘opt-out system’ placing the onus on traditional communities to . you see 3 key provisions (Section 28 is a VERY important section – know it): iv) Section 28: Territorial boundaries Section 28(1): Any traditional leader who was appointed as such in terms of applicable provincial legislation and was still recognised as a traditional leader immediately before the commencement of this Act. The net effect of s 28 is effectively to reestablish and entrench the homeland boundaries established by the Black Authorities Act.. subject to a decision of the Commission in terms of section 26. In this subsection. the tribal authority which was entrenched under apartheid legislation is accepted as the traditional council. the other 60% are appointed by traditional leaders. . but in fact if you look at the “transitional arrangements” clause in s 28. Section 28(4): any tribal authority that. So.. the traditional leader who is recognized today is the traditional leader who was recognized under prior legislation which existed under apartheid.Section 3(2)(b) and (c) require change of composition of tribal authorities: 30% of council must be women – although exemption is possible if it can be shown that insufficient women are available to participate. So basically. compare the below maps: the one on the left is of traditional councils in 2010. Notice that the boundaries are almost identical. .. had been established and was still recognised as such is deemed to be a traditional community contemplated in section 2 . immediately before the commencement of this Act. had been established and was still recognised as such. the tribe that is recognized is the tribe that existed under apartheid.

Section 28 ultimately depends on compliance with section 3(2). presently.withdraw themselves. there’s a flaw in the opt-out provision which actually makes it impossible for subgroups subsumed into bigger tribes to withdraw from them. which has not yet even been introduced to parliament. is the ‘opt-in’ system. There is a current proposal brewing in the National Traditional Affairs Bill. If communities decided that they didn’t want to retain the powers granted to traditional authorities.” As we’ll see. So actually it should be the communities who are entitled to say that they would like to reconstitute themselves – in an ‘opt in’ rather than ‘opt out’ way. The one year period had always been contested because some had argued that it was inadequate. The result is that. then that would have implications only for those communities concerned. some Traditional Councils (particularly in Limpopo) are the same untransformed tribal authorities that existed before this legislation came into being – one might even call them apartheid structures. and consequently give their traditional leader particular powers because they recognise him or her as legitimate. The alternative to this. Ultimately. to say: “we don’t want to be recognised as a traditional community and would like our status as a traditional community withdrawn. This was extended by provincial Acts (passed in 2005) until 24 Sept 2006. the transitional period for tribal authorities to comply was further extended until 24 September 2011. and be reconstituted in some other way. The initial compliance deadline with this provision was one year after the commencement of the Act: 24 Sept 2005. the re-composition provision requiring that 30% of the council is female and 40% of it is democratically elected. to extend the deadline to 24 . when the TLGFA Amendment Act of 2009 was passed. Don’t worry if this isn’t entirely clear at this stage – we’ll revisit it shortly in the context of s 7. which Sindiso much prefers.

The Mpumalanga Provincial House of Traditional Leaders claimed that some communities had not received results by Aug 2010. is that even where they have happened. which introduced a conflict of interest. v) Flawed electoral processes Eastern Cape: Communities were not informed of elections or the call for nominations. Let’s return to the earlier discussion about the difference between an ‘opt-out’ and an ‘opt-in’ provision. and there was no evidence that the requisite community meetings were held. which are to be a key feature of how these traditional councils are to be transformed. Mpumalanga: The head of the Mpumalanga House of Traditional Leaders brought in a private company to carry out elections out in August 2009. One thing to note about these electoral procedures. in fact. Empowering regulations are said to have been passed. Also North West and KZN are gearing up for a second round of elections. but only did so in some parts of the province. People were not permitted to nominate candidates that were not on pre-determined list! KwaZulu Natal: IEC boxes were “borrowed” and used to create the impression that elections were IEC-monitored when. This is an example of an ‘opt-out’ clause.September 2012. North West: The Provincial House of Traditional Leaders supervised elections. there were insufficient funds to hire the IEC. and an ineffective one at that. for the most part they have not happened in the way in which they were supposed to. . vi) Section 7: Possibility of withdrawal from a traditional community Section 7(1) provides the basis for withdrawal. Limpopo: Seemingly pending.

So we still have the problem of the structural minority being trapped. makes it almost impossible for a subgroup to withdraw.Remember that s 2 suggests that communities can form themselves into traditional communities that are officially recognized by standing together. request the Premier of a province that they be merged into a single traditional community. to determine whether it was a mix-and-match job. You can also see that there’s a problem for the traditional authority who now runs the risk of losing part of his territory/community. . There’s clearly a structural problem here: it requires a structural minority within a community to persuade the macro-community to approach the Premier. because the transitional mechanism says that old boundaries are reinforced. Because land claims don’t have to be made by the traditional authority. (b) the provincial government concerned is requested to review the position of a community or communities that was or were divided or merged prior to 1994 in terms of applicable legislation. s 7(1)(a) read together with s 28. and whether it is appropriate to regard the community as a single entity. the community could plausibly secede and take the land with them. Let’s take a look at the section: Section 7: The withdrawal of the recognition of a community as a traditional community as provided for in section 2. and that traditional communities are basically the ‘tribes’ of old. allowing for the subgroup to reconstitute itself independently. some of them were complete strangers and brought together. remember that the traditional community is the tribe at large. So you have all these tribes that were mixed and matched. which entrenches the tribes of old as the traditional communities of today. Now. but it does speak specifically about communities that may have been artificially divided asking to be merged. or (c) two or more communities so recognised. But the details concerning the terms upon which this takes place are unclear. may only be considered where (a) the community concerned requests the Premier of a province that its recognition as a traditional community be withdrawn. These subsections allow the provincial government to launch an investigation into the legitimacy of the boundaries. So it doesn’t speak specifically about improperly joined communities requesting to be divided. And then you come to the below provisions in s 7 which say that it is the traditional community that must approach the Premier to withdraw. In fact. it has to persuade the community at large to approach the Premier to withdraw their status as a traditional community. some contained multiple subgroups. which do not see themselves as part of the larger community and do not recognize their official traditional authority. If any one of these subgroups wants to withdraw. But then you find in s 28 that it is in fact an opt-out approach. suggesting an opt-in approach. so that the status of the whole group can be withdrawn.

But the Commissions themselves have been less than stellar in their performance: . he need not authorize the investigation itself. in such cases they recognized them as an anomalous category – a community authority – through an amendment to the Black Authorities Act some time after 1951. even after recognising the legitimacy of the subgroups’ claim to be withdrawn. in terms of section 2. Its final report was released on 29 July 2010. has been that granting relief would ‘open up the floodgates’. there have been documented cases of sub-communities who have tried to persuade the Premier to withdraw them.’ So clearly the Premier has some sort of obligation to recognize divisions or mergers when an investigation shows it to be necessary.The Nhlapo Commission was established in terms of Chapter 6 on Oct 2004. This. and been denied.The Ralushai Commission was established in Feb 1996 by the Premier of Limpopo to investigate the legitimacy of the boundaries of the traditional authorities. Community authorities were traditional communities that were recognized outside of the tribal authorities framework by the apartheid government when it realisaed that there were some communities that were such mismatch that to try and put them under one traditional leader and make them a tribe would cause massive conflicts. if they tried to situate them under a single traditional authority. In other words. while he must consider the recognition of communities shown by an investigation to have been illegitimately divided or merged. and we still have no idea what its outcome was. But the provision relating to the investigation itself is permissive. can you imagine how long it would take to resolve the issue of traditional leaders in the rest of the country. but it only dealt with paramountcies. So communities who. But the report was not ever publicly released. What you often find Premiers falling back on is the Commissions established under Chapter 6 of TLGFA. So. bought land together in ‘black spots’ (areas where blacks could by land).Despite s 7(1)(b) allowing communities to approach the Premier. which are supposed to investigate disputes over the boundaries of communities as well as over the legitimacy of traditional leaders. for instance. The grounds for this denial. and there were two or three different traditional authorities – the government would realise that this could erupt. were then put under a traditional authority even though they were made up of two or three different cultural groups (say Tsonga. albeit that in terms of section 7(3): ‘The Premier of a province must. Sotho and Ndebele together). Because there are so many illegitimately formed communities. and owned that land. . there is clearly a fear that the situation could spin out of control. If it took 6 years to resolve the issue of paramountcies. when there are 823 recognised traditional authorities in the country? Problems with an opt-out system. rather than opt-in system of traditional authority and boundaries. . rendering this provision not in fact as mandatory as it seems. Some of its findings were challenged in court due to the controversial methodology used. consider the recognition of separate traditional communities or a merged traditional community where a review of the division or merger of communities envisaged by subsection(1)(b) indicates that newly constituted traditional communities must be recognised.

regional and other authorities mentioned in section 28(5) and (6)(a) of the Traditional Leadership and Governance Framework Act. and programmes of municipalities. so that we may better consider what it is that they are in fact meant to do in terms of the Act. But now we proceed on the assumption that they are legitimate. have expired’ The question as to what government structures these communities fall under if these community authorities are to go? It seems as though the makeshift answer to this question is that they are being subsumed into traditional authorities. sustainable development and service delivery. 2003. Promoting the ideals of co-operative governance. IDP’ing. The original deadline for disestablishment was 2005. the vast majority have not been disestablished and there is no clear indication as to what happens if they are not disestablished. Now.Another instance was areas where there was such a high proportion of traditional communities who didn’t have traditional leaders. communities. appropriate interventions to government that will contribute to development and service delivery within the area of jurisdiction of the traditional council. and sharing information with other councils. Recommending. Assisting. So basically there’s a bit of a bizarre set of circumstances relating to this legislation. Supporting municipalities in the identification of community needs. (1) A traditional council has functions including: Administering the affairs of the traditional community in accordance with customs and tradition. Participating in the development of policy and legislation at local level. but were actually being governed by a headman or some kind of committee.  4. provincial and national government. supporting and guiding traditional leaders in the performance of their functions. reference in BAA Repeal Act that: ‘The cut-off periods for the continued existence of the old community. and facilitating the involvement of the traditional community in the development or amendment of the area’s integrated development plan (IDP). but was extended to 24 Sept 2009 – but that had already expired before TLGFA Amendment Act (which introduced the extension) was passed in Dec 09. and leaders. . with local and provincial Houses of Traditional Leaderss. vii) Section 4: Functions of traditional councils Up until now we’ve recognised that there are problems with the establishment and recognition of traditional councils. In reality. These were also sometimes recognized as community authorities. those community authorities are to be disestablished in terms of section 28(5) of TLGFA – hence.

Promoting indigenous knowledge systems for sustainable development and disaster management. deaths and customary marriages. agriculture. However. disaster management. Performing the functions conferred by customary law. environment. For example: Section 20(1) of TLGFA enables national and provincial government to provide a role for traditional councils or traditional leaders in: arts and culture. the phrase “and in applicable legislation” leads us to the much more detailed listing of what traditional leaders may potentially do. and alerting any relevant municipality to any hazard or calamity that threatens the area or people in jurisdiction. education (added by way of amendment) . administration of justice. welfare. customs and statutory law consistent with the Constitution. tourism. the management of natural resources. and in applicable legislation. Observe the contrast: section 4 is very detailed. safety and security. land administration. viii) Section 19 and 20: Functions of traditional leaders Section 19: A traditional leader performs the functions provided for in terms of the customary law and customs of the traditional community concerned. registration of births. section 19 is not. and dissemination of information relating to government policies and programmes. health. economic development.

ix) Recent policy affirmations ‘The Department of Traditional Affairs is about to release proposed guidelines on the allocation of roles and delegation of functions to traditional leaders and traditional councils by organs of state in terms of the Traditional Leadership and Governance Framework Act. with the suggestion being that traditional leadership structures may actually displace local government in rural areas.’ These provisions deal in part with the accountability of traditional leaders. certainty. eThekwini: 5 May 2010 In a nutshell what the guidelines ‘intend to achieve’ is to bring traditional leaders into government in some way. predictability and uniformity on the one hand. integrated development planning. x) Assigning more powers Section 20(2) continues: ‘Whenever an organ of state within the national government or a provincial government considers allocating a role for traditional councils or traditional leaders in terms of subsection (1). that the allocation of roles or functions is implemented uniformly in areas where the institution of traditional leadership exists. given that local government has in many rural areas almost already collapsed. To say ‘diplace’ is probably inaccurate. sustainable development and service delivery through the allocation of roles and functions. to the extent that it is possible. We know from Sindiso’s first semester pluralistic wankfest that there is a tension between standardisation.’ President Zuma’s speech to the National House of Traditional Leaders: 20 April 2010 Section 20 was reaffirmed by the Deputy Minister of Cooperative Governance and Traditional Affairs in speech to the Traditional Councils. that organ of state must – (f) ensure. All the affected Departments will have a chance to align their plans with what the guidelines intend to achieve. and the flexibility of living customary law on the other . We’ll return to them in more detail in future. Local Government & Rural Local Governance Summit.We’ll focus on two of these in particular this semester: land administration and the administration of justice. and (g) promote the ideals of co-operative governance.

32 of 2000). (Act No. This legislation seems to be too reflective of uniformity in a context where there is so much diversity. We’ll also see more references to the support of institutions – supporting traditional leaders. ‘(1) The national government and all provincial governments must promote partnerships between municipalities and traditional councils through legislative or other measures. that the recognition of traditional leadership and traditional councils forms part of the governance function of the state. service delivery. some of the buzzwords that repeatedly come up: cooperative governance. and (b) be guided by and based on the principles of co-operative governance. respecting their role. National legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities. Does section 212(1) of the Constitution allow for this kind of recognition? It’s debatable.hand. 212. We should have noticed by now. sustainable development. This might be argued to be at odds with the Constitution. Implicit in this section is the idea we’ve just dealt with. Role of traditional leaders 1. xi) Section 5: Partnership governance Section 5 entrenches the partnership / cooperative governance model with Traditional Councils.’ This basically allows for the outsourcing of local government functions to traditional leaders. and any other applicable legislation. which recognizes only three levels of government. and should continue to notice. xii) Consultation Section 20(2) also says: . status and functions. viz. (3) A traditional council may enter into a service delivery agreement with a municipality in accordance with the Local Government: Municipal Systems Act. (2) Any partnership between a municipality and a traditional council must – (a) be based on the principles of mutual respect (and recognition of the status and roles of the respective parties. This tension is part of what the courts have to reconcile.

(c) ensure that the allocation of a role or function is consistent with the Constitution and applicable legislation. who from and how? what can it do. 2003.’ But this is an argument unlikely to succeed. Consultation with the structures of traditional leadership took place at national and provincial level…. that organ of state must – (b) consult with – (i) the relevant structures of traditional leadership. (d) take the customary law and customs of the respective traditional communities into account. the Department consulted with the structures of traditional leaders and the South African Local Government Association. One criticism that can be leveled at these consultation provisions is that there is no consultation with ordinary rural people. and how do we make sure that it does that? . when.1 As required by the Traditional Leadership and Governance Framework Act. Now we turn to resourcing – how are these institutions funded? xiii) Section 20 and section 4: Revenue and financing of institutions The most important questions we need to deal with here are: who can collect it. The Memorandum to the Traditional Courts Bill reads: DEPARTMENTS/BODIES /PERSONS CONSULTED 3. Note that consultation with ordinary rural people is not specifically required by s 20(2). So there’s clearly a balancing act that organs of state must play. This shows the lack of consultation actually required by the Act.’ This consultation requirement is interesting given that uniformity was one of the conditions earlier. Ordinary people are treated as what Mamdani would call ‘subjects’ – people who things just happen to. given that it says that the organ of state must ‘take the customary law and customs of the respective traditional communities into account. because government unfortunately seems to have embraced the idea that traditional leaders are the sole custodians of custom. One might argue that ordinary rural people are to be consulted in terms of s 20(2)(d).‘Whenever an organ of state within the national government or a provincial government considers allocating a role for traditional councils or traditional leaders in terms of subsection (1). and (ii) the South African Local Government Association.

they can potentially collect levies locally. (4) Where a traditional council does not perform an allocated function as envisaged in subsection (3).’ So it is the organ of state that bears the burden of ensuring that the money is accounted for. 1. the National Traditional Affairs Bill proposes to change the requirement to the function being performed efficiently and effectively. Interestingly. Section 20(3): ‘Where an organ of state has allocated a role or function to traditional councils or traditional leaders as envisaged by subsection (1).’ Such legislation and measures do indeed exist. Firstly. primarily by provincial government. Powers / Role / Functions. This is a clearly a very a low bar – the function must merely be performed. that organ of state must – (e) strive to ensure that the allocation of a role or function is accompanied by resources and that appropriate measures for accounting for such resources are put in place. this depends on that organ being accountable enough to have good accounting mechanisms in place – this is often unlikely in rural local governments.Key terms: Support. traditional council members receive stipends. Central funding Section 20(2) says: ‘Whenever an organ of state within the national government or a provincial government considers allocating a role for traditional councils or traditional leaders in terms of subsection (1). even if only minimally. they can be funded centrally by the state. Of course. Secondly. This provision is reinforced by section 6: ‘The national government and a provincial government may adopt such legislative or other measures as may be necessary to support and strengthen the capacity of traditional councils within the province to fulfil their functions. the organ of state must monitor the implementation of the function and ensure that – (a) the implementation of the function is consistent with the Constitution. and (b) the function is being performed. traditional council offices are built and resourced. Accountability. (Double) Taxation … Traditional leaders can be said to be funded in terms of two major structures.’ . The Remuneration of Public Office Bearers Act provides for remuneration of traditional leaders. any resources given to a traditional council to perform that function may be withdrawn.

. section 25(1): ‘A traditional council may.’ Others provide for ‘voluntary gifts’ which in effect are not very voluntary at all. and provincial government is empowered to delegate it to local government.. (c) disclose the receipt of gifts. in contrast to the White Paper.. Duplication of this responsibility and double taxation of people must be avoided. (b) have its financial statements audited. And under section 4(3). if so. For example. So really it comes back to the question of whether traditional leaders are legitimately perceived as part of local government under the Constitution – if not. more explicitly: A traditional council must — . with the approval of the Premier. Remember that they wanted the homelands to be self-sustaining. The constitutional problem in terms of levying is that the Constitution only recognizes three spheres of government. For this reason. Traditional leadership structures should no longer impose statutory taxes and levies on communities. they do not have the power to tax. because it was so abused during apartheid. The real question is whether this kind or level of oversight required is given effect to in reality. and because the apartheid government used traditional authorities to collect money for its coffers.So the funds can be withdrawn if the function is not in fact being performed. there was resistance to the payment of tribal levies. Tribal levies The background to the notion of tribal levies is that there was real resistance to traditional authorities levying money from their communities. National and provincial government have an inherent power to tax. Sindiso is not aware of any resources having been cut for any reason other than government’s limited funds. levy a traditional council rate upon every taxpayer of the traditional area concerned.. July 2003 (before the TLGFA). This resistance is reflected in the White Paper on Traditional Leadership and Governance. 2. because in particular.(b) meet at least once a year with its traditional community to give account of the activities and finances of the traditional council and levies received by the traditional council.” But. then there is potentially . section 4(2) of the TLGFA provides traditional leaders with a possible means by which to tax: Applicable provincial legislation must regulate the performance of functions by a traditional council by at least requiring a traditional council to —(a) keep proper records. some Provincial Acts recognize the power of levying. so structures were created whereby traditional leaders were primarily accountable to no one but themselves. The bottom line is that levies are still widespread.. particularly in Limpopo and the North-West. in terms of the Provincial Act of Limpopo. and specifically provide for it. Only those three spheres are granted taxation powers. This is being challenged by those who’ve resisted it. which states: “The authority to impose statutory taxes and levies lies with municipalities.

other than the constitutional one? It is that the highest proportion of people living in rural areas are women (57%58%). and (b) the Premier concerned must. which we’ll come to. it’s questionable whether it will make any difference. and with due regard to applicable customary law – (i) identify a person who qualifies in terms of customary law to assume the position in question. . the thing to keep in mind is that the National Traditional Affairs Bill has withdrawn the clause in s 4(3) pertaining to levies. and in having to pay levies. In practical terms. These are the removal conditions. It seems quite possible that they have heard these criticisms. within a reasonable time after the need arises for any of those positions to be filled. headman or headwoman is to be filled (a) the royal family concerned must. recognise the person so identified by the royal family in accordance with provincial legislation as senior traditional leader. But given how widespread it is in reality. as the case may be. So they are contributing financially to people who have more resources than themselves. They are also already paying tax in the national economy in the form of VAT – which is why the term ‘double-taxation’ is often used. subject to subsection(3). headman or headwoman. However. or. what is the argument against traditional leaders levying. but are still not guaranteed participation in community structures. is coming out of social grants – either pension or child grants.4 xiv) Section 11: Appointment Section 11(1) provides that: ‘Whenever the position of senior traditional leader. So this levy which is used to support a traditional leaders’ lifestyle is in many cases being taken from women who themselves are not even making an income.(b) and (d)5 apply to that person. inform the Premier of the province concerned of the particulars of the person so identified to fill the position and of the reasons for the identification of that person. after taking into account whether any of the grounds referred to in section 12(1)(a). that money is coming mostly from remittances from people who work in urban areas and send money back. and are coming around to the view that levying powers aren’t legitimate. The final critique is that these are women who in many areas do not actually have a voice.’ 4 5 I feel like a question in which we are required to consider arguments against tribal levies is very possible. and (ii) through the relevant customary structure.room for national or provincial government to devolve that power to them through legislation.

So.’ These provisions give rise to a few problems: 1. 2. Moreover.Remember that the national legislation is the framework act (as the title suggests). the Premier – (a) may refer the matter to the relevant provincial house of traditional leaders for its recommendation. .exception for headmen and headwomen. in subsection (2)(b). or (b) may refuse to issue a certificate of recognition. For example. customs or processes. this provision makes a semi. stipulates that: ‘Provincial legislation may also provide for – (i) the election or appointment of a headman or headwoman in terms of customary law and customs. Free State. by saying that provincial legislation may also provide for the election or appointment of a headman or headwomen. Eastern Cape. (3) Where there is evidence or an allegation that the identification of a person referred to in subsection (1) was not done in accordance with customary law. all that were left were iziponda (headmen). it allows the possibility that Provincial legislation does not provide for election. The same section. Northern Cape. while the Act’s earlier reference to a royal family seems to presume a somewhat hereditary process. and that there are various provincial Acts – all provinces which have traditional leaders have such Acts: North-West. and (c) must refer the matter back to the royal family for reconsideration and resolution where the certificate of recognition has been refused. In KZN for example. especially given the election of headmen and iziphakanyiswa. Limpopo. an election process is often used rather than a hereditary system. 6 What about communities where there is no such royal family? We sometimes find that there is a completely electoral process through which successors are elected into power – that might legitimately be the customary law in a particular community. but only for appointment. So the headmen occupy a position which doesn’t quite fit with the hierarchical scheme of the TLGFA. Iziphakanyiswa are specific to KZN. and (ii) consultation by the Premier with the traditional council concerned where the position of a senior traditional leader. Note that the National Traditional Affairs Bill is attempting to bring some of the specific processes which have not been spelled out in provincial legislation (such as the actual process by which 6 Literally meaning ‘to be lifted/appointed – refers to people not born into positions of traditional leadership but ‘raised’ or appointed. where provincial legislation could potentially allow for non-hereditary processes (election or appointment). Mpumalanga and Kwazulu-Natal. where chiefs were done away with. in former Ciskei. through some form of electoral process. but the phenomenon of elected customary leaders is not. headman or headwoman is to be filled. The assumption that there is always a royal family to drive the process is a fallacious one.

We’ve spoken already about the fact that a royal family may not even exist in the relevant community. But if in fact the matter does come before a court. because it doesn’t allow the community to contribute to the decisions. of the Eastern Cape High Court (Mthatha). ‘falls foul to the provisions of the Act’. 3. says a Daily Dispatch report. has succeeded in his legal quest. 3 Jun 2011 xv) Section 12: Removal . how would the premier know that it hasn’t happened in accordance with customary law. saying he based his decision on the provisions of the provincial Traditional Leadership and Governance Act of 2005 and the Traditional Leadership and Governance Framework Act 41 of 2003. which the TLGFA doesn’t have. agreed. and doesn’t involve any community consultation. 4. The use of “or” here is peculiar in those cases where the provision is applied and the process didn’t happen in accordance with customary law customs and processes. That would have specific procedural requirements. Eastern Cape Premier Noxolo Kiviet has now been ordered to consider Dudumayo’s pledge for a traditional leadership position – but first his uncle has to be stripped of the same position. If the Premier does issue a certificate of recognition then he must refer the matter back to the royal family. the Premier should have to refuse to issue a certificate of recognition. in order to be able to challenge the appointment? Secondly. the referral back to the royal family has been questioned as being potentially inconsistent with the Constitution.appointment/election takes place) into the Act. the question must be asked: Are courts well-placed to make such determinations? Consider this case: Litigation: Chieftainship won in the courts Mkhanyiseli Dudumayo (33). Judge Zamani Nhlangulela. According to the report. This raises a number of issues itself. Firstly. being the biological son of the late headman. if the Premier has somehow established that it hasn’t taken place in accordance with customary law customs or processes. In addition. if it hasn’t happened in accordance with customary law. and more importantly. he found that the decision to appoint Dalasile as headman had not been in compliance with the Act. who forwent the traditional route and instead opted to have a judge intervene in his battle for chieftainship. Dudumayo disputed his uncle’s position and claimed that he was in fact the rightful heir. The report notes the family feud began in June 2010 when Mhlabunzima Dalasile (77) was awarded headmanship of the Maphuzi administrative area in Mqanduli. “Or”/”and”? The Act provides that the Premier may refer the matter to the relevant Provincial House of Traditional Leaders for recommendation OR he may refuse to issue a certificate of recognition. why is it that the premier has discretion? Presumably. Courtesy of Legalbrief Today. He said Dalasile was not a customary heir and successor to Daliwonga Dudumayo and that the decision to recognise him as headman in 2010 and then appoint him this year.

(b) and (d) come to the attention of the royal family and the royal family decides to remove a senior traditional leader. even if the custom is that the royal family typically removes the traditional leader. headman or headwoman to function as such. section 12(1) says: ‘A senior traditional leader. No provision for a community-driven process or community participation. 3. members of such a community and traditional leaders within the . headman or headwoman may be removed from office on the grounds of – (a) conviction of an offence with a sentence of imprisonment for more than 12 months without an option of a fine. (b) physical incapacity or mental infirmity which. headman or headwoman to be removed from office. From a policy perspective. makes it impossible for that senior traditional leader. headman or headwoman. (c) wrongful appointment or recognition. is this not a power which the Constitution demands we assign along democratic lines. or (d) a transgression of a customary rule or principle that warrants removal.The removal provisions raise some similar problems – namely: 1. to the community at large? Specifically.’ ‘(2) Whenever any of the grounds referred to in subsection (1)(a). as amended in Dec 2009.’ xvi) Section 21: Dispute and claim resolution Section 21(1)(a). the royal family concerned must. within a reasonable time and through the relevant customary structure— (a) inform the Premier of the province concerned of the particulars of the senior traditional leader. 2. based on acceptable medical evidence. The assumption that the royal family exists. reads – ‘Whenever a dispute or claim concerning customary law or customs arises between or within traditional communities or other customary institutions on a matter arising from the implementation of this Act. and (b) furnish reasons for such removal.

Here it is striking that the Premier is under no obligation to consult the community. . This is a very specific provision dealing with disputes or claims which end up at the Commission.’ The amended section 21(1)(b) goes on to say – If a dispute or claim cannot be resolved in terms of paragraph (a). and (ii) the provincial house of traditional leaders concerned.’ The question arises here: who determines what the customs are? Could the ‘customary institution’ decide that ‘custom’ means the exclusion of the community? xvii) Overview of the Act:  Section 1: Definitions  Section 2: Recognition of the traditional community  Section 3: Recognition of the traditional council). A ‘customary institution’ probably means the traditional leader and traditional council – as referred to in sections 28.’ Failing this. if it is unable to. then in terms of s 21(2)(b) the dispute must be referred to the Premier. the Provincial House of Traditional Leaders resolves the dispute in accordance with its internal rules and procedures. 19 and 20. the dispute is referred to the Commission on Traditional Leadership Diputes and Claims in terms of sections (2)(c) and (3). 3. This is only provision in which the community is given explicit mention as playing a role in the determination of the appointment or removal of their leader. According to the definition in section 1: a ‘“customary institution or structure” means ‘those institutions or structures established in terms of customary law. In terms of s 21(2)(a). It says that members of the community and the customary institution concerned must seek to resolve the dispute internally and in accordance with customs. but only institutional actors. which in terms of s 211 of the Constitution is trumped by legislation dealing with customary law to the extent that the legislation is consistent with the Constitution. 11.traditional community or customary institution concerned must seek to resolve the dispute internally and in accordance with customs before such dispute or claim may be referred to the Commission. who must resolve it ‘after having consulted (i) the parties to the dispute or claim. subsection (2) applies.’ But ‘customary law’ is not defined in the TLGFA. 4. 8. So it’s not clear whether it means the official customary law that is constituted by the TLGFA or living customary law. We’ve encountered these commissions before in terms of the investigations they carry out. and whose decisions regarding kingship and queenship are often challenged.

buzz words:     cooperative or partnership governance. as they wanted customary law to be independent from the Constitution. and are in a sense an override of ss 2 and 3). respect for the status and role of traditional leaders … d) The politics of traditional leadership: the rising star of traditional leaders What if we were to ask the question ‘why’? Why is it that laws like these are coming into being? Think about this especially in the context of traditional leaders in a lobbying capacity around the drafting of the Constitution. Section 28: Transitional arrangements – but they are still in force today. service delivery and development.  Section 7: Possibilities of Withdrawal  Section 4: Functions of TCs  Section 19: Functions of TLs  Section 20: Scope for extending TL powers  Section 5: Partnership / Cooperative Governance  Section 20: Who is to be consulted in making traditional leadership laws?  Section 20: Resourcing expanded TL functions  Section 4: Alternative Resources and Accountability (Tribal Levies)  Section 11: Appointment of TLs  Section 12: Removal of TLs  Section 21: Dispute and claim resolution  And. What’s happened since then though? Jane Guyer makes the following observation in talking about Nigeria: . Remember that they lost the battle against the gender activists. support for / promotion of the institution of traditional leadership.

The Portfolio Committee on Justice (responsible for the Traditional Courts Bill) has a traditional leader on it. and the collective rights of indigenous peoples. to privilege the kingdom of custom. by whatever political means possible. Contralesa has long been committed to bringing about a change in the national constitution. 2. and against community will.. But is that the case when traditional leaders are . It speaks for culture. … Meanwhile. but where they rule unjustly. a nation-state that puts the dictates of culture at least on a par with. indications that “the traditional rulers’ star may be rising again … *and this+ has at least as much to do with the seriousness with which the corporate sector. Also for the authority of their chiefs and kings. The argument that traditional leaders ‘bring in the votes’: Traditional leaders control the rural vote. past and present. There are a number of arguments made for the rise to prominence of traditional leaders: 1. John Comaroff and Jean Comaroff. it has a lot to do with economics and politics. as we must recognize the fact that the prominence of traditional leaders is not necessarily determined by the will of people in communities. both economic and political. in their book Ethnicity Inc. The economic capital argument: the fact that the interests of traditional leaders have been conflated with the interests of ordinary people. because traditional leaders needed to be brought onside and encouraged to canvass for votes in rural areas. Contralesa seeks. Its ultimate objective is a nationstate that accords to traditional leaders sovereign autonomy over their realms. So you have these various traditional leaders involved in political processes.’ This is not an unfair representation of the current situation. which was sped through just before the 2004 general election. But what about the fact that living customary law is a distributed entity in terms of who makes it and who determines its content? Why aren’t ordinary people custodians of culture if living customary law is what we say it is? 3. And the customary privileges of kings. with the reach and ability to speak where ordinary people do not. We find that the co-Chairperson of the Constitutional Review Committee is a traditional leader. if not above. An example of this is the passing of CLARA. so if the ANC is to retain its political stronghold then it has to support traditional leaders. It’s assumed that ‘what’s best for the Traditional Leaders is best for the people’. The argument that traditional leaders are the ‘custodians of culture’: this is one of the general perceptions in the public domain. customary law. there is a “seeming paradox of restricted constitutional powers but rising political profile” of chiefs. 4.  Asking the question ‘why’ is important. The argument that traditional leaders hold a significant amount of social and political capital. deals with high level chieftaincy as with the people’s cultural attachment to the institution”. It might be so where traditional leaders rule justly in terms of the will of the community. universal rights of citizens. summarise the position in South Africa well: ‘The Congress of Traditional Leaders of South Africa (Contralesa) is the representative voice of ethnicity in the country. the Portfolio Committee on Rural Development and Land Reform (responsible for the Communal Land Rights Act) also has a traditional leader on it (Nelson Mandela’s grandson).

5. the court finds: ‘On 5 August 1997 the Royal Council accepted and confirmed that Hosi Richard would transfer his powers to Ms Shilubana. This stagnation should not continue and the free development by communities of their own law to meet the needs of a rapidly changing society must be respected and facilitated. including amendment or repeal of laws’ and that ‘it must be held that *traditional leaders+ have the authority to act on constitutional considerations in fulfilling their role in matters of traditional leadership. At paragraph 5. Under pre-democratic and apartheid regimes. there needs to be someone to fill in the gap. the court held that ‘section 211(2) of the Constitution specifically provides for the right of traditional communities to function subject to their own system of customary law. this development was frustrated and customary law stagnated. and when many of them are educated people. and everyone has the vote. namely. a “duly constituted meeting of the Valoyi tribe” under Hosi Richard resolved that “in accordance with the usages and customs of the tribe” Ms Shilubana would be appointed Hosi.’ So ultimately the court in Shilubana finds that living customary law is determined by the community. Shilubana provides the basis for saying that the royal family represents the ‘high water mark’ on decisions regarding succession.earning government incomes. But the case clearly recognizes the community vote to confirm Tiniko Shilubana’s appointment. and are often in an entirely different social and economic position to their people? The conflation of the interests of traditional leaders with the interests of their people is related to another.’ . In deciding whether the traditional authorities had the authority to bestow chieftanship on Tiniko Shilubana. the daughter of Hosi Fofoza. On the same day. rather than the community. e) The nature of governance in terms of living customary law i) Who makes living customary law? In one sense.’ But it would be a troubling precedent if it was understood to mean that living customary law is determined only by traditional authorities. But at the same time. Traditional institutions are an existing apparatus that the government can use for this purpose. the conflation of the promoting institution of traditional leadership with community development and service delivery. The argument that government is desperate: that in the absence of local government. and says: ‘as has been repeatedly emphasised by this and other courts. where all have citizenship. customary law is by its nature a constantly evolving system of law. ordinary rural people (and the organisations that represent them) are arguing that government is ‘throwing us away’ – they want to be part of the same democratic South Africa as everyone.

’ But in reality. as lawyers. without going into the detail of the fact that overthrows happened. they’ll relate historical accounts of how succession took place. let’s attempt to generalize as far as possible. such as subgroups and clan formations. This is how communities talk about themselves. so you have overlapping levels of authority. iii) Social organisation: bottom up. sometimes only men. We need to investigate the history. or headmen. so you have polycentric systems of social organization. succession battles are often won through contestation and political processes and maneuvering among community members. Even royal succession is hardly ever in fact strictly hereditary. Leadership can be hereditary. traditional communities are layered. but this is where generalization ends – these councils are variously constituted: sometimes only members of the royal family form part of the council. Some are quite hierarchical. So if we. We’ll now look at some of the themes and general principles which overarch the experience of traditional communities. and forms part of their own ‘self-identification’ or ‘selfimagination. typically in the case of kings / chiefs / headmen. in terms of trying to universalize the way in which traditional communities look. or can be elected. reciprocal and interdependent Generally.And so while it could be argued that the court does endorse the traditional authorities/royal family’s role. a complete. ii) Localised authority structures Ultimately the reality is that each community has a different form of leadership. etc. But bear in mind that these are always contingent upon the reality of a particular community. find ourselves presented with a set of circumstances where we need to figure out what the authority and governance structure of a community is. The reason it is often thought to be hereditary is that people often speak about it being so. Some have royal families. or a combination. Good lawyers do the research (and get experts who know the history and present of the community concerned) on a case-by-case basis. closed list of authority structures and norms surrounding traditional governance under living customary law is not possible. Of course. or other elders in the community. But in others you might have a headman (isibonda) at the top. We can generalize that traditional communities have councils. Each community must be individually “discovered. the court clearly also endorses the community’s role. ndabezitha.” in terms of its history and its present (in terms of the Shilubana test). Okoth-Ogendo describes this in the context of land administration: . and you might find a chief (nkosi. politics and lived reality of that particular community. some Eastern Cape headmen and community authority committees. kgosi) or king (silo. for example. we can’t just turn to textbooks. This clearly makes the TLGFA’s job very difficult. They are also nested. others don’t. If you ask people. or even a committee of numerous people. kgosi) at the apex. Having said that.

Guy observes that in pre-colonial times. It also ‘breaks down the dichotomy between chief and people – it not only unifies them but it also gives them equal weight. In exchange for this. as it captures well the ‘direct relation between power and numbers of people. dispute settlement and the maintenance of transit facilities.’ In other words. There was reciprocity. services and an army.” or “morena kemorena kabatho. the people received land. the middle the clan or lineage unit over grazing. hunting or redistribution of resources in space and time and between generations. that gives power and significance predominantly. protection and dispute resolution. through allegiance. where the bulk of the power is situated at the bottom tip of the triangle in the family. from the chief’s perspective. having lots of people adds to his domain and his role. even exclusively. assist them with rain-making. with the clan holding some of the intermediate power. . and the base the authority of the community or nation over a wide range of cross-cutting functions including territorial expansion and defence. maintain proper relations with the ancestors. But Okoth – Ogendo is talking about an inversion of that.and post-conquest eras. a feature of both pre. Jeff Guy says that this saying is critical. In the words of Peter Delius (2008): ‘Aside from their role in land allocation – which will be discussed in detail – chiefs were responsible for providing their subjects with defence from enemies and were also expected to help them in times of economic need.’ Here’s what that looks like visually. and the chief is not merely an individual independent actor – he is deeply dependent on his people. The typical conception sees a chief wielding significant power over the community. the a headman with slightly less power.’ In other words. the chief received people (ukukhonza means to give allegiance) who offered him their labour. the chief and his people are intricately connected. and then the family head. The tip of the pyramid represents the authority of the family unit over cultivation and residence. It counteracts the view. and the nation or tribe – where the chief is situated – having the diffused power. This speaks to the notion that “a chief is a chief by the people” – “inkosi yinkosi ngabantu. to the chieftainship.‘a social hierarchy in the nature of an inverted pyramid.” South African Historian. not as highly concentrated. The equal weight of the chief and his people is reflected in the reciprocal relationship between the two.

Subjects were expected to pay tribute to the chiefs in the form of a small proportion of the produce of the fields. This potential had previously been a very important check against despotism. had to obtain written permission.’ iv) Colonial and apartheid interference What colonialism essentially did was to reduce the amount of land available. to which one of the responses of the kraal head and the chief was [to] come down even more severely on the people over whom they now had a new authority – no longer a chief by the people. but a chief over the people. thus limiting the potential of people to revolt and move away. The shift from the personal to the territorial definition of chiefly authority is one of fundamental significance – but in spite of massive legal and political attempts to enforce it I am not sure that even today the notion that chiefly powers are personal ones has been eradicated. taxation and labour migration.’ Section 3(2) of the Natal and KwaZulu Codes made relocating to another chiefdom without prior permission an offence. not in personal terms: an attempt to regulate personal relations which I suspect has not been successfully imposed to this day. And so the balance was radically shifted. . Colonialism secured the chief’s benefits at the expense of ordinary people.punish witches and resolve difficult disputes in their courts. from a system of reciprocity to one in which chiefs had all the bargaining power. without implying any sense of rebellion against his leader’s rule. their herds and the hunt.’ ‘power based on people. had to be pr[o]scribed in colonial regimes.’ More on colonial interventions: ‘When the colonial powers imposed new provincial and international boundaries. but related developments by which homesteads were economically undermined by the loss of access to land. chiefs often became severe: ‘Any idea that “a chief was a chief by the people” was also vigorously dispelled and legitimacy was clearly established as coming from above. In the process. As Jeff Guy says. It is perhaps an idea that could be developed in a democratic regime in order to reinforce the principle that popular support is a feature of all political authority – including that of chiefs. and to provide labour when called upon for both military and productive purposes. the very essence of pre-conquest societies. Colonial administration sought to restrict chiefly authority by defining it in terms of territory and then limiting it to specific bounded wards.’ (Delius). … *and+ an individual wanting to move to another chiefdom. This legislative authoritarianism was exacerbated by the more general. the pre-standing reciprocity was utterly undermined by colonial and apartheid laws: ‘efforts to confine the chief’s power by defining his authority in territorial. Labour migration meant that homesteads often had too few hands on deck for subsistence farming. because those disaffected with a chief’s rule were prevented from leaving the chiefdom to settle elsewhere. and s 31(1)(m) of the Administrative Authorities Act 37 of 1984 (Ciskei) criminalised a traditional leader’s incitement or assistance in secession. the customary method for protesting against unpopular rulers – secession – was lost.

power and wealth depended on being able to build up a large following. and competition for authority by rivals. The pre-existing personal – rather than territorial – boundaries had provided for a degree of accountability. chiefdoms constantly fragmented and reformed as factions gained power. people were compelled to particular territorial domains. and chiefs were able to tax them heavily. it is nonetheless true that few rulers had an uncontested hold on power. v) The importance of opting in and out Instead of people being connected by the personal allegiances and relationships. As Bennett notes: ‘Regardless of the term used to describe an office of leadership. built up strength and subsequently lost control to other groups. because very few rulers were able to rule uncontested. … The key shortage was of people. The chief generally wouldn’t act without having consulted them by virtue of the fact that they let the chief now what the people were saying. Those who could offer material and military security as well as effective leadership gained followers.’ And as Delius notes: ‘A key characteristic of chiefdoms … was a profound tension between the forces of centralisation.So you can see that there was a definite legal orientation to banning the possibility of people seceding and forming new communities – a possibility that was so important prior to colonization.’ ‘Ultimately. revolt and secession were the only methods for forcing corrupt or incompetent leaders to bow to popular will or relinquish office. he has to take great care to cultivate goodwill and appease hostile factions. In the process they lost access to land. therefore. As a result. Thus. which allowed individuals to build up political and economic power. The availability of land made it relatively easy for groups to move between chiefdoms. If an office holder is constantly under threat of usurpation.’ Other mechanisms of accountability Another form of accountability was the existence of councils which represented. which undermines the depiction of these communities as tribes composed of culturally homogenous populations with clear social and geographic boundaries. There was thus a degree of insecurity for those in positions of power. capricious and incompetent lost followers [and army]. and the constant possibility of revolt and secession. however. through time. and spoke on behalf of the people. … This mobility also contributed to cultural heterogeneity. did not dictate to his subjects. The wise leader. that is. the option of opting in or out. Bennett (citing M W Prinsloo) describes how there were other more subtle accountability mechanisms – especially: . Political insecurity explains why an African ruler’s power could not have been absolute. Those who were harsh. Chiefs needed to attract and hold followers.

it ultimately ruled in favour of chiefly (and. a far cry from living customary law. The Court suggested that the ‘native mind’ is more suited to a less democratic process wherein the chief has full discretion to determine such matters. Rathibe v Reid 1927 AD 74: the Appellate Division described the chief as an ‘autocrat’ and found that while the chief was ‘guided by the advice and counsel of his legothle (council)…whether [he] is obliged to act on that advice is doubtful. Also. About two decades later. which ensured that the interests and opinions of commoners could not be easily ignored. people continued to contest the authority of traditional leaders and continued to express their right to have a say in decision making: . ultimately.’ (Delius) Chiefs acted consultatively with ‘community (men) in council’. we find a shift towards recognizing an ‘invented’ form of customary law. Whilst politically diverse. and others need not be consulted. chiefs’ powers (especially over land) were not thought to be autocratic: Hermansberg Mission Society v The Commissioner for Native Affairs and Darius Mogalie 1906 TS 135: held that the consent of all tribal people was not necessary but the unanimous consent of the headmen was sufficient to justify alienation. even though the court recognises that the community members expressed somewhat different views. the Governor-General) to expel 9 members of Bafokeng tribe was rationalised through the lens that ‘*t+he Government to-day has the power the old chiefs exercised’ – in terms of section 13 of Law 4 of 1887 (the predecessor to the Black Administration Act 1927).‘[v]arious councils of a tribe maintained a form of administrative control over the leader by means of a requirement that he consult with them before taking any major decisions … *and+ [b]ecause they gave voice to the popular will. they were the leader's most immediate link with his people. ‘vital to the social and political fabric of South African society were forms of chieftainship that contained key elements of both consultation and political competition.’ ‘Councillors were partly selected on the basis of popular support and achievement and/or representing significant subgroups. The question at issue then become whether or not the Governor-General. would. Mogale v Engelbrecht and Others 1907 TS 836: held that a chief must obtain the consent of a majority of his councilmen before he can sue on an issue related to the transfer of land. state) hegemony and unlimited power. Mokhatle & Others v Union Government (Minister of Native Affairs) 1926 AD 74: The decision by the Supreme Chief (that is.’ But. need the support of his councilmen and the permission of a court judgment in order to expel members of his tribe. despite this trend.’ (Delius) vi) Some cases In the early stages. as supreme chief. Therefore. in terms of ‘native law and custom’.

because certain minority groups could certainly claim to be a community sharing a common cultural and language heritage. saying that: ‘The right of the South African people as a whole to self-determination. does not preclude. but nothing approximating what we now know . which is appointed by the chief entirely at his will.’ Ukukhonza was a modest gift given to the chief. Rex v Magano and Madumo. 1924 TPD 129.Mandhlakayise Ngcobo v Chief Native Commissioner for Natal 1936 NPD 94: the court addresses the tribe’s dissatisfaction with its leader. doesn’t allow for subgroups to withdraw means that there is an argument to be made that this particular clause is not being given adequate recognition. brings a chief before the Bantu Commissioner for his failure to consult the headmen on matters which required their approval. We now move onto taxation power and the transformation that traditional authorities’ power to elicit funds underwent. provides for the right to self-determination. (Cf.’) Similarly. f) Taxation power i) Origins of taxation power Under pre-colonial indigenous law. a tribal community. viii) Constitutional protection Section 235 of the 1996 Constitution.’ Exactly how much of a right to self-determination is there? And. gifts were ‘voluntary. perhaps a share of the fruits of one’s produce. determined by national legislation. recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage. within the framework of this right. led by the chief’s councilmen. The fact that s 7. in Moepi v Minister for Bantu Administration and Development 1965 (1) SA 533 (T). read with s 28. This is especially so in the context of tribes which had nothing in common being forced together in the formation of a traditional community. as manifested in this Constitution. where court holds: ‘the natives have no say in the election of the council. does the TLGFA give adequate expression to it in terms of s 7? Or does s 7 constitute a limitation of the right to self-determination? Is this limitation legitimate? Sindiso thinks that s 7 does not give adequate expression to this clause. one component of which is the chief’s appointment of a principal induna without consulting the tribe. within a territorial entity in the Republic or in any other way.

in practice. Even though they were originally connected to the migrant labour system. The argument is that the form of taxation that we see in traditional communities isn’t derived from indigenous practice. a tax to finance the running costs of Bantu Authorities so “special rates” became “rates” that formed the source of ongoing funding for ‘tribal administration over multi-year timeframes. You would be given a signature after you paid your levy. and were also subject to approval by the Minister of Native Affairs. These were legislated ‘voluntrary levies’ that were supposed to be collected within a limited timeframe – they had to be gazetted and the timeframe during which they would be collected specified. iii) Implications for s 4 of the TLGFA . If you failed to pay you then couldn’t go and work. They were part of the reciprocal relationship we spoke of earlier – one would pay allegiance to the traditional authority. and were thus primarily attached to households earning an income in the formal economy. They had to be approved at a community meeting before they could be gazetted for collection. who would provide land and protection in return.’ By the 1980s these levies were very widespread. but rather from a process of legislation that occurred under apartheid. There has been a continuation of this in the present day: if people don’t pay their levies they may not receive an RDP house. the building of a school. The form that these levies take today has led some to question what relation they have to precolonial practices. The constitutionality of this is dubitable given that urban dwellers don’t have to pay levies in order to get onto the RDP housing list. Migrant labourers were the original target of a particular tax whereby your contract was renewed only if you had paid the levy to the chief. or the sinking of a well. As Aninka Claassens observes: ‘what began as voluntary contributions for specific agreed projects became.as annual levies and taxes. ii) Evolution and abuses of taxes The first step in this process was the government recognising a ‘special rate’ in the Black Administration Act of 1927. they became indiscriminately applied. and then only would you have permission to work wherever you migrant labour base was. to any household regardless of whether there was a migrant labourer in the household. They were also only for specific projects. for example the buying of land. or they may not receive a letter saying they’re a resident and may thus be denied an identity document.

They could also be deemed uncustomary. which some suggest they are. they could be unconstitutional in terms of s 43. NW and NC Acts) are voluntarily approved by the communities to pay them. should we really care about old practices and should we not focus on what people are doing now? Should we not simply observe these present practices (albeit that they were shaped by colonialism and apartheid) subject only to their conformity with the Bill of Rights? OK. North-West and Northern Cape Acts provide only for voluntary contributions). On top of this. there are relatively strict processes for delegation. such as the Eastern Cape. g) Indigenous v living customary law On hearing the historical evidence. how much room do the present laws like the TLGFA allow for people to reshape and develop their present practices either in accordance with . the fact that s 4 of the TLGFA and the Limpopo provincial Act don’t provide for the rigorous process by which taxes and levies can be approved.What are the implications of this history for section 4 of the TLGFA. On what basis can s 4 possibly recognise them if they are both unconstitutional and uncustomary? Where ‘voluntary contributions’ (as those mentioned in the EC. you might ask: of what relevance are these historical. when one isn’t allowed to bring their case to the traditional court if one’s levies aren’t up to date – tribal levies surely cannot be called voluntary contributions or donations. could make them unconstitutional. 104. and for the passing into law of taxes. as Shilubana emphasizes. the bodies recognised as having these powers are national and provincial government – the provincial government having the power to delegate to the local government sphere. then these could be a legitimate process if appropriate protections and accountability are in place so people are not compelled: ‘There is a long-standing practice of groups of African people agreeing to finance specific development projects by clubbing together to raise funds. So. Historically this was the primary mechanism that black people used to purchase land’. this could be considered part of living customary law. Voluntary contributions To the extent that the TLGFA and other subordinate acts provide for levies (the Limpopo Act specifically permits levying. which recognises the possibility of the accounting for levies by traditional councils? Where sanctions are imposed for noncompliance – for instance. is not just about traditions but also present circumstances. These sections speak about who has constitutionally recognised powers of taxation. documented under the 1913 Land Act … ‘(Claassens) To the extent that people practice this of their will. but apart from the fact that the Constitution says that part of its agenda is to reform society and to a large extent undo what was done in the past. whereas others. precolonial accounts? If living customary law. In summary. 226 – 230A and s 228(2)(b) of the Constitution.

in effect. ii) the establishment of Native Courts. This dated three-part policy was entrenched by apartheid legislation. Think of this as a recap. This policy embodied three institutional dimensions: i) the recognition of traditional leaders (Native administration). Race and Gender Research Unit This is a submission that was prepared by Sindiso in 2010. the Communal Land Rights Act (CLARA). I apologize profusely for repetition of what we did in lectures. given the post-1994 measures and legal provisions that. of which there is a fuckload (Sindiso clearly based some of her lectures on this submission). s 28(4) deems .’ This policy approach actually dates back to the 19th Century. In the context of the repeal. when Frederick Lugard articulated the policy of ‘indirect rule’. s 28(3) deems any tribe recognised before the Act to be a traditional community in terms of the Act.pre-colonial values and norms or with contemporary ones. However. on condition that they comply with the requirements in s 3(2) within a year of the Act’s commencement. we’ll find that these issues recur. and will deal with some of them in time to come. it is an inadequate step on its own. entrench and exacerbate the legacy of the Black Authorities Act (BAA) itself. because as we delve deeper into substantive issues. To conclude: all the issues that we’ve dealt with in terms of the TLGFA are things to keep in mind. The LRG welcomes the Bill as an important step in moving away from our apartheid past. We’ve covered some of these criticisms already. if they so choose? Do people have the ability to choose? The TLGFA does not allow people to choose whether they want to return to the pre-colonial system or whether they want to move to a new system and abandon their culture. i) The BAA and TLGFA Boundaries and Authority The TLGFA reasserts old boundaries that were established by the BAA. It does this by deeming the former traditional authorities to be traditional councils in terms of s 3. Government’s stated aim is to ‘institutionalise traditional leadership. iii) Native treasuries to which indigenous leaders collected taxes from their subjects. Section 28 (1) deems a traditional leader before the Act to be one in terms of the Act. or develop it into something much more in line with the values of the Constitution. they draw the attention of parliament to this set of measures and legal provisions. including the BAA. h) Prescribed reading: Parliamentary submission on the Black Authorities Act Repeal Bill’ by Dr Sindiso Mnisi of the Law. first of land and then of dispute resolution. and the Traditional Courts Bill (TCB). One of the core elements of the Constitution is allowing people to make these kinds of decisions and to allow people to participate in the process of determining whether or not they will preserve their culture as such. and is largely realized in the Traditional Leadership and Governance Framework Act (TLGFA).

Don’t be fooled into thinking that sections 2 and 3 allow for the continuation of traditional communities – s 28(5) categorically undermines this. Firstly. and thus be converted to tradititonal authorities. meaning that they ceased to exist even before the promulgation of the Amendment Act. That the traditional councils brought into being by the TLGFA are the same traditional authorities introduced by the BAA is uncontroversial. and that traditional leadership structures should no longer impose statutory taxes and levies. allowing for delegation to local government by the provincial level. provincial and local government. and the king/queen with official jurisdiction – the groups most likely to resist the application for independent recognition. It thus provides for the possibility that traditional councils will impose levies. and was recognised by the Constitutional Court in Tongoane. Section 7 requires that the whole community must apply to the Premier. that elected community authorities cease to exist and are rendered a non-option henceforth. and necessisitates consultation with the provincial house of traditional leaders. until 24 September 2011 – meaning that former traditional authorities have effectively become traditional councils. Two conclusions can be drawn. Tribal levies The White Paper on Traditional Leadership and Governance states that double taxation of people must be avoided. and s 28(5) states that any community authority established and in existence before the Act continues to exist until disestablished in terms of provincial legislation – which must happen within two years of the commencement of the Act. The TLGFA also doesn’t replicate the accountability . The latter point is very unfortunate given that such community authorities specifically resisted inclusion in traditional authorities whose authority they didn’t recognize. and that those communities which succeeded in gaining recognition as community authorities thereby gained refuge from violent forced removals. Sections 226 – 230A of the Constitution anticipates revenue being raised only by national. Secondly. These communities will now be automatically included under a traditional council that they still don’t recognize. Community authorities are at the additional disadvantage that only their disestablishment and integration into a traditional council is provided for in the Act. and it extended the existence of elected community authorities only until 24 September 2009. The mechanism for withdrawal of makes it virtually impossible for sub-groups to withdraw. in spite of the fact that the Constitution (in sections 43 and 104) vests powers of this kind in national and provincial government only. But in the TLGFA there is no provision outlawing such levies. Turning to the extensions granted by the TLGFA Amendment Act: it extended the transitional period for traditional authorities to comply with s 3(2) of the Act. but rather a detailed description of the auditing and reporting requirements for traditional leaders in s 4(2) and s 4(3) in terms of the gifts and levies they receive. that the traditional authorities established by the BAA do not in fact cease to exist but are converted into traditional councils.any tribal authority recognised before the Act to be a traditional council in terms of the Act – provided that it complies with the requirements in s 3(2) within one year of the commencement of the Act. Government has still failed to weed out illegitimate traditional leaders and boundaries created by apartheid but has failed to do so despite attempts such as the Ralushai and Nhlapo commissions.

as being double taxation – particularly burdensome in light of rural poverty and the desperate need for development rather than extortion. Remember that the Act was struck down in Tongoane. permitting a period with which to comply with s 3(2). although IEC ballot boxed were nevertheless used. many village members and organisations rejected the traditional elections through letters. Members of communities complain of this levying. Limpopo has enacted legislation explicitly allowing for traditional council levies. and particularly acutely felt in the case of rural women. and the degree of public participation in CLARA’s enactment and the determination of customary law. in KZN there were insufficient funds to hire the IEC to monitor the elections. many of the community meetings were not quorate. Failure to effect electoral procedures As mentioned. Northern Cape and Eastern Cape all ban levies. but were ignored. in North West the election process was supervised by the Provincial House of Traditional Leaders. Their levying powers must therefore be unconstitutional. but permit voluntary contributions and gifts. Authority and Extended Power CLARA uses the TLGFA’s boundaries and allows the traditional council to act as the land administration committee to operate in terms of community rules.procedure for traditional councils that as is required for provincial taxation by s 228(2)(b) of the Constitution for Money Bills. the North West. which is widespread. The court in Tongoane . The LRG has collected evidence of this. in King Williams Town. with three main findings: i) communities were unaware of the proclamation by the Premier of their status as a traditional community or that elections would be held. ii) The BAA and CLARA CLARA was enacted to provide for the exercise of the land administration function assigned in s 20(1)(b). Section 3(2) requires a change in their composition to incorporate 40% elected members. and to ensure that 30% are women. Boundaries. Amongst the provinces. Here we focus on concerns related to the legacy of the Black Authorities Act pertaining to traditional council boundaries. Elections held so far in the Eastern Cape. in terms of s 28(4) of the TLGFA the tribal authorities of old are deemed to be traditional councils. their ‘voluntary’ nature is debatable as they can become binding provided they are pursuant to a meeting and vote. KZN and North West have ben fundamentally flawed. and in some areas people weren’t allowed to nominate candidates and had to vote for candidates on a pre-determined list. However. authorities and their extended powers.

emphasising the importance of living law. The undemocratic process of CLARA’s promulgation should be seen within the context of the undemocratic policy move of basing the TGLFA on the BAA. it entrenches the fatal flaws imposed during colonialism and apartheid. and in tandem with the TLGFA entrenches the same contested BAA boundaries yet again. It also gives the most decision making power to institutions in which women have the most limited participation. and ignores the layered. freedom and public participation in our constitutional order. and not in traditional councils. But. This centralisation of power disadvantages women for three reasons: power is centralised in senior traditional leaders. Centralisation and Extension of Power Power is centralised to a ‘senior traditional leader. This is a distortion of customary practices on the ground. incluseive model of decision making concerning land. and finds that CLARA even extends the powers held by apartheid-established bodies of authority in relation to the administration of communal land. the vast majority of whom are men. At the same time. there are strong indications that decentralised power enables women to influence living customary law to a greater extent.’ meaning that the powers of an essentially undemocratic court are extended to permit oppressive sanctions such as fining. Denial of the Right to Choose . iii) The BAA and TCB This Traditional Courts Bill seeks to regulate the customary courts that operate in communal areas and bring them into line with the Constitution.recognizes. in keeping with the BAA. thereby perpetuating patterns of exclusion and oppression suffered by rural women under apartheid. It also doesn’t recognise customary courts at any level lower than the community-wide chief’s court. the Court reaffirms the recognition of customary law as a legitimate source of South African law in terms of the Constitution. CLARA runs counter to the customary law lived and developed by communities themselves. By permitting artificially formed structures which were centralised by apartheid.. which contain women more often. and thereby signifying the importance of the role of public participation in both the promulgation and implementation of legislation. The Court highlighted the significance of democracy. and is alarmed by the fact that boundaries and institutions are essentially the same as those that existed under apartheid. Lack of Public Paricipation The basis for the finding that CLARA was unconstitutional was that parliament had been excluded from playing the weighty role that the Constitution assigns them in the passing of legislation affecting their constituents. and failing to recognise the full range of traditional courts precludes strong women from emerging through participation in decentralised dispute resolution forums.

. not to appear in the court of the jurisdiction one is within. such as that a matter as serious as the cancellation of a land right be debated with the community at various levels. We probably wouldn’t get the Act for this question. 10 of her 40 marks will be pure theory from first semester. Here are two sample questions:7 Sample question 1 – Legal analysis (This would probably be a 10 mark question. Lack of Public Participation Given the importance of public participation recently articulated by the Constitutional Court in Tongoane it is evident that the TCB falls short of adherence. i) Exam practice What might exam questions from this particular section look like? Remember that Sindiso is responsible for two thirds of the exam. My reading of Sindiso’s approach to the exam is that there is quite broad L. Refer to any other provisions and laws that may seem relevant. retaining and forcibly subjecting rural people to the jurisdictional boundaries established by the BAA. Women and children are particularly adversely affected by these failings. it is simply unavoidable. Finally. The largest chunk will be a question bringing together law and policy. even for a passer-by. the powers given to traditional courts in the TCB override built-in indigenous protections. not only is the Bill at odds with the Constitution.T. but also drawing from living customary law. and require the endorsement of a general meeting.Choice is denied to people that wish to opt out of traditional court jurisdiction in sections 5(1) and 6 of the TCB.) Critically analyse section 2 of the TLGFA in light of the historical and contemporary controversies around the definition of ‘traditional community’: Section 2: (1) A community may be recognised as a traditional community if it (a) is subject to a system of traditional leadership in terms of that community’s customs. So. We must reason these things out in terms of some facts we’re provided with. 7 I apologise that these answers are a bit all over the place. It makes it an offence. (license to wank). The memorandum to the TCB states that in drafting the legislation the department consulted with traditional leaders – the people who make up the very institutions at issue – but not with ordinary people. and (b) observes a system of customary law.W. but it is also at odds with customary law. 10 will be an analysis of some legislation.

Section 7. and it should be ‘straightforwardly obvious’ that this is the focus of the question. They consider themselves an independent community who has always elected their own leaders (a committee of 12) and lives according to their own customs and law. Basically. Section 28(3) explicitly mentions s 2. limiting people’s ability to move.’ Not just in terms of meaning. Black Authorities Act 1951 – homelands (bantu/tribal authorities). . and that depending very much on: the commission process which is supposed to determine whether groupings are legitimate or illegitimate. The old boundaries are deemed to be the current boundaries. Based on these provisions and other relevant law. we should talk about: Section 2 and recognition. you failed this question. community authorities. more-or-less nullifying s 2’s plain meaning. which s 28(3) takes from the past and makes a current reality. about a ‘system of traditional leaders’ and associated issues. This chief is beginning to assert himself as their leader by imposing tribal levies and saying they must bring their cases to his court. Then pull this all together: ultimately. You are aware that sections 11 and 12 of the TLGFA deal with the appointment and removal of traditional leaders. Then turn to these issues: Section 28(3) – in terms of tribes of old becoming traditional communities of present. but also in terms of delineation – where does a community start and end? The controversy is in part about boundaries. Law and Policy (20 Mark question): A rural community in the former Transkei approaches you to advise them on what they can do about the fact that a traditional leader who they have never recognised as their own has been legally appointed over them and the village where they live falls under his jurisdiction. the 1913 Native Land Act. and the notions of opting in and opting out would be of only tangential relevance to this question. and how this process is incredibly slow. advise the community of Ndwendwe about what legal courses of action are open to them.The critical term here is ‘definition. s 2 is in many ways deceptive by virtue of the fact that there is all this very rich history. 8 Basically.8 Then the question becomes: what about communities that don’t conform to old boundaries? What about communities that are at odds about whether they constitute a single community or multiple communities merged into a single one under apartheid? That’s part of what the question is supposed to bring out. Sample Question 2 – Theory. and problematize the notion of ‘a system of customary law’. We must read s 2 in the light of s 28 – the transitional arrangement. Black Administration Act 1927 – mixing and matching. hence the reference to historical as well as contemporary controversies. if you failed to mention s 28(3) in this question.

in discussing living customary law. you must mention ss 211and 39(3) of the Constitution. This is clearly not in terms of living customary law as defined by the community. Sindiso says that “legally appointed” simply means that it took place in terms of s 11 of the TLGFA. because s 28(4) speaks about community authorities. This also requires some consideration of sections 2 and a 28(3). but if this question was in the same exam as question 1. meaning that this community may have been a community authority. . and remember that the Eastern Cape provincial legislation does not allow for election.” yet the question at least partly points us towards determining whether his appointment was lawful or not. although not all that much detail is required as it isn’t the focus of the question.Ensure that your answer includes arguments based on relevant provisions and legislation. Sections 11 and 12 deal with the appointment and removal of the traditional leader. You should start by picking out key terms.9 In discussing living customary law we might discuss how power is given from the family to the clan as we discussed previously in the upside down pyramid. you would only be expected to bring them up in passing. not that it was done properly. and the fact that they are to be disestablished. Anyway.’ and that if it isn’t in terms of customary law it should be referred to the house of traditional leaders. Elected leadership : section 11 regarding appointment. which speaks about voluntary contributions. and living customary law as you know it. Include references to knowledge gaps that exist and what evidence is necessary to fill them. Note that this is in the Eastern Cape. This is an important gap in our knowledge. as it’s assumed that you’ve dealt with them. while also considering the view that it recognises the role of the royal house. you might argue that the appointment is thus invalid. consideration of the Constitution (provisions and precedent). Draw on Shilubana to argue that there is strong support for community-based development of the law. It isn’t clear whether the law has ever recognised them as an independent community. The fact that tribal levies are questionable is something that we need to discuss. argument in terms of their own customs and law. Another thing to notice is the committee of twelve. Also. The disestablishment date has passed. Questions as to the lawfulness of the appointment remain relevant. and drawing from Shilubana. Those in bold above are what Sindiso though were key. It doesn’t explicitly prohibit levies. You basically need to ensure that your answer includes all of the following: (Independent) Community : are they a community authority? Recognition : as their own and legally appointed in terms of having jurisdiction. there is the argument that the TLGFA requires the appointment to made’ in terms of customary law. (refer to section 28(1) of TLGFA). Also. all the above was spoken about in discussion through points raised by members of the class. Removal : Do they have the power to have chief removed from over them under section 12? Imposing tribal levies : section 4 of the TLGFA and the Eastern Cape TLGA. and one of the big things in those sections is that they assume the existence of a royal family and hereditary succession. 9 You’ll note that there is some ambiguity in the question – we’re told that the traditional leader has been “legally appointed.

Wrap it up – challenging the law is a viable option. centralised model than you actually have in terms of living customary law. The legislation specifically dealing with land issues:  Communal Land Rights Act 11 of 2004 (CLARA) (no longer on the statute books after being struck down by the Constitutional Court). Benefit (sharing) – especially in the context of resources. Ensure that your answer includes arguments based on relevant provisions and legislation. As we noted in the context of the TLGFA. It’s fair to say that in terms of the land administration model.Bringing cases : Black Administration Act 1927 does not ban forum shopping (we will come to this in future sections). Aboriginal title. So this traditional leader does not have the authority to compel them under existing law to come to their court. and 10 6A in the course outline. . then he would have the authority to force them to come to his court. you also have a much more top-down. Who owns it? Who has control over of/authority over it? How is it distributed and administered? How is it regulated? Key terms: Property/Territory. Refer to knowledge gaps and evidence necessary to fill them. Administration. if the Traditional Courts Bill were to be in law at this stage. but sometimes errs to heavily on the side of traditional leaders as opposed to ordinary people. Titling. … and LCL. Surface (above the ground)/Extractive (below the land) rights. Rights/Authority. 2. including challenging the constitutionality of the TLGFA. But. Other relevant law : don’t forget the Constitution (provisions and precedent)! Advise the community of Ndwendwe about what legal courses of action are open to them. Communal/Individual. government is faced with a tough balance between conflicting interests. Land and Resource Management10 a) Introduction Here are some of the questions that are relevant with regards to land. as we’ll see. And so the question arises again whether it is not in fact ‘uncustomary’ the way in which land administration has been regulated. but was done second.

 Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA) (a very short Act.  Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) (dealing with who has rights to extract minerals). then they could do so accordingly. usually a chiefdom’(Delius). because once a household was given land it was theirs to administer. If you were not given enough land in an original allotment.Chiefs and lower level local political leaders (subchiefs and headmen) were the ones who assigned land in terms of what was to be used for residential. although all were entitled to land. It was open to all with livestock and there were no limits on the number of animals one could graze on the land. which was unfamiliar to them. If none was available in the area. arable and grazing purposes. and was thus not as tightly controlled or clearly allocated as farming land. If they decided to subdivide it because the family grew. in order to provide sustenance to their house. without individual ownership. In fact there is an overlaying of communal and individual entitlements in traditional landholding arrangements. b) Land tenure in pre-colonial societies The dichotomy between communal and private ownership is a false one. Even though land was in communal areas. The other misconception is that chiefs owned the land. So they had early land administration functions in this sense. Rights to land came with membership of ‘localised kinship or residential group that in turn was part of a political unit. You should remember that land administration is one of the areas in which government is supposed to provide a role for traditional councils or traditional leaders. . Grazing land formed the bulk of the chiefdom. and in a nominal sense was communally held. the local leader would approach the chief or council for land within the wider polity. There were definitely distinctions between men and women. Women who were in polygamous marriages received their own field to work. in terms of section 20(1) of TLGFA. The concept of trusteeship was used by colonists and courts to make sense of what they were seeing. as well as between family units and individuals. or were trustees of the land. Let’s deal with the big picture. but the only Act dealing substantively with the protection of land for people in customary areas. looking at what customary land rights look like on the ground. it was ultimately the land of the person who had been assigned that land. and then deal specifically with the legislation. additional household land was obtainable by approaching local leaders. and in that sense there was secure title. Only married men would traditionally have received homestead land. to a varying extent. then in the context of traditional governance. There’s a popular misconception that everybody owned the land in groups. CLARA was passed in accordance with this provision.

We spoke about the layered authority structures in living customary law as opposed to the TLGFA. Below are a number of brief quotations about how much power chiefs had in the context of land administration – all agreeing that the notion of chiefs owning all the land is absolute kak. If you found a piece of land you could just start farming it and claim possession of it. and whether there is in fact sufficient land. and then it scales up depending on the kind of property you’re dealing with. Chiefs who denied land to commoners or took land away ran the risk of losing followers’ support fast – thus limiting chiefly power of land administration. The onthe-ground experience does not conform to the typical conception. This is indicative of the vast amount of land that there was. Sometimes it was assigned by the family. than to descriptions of actual use’ (Chanock). or it was accessible to the tribe at large. ‘The chiefs’ ownership of land owed more to the need to oppose African and European concepts in order to render easier the seizing of African lands. sometimes by a local leader and sometimes a person could just independently choose land without seeking permission. Fields / farming land: used either by the family or by individuals. This land would be assigned by local leaders and then devolved by inheritance thereafter. Grazing / firewood / water etc. There were layered and overlapping land rights too (this list is in order of the strength of the rights): Residential / household land: occupied by the family. It was land that would be shared by individuals to different degrees. . then these would be overseen by the household head. thus making it easier to gain access to large tracts of land. In the Eastern Cape you would often not need to go to the chief. We see the same inverted triangle again in terms of land allocation at the different levels. It was demarcated and overseen by local leaders and the chief. This makes sense: if the chief is the one with the power to sell off and hand over land. This brings us back to the chiefs’ dependence on the community. If there were any divisions to be made. then the state doesn’t have to negotiate with anyone else except the chief. with individuals having overlapping rights even within the context of this land. Land could only be taken from households as punishment for witchcraft or revolt against the chief. Most of the land administration function is exercised at the family and clan level. land: this was accessible by either the ward or segment of the tribe. But now we see it in the context of land too.

which were then overseen by headmen.’ (Schapera) Chief’s jurisdiction over people and land ‘implies political overlordship (including small economic rights) not ownership in the European sense. it is difficult to conceive of as ownership in the sense that we use the term. KwaZulu-Natal had a policy of indirect rule. and the tribal authorities must see to it that their claims are gratuitously satisfied. With such overlapping rights. They were overseen by white magistrates. but this moved to a mixed system of indirect and direct rule in the Transkei. d) Union period The Black Administration Act 1927 introduced a homogenized system. So there were two distinct models of rule of traditional communities: the “Glen Grey model” in the Eastern Cape and the “Theophilus Shepstone model” in KZN. particularly those who were not recognized by the state. which paid no attention to the chiefly domains and boundaries which existed (fluid though they were). c) Colonial policy The initial approach in the 19th Century was to destroy chiefs’ authority over the land. ‘Ownership’ is a misnomer for either chief’s or people’s relationship to the land. These headmen were appointed by the administration. The land is the chief’s jurisdictional political territory. the model of indirect rule that Theophilus Shepstone developed. Remember from the first semester historical wankfest. who subdivided these areas into locations. There were magisterial districts which were imposed over these communities. But even those who were recognized by the state still depended on their communities for financial support in the form of tributes from . and were rarely actually customary headmen. it was colonial policies and rules that they had to give effect to. There was a policy of direct rule initially in the Eastern Cape. To some extent they were still dependent on ordinary people for legitimacy. envisioning chiefs as authoritarian rulers (subordinate to the ‘supreme chief’ Governor-General) and allowing them ‘to allot in a just manner land for arable and residential purposes’. and were given the authority to distribute and administer land. Ultimately. They were sometimes local commoners who the government felt they could trust. Chiefs now also had the pressure of wanting to allocate land.‘All members of the tribe are entitled to the use of as much of the land as they need.’ (Hunter) A large part of the problem is one of translation. Land shortages introduced by the 1913 Land Act exacerbated land administration problems. chiefs were formally incorporated into the land administration system of government. not his personal property. In this way. but wanting to do so in ways that would appease their people.

Proclamations 264 of 1939 and 116 of 1949 provided for betterment.migrants. They were preferred to the exclusion of younger married men. Land shortages placed strain on the reciprocal nature of the relationship between chief and people. whereas previously they would have had access to land. diversion banks. cancellation of allotments for arable and residential purposes. Women could only gain access to land through a relationship with a male. Now white officials had the central role of allotment. reclamation and rehabilitation: ‘demarcation of residential. but were addressed by attempting to win the support of white officials and experts. Corruption by chiefs was also made more possible by the system as they became the ones upon whose favour land depended. Under the 1936 Native Trust and Land Act. It also exacerbated internal political problems as succession disputes could no longer be resolved by mobility. What betterment ultimately looked like. Ultimately. The way this happened was to the detriment of women. headmen and other leaders effectively managing it. In the context of all of this it’s interesting that ‘communal tenure’ arrangements retained their flexibility and were ultimately the ones that were more secure. widows and single women were very rarely given land allocations. This is because rights are negotiable. Interventions continued. especially in reserves. and the idea that people can have overlapping rights in land makes it more possible to negotiate and accommodate and expand access for more people. the Native . fines and fees from court disputes. with chiefs. resulting in a situation where people lived on top of each other. determining size. relatives of chiefs. The people who had the most immediate access were the elders and older men. Male household heads’ rights were emphasized. Unmarried women were generally excluded. and headmen. f) Shifting power In the preceding period. and one of the most significant interventions regarding land was when the South African Native Trust (later dubbed the South African Development Trust) acquired more land (mostly in the Transvaal) aimed at addressing overcrowding and soil erosion problems in reserves. e) Rising land insecurity The system predictably became increasingly rigid as land pressures grew. was taking people. arable and grazing areas as well as various improvement measures including fencing. placing them in residential land far removed from their arable land. In this process. and they were the only ones who could gain access to land. as the chief was supposed to provide land in return for allegiance. white officials had exercised oversight of land tenure. contour banks and stock limitation’. and had to travel great distances to get to their arable land.

But soon the chiefs were regarded as an excess that was unnecessary. Initially. making them less dependent on their subjects in the process. This all fits into the discourse of independence too – throughout Africa countries were gaining independence. orders.’ So. even though people could still get residential sites. The power of chiefs was then supported by government. h) Bantu authorities and the establishment of homelands As you know.’ (Delius). notices and directions or prohibitions. chiefs became instruments of control over the black population. g) Re-shifting power You can see that we’ve gone from a situation of people having masses of land. were most insecure and suffered the highest degree of landlessness – over 50 per cent in areas of the Transkei and Transvaal’. In Delius’ words. . the mounting resistance that officials encountered in their attempts to implement “betterment” and “rehabilitation” led some to rethink the role of chiefs. ‘A tribal authority was defined as a chief-in-council. chiefs were still to be consulted. citing Cross).Commissioners’ had discretion to determine ‘rules. Those chiefs who resisted the ploy were replaced by those who would cooperate. they could fine a person for what they deemed to be an unreasonable failure to comply with an order they had made. and the notion of independent homelands fitted well with that international discourse and politics in a superficial sense. After the 1960s.’ They had quite extensive powers – for instance. to people having very little access to land. The Black Authorities Act of 1951 came to systematically incorporate chiefs into the administrative system. and the system became coercive. even though white officials had power. in order to ensure the constant supply of cheap labour in the white parts of the country. There were more revolts in the 1950s and 1960s which were violently crushed by state. The government was no longer interested in bearing primary responsibility for this land. ‘however. and a situation of extreme land scarcity. ‘Research conducted in the 1980s on “trust tenure” showed it to be a rigid and inflexible system under which residents had least control over land. (Delius. new residents could not get arable land. The number recognized was multiplied over time and their stipends increased. so-called “free” homelands. The end result of the so-called ‘betterment’ scheme was in fact gross dispossession of land. the massive resistance to this actually began to lead to a policy shift towards the establishment of Bantustans. Chiefs and headmen were marginalized. and land administration powers were given to colonial apartheid government officials and whoever in the black community would partner with them. and making them the primary form of administration in these areas.

if at all. The state was lending its coercive power in the form of policing and the army. The demarcation of tribal boundaries was essential to the establishment of Bantustans. The issuing of PTOs for residential and arable plots on trust land became the most pervasive form of title in traditional areas. their increased unaccountable power was leveraged by many chiefs to exercise increased control over land allocation. Groups who readily accepted the establishment of tribal authorities were often allocated land claimed by groups who had resisted the system. the concept of ownership does not fit well with pre-colonial property relations. and demanding a place in a democratic South Africa. where places like Bophutatswana (North-West Province today). Special ‘title’ was given in these areas under two forms of (un)customary tenure. however. Projectoriented community collected funds were often misappropriated and used to feed the bellies of chiefs. Gifts and bribes were increasingly imposed and demanded. whereas they were previously merely voluntary contributions. most of the people in rural areas were women and children and it was thus their labour on chief’s fields or homesteads which was often demanded. But at the same time. with the extensive unaccountable power of chiefs. Women’s groups were also involved in these struggles. 47(3)(a). 19(1). and was gazetted under s 2(2) and (3) of BAA 1951. give chiefs legal ownership of land. Young people organized into civics and rejected the older generation’s loyalty and passivity. Even though the BAA 1951 created tribal accounts for public spending.’ (Delius) The Black Authorities Act 1951 did not. One was quitrent. Lebowa and Gazankulu (Limpopo Province today) erupted. ‘Tribal authorities were ultimately established throughout the reserve and trust areas. This pervasive maladministration and corruption in the homelands eventually led to the well-known youths’ revolt in the 1980s. terminate or cancel quitrent title or appropriate the land. that is.giving them part of the responsibility for influx control. there were more abuses and greater demands on the time. Therefore. The Minister and his officials had the power to suspend. as per clause 5. And as we know. Some resistors found that when they finally agreed to the establishment of a tribal authority their domains had been substantially diminished. which literally refers to land that was tenured from government and could not be divided. it was a very insecure form of land. The other kind of title was ‘permission to occupy (PTOs)’. Minorities were the least protected.’ Because of the migrant labour system. these were poorly accounted for. determining who could and couldn’t exit the homelands and participate in the white economy. although the impact . in order to increase the power of chiefs. sold in portions or bequeathed by will. However. money and resources of their ‘subjects. rejecting tribal authority wholesale. i) Quitrent and Permission to Occupy Proclamation R188 of 1969 under the Black Administration Act 1927 and 1936 Native Trust and Land Act said ownership continued to vest in South African Native Trust and ‘all trust land in a district or area was placed under the control of the relevant Bantu Affairs commissioner’ who was required to consult with chief and headman.

Now we move to modern day. The summation of it is. it is the primary piece of legislation by which government aimed to give effect to s 25(6) of the Constitution. noted this). in terms of which people who were previously disadvantaged or had insecure tenure in terms of the law are supposed to be provided tenure security. at least in the High Court decision of Tongoane it was ultimately found substantively unconstitutional. i) Introducing CLARA Because it has been struck down. able to absorb changes and pressures coming from land shortages and decreased tenure security. But we will look at its basic elements which show part of why. The Proclamations have been done away with. so PTOs don’t officially exist anymore.’ This prioritizing of traditional leaders over the rights of decision-making at lower levels is a defining feature of this history. In all cases white officials were given formal control. It’s by virtue of the continuities which it has with the colonial and apartheid legislation that it is problematic (the Constitutional Court. although their power was often limited in practice. We’ll deal with this in more detail shortly. But people do still speak in these terms. although striking it down purely on procedural grounds. Nonetheless. as Delius points out.of these regulations on general administrative practice in customary areas was variable throughout the country. we won’t deal with it in great detail. it has two particularly problematic . j) General trends So that’s the historical background. and so this too was very insecure tenure. k) Communal Land Rights Act (CLARA) This Act has been struck down as unconstitutional. customary practices have proven very resilient – ‘communal tenure’ arrangements persist and have proven to be more flexible and therefore more secure than individualized arrangements. So that’s it for the historical shit. is that the government through its laws ‘exaggerated the role of chiefs and diminished the rights of lower levels of political authority and households. In a general sense. and some traditional authorities still issue PTO certificates. Chiefs retained their role in land allocation in many areas. Despite attempts by the legislature. but in some places and at some times headmen took over. The minister and his officials had the same powers in terms of PTOs as with quitrent.

and secondly. Then there was the Makuleke community. Instead the traditional council (the authority over the traditional community) is responsible for administering the land. This is the most pervasive complaint. it entrenched apartheid tribal boundaries. Layered land rights and decision-making power is a reality in most communities but was not recognized in the Act. The chief and headman of the Makgobi community in Tongoane were establishing a village on agricultural land. In the example of the Rakgwadi 11 community the village challenged the chief’s interference in land rights. actually subsume other types of landholding. This is an example of a clear contest about who has primary decision making authority in terms of how we use land and how we distribute it. which trump the rights held and exercised at lower levels. In fact. ii) 11 Basic provisions and critiques I couldn’t hear whether I got this name right. Content of land rights and the scope of chiefly power: here the issue is one of control and decisionmaking. contested the fact that in terms of customary law the traditional council has the right to administer the land. So that’s the big picture explaining why CLARA is shit. which the Act refers to as traditional communities. This problem is best illustrated with reference to some of the communities involved in Tongoane. who challenged the legislation on the basis of the question: “who is the tribe?” Is it the traditional community as defined by the TLGFA? Or does a sub-community constitute a tribe? If the traditional council has the right to administer the land at the macro-level. claiming that he had no right to interfere with land rights at the micro level and that land rights should be resolved at the local level and referred upwards only after the local council has considered and failed to resolve them. are now not able to administer their land. According to their customary law the administering of land happens at lower levels. what about the administration of the land of the subcommunity which regards itself as an independent community? The Makgobi community. whereas we know that that power is distributed throughout the system of social organization. Let’s elaborate. One of the communities that brought the case – the Kalkfontein community – was a multi-ethnic community of people who had inherited the land from their ancestors who had purchased it. it made traditional councils responsible for land admininistration and gave them the power to represent ‘the community’ as the owner of the land. the Act centralizes the power of tribes. . it concentrated administration of land at the highest strata of the community. Basically.aspects: firstly. This results in situations where people own land privately because they purchased or inherited it during the apartheid era (before blacks were no longer allowed to purchase land except as tribes). but she’s no longer talking about one of the communities in Tongoane. although agreeing that they were part of the same traditional community as their traditional council. and the community were not happy with this because they are farmers who dispute that the chief or headman can usurp family-held rights. which are key feature of tenure security). Specific key problems: Boundaries of community: what used to be referred to as tribes.

On this understanding. It then follows that lesser rights of use and enjoyment are conditional on grants by the “owner”. which is just absurd. even though community rules could be customary law. per the boundaries in TLGFA. From such a description. Attributing land rights to the family – the true primary possessor of land – is not provided for here. In practice. holds a plenary right out of which fractions of rights are given to others. One of the concerns with the land rights inquiry is that it would take forever. and which is constantly contested) or the individual (sections 4 and 5). or body of people. It assumes that community rules will be renegotiated and established by a land administration committee. This is of particular concern based on the fact that women make up 58% of people living in rural areas. traditional authority) might be the land administration committee (Section 21(2)) that will operate in terms of community rules (Section 19)). land rights can attribute to either the community (an artificial construct. and that traditional rulers grant individuals lesser interests from this plenary right. By permitting these centralised structures to make decisions about land rights in ‘communal’ areas at the macro level (Section 24(2)) it runs counter to practice.’ Indigenous land rights should rather be viewed as a ‘system of complementary interests held simultaneously’ . old order rights are distorted and were entrenched under apartheid. which again is a problem given single women’s lengthy disentitlement. Single women are not provided for. Do we really want to convert these into new order rights? In terms of the Act.The Act is based on the TLGFA boundaries. Studies have shown that women are able to participate more fully at the local level by virtue of the fact that it is less intimidating and more accessible. many women only have land rights insofar as they are embedded in the rights of the family. it is often said that “ownership” of land vests in the tribe. the traditional leader is a trustee and individuals have “usufructuary” or some similar limited right. When specific provision is made for women’s rights to land. It also hereby assigns the most decision-making power to structures in which women may have the most limited participation. So only these two entities could have land rights attributed to them. iii) The problem of a top-down ownership model Bennett speaks about the problem with a top-down approach to ownership: ‘*t+hose who begin an investigation of customary tenure with the assumption that ownership is a universal phenomenon … tend to represent the data as if one person. The Act requires that a land rights enquiry be performed that can convert ‘old order rights’ into ‘new order rights’ (sections 14 and 18). It permits that the traditional council (formerly. the Act anticipates married women (sections 4(2) and 18(4)(b)). but ultimately that committee would have the power to determine what the rules are. it seems as if the tribe has an “absolute” title. Also.

finding that the unconstitutional CLARA therefore extends powers held by apartheid-established bodies: ‘The Black Land Act and the Development Trust and Land Act.’ m) Tongoane – on living customary law The Court reaffirms the sentiments in its previous decisions wherein it has duly recognised customary law as a legitimate source of South African law in terms of the Constitution. because it doesn’t attempt to amend or repeal any existing customary law. and provincial consultation should have taken place.’ ‘Under apartheid. together with the regulations made under these statutes. Part of government’s argument was that the reason that it was passed under s 75 is that it doesn’t actually affect customary law. It also left a majority of them without legally secure tenure in land. However. some obiter dicta were made which render the decision of substantive importance. And as we noted in DVB Behuising. The Act was passed in terms of the incorrect and less cumbersome section 75 procedure. these steps were a necessary prelude to the assignment of African people to ethnically-based homelands. and consultation is required.l) Tongoane12 – basic findings in the Constitutional Court The Constitutional Court’s decision was reached on purely procedural grounds. and imposed boundaries and authorities. The National Council of Provinces has a more pronounced role. when in fact it was a s 76 Act. . Section 76 refers to shared competency. although that is indeed the prescribed case. … Section 5(1)(b) of the Black Administration Act became the most powerful tool to effect the removal of African people from ‘white’ South Africa into areas reserved for them under this Act and the Development Trust and Land Act. The latter statutes formed part of the colonial and apartheid legislative scheme for the control of African people.she said she does not expect us to know anything about the CC judgment that she hasn’t dealt with in lectures. Section 75 refers to national competency. and aapplies for issues that are of direct concern to the provinces. But the court observed that that would only be true if one were thinking of customary law in purely official terms. even though the outline prescribes the CC judgment. there is an existing system on the ground. 1951 (now the Black Authorities Act). The Act was passed according to s 75. In terms of living customary law. ‘[t]hese removals resulted in untold suffering. the traditional councils that TLGFA establishes are the very same old traditional authorities that existed under the Bantustan system which was formed on the back of forced removals.’ The forced removals of African people from the land which they occupied to the limited amount of land reserved for them by the apartheid state resulted in the majority of African people being dispossessed of their land. must be read together with the Black Administration Act and the Bantu Authorities Act. The Court says the presence of living customary law as a form of regulation on the ground does not constitute 12 We were accidentally given the High Court judgment in the reader. The unanimous Court explicitly acknowledges the continuous relationship between CLARA and the old apartheid structures imposed by the Black Authorities Act. In particular. instead of a section 76 procedure. which means that the National Assembly has primary say. The Court was alarmed by this troubling continuity. I spoke to Sindiso about this -.

I don’t know if it means it’s less important. record or codify indigenous law or represent an entirely new set of rules which replace the indigenous-law-based system of land administration.a legal vacuum – it must be acknowledged and treated with due respect. The assumption that people will be secure 13 From here until the section on IPILRA. There is at present a system of law that regulates the use. occupation and administration of communal land. and the base the authority of the community or nation over a wide range of cross-cutting functions including territorial expansion and defence. even if it is to be interfered with: ‘whether the community rules adopted under the provisions of CLARA replicate.’ In terms of this ethic. It therefore operates at two levels. This system also regulates the powers and functions of traditional leaders in relation to communal land. Okoth-Ogendo describes the structure as: ‘a social hierarchy in the nature of an inverted pyramid. It is this system which CLARA will repeal. but I’ve included stuff from the slides whether she said it or not.’ n) Living customary law on land13 We’ve spoken already about the inverted pyramid. . The tip of the pyramid represents the authority of the family unit over cultivation and residence. skipping out some of the stuff in the slides. the middle the clan or lineage unit over grazing. or whether she was just determined to get through a certain amount in the lecture. and we’ve seen the difference between the typical conception and the lived reality in which most authority in land matters lies with the family at the most local level.’ i) Indigenous social land ethic Catherine Cross refers to what she calls ‘the indigenous social land ethic which structures the social values attaching to land. land is perceived by vernacular groupings as reflecting both a relationship between people and a means of production. It is a mistake to assume – as development ‘experts’ often do with regards to ‘tenure security’ – that ‘security’ is exclusively about ‘production’. hunting or redistribution of resources in space and time and between generations. dispute settlement and the maintenance of transit facilities.’ ‘the field that CLARA now seeks to cover is not unoccupied. Of land administration. Sindiso went at rocket speed. but without adding anything to them. the result is the same: a substantial impact on the indigenous law that regulates communal land in a particular community. replace or amend.

Relationships between them provide the main basis upon which security is obtained. reeds. People understand security at the local level in terms of relationships between themselves as people. This should remind you about what we’ve spoken about in terms of communal land areas. I don’t have time to read it. arable land for fields and gardens. then it is only because they produce that you survive. The principles of return obligation: if anyone’s need increases. land can be requested for return or enlargement so that no one accumulates large holdings while others are in need. 14 But surely even the relationships upon which people base strategies for survival must be centred around production. shares life. such as decreased land security and increased poverty.because they produce misses the point. ‘Principles Sustaining Possession of Land’ 4. This is a very communal element. and access to firewood. I chatted to Sindiso about this. clay and other resources. with a means of obtaining. and therefore shares resources. and boundaries are flexible. where there was no individualized title over land. water. People with a growing need have a claim against those with a surplus. . and supports others. If you don’t produce and instead form relationships with others. The land ethic recognises the prior right of settlers. One is part of a community. Cross catalogues the principles that define the living customary law land ethic: ‘Principles Providing General Access to Land’: 1.’ You can see how taking care of the poor would be an essential element of dealing with and adapting to changing circumstances.14 Cross says African groupings arrange land rights along strong relational lines and their relationships form the foundation for their strategies of survival. being the areas where people had the most tenure security. 3. and therefore to share labour. and thus ‘communal tenure’ tended to be more ‘tenure secure’ than individualisation of property. social life and ceremonies etc. The principle of use priority – those without land can make a claim on those with more land than they need or can use. no? You must produce in order to eat. Universal access to land – all families have a claim on the community for land. The fact that land is the predominant customary property form is precisely because of its significance to producing one’s subsistence. 5. the principle is that you have to share. The principle of social exchange: this is the mutual obligation to support the common good. Access to the resources necessary for subsistence: a suitable building site. Basically. as well as in terms of production. food. One can see how this supports the prevention of poverty by providing those without. and her response was to put the Catherine Cross article on Vula. fallow for grazing. Cross writes: ‘Research suggests that the indigenous land right is built on a set of principles that balance off providing land to the landless against upholding possession by landholding families and limiting conditions of access and transfer. 2. and also the community’s obligation to the poor.

The principle of pyramiding claims: the household head’s holding of rights in land are subject to the obligations and title of relatives. If the person comes from elsewhere. 9. that person might end up using it for generations. and one might buy some alcohol for neighbours to ‘enjoy because of him/them’ 5. to get approval. They can then build their home and must conform to the local codes. generally. if a family is not using the excess land presently. wives. ii) Mechanics of the allocation process In current practice. Approach the local headman or some other elected person. the loan may be explicitly temporary in order to avoid it becoming permanently transferred. If their request is successful. even when loaning land to another family. ‘Principles Limiting Access to and Transfer of Land’ 7. . 8. He will tell them that they will need approval of the neighbours. 3. means not renting so much land/for so long as to run risk of losing it). The principle of settlement seniority: those who settled first will have larger landholdings than later-arriving groups.6. In such a case. Therefore. they may need a ‘removal’ certificate (showing that they did not leave because of bad things they had done in their prior neighbourhood). Tender ‘ukukhonza’ (maybe R150) to the chief. Later-arrivers can gain seniority through prolonged residence and thus more land and leadership. This may be paid in kind. 2. the land will slowly become permanent and is thus transferred. headmen or traditional council.’ This includes future heirs. the headman and neighbours go ‘to place’ the person in their new site and mark off its boundaries. 4. if an individual or family wants a place to live in a certain traditional area. In order to get approval from the neighbours: the headman calls a neighbours’ meeting to enquire into whether they approve of the person’s being placed in their locality. and allows one to hold onto land not presently in use for that future residential purpose (in light of prior principles. One can see here that there is a layering of rights. For example. This is exactly what makes the concept of title so difficult in these communities. dispossession is subject to consultation with those holding overlapping rights. A family’s occupation of land may also be subject to another family from whom they got the land to use. If you think in terms of the fact that sometimes under these prior principles people might loan land to someone in need. they may need to protect the land not currently in use for future purposes. heirs. but will have four children who will also have needs in the land. The principle of descent-group or household line continuity : the family otherwise ‘maintains the full right to use their land to ensure the continuity of their family line. Occupancy transfer – after lengthy occupation or use under loan. with their supporting person. Approach someone they know in the locality / ward (usually a family member or friend) who helps them scout out a site and is prepared to vouch for them. in which case title is basically transferred. and they provide community leadership. they do the following: 1.

but that does not mean that they do not also attempt to use flexibility and stability to their own benefit (and sometimes successfully). are consistent with this fundamental value that is being given broader expression. This is because existing systems. breakdowns in administrative systems. citing Jeff Peires) . in part a negative consequence of fluidity and adaptability: ‘Contemporary case studies suggest that many occupants of communal land enjoy de facto tenure security. Land that has been allocated is then generally secure. except by election to leave the area permanently or commit a severe offence. iv) Socio-political pressures There are a multitude of challenges to rural land rights justice well. iii) Adaptable norms Cross concludes: ‘Without providing general co-ownership of land.’ In other words. (Cousins) They are adaptable both ways – in both a positive and negative sense. these tenures offer a basis for either common property rights or different forms of individual property rights under community supervision. But these systems are under severe strain as a result of in-migration. Women rarely form part of the category of those who do have such means and power. informal individualisation. overcrowding. It’s very much a process of getting approval from the neighbours and community. They can be responsively amended to meet circumstances and the needs of the community as they arise. work reasonably well on a day-to-day basis. abuses by some traditional leaders.’ (Ben Cousins. the primary principle that families need land to establish an independent base for their livelihood is still widely upheld. Ben Cousins has written about the relative stability of land rights secured in terms of living customary law values and observes that recent developments in relation to single women being allocated land rights (initially only women with children). but also individually held rights. and the rights of the landholders not to be dispossessed similarly so. Scholars therefore recognise that these land rights and authority systems are ‘relatively stable. and lack of clarity over the role of traditional authorities and local government bodies. many of them now informal in character. the continued insecurity of many women. More than that. [but] also flexible and negotiable’.It’s important to note that this is not a process of simply going to the authority and getting permission. but can also permit self-interested distortion and abuse by those who have the means and power to achieve it. ‘communal’ systems do not only recognise communal property rights.

puts pressure on. this after a year of systematic destruction of its most arable land. and with the police ready to make their move. “This aggressive violation by the mining company is the latest development in a week of hostile action against the community on its remaining land. This is being turned into ‘ukuthenga’ (a sale fee. sometimes in the region of R4000) in some places and becomes a source of conflict afterwards. A protest in the area led to 47 violent arrests. in the Sekuruwe community (a case the LRC is currently working on). .” However. Lack of consultation is often a problem. vi) The case of Sekuruwe Dec 9. We’ve spoken previously about ‘ukukhonza’ (an allegiance fee which is around R50-R150). the above model exists with. “The community has repeatedly stated that they did NOT give consent for Anglo Platinum to use their land. and call the police to arrest anyone who attempts to go onto their land to protect their crops. and their respective laws. company bulldozers destroyed the Sekuruwe's last remaining farmland. Of course. for a short time it looked like Sekuruwe would be able to claim a well-earned victory.Even where the apartheid model of land administration has taken root. and the villagers could do nothing but stand by and watch. Unfortunately. and asking for payment in the thousands. After protesting for days on end. also Sekuruwe land. For example. 2009 – In the face of mounting protests. There are cases of forced removals from land for extractive industry or commercial development reasons. what little they had left since their land rights were handed over to the company last year. the R2500 is nothing in comparison to the return that Angloplat is getting. Anglo Platinum proceeded to destroy the community's fields. Despite repeated requests and demands that Anglo Platinum stop working on their land until the dispute is settled. a group of 200 villagers forced Anglo Platinum to scurry behind their fenced-off encampment.” says Jubilee South Africa in a recent press statement. defying top-down notions of law and authority. those tears dried up. Tensions between communities and their leaders here are only worsened by poor development planning at in the midst of tensions between traditional authorities and local government. for which he is being paid R2500 a year. The community is being forcibly removed. by the time the Bulldozers arrived on December 3. and is challenged by customary ways. the gravesites were removed after the chief struck a deal with Angloplat. The move surely brought tears of joy to the protesters. on December 3rd. v) Abuses Peires and Cousins mention the ‘abuses by some traditional leaders … and lack of clarity over the role of traditional authorities …’ One of the biggest problems that exist is that of traditional leaders selling off land that does not belong to them.

ii) Section 1: Definitions 1. which took autonomy and decision making power away from communities themselves.Another interesting case in the news at the moment involves a community in KZN who applied for an interdict against their chief on the basis that he was selling off plots of land of which they claim ownership. as envisioned in section 25(6) of the Constitution. (note that it is not ownership. o) Interim Protection of Informal Land Rights Act 51 of 1998 (IPILRA) i) Context of provisions IPILRA is a piece of inter legislation passed in terms of sections 25(6) and 25(9) of the Constitution. but was abandoned in the TLGFA. This definition has been used in a lot of the land reform legislation. subject to the introduction of CLARA. It provides for a mechanism that holds the minister (and by extension. It was intended to be a temporary means of legislation. (iii) "informal right to land" means – . Four families applied and they were granted the interdict. use or access) in land. So these are a representations of the fact that these issues are very much alive. (1) In this Act. the Department of Land Affairs / Rural Development and Land Reform) to account by making sure that people (especially those on SADT land) are treated as owners of the land and are duly consulted in any major decisions regarding the disposal of land or deprivation of their rights (of occupation. but as if owner). without force. openly and without the permission of the registered owner. Its intention is to ensure a basic level of protection for people. (ii) "community" means any group or portion of a group of persons whose rights to land are derived from shared rules determining access to land held in common by such group.  Note that the definition of ‘community’ allows for the subgroups to constitute communities. unless the context indicates otherwise –  (i) "beneficial occupation" means the occupation of land by a person. Now they will apply for review of the department’s decision to award the land to the chief in the first place. as if he or she is the owner.

 (iii) "informal right to land" means – …  (b) the right or interest in land of a beneficiary under a trust arrangement in terms of which the trustee is a body or functionary established or appointed by or under an Act of Parliament or the holder of a public office  (c) beneficial occupation of land for a continuous period of not less than five years prior to 31 December 1997. KwaNdebele. and most tribes deposit resources earned from land. 1936 (Act No. the holder of a right mentioned in Schedule 1 or 2 of the Upgrading of Land Tenure Rights Act (ULTRA). usage or administrative practice in a particular area or community. (bb) the government of any area for which a legislative assembly was established in terms of the Self-Governing Territories Constitution Act. 112 of 1991). Subsection (c) is a catch-all provision. 1991 (Act No. although he or she is not formally recorded in a register of land rights as the holder of the right in question. 21 of 1971). Subsection (d) refers to people who may be eligible for ULTRA upgrading)  (iii) "informal right to land" means – …   but does not include – (e) any right or interest of a tenant. or  (d) the use or occupation by any person of an erf as if he or she is in respect of that erf.  (cc) areas completed process. Gazankulu etc. 1971 (Act No. where the land in question at any time vested in – (aa) the South African Development Trust established by section 4 of the Development Trust and Land Act. sharecropper or employee if such right or interest is purely of a contractual nature (this avoids overlap with ESTA) (f) any right or interest based purely on temporary permission granted by the owner or lawful occupier of the land in question. Subsection (b) would include. Venda and Ciskei. on the basis that such permission may at  . for example. into ITB. customary or indigenous law or practice of a tribe (basically. or (cc) the governments of the former Republics of Transkei. … *nominally independent homelands+ (the distinction between bb and cc. Much tribal land there is registered under. occupation of. 18 of 1936).g. although that process was initialized). the Ingonyama Trust Board (ITB) in KZN. living customary law) (ii) the custom.  (bb) incl. areas that initialised process to homeland status e. or access to land in terms of (various categories) (i) any tribal. Bophuthatswana.(a) the use of. is that bb categories did not actually become homelands. KaNgwane. labour tenant.

 (iv) "Minister" means the Minister of Land Affairs. This is clearly a piece of legislation which very robustly sees subgroups as able to distinguish themselves from the macro community. (deprivation) (3) Where the deprivation of a right in land in terms of subsection (2) is caused by a disposal of the land or a right in land by the community. be deprived of such land or right in land in accordance with the custom and usage of that community. The Act is not actually limited to former homelands. the community shall pay appropriate compensation to any person who is deprived of an informal right to land as a result of such disposal. Remember that the community would never have a basis upon which to take away one’s residential land. 1975 (Act No. For example. a person may. as IPILRA rights also apply on privately owned land as long as it excludes (e) and (f). no person may be deprived of any informal right to land without his or her consent. a person might lose their land rights by virtue of the fact that the community has decided. and (b) any part of a tribe living and existing as a separate entity. or any other law which provides for the expropriation of land or rights in land. (This is the most important section. but they would have grounds upon which to take away a person’s rights to grazing . iii) Section 2: Deprivation of informal rights to land 2. Section 2(2) had in mind the taking of land by the community iteslf. The most important thing to note about IPILRA is the fact that it provides that no person may be deprived of an informal right to land without his or her consent. 63 of 1975). and the provisions of the Expropriation Act.  (vii) "tribe” includes – (a) any community living and existing like a tribe. the Minister of Rural Development and Land Reform.  (v) "person" includes a community or a part thereof. in terms of their own customary law. and thereby avoids overlap with ESTA and PIE.any time be withdrawn by such owner or lawful occupier (this avoids overlap with PIE). (1) Subject to the provisions of subsection (4).  (vi) "prescribed" means prescribed by or under this Act. that they might reassign certain land for other purposes. and s 2(3) speaks about disposal. So s 2(2) speaks about deprivation. Today. A person can be a ‘juristic’ person in the form of a community or subgroup. subject to subsection (4). and is subject to s 4) (2) Where land is held on a communal basis.

The process refers specifically to ‘any such right’ – this refers to the right at issue in the context of the deprivation or disposal. and. Section 2(4) provides for the process that the rest of subsection 2 anticipates. is that the decision must be taken by the majority of the holders. What it says about consultation in particular. once in the meeting. or allowing for the building of a shopping mall.This is the process by which consent is given. who purports to sell the land. That qualification is simply the process or terms upon which one could lose their rights. It is also qualified to include only those who are present at the meeting. either by selling it. what it speaks to is the fact that. The section tries to prioritize the rights of communities. That constitutes a case of someone generating an income for themselves. to speak and have one’s voice heard. For example. the custom and usage of the community is now replaced by this section. regardless of what the process would otherwise have been. whereas s 2(2) does not. But that would have to be for the purposes of another’s livelihood. This reasonable opportunity has two elements: to attend the meeting. if one is getting rid of land to an outsider. It reads: (4) For the purposes of this section the custom and usage of a community shall be deemed to include the principle that a decision to dispose of any such right may only be taken by a majority of the holders of such rights present or represented at a meeting convened for the purpose of considering such disposal and of which they have been given sufficient notice. If there is more than one right at issue. This is essentially because s 2(2) aims to allow for redistribution of land by the community. which provides a qualification. including sub-communities. it also means determining how the meeting was actually convened. Note that determining who is present at the meeting isn’t entirely straightforward. Consequently. and ensure their self-determination both as individuals and groups. Basically. and only if the majority of the holders of rights agree to the disposal. Remember that section 2(1). all relevant rights holders are always to be consulted. and in which they have had a reasonable opportunity to participate.land and potentially even arable land. iv) Section 3: sales and other dispositions subject to informal rights . and they should have to compensate the people who have lost their informal right to land as a result of that disposal. and that it must have been one in which people have been provided with a reasonable opportunity to participate. Section 2(3) provides for compensation. This is a qualified majority in the sense that it is of those who actually hold the right. Sometimes you have a person who does not have access rights in the communal land in question. The subsection prescribes that it must have been a meeting specifically convened for the consideration of the deprivation or disposal. firstly. So you’ll see that the remedy available in s 2(2) is distinct from that in s 2(3). which indicates that people may not lose their informal rights without their consent. Section 2(3) is concerned with when one is disposing of land for income-generating purposes. then presumably all such rights are to be considered. is subject to section 2(4). The purported seller would be acting blatantly illegally because only the legal owner can enter into the agreement.

in the sense that there are a number of different forms of land rights in the context of customary law and the indigenous social land ethic.3. except that we have a situation here where a person doesn’t have a lease. Subject to the provisions of section 2. and inherited over generations. By saying that s 3 is subject to s 2. nor use rights. Neither occupation. are communal rights in the . Occupation rights are stronger than use and access rights. The different rights reflect different degrees of entitlement. This is similar to the common-law ‘lease before sale’ principle. They provide for a very detailed process and form that has to be filled out. although there are internal departmental directives that exist in terms of IPILRA. which deals with disposal of land subject to compensation. vi) Occupation. only to last for a year. use and access rights Section 1 (a) of IPILRA refers to occupation. There’s a lack of clarity here. It provides for people who don’t have a pre-existing formal right or prior permission to inhabit the property. by referring to section 2 it is mostly referring specifically to s 2(3). and all three are somewhat different in nature. Another thing to note about IPILRA is that it was initially passed only as an interim solution. The fundamental difference between the three is generally recognised in customary law. any sale or other disposition of any land shall be subject to any existing informal rights to that land. Similarly. v) Section 4: Regulations 4. Remember Catherine Cross speaking about the fact that ‘communal’ land is a misnomer. it seems clear that it’s talking about disposal. The Minister may make regulations regarding all matters which are necessary or expedient to be prescribed in order to achieve the objects of this Act. use rights are also often passed down. What does disposition in this context mean as opposed to disposal? The likely interpretation is that because s 2(2) is specifically limited to community-held land. The minister has not made any regulations. But it has been repeatedly renewed every year that permanent legislation hasn’t been introduced. But then the section goes on to include any other disposition of any land. use and access rights. Occupation rights to residential sites are de facto owned by the inhabiting family.

that s 2(4) speaks about the majority of holders of ‘such rights’ but doesn’t actually distinguish between the kinds of rights. which are treated differently from access rights. All customary systems provide strong specific protection for occupation and use rights.’ Section 5(1):‘This Act binds all persons.’ So any person who has people with informal rights on his or her land is subject to this provision. which is why it does not require compensation for the person – or community or part thereof – who loses their access to land. then those people have a claim on the community to obtain some of the generally available land. Generally this is taken from “access land” with shared resources – for example. use or access)? Does one consider the specific locale too? Does it mean within a particular area. Occupation rights are prioritised (as a birthright of community members. Any action by the legal owner of land to dispose of communal land is unlawful if taken without such majority consent given at a properly constituted meeting. . the degrees of entitlement. even in communal areas. grazing. This is seen to be interests of the entire community. any rights in addition to those which he or she holds in that land. firewood. Another weakness about s 2(4) is it’s imprecision about ‘such rights’? What kinds of rights (i. Compensation would make it prohibitively expensive and thwart the purpose of extreme poverty prevention. occupation. But in others it will be less so. especially in cases of disagreement. including the State. So this is one of the deficiencies in IPILRA. and in fulfilment of the customary entitlement of community members to residential sites. because of the overlap of community boundaries. This is arguably what section 2(2) envisions. but should also reflect in the process in which to solicit communal consent in terms of s 2(4). or does it refer to a wider terrain? How exactly is that area demarcated for that particular decision? In some cases it’ll be quite straightforward. This is a built-in principle in customary law. The decision to dispose of communal land can be taken only by the ‘majority of the holders of such rights present or represented at a meeting’.strict sense. that occupants should have a stronger say than those with mere access. vii) Conditions for the disposal of communal land Section 1(2)(a): ‘This Act shall not confer on the holder of a real right to land. and to fulfil basic needs) thus communal land sometimes has to be sacrificed where insufficient residential land is available to meet needs of growing populations. If people have insufficient residential land.e. Section 2(1) therefore appropriately requires consent for disposal for categories of informal land rights. water land.

. Ultimate rights holders. This is in light of the definition of ‘person’ being so broadly defined as to include ‘a community or part thereof. are individuals. This is exacerbated by the fact that community members are unaware of the Act and the steps that can be taken to enforce their rights. the male head of which might symbolically hold the right.’ Section 2(4)’s provision for ‘majority of holders of such rights’ to consent does not specify when ‘person’ (in section 2(2) or (3)) should mean individuals and when it should mean groups. The Department of Rural Development and Land Reform sometimes endorses sales or disposals without obtaining the consent of the rights holders themselves. This is a problem insofar as it’s unclear whether it refers to individuals or groups. and we’re only going to look at a few elements of it. more importantly. viii) Implementation IPILRA is unfortunately not being properly enforced. This is supposed to alleviate that pressure: one doesn’t have to go door to door to everybody and consult them individually.Section 2(4) of IPILRA attempts to streamline the process. But this is unlikely to happen. but they form part of families. through the lens of the Bengwenyama case. clans etc. Regulations and. Publicising and chairing the meeting are thus crucial details to whether or not the process of consent-seeking satisfies the IPILRA requirements. Section 2(1) is imprecise about who should give consent. given that the government’s present focus is on a replacement for CLARA now that it’s been struck down. whose rights are often embedded. . but merely hold an appropriate meeting and obtain majority consent. A constitutional reading would lead to a view that it should be individuals themselves (because rights holdings should be perceived as disaggregated for the sake of consent seeking) who have the reasonable opportunity to participate and receive sufficient notice to attend the meeting. A more serious problem exists where vulnerable rights holders are sometimes dispossessed by local structures or traditional authorities . more public education are needed. p) Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) i) Background This is a long and detailed Act. One of the major concerns of investment companies is that they don’t want to invest in rural areas because of the major burden of consultation.

Reaffirming the State’s commitment to guaranteeing security of tenure in respect of prospecting and mining operations. which removed that arrangement.” This brings us back to the decision-making quandary.Note that in section 1(2)(b) of IPILRA: ‘The holder of an informal right in land shall be deemed to be an owner of land for the purposes of section 42 of the Minerals Act. after the Bengwenyama case. The principal Act was amended by Act 49 of 2008 (assented to by President in April 2009). produced a “Strategy for African Mining”. the MPRDA came along. Emphasising the need to create an internationally competitive and efficient administrative and regulatory regime. after IPILRA came into being. But then there is the question – what about the ordinary people? The African Charter talks about the rights of peoples – what about their rights to the land? iii) Section 1: Definitions . However. the owner of land was the owner of both surface rights and extractive rights. This was intended to secure the mineral rights of people living in informal areas – also see Alexkor. Industry and Energy Division of the World Bank. The Mining Unit. which said that domestic mining codes should – “*c+learly specify the ownership of mineral resources (for example national or provincial ownership) and vest a single authority with the power to grant exploration and mining rights. This means that there is a desire to centralize the authority to make those decisions. 50 of 1991). 1991 (Act No.’ Under the Minerals Act. Recognising the need to promote local and rural development and social upliftment of communities affected by mining. If companies have to go to every individual to obtain consent. ii) Preamble Selected aspects of the preamble: Acknowledging that South Africa’s mineral and petroleum resources belong to the nation and that the State is the custodian thereof. Reaffirming the State’s commitment to reform to bring about equitable access to South Africa’s mineral and petroleum resources. vesting the right to grant mineral rights in the state. Being committed to eradicating all forms of discriminatory practices in the mineral and petroleum industries. it is inefficient and discourages foreign direct investment.

negotiations or consultations with the community is required. 1973. (c) a juristic person. or (ii) is a subsidiary. in relation to(a) land(i) means the person in whose name the land is registered. disadvantaged by unfair discrimination before the Constitution took effect. a majority of whose members are persons contemplated in paragraph (a). the community shall include the members or part of the community directly affect (sic) by mining on land occupied by such members or part of the community. The underlined parts were included by amendment. category of persons or community. which have rights. where as a consequence of the provisions of this act. as a juristic person who is a historically disadvantaged person by virtue of the provisions of paragraph (c)(i). or (b) the sea. so this wasn’t the definition when Bengwenyama was decided. “'owner'.“'community means a group of historically disadvantaged persons with interest or rights in a particular area of land on which the members have or exercise communal rights in terms of an agreement.” As we know. or (ii) if it is land owned by the State. as defined in section 1(e) of the Companies Act. and deserve direct consultation when those rights are affected. “'historically disadvantaged person' means (a) any person. custom or law: Provided that.” The typical traditional community we’re talking about would be comprised of such people. What this definition does. means the State. which –   (i) is managed and controlled by a person contemplated in paragraph (a) and that the persons collectively or as a group own and control a majority of the issued share capital or members’ interest. and are able to control the majority of the members’ vote. this is a central and often problematic concept. (b) any association. other than an association. means the State together with the occupant thereof. is actually recognize that the community may actually have sub-components. ” iv) Section 2: Stated objectives  (a) recognize the internationally accepted right of the State to exercise sovereignty over all Mineral and Petroleum Resources within the Republic .

is supposed to avoid situations such as in Sekuruwe. including women and communities. norms and standards while promoting economic and social development. prospecting right. mining right. and as we see the money should go into state revenue. (3) The Minister must ensure the sustainable development of South Africa's mineral and petroleum resources within a framework of national environmental policy. permission to remove. (4) The State royalty must be determined and levied by the Minister of Finance in terms of an Act of Parliament. the ongoing case in which the chief is pocketing R2500 a year. It is supposed to ensure that wider society benefits. and (b) in consultation with the Minister of Finance. mining permit. Is it expropriation? There is. v) Section 3: State custodianship Section 3(1) ‘Mineral and petroleum resources are the common heritage of all the people of South Africa and the State is the custodian thereof for the benefit of all South Africans’ (acknowledged in Bengwenyama) Section 3(2) ‘As the custodian of the nation's mineral and petroleum resources. to enter into and actively participate in the mineral and petroleum industries and to benefit from the exploitation of the nation's mineral and petroleum resources. This Act.’ So the State is given extensive powers in terms of this section.’  ‘(i) ensure that holders of mining and production rights contribute towards the socioeconomic development of the areas in which they are operating. prescribe and levy. in principle. technical co-operation permit.  (d) substantially and meaningfully expand opportunities for historically disadvantaged persons. the State. The Mineral and Petroleum Royalties Act has also been passed. control. because the community itself should have been consulted. exploration right and production right. To grant the State custodianship. This is clearly contrary to the objectives of the Act.’ Consider Sekuruwe. may(a) grant. legitimate objectives again. acting through the Minister. administer and manage any reconnaissance permission. that is. reconnaissance permit. It has been argued that the Act is framed in such a way that it could be taken to apply . which says that the royalties on the profits that the miner makes are paid to the state. refuse.  (c)to promote equitable access to nation's MPRs to all people of SA. issue. as you can see in subsections (3) and (4). in terms of its express objectives. retention permit. any fee payable in terms of this Act.

The court also notes the ‘profoundly unequal impact our legal history of control of and access to the richness and diversity of this country’s mineral resources and how that impacted on the allocation and distribution of wealth and economic power’. q) Bengwenyama Minerals (Pty) Ltd. and Others v Genorah Resources [2010] ZACC 2615 In this case a community had previously been deprived of formal title to land ‘by racially discriminatory laws’. that the legislation’s objectives are legitimate. These are the things the court comes back to in speaking about entitlements and limitations that exist under the MPRDA.Genorah . without the community even being informed.more broadly than just mining.e. because: 15 This is Sindiso’s dealing of the case in class – see below for a summary. the people who occupy the land obtain the first rights to prospect there – i. The court said this was unacceptable.’ The court says. the community applied for a prospecting right through its company but was denied preference. allowing the state to oversee whether the distribution of access to mining rights is fair. community ownership of land. It also speaks of equality. even if those rights are only surface rights. The court comes back to this repeatedly: prospecting rights affect the rights of landowners significantly. Dispossession of land aggravated the situation. The MPRDA’s repeated commitment to social and economic development is therefore a legitimate one. The MPRDA provisions have a material impact on each of the levels referred to.got prospecting rights on the land. Another corporation . especially ‘provisions giving preference in the consideration of applications for prospecting rights to historically disadvantaged persons and to communities who wish to prospect on communal land. This is a necessary protective mechanism. the enjoyment of all rights and freedoms. to the mere extraction of sand or stone. the people who occupy the land have a preferential right. The court recognizes that ‘there is no denying that past mining legislation and the general history of racial discrimination in this country prevented black people from acquiring access to mineral resources. with a focus on ‘substantive equality’. namely. The court comments specifically on the ‘invasive nature of a prospecting right’ on the ordinary use and enjoyment of property by its owners. Anyway. both in terms of the Act. therefore. . In this case. and the empowerment of previously disadvantaged people to gain access to mineral resources. This is the standard sort of community that we’ve been dealing with in this course.’ The MPRDA says that although the state is custodian. individual ownership of land. that’s really just a side note. It speaks about the ‘effect of past racial discrimination on the ownership of land’ because we can’t really disaggregate ownership of land from the rights to grant prospecting and mining permission. and the Constitution.

Prospecting rights may only be exercised under state authority or permission. It must contain a record of the public participation undertaken and the results thereof.’ Thus. but means more than mere asking the community’s view. The court then draws a distinction between the common law position where the contract was between the owner and the prospector. c. d. resources or skills tro do so). and says that under the Act. The Minister must approve the plan within 120 days of its lodgement if it complies with the necessary requirements. and a strong emphasis on both socioeconomic and environmental impact. Court finds that: a. ‘The environmental management plan must be submitted to the Regional Manager …. and making the necessary accommodations. Owners of land may acquire prospecting rights on their own land if they wish to do so (of course.’ So you see here the consultation requirement included. again emphasizing the state’s custodianship. even if the owners are restricted to surface use. most communities will not have the means. b. It cannot be established that there was procedural fairness if the consultation and the result are inconsistent with these prescriptions. if what lies below does not belong to the landowner but somehow resides in the custody of the state. Amongst other requirements the plan must investigate.‘Act is to give effect to the environmental rights in the Constitution by ensuring that mineral and petroleum resources are developed in an orderly and ecologically sustainable manner while promoting justifiable social and economic development. This is so irrespective of whether one regards a landowner’s right as ownership of its surface and what is beneath it “in all the fullness that the common law allows”. land owners must be consulted at various levels of the process. the old (unamended) section 5(4)(c) precluded prospecting and mining without notification and consultation with the landowner or lawful occupier of land. or as use only of its surface. Thus. Third parties seeking prospecting rights must engage with the owner of land before acquiring the right. The court understands consultation not to mean consent. assess and evaluate the impact of the proposed prospecting operation on the environment and the socio-economic conditions of any person who might be directly affected by the prospecting operation.’ In this regard. consultation is required. The court says that the Act makes provision for compensation to the community in certain circumstances (section 54). so consultation becomes central. In terms of practical consequences. then in terms of section 16(4)(b) – the regional manager is to “notify the applicant in writing … to notify in writing and consult with the land owner . Where a community denied the person who has been given the prospecting right access suffers a loss in the process. The court says: ‘It is not difficult to see why: the granting and execution of a prospecting right represents a grave and considerable invasion of the use and enjoyment of the land on which the prospecting is to happen. exercise of prospecting rights highly invasive owner’s use. It means to act in good faith to meet the community’s needs.

This is an IPILRA-like consultation in term s 2(4) of that Act. It failed to comply with this set of requirements. It is only where a prospecting right has already been granted on communal land that the preferent right may not be granted. whether he on behalf of the Community supported its application or not. not only land. requiring the state to foster conditions enabling access to land on equitable basis. The court says: ‘Essentially its purported compliance with the consultation requirements of the Act consisted of notifying the Kgoshi of the Community of its application before lodging it with the Regional Manager and leaving a prescribed form for him to indicate. custom or law.” If the regional manager. … despite receiving a letter from the Kgoshi … inviting Genorah to get to know each other better. by ticking a box on the form. concludes that the owner or occupier has suffered or is likely to suffer loss or damage as a result of the reconnaissance. It seems to me that these provisions of the Act create a special category of right for these communities in addition to their right as owners of the land. he or she must request the parties concerned to endeavour to reach an agreement for the payment of compensation. to the extent provided by an Act of parliament either to tenure which is legally secure. it has been amended and specifically says that for the purposes of consultation those with affected rights must be consulted. after having considered the issues raised by the holder and any written representations by the owner or lawful occupier. the court repeats: ‘the exercise of prospecting rights is highly invasive of the use by owners of their land even if only in relation to surface use. …’ This is why Genorah was not compliant. Again.or lawful occupier and any other affected party and submit the result of the consultation within 30 days from the date of the notice. namely to apply for a preferent right to prospect on their land. which recognizes the public interest in reforms to bring about equitable access to all South Africa’s natural resources. or to comparable redress. Section 104 of the Act makes provision for a community to obtain a preferent right to prospect on community land for an initial period not exceeding five years that can be renewed for further periods not exceeding five years. The Act gives recognition to these constitutional imperatives: ‘It recognises communities with rights or interests in community land in terms of agreement. What should consultation look like? Consultation in terms of s 1 includes: The applicant must ‘(b) inform the landowner in sufficient detail of what the prospecting operation will entail on the land. prospecting or mining operation.’ This does not constitute consultation in terms of the MPRDA. A community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled. in order for the landowner to assess what impact the prospecting will have on the landowner’s use of the land. Genorah did nothing further.’ and must ‘(c) consult with the landowner with a view to reach an agreement to the satisfaction of both parties in regard to the impact of the proposed prospecting operation.’ Then the court speaks about Section 25 of the Constitution. . The form was never signed by the Kgoshi. Since Bengwenyama.

In doing so it recognised a ‘special relationship to land.The court makes a great deal of the fact that the community is able to lodge this prospecting right. Ownership ensures that indigenous peoples engage with the state and third parties as active stakeholders rather than as passive beneficiaries. It therefore leaves the door open a little bit for a case to be brought in the form of a direct challenge to the legislation demanding that ownership of land includes ownership of minerals. as it also requires . and requires robust consultation with communities. the threshold is especially stringent in favour of indigenous peoples. particularly with regard to their enjoyment of “property rights” in order to safeguard their physical and cultural survival’. The Endorois decision. which includes consent. as well as their communal concept of ownership. This. But it doesn’t take much imagination to see how that might actually be challenged on the grounds that people who owned land prior to apartheid and lost it under apartheid now get their land back without the mineral rights. in consultation with such people and their neighbouring peoples. There is a difference in the extent of consultation required in the Endorois case and in Bengwenyama. is unequivocal: [t]he jurisprudence under international law bestows the right to ownership rather than mere access.’ which is to be legally recognised as ownership rather than mere access. indigenous peoples would remain vulnerable to further violations/dispossession by the State or third parties. This title must be recognised and respected not only in practice but also in law … In order to obtain such title. the territory traditionally used and occupied by the members … must first be delimited and demarcated. Even though Alexkor recognises customary tenure as legitimate ownership. The African Commission notes that if international law were to grant access only.’ ‘members of indigenous and tribal peoples must obtain title to their territory in order to guarantee its permanent use and enjoyment.’ As we’ve noted the Commission speaks of consultation as requiring consent: ‘*i+n terms of consultation. The commission also held that the protection of indigenous peoples’ property rights extended to tribal people. on the other hand. That would surely be questionable in terms of s 25 of the Constitution’s requirement of comparable redress. Bengwenyama does not recognise the right of ownership of land as including mineral ownership. Sindiso says. In coming to this conclusion it drew on Article 21 of the American Convention on Human Rights in order to interpret Article 14 of the African Charter. r) Regional and international law In the African Commission “Endorois case” (276 / 2003 – Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya) the commission said: ‘members of indigenous and tribal communities require special measures that guarantee the full exercise of their rights. is a potential challenge to the MPRDA which she is waiting to see come to court.

and therefore ownership must be ownership in the full common law sense.that consent be accorded’ (emphasis in original text). The Community and Bengwenyama Minerals launched review proceedings which failed in both the High Court and the SCA and thus it came to the CC. there was no response to these objections and Genorah’s application for prospecting rights was accepted by the Department. It’s a pretty weak formulation when compared with the robust consent argued for by the Commission. The application. This is unlike Bengwenyama which does not interpret the requirement of ‘consultation’ to include ‘consent’ but instead to constitute ‘engaging in a good faith attempt to reach accommodation’ – that is. What if the African Commission were presented with a minerals case that was challenging a statute such as the MPRDA? Sindiso thinks it would probably find that the legislation was inconsistent with international law on the basis that consultation must be required to mean consent. ‘accommodation of sorts … in respect of the impact on the landowner’s right to use his land’. In December 2004. Kgoshi. the Department made no mention of the fact that prospecting rights on the farms had already been awarded to Genorah. In May 2006. after initially being rejected was finally accepted by the department as proper. Bengwenyama Minerals v Genorah Resources [2010] ZACC 26 Genorah (respondent) sought prospecting rights over the property which members of the Bengwenyama Community owned and on which they resided. finding that an internal appeal in the circumstances was not precluded. wrote a letter to the Department stating his approval of Bengwenyama Minerals acting on behalf of the Community. The bottom line is that there are questions remaining. Delay Both the SCA and the HC had found that the review application was brought out of time based on the 180-day requirement in section 7(1)(a) of the PAJA. What if CC were presented with MPRDA challenge on basis of inequality. the Community lodged objections in writing to the Department against the granting of applications for prospecting. However. but in terms of the past? Sindiso thinks they might very well decide that its unconstitutional. but that remains to be seen. the traditional leader of the community. . not in terms of the present. Internal Appeal Froneman disagrees with the HC and SCA. The community was only given notice three months after the prospecting rights were granted to Genorah. Despite continuing exchanges between the community and Bengwenyama Minerals and the Department. on the grounds that they wanted to be accommodated meaningfully in the prospecting and mining projects. Bengwenyama Minerals pursued its own application for prospecting rights in writing to the Department.

emphasises the objects of the MPRDA. setting aside the department’s decision to grant a prospecting right to Genorah in respect of the Community’s land. On the facts. Right to a hearing. the need to protect the rights of landowners. which requires that prospecting will not result in unacceptable pollution. with meaningful participation. Froneman J focuses on this right to hearing in the judgment particularly with regard to the need to protect individual and community property rights. will ensure that the constitutional recognition of customary law is complied with. Froneman held that the section 17(1)(c) of the Act.section 104 Section 104 of MPRDA gives a community a pre-emptive right to prospect on community land. This is why the notice requirement above (section 3) ensures participation and consent by the community to the prospecting group. The section is protected by procedural fairness requirements under section 3 of PAJA.The Constitutional Court held that the 180-day limit began later. a) Prescribed reading: Ben Cousins ‘Characterising “communal” tenure: nested systems and flexible boundaries’ . had not been complied with and therefore constituted a valid ground of review. He also noted the importance of protecting landowners under customary law and held that the consultative process. and prevent discrimination. He condemns the department for taking 4 months to respond and generally for its treatment of the community in failing to accommodate them. Froneman J finds that the Department failed in their duty to inform the community which resulted in the disentitlement of the Community of its section 104 rights. Environmental Issue Further. Simply notifying Kgoshi and giving him a form to tick was inadequate. Froneman J. but Froneman J is particularly concerned with the implementation of the consultation requirement which he said is not a mere formality but must be a good faith attempt to accommodate the community. Community Consultation Froneman J endorses the value of a consultative process in that it balances the interests if those applying for prospecting rights with that of the landowners. He is particularly appreciative of Bengwenyama Minerals and the Community’s conduct during this process. The MPRDA deals with the content of the requirements of procedural fairness. ensure participation in the alienation of these rights. the community’s disadvantaged status and the inequality of the parties. allowing communities to make informed decisions with regard to their properties and seeking to accommodate them insofar as their right to use their property is interfered with. ecological degradation or damage to the environment. Order The court upheld the appeal.

The challenge for tenure reform legislation is to give appropriate recognition to the nature of such rights. State policy sought to retain a form of ‘communal’ land tenure because this appeared in the interests of the dominant classes. and helped communities resist exploitation – it was thus often actively defended. provided one respected the ethical code of the group. like Gluckman. Some. there was a close relationship between features of social and political organisation and principles of land tenure.’ Colonial and apartheid rule brought the imposition of new forms of authority and economic organistion. and women’s land rights were heavily circumscribed. as well as the subordination of indigenous forms. The creation of African reserves allowed for the creation of a system of indirect rule in which traditional leaders undertook low-cost local administration on behalf of the colonial state. Land was both ‘communal’ and ‘individual’ and can be seen as ‘a system of complementary interests held simultaneously. Secure (individual) rights to land and natural resources derive largely from accepted membership of a local community or group. assert that these rights were vested in individuals and arose from membership of society. The retention of ‘communal’ land tenure in colonial and apartheid rule was intended to underpin cheap labour policies and the cost-effective control of rural populations. like Biebuyck. All members of a group had rights of access to land.i) The general character of ‘communal’ land tenure systems in Southern Africa Anthropologists in the early to mid-20th century attempted to identify the general features of African land tenure in the pre-colonial era. elders or councils. but bore little relation to the pre-colonial system. despite state intervention and control. land-based livelihoods. which also underpins de facto tenure systems that emerge in informal settlements in urban areas. land was essential for livelihood. There has been a trend towards higher levels of individualization.’ The principles underlying this ethic ‘offer a basis for either common property rights or different forms of individual property rights under community supervision. the size of allotments were set. derived generally from membership of the group. But it also widened access to independent. land was ‘vested in groups’ represented by chiefs. ii) Where do land rights derive from? The source of land rights in pre-colonial property systems is controversial. Contemporary studies generally characterise land tenure as being simultaneously ‘communal’ and ‘individual’ in character. Others. Cross suggests that contemporary communal tenure systems refer back to an ‘indigenous social land ethic. and there was often a mythical association between ancestors and land.’ The most basic principle is of universal access to land. Individual security was great. land rights remain socially embedded. involving ‘complementary interests held simultaneously’ by members of groups. but had little exchange value. . but not an abandonment of the ethic. Therefore. Biebuyck presents a summary of their views: land was plentiful and exploitation of resources extensive. Rights to transfer were limited. Yet others describe land rights as deriving from ‘allocations’ by chiefs acting as ‘owners’ of the land in a trusteeship role. argue that rights were ‘vested’ in the group.

But high population densities in communal areas have led to a widespread shortage of arable land. others see it as an administrative procedure to ensure fair distribution. legal interventions. iii) Security of individual rights to land within ‘communal systems Early anthropological literature emphasizes the strength and security of individual rights to residential and arable land within ‘communal tenure’ systems but also describes a variety of social obligations that constrain these rights. Tenure reform must simultaneously provide greater certainty over land rights in the face of threats to these . emphasizing chiefly allocation as the source of rights. in most cases leaders do no more than ‘approve a transfer between existing landholders. Sale of land became widespread in some areas but elsewhere remained repugnant. The imposition of colonial rule saw many changes in land tenure: increased scarcity. new ideologies of inheritance and economic co-operation.’ The land allocation powers of traditional leadership and the nature of land rights are central issues in the constitutional challenge to CLARA.’ Some regard it as deriving from an authority structure. has been heavily criticized by many. because of the fact that existing. the general trend in southern Africa was towards ‘adaptation’ of customary land tenure to meet new conditions of land shortage. and we’ll return to them. and large scale resettlement. in particular. of the meaning of the term ‘allocation. the older anthropological literature emphasizes the security of individual rights against arbitrary decisions by socio-political authorities acting as land administrators. is a not only a power but a duty. and in many areas sharecropping and lending of arable land takes place.The latter view. new markets and demand for good quality land. In Contemporary studies. Because most land has today been allocated. single women with children to support are also allocated land. Chanock argues that this feudal model of rights in land flowing downward from the chief fitted well with British ways of thinking about states and societies. Under apartheid. Male heads of families were given arable land without restrictions on size. In general. and how much land they are to be given. In some communities. Contemporary studies basically show that many occupants of communal land enjoy de facto tenure security. rights to residential and arable plots are usually portrayed as being held by households with married men at their head. including the extensive powers given to officials to appropriate land and cancel quitrent titles and PTOs. including Chanock. But he could never sell it. Although it varies regionally. hire it out or dispose of it for money. although in some areas sales to outsiders clearly do take place. The principle that families need land to establish an independent base for their livelihoods is still widely upheld. the security of individual rights within ‘communal’ systems was weakened in several ways. Bennett regards the powers of deciding where subjects live. The underlying principle that land cannot be bought or sold is still strongly articulated by residents in many communal areas. Contemporary literature also contains contrasting characterizations of the source of land rights and. informal systems work well on a day-to-day basis. and often only residential land is now allocated.

Each ‘house’ had its own property in the form of dwellings. The colonial and apartheid periods saw a sharp decline in tenure security of women as PTOs and quitrent titles were issued only to men. Production was family based. regulation and repression. are inappropriate in many communal areas. and with control came a host of social obligations to these groups. overcrowding. individualisation. with a clear but flexible division of labour. These massive displacements altered the social composition of rural communities and affected the security of individual land rights in a variety of ways.. Once she turned over her soil. A common feature in polygynous marriages is the division of a homestead into ‘houses’ founded by different wives. and recognise the local variations in the definitions of rights and duties. Tenure reform must: seek to secure the land rights of both original rights holders and subsequent occupiers. Widows generally retain rights of access to the land of their deceased husbands.systems (in-migration. but only through their fathers or other male relatives. The legacy of colonial and apartheid policies is that women today are generally disadvantaged in access to resources and in control over them. In many cases. iv) Insecurity of land rights do to forced removals There are cases where individual rights are not secure within group systems as a result of South Africa’s history of state intervention. but clear tensions of land rights have emerged strongly since 1994. although they can be . Some communities accommodated the victims of forced removals. cultivation was primarily the responsibility of women. Among the amaPondo of the Eastern Cape. v) Women’s land rights Land was generally controlled by families in large extended households. Today. The underlying (registered) titles are sometimes held by different ‘owners’ and some farms are subject to competing restitution claims. abuse by traditional leaders). the underlying land rights of the original purchasers can’t be upgraded without placing the land rights of others in jeopardy. fields etc. and these rights were inherited by her youngest son upon her death. land in areas which were occupied by groups of diverse origin and identity is held under different versions of ‘communal tenure’. Case studies illustrate that simplistic notions of homogenous ‘communities’ with clearly defined social and territorial boundaries. livestock. and under the accepted authority of traditional leadership. she had an exclusive right to cultivate that field. Women’s rights to land were embedded in a social context of family rights and obligations. In some situations. and address the legacy of forced tribal jurisdictions and give groups a choice as to which administrative authority they fall under. Most of the victims of forced removals found themselves in homelands. Often the original rightsholders and later arrivals stood together in attempts to resist removals. and these were generally inherited by children born to the house. no matter how long she left it fallow. unmarried women with children to support can be allocated land.

Existing definitions of the rights of women to land need to be transformed in accordance with the constitutional principle of gender equality. The challenge to tenure reform policy is to provide workable definitions of social and resource use boundaries that take account of their flexibility and negotiability. land administration was nested in . A major problem in many rural areas is the unauthorised exploitation of common property resources by outsiders. and in some places are expected to return to their original families. In the Tswana system. and access to land is of particular importance to them. Boundaries of common property resource use are a critical issue when attempting to define a ‘community’. Awareness of constitutional rights to gender equality has led to recognition of the rights of widows and unmarried women in some communities. A lack of clarity on these rights makes it difficult for communities to assert their claim. In Pondoland. The majority of the population in areas under ‘communal’ tenure are women. Marriage is on the decline and single women are increasingly applying for land allocation. HIV/AIDS is impacting on the security of women’s land rights through a lack of strong and clear inheritance rights.vulnerable to eviction. and usually include access to natural resources from the commons. Rights of access to common property resources were an important component of ‘communal’ tenure regimes throughout the colonial and apartheid periods. in particular by entrepreneurs able to transport large quantities of natural resources. vi) Common property resources A key feature of pre-colonial tenure was the right of access to common property resources such as grazing. According Sansom and Gluckman. There is a strong case for tenure reforms that strengthen women’s rights. Contemporary studies reveal that rights of access to common property resources are still important for rural livelihoods in many areas. such as quitrent areas. Shared commonage areas remained vital. nested or layered within one another. in many cases. the acquisition of rights to residential and arable land was highly decentralized and extended upwards from the household. minor disputes were dealt with at the local level but could move upwards if not resolved. vii) Nested systems of land administration Many studies describe pre-colonial land administration functions being undertaken at different levels of authority. even where attempts were made to impose individualised forms of land rights. water and a variety of other natural resources. although the extent of this is uneven.

the degree of their control over land rights. various forms of communal tenure were found where people purchased farms in order to secure land rights. depends on: the degree of external support provided to traditional leaders by the state. the paramountcy and headmen over political control. and the ineffectiveness of local government. and at the lowest level were estates of production where households used resources to subsist. whereas others claim it is underpinned by insecurity and fear of punitive action.’ The Black Authorities Act 1951 established often authoritarian tribal authorities. and despite colonial attempts to centralize decision making. In the late 19th and 20th centuries. as this will undermine the involvement of rights-holders in local decision-making on land.’ an indication of the authority of traditional structures (khonza). Tenure reform laws and policy need to acknowledge the nested and layered character of land administration in ‘communal’ systems. Some argue that the support for traditional leaders is central to rural identity. Contemporary case studies show that land administration remains spatially and institutionally nested. and often the chief merely ratifies allocations which take place at this. but strictly controlled by the governor-general as ‘supreme chief. allocation of residential and arable land tends to happen at a local level. and the imposition of indirect rule impacted on these nested systems and the balance of power within them. registered and sold under the administration of a committee. including land being divided. seen as ‘chief’s dues. sometimes under the supervision of a committee. although many studies also show community resentment of abuses of power by traditional authorities in relation to land. The imposition of colonial rule. Ultimately the power wielded by traditional leaders and the popular support they enjoy. or an administrative fee. Measures designed to limit the power of chiefs resulted in an ongoing struggle between state. Land allocation to outsiders is often subject to a fee of some kind. In terms of the Native Administration Act 1927 Africans were governed in terms of custom.terms of a set of estates: the chief controlled the entire tribal territory. sub-chiefs and district heads controlled secondary estates of administration. viii) Support for traditional leaders’ role in land administration Most contemporary studies show that the majority of people would prefer traditional leaders to continue to play key roles in the operation of land tenure systems. and lower levels. Regulation of common property use varies. The level of sub-chiefs and headmen play a crucial role in dispute resolution and regulating the use of common property. The challenge to tenure reform policy is to underwrite increased security of land rights with accountable structures for the administration of land – the democratisation of land administration is central to this. ix) Theorising patterns of continuity and change . and not focus merely on chieftaincy.

African societies were deeply affected by the imposition of colonial rule in southern Africa. A number of processes and adaptations occurred, including: a greater stress on individual and family rights; a stress on the group-based nature of land rights; weakening of women’s land rights; chiefs and headmen being both a symbol of resistance, and an instrument of indirect rule; and the erosion of accountability mechanisms that kept traditional leaders responsive to rights holders, but the maintenance of mechanisms of ‘downward accountability’ where land administration was a local function. Despite the range of adaptations and local variability, there are some key features of communal tenure regimes which have proved remarkably robust. These include: the embeddedness of land rights in a range of social relationships and levels of ‘community’; land rights being inclusive, shared and relative, rather than exclusive; the acquisition of land rights by accepted membership, similar to citizenship; access being distinct from control, which is concerned with guaranteeing access and enforcing rights; and the flexibility and negotiability (yet relative stability) of social, political and resource boundaries. Whether or not these are present, and to what degree are empirical questions. Where these features are present, the challenge for tenure reform is to respond to them in appropriate ways.

x)

How ‘customary’ are contemporary land tenure systems

Oomen finds the term ‘customary’ problematic, and prefers the term ‘local law,’ and shows how this is ‘negotiated within ever-fluctuating, social and political settings.’ ‘Custom’ falls within the repertoire of norms, rules and values available to people, but is only one of the resources that that they deploy to defend or advance their interests. A similar argument can be made in relation to land rights. Principles rather than ‘rules’ tend to underlie tenure systems, and they vary locally. They could be regarded as informing the ‘living customary law of land’, but there are cases where these features are not explained by local actors in terms of customary law, but rather in terms of pragmatic concerns over secure and equitable access to resources, or are argued for in terms of democracy, accountability and socio-economic rights. It is thus unnecessary and misleading to use the term ‘customary’ to describe the nature of ‘communal’ land rights.

xi)

The Communal Land Rights Act (CLARA) and ‘actually existing’ communal tenure

How well does the approach to tenure reform adopted by CLARA fit with the key features that we’ve identified? There are basically five problems with the Act. Firstly, by adopting a ‘transfer of rights’

approach that accepts the ‘ownership’ paradigm, there is a poor fit with the nested and layered character of social units within which land rights are held, and of land administration institutions. Secondly, when read together with TLGFA, s 21 and 24 of CLARA provide land administration powers to traditional councils that will vest in the pinnacle of the traditional hierarchy, shifting the balance of power in the favour of traditional leaders, weakening downward accountability, and failing to recognise the reality of nested systems. Thirdly, by failing to describe or define the legal status of ‘new order’ communal land rights, and by allowing for their determination by the minister and their allocation and registration by a land administration committee, the security of existing rights of occupation and use is threatened, the involvement of rights holders in local decision making disallowed. Fourthly, the Act does not address the tenure rights of women who occupy and use land but are not wives. Finally, by adopting a ‘one size fits all’ approach, the Act fails to address the history of forced removals, and the reality that rural ‘communities’ are not homogenous, and that ‘tribal’ affiliations don’t always correspond with often contested boundaries.

b) Prescribed reading: HWO Okoth-Ogendo ‘The nature of land rights under indigenous law in Africa’

The struggle for the recognition of indigenous law in national legal systems in Africa has continued since the earlier part of the 20th century, in the face of a clear bias against such law. This is especially so in the context of indigenous law determining access to land and the control and administration of land. i) Land rights in indigenous law

There are five fallacies which underlie colonial and post-colonial ambivalence about the applicability of indigenous law. First, that indigenous law is not really law at all, based on the belief that law must derive from a sovereign. Second, that because communities used and controlled land in common, indigenous law conferred no property in land. This was based on the narrow view that property only existed if exclusive rights of use, abuse and disposition were vested in individuals. Third, that ultimate title to land could only vest in the colonial sovereign. Fourth, that indigenous communities had no juridical persona, and land ‘reserved’ for them had to be held in trust. Fifth, that indigenous instotitions were incapable of allocating and managing disputes in relation to land. These fallacies were part of the enterprise designed to justify the expropriation of land by colonial authorities and post-colonial elites. They are thus not just an intellectual error; they are essentially ideological in character. This ideology has had severe consequences for land relations. Firstly, the juridical status of indigenous land law remains precarious and is often considered a dying regime. Secondly, the nature and content of indigenous land rights are constantly misrepresented and distorted in scholarship. Thirdly, severe tenure insecurity persists in areas of land held under indigenous law, due to the dislocation of these systems from the social and institutional context that defines and sustains them.

Fourthly, social instability and exploitation of vulnerable groups in rural areas has resulted from the fact that public policy largely ignores indigenous land administration systems. Despite the extensive reach of state law, indigenous law continues to determine the lifestyles of most African people, particularly in relation to the use, control and management of land resources. It is important therefore that we restate the essential incidents of land rights under indigenous law, and debunk the popular misconception that indigenous land rights systems are ‘communal’ in nature. A more fruitful way of understanding indigenous land right is to understand that what constitutes property in land in the African social order is not property over land per se, but the set of reciprocal rights and obligations that bind together and vest power in community members over land. It is important to draw a distinction between, on the one hand, the manner in which access to land is obtained – essentially a function of group membership, varying according to the membership category to which one belongs, and maintained through active participation in processes of production and reproduction – and, on the other, the mechanisms through which land resources are controlled and managed – an incident of a community’s sovereign power, typically vested in a political authority, but exercised in terms of a social hierarchy in the nature of an inverted pyramid with tip representing the authority of the family unit over cultivation and residence, and the base the authority of the community or nation over territorial expansion, dispute settlement, etc. This structure cannot be neatly captured by Anglo-European categories. Land tenure security is as much a question of law as it is one of social organisation – the former will not confer security unless it reflects the norms and values upon which the latter functions. Tenure security is an assurance that: access to land resources will be available as long as membership is maintained; land resources will be preserved for the sole enjoyment of members, and are available to future generations; community land resources are not generally alienable outside the group unless this is in the interests of its members.

ii)

State responses to indigenous land rights systems

State responses to the persistence of indigenous land rights systems have occurred at constitutional, judicial, legislative and policy development levels. Most constitutions handed over to post-colonial states carried an extremely regressive perspective of indigenous law. Many, such as the 1963 Kenyan constitution, contained a formulation in which indigenous law remained an exception, and from which indigenous land rights were generally excluded. However, constitutional developments in Africa in the last two decades have seen the increasing recognition of indigenous law’s legitimacy. Judicial responses have begun to specify the range of social and economic benefits to which indigenous law applies, and have reaffirmed its legitimacy within the country’s legal system. A number of jurisdictions have also drafted legislation giving explicit recognition to indigenous land rights, or aspects thereof, for example, through provision for the recognition of indigenous law as the foundation of property relations (in Djibouti, Ethiopia and Swaziland).

iii)

South Africa’s Communal Land Rights Act (CLARA)

CLARA is the most comprehensive of these legislative responses. The Act purports to confer security of tenure on individuals and communities having rights in land in terms of s 25(6) of the South African Constitution. The Act is unlikely to achieve its objective, especially when read together with the TLGFA, which gives enormous powers over land to traditional councils. CLARA will undermine tenure security under indigenous land law. This is so for a number of reasons. Firstly, the Act defines communities by reference to ‘shared rules determining access’ which logically cannot be made until a community has been identified by some other criteria. Secondly, the fact that the minister can prescribe ‘standard’ rules for communities in default means that these rules are unlikely to reflect the intimate and complex relationships of social status and access to and control of land which are the hallmarks of indigenous land law. Thirdly, the Act defines ‘communal’ land with reference to past apartheid laws and entities. Finally, the administrative framework of the Act, consisting of the minister, land administration committees and traditional councils, is defined to by-pass the all-important family and community structures. More generally, the Act as it currently stands will impede the organic growth and development of customary law through the use of notions of ‘ownership’, ‘beneficial occupation’ and ‘freeholds’, following in the footsteps of apartheid and colonial measures which sought to do the same. It will reentrench the misrepresentations of indigenous land tenure already mentioned, such as that communities as a whole cannot be entrusted with land administration functions. By giving g traditional councils the power to dispose of community land, it reintroduces the flawed colonial thesis that chiefs hold both dispository and reversionary rights in community land. And by giving the minister the power to determine who has what rights in community land, the state will exercise discretion to ‘create’ property for individuals and communities, as was the case under colonialism. The method of inquiry into so-called old order rights will not accurately determine the true content of those categories of rights derivable solely from customary law. Unless the process of land rights enquiry is culturally specific and fully participatory, the nature and extent of those rights, the identity of those in whom they vest, and the territory over which they extend, cannot be known. Without proper correspondence between the nature of various categories of old order rights and registered new order rights, we will see: attempts by elites to exercise exclusive rights over communal land; appropriation of the temporal access rights of women and children; and perpetual conflict between unrecognised community values and registered statutory rights, rendering the register irrelevant. Finally, the Act will further marginalise the already precarious property rights of unmarried women and children, for three reasons. Firstly, individual rights to land conferred under apartheid were vested exclusively in male household heads, especially via PTO certificates. Secondly, the confirmation of new order rights in favour of married women and widows in s 18(4)(b) is at the discretion of the minister rather than the result of enquiry under customary law. Thirdly, the registration provisions of the Act do not address the issue of the land rights status of the spouses of persons who at the time of acquisition of new order rights were single, but who subsequently marry.

The land is occupied by the legally-recognised traditional community of Setshaba. which falls under the authority of Chief Dikgomo II. . and b) any part of a tribe living and existing as a separate entity. ‘person’ and ‘tribe’ in light of the TLGFA’s definitions. as well as the tensions between: i) living customary law ii) IPILRA iii) the MPRDA 16 She didn’t go through these. immediately before the commencement of this Act. c) Sample questions on the land question16 Question one (Legal analysis) Critically discuss IPILRA’s definitions of ‘community’. law and policy) AngloPlat has hired you to assist it to obtain prospecting rights on suspected platinum-rich land in the North West. “tribe” includes – a) any community living and existing like a tribe. In terms of IPILRA: “community” means any group or portion of a group of pesons whose rightsd to land are derived from shared rules determining access to land held in common by such group.For all these reasons. conferring on traditional leaders powers that are completely out of kilter with their role under customary law. and living customary law. had been established and was still recognised as such is deemed to be a traditional community contemplated in section 2. “person” includes a community or part thereof. subject to [withdrawal of its recognition under s 7 and a decision by the Commission] Question two (Theory. In terms of the TLGFA (section 28(3)): Any “tribe” that. Advise AngloPlat on who is: a) the legal owner of the land and b) the one with the right to decide whether AngloPlat can prospect the land. but they’re a sample at least. In your advice provide the answer as it is under. the Act will undermine existing security of tenure and impact upon the nature and content of customary law in South Africa.

let AngloPlat know whether you would recommend proceeding with the application. Include references to knowledge gaps that exist and what evidence would be necessary to fill them. the COnstituion (provisions and precedent) and living customary law as you know it.Ensure that your answer is critical and considers all relevant legislation. . if so. how they should go about it in terms of the law. why and. Ultimately.