The following op-ed is a collaborative effort by David Mtshali, Lauren Nel and Nadia Shivji of the Legal Resources Centre.
On 20 November 2019 President Cyril Ramaphosa signed the contentious Traditional and Khoi-San Leadership Act into law. While the Act has not come into force yet, it will have a devastating impact on the lives of people living on communal land in South Africa. In particular, this Act will undermine the hard-fought legal victories that communal land right holders have obtained in the last two years.
Over 18 million people live on communal land in South Africa, under the rule of traditional authorities. These authorities were formed as part the Bantustans under the Bantu Authorities Act during the apartheid years. After 1994 the recognition of the traditional authorities was retained and formally incorporated into the Constitution of the Republic of South Africa. Traditional authorities often yield power over communal areas where people’s tenure tends to be insecure. This leaves the communities vulnerable to exploitation by traditional leaders who use the land and authority for their own personal gain and to the detriment of the indigenous communities that have resided on the land for generations.
In recent years, there have been significant legal developments that have sought to protect indigenous communities from traditional authorities and reinforce the communities’ rights on communal land. In particular, the Maledu v Itereleng Bakgalta Minerals Ltd and Baleni v Minister of Natural Resources cases have enforced the rights that communities hold under the Interim Protection of Informal Land Rights Act (“IPILRA”), and imported the international concept of free, prior and informed consent into domestic South African law. But these important victories are now threatened by the contentious Traditional and Khoi-San Leadership Act
The Maledu matter dealt with two competing rights: the right of the Leseltheng community to occupy and enjoy the farm which they and their ancestors had occupied for nearly 100 years, and the right of a group of businesses and individuals to act on mining rights they had been granted under the Mineral and Petroleum Resources Development Act (“MPRDA”). The Lesetlheng community forms part of the broader Bakgatla-Ba-Kgafela community which falls under the Bakgatla-Ba-Kgafela traditional authority. They faced eviction from their land if the interests of the mineral rights holders were upheld. The traditional authority was not cited as a party but did support the granting of the mining right and surface lease agreement, despite the objections of the Lesetlheng community.
The land was held in trust by the Minister of Rural Development and Land Reform for the Bakgatla-Ba-Kgafela Community. The Lesetlheng argued that only Lesetlheng Community members who contributed to the original purchase price of the land in 1919 had a legal interest in the land. In 1919 the property was transferred from the previous private owners to the Minister as the Lesetlheng community members could not obtain legal ownership of the land due to discriminatory laws.
The Lesetlheng community therefore held rights in the land under IPILRA that provides that occupants on a piece of land who possess an informal right in the land have the right to give or withhold consent regarding what happens on that land. More specifically, IPILRA states that the decision to dispose of the right must be made by the majority of holders of the right. The Lesetlheng community had not been consulted before the mining rights were granted, which meant that the requirements of the MPRDA and IPILRA had not been met.
The Legal Resources Centre (LRC) acted as a friend of the court in this matter and argued that in order for section 2(1) of IPILRA to be effective the consent contemplated must be free, prior, and informed, as would be in line with international law. The respondents argued that only “consultation” was required – they did not need the consent of the community. The Constitutional Court agreed with the LRC, siding with the Lesetlheng community. The court went even further, stating that even where consent is given to grant a mining right, a land rights holder may still be entitled to occupation on the land, depending on the terms and conditions of their consent.
This was a significant success for small communities that fall under a larger tribal authority. It means that not only must companies consult with traditional authorities; they also have to get the consent of the community that will actually be impacted by the mining activities. This premise extends further than mining companies and includes any form of private development. The Maledu decision confirms that IPILRA gives smaller communities and historically disenfranchised peoples autonomy over their land, even where their rights are informal and they fall under a broader traditional authority.
The Baleni case was decided on 22 November 2018 and dealt with the titanium-rich Wild Coast area that has been the home of the imizi community for centuries. Approximately 75 households and their ancestors practice their customs and traditions and work the land for their livelihood on this coastline of immense natural beauty. An application by an Australian mining company for a mining licence in the area threatened the community’s entire way of life and the sustainability of the natural environment. Against the will of the community, the traditional leader in the area agreed to the granting of the mining licence and was generously compensated with a directorship in the mining company.
The community argued that they held informal rights in the land in terms of IPILRA and that the full prior and informed consent of the community was needed for the mining to take place. Consent by the traditional leader was not enough. The Court agreed, stating that under IPILRA, the Minister of Mineral Resources was obliged to obtain the full prior and informed of the community as holders of rights in land prior to granting any mining right.
Despite these significant victories the Act now threatens to undo the progress made and retrench communal property rights into the hands of unelected and unaccountable traditional leaders. The Act grants powers to traditional leaders that are in direct conflict with the principle of free prior and informed consent that was established in Maledu, Baleni, and IPILRA. Section 24 of the Act states that:
“24(1) the national government and provincial governments may, through legislative or other measures, regulate partnerships and agreements as contemplated in this section.
(2) Kingship or queenship councils may enter into partnerships and agreements with each other, and with –
(b) government departments; and
(c) any other person, body or institution.”
This section effectively means that the traditional authority will be able to enter into agreements on behalf of communities, without obtaining their consent. Further, the Act does not provide for any compensation or relief should a community be forced from the land that they occupy due to mining operations (though this is provided for in section 2(3) of IPILRA). At present, the process for entering into lease agreements on communal land is for the Minister of Rural Development and Land Affairs to sign as owner of the land, with the consent of the community protected by IPILRA. This may fall away in terms of the Act.
To further undermine the protections in IPILRA, section 24(3) of the Act specifically advises that the Act trumps all other law:
“(3) Any partnership or agreement entered into by any of the councils contemplated in subsection (2) must be in writing and, notwithstanding the provisions of any other law,—“
The Act creates the impression that traditional authorities own the land. However the LRC has contested this position in Maledu and Baleni by asserting that this right in fact rests with the community that occupies and works the land. The Act puts this progress is under threat. If the Act had been law at the time of the Baleni case, it would have meant the traditional leader who personally benefited from the granting of mining rights would have legally had the power to enter into any agreement with the mining company. The imizi community would have had to accept that the land on which they built their livelihoods would be turned into a titanium mine.
While the Act enjoys popular support among traditional leaders the majority of people living under the traditional authorities seem opposed to the Act. Unhappiness surrounding the Act and the upcoming Traditional Courts Bill was demonstrated during a march to the Union Building in Pretoria on 5 June 2019, demanding the President refrain from signing the then Bill into law. During public hearings for the Act, opposition was raised that the Act enforced apartheid-created tribal boundaries. The hearings themselves have also been criticised as not providing for consultation with affected communities. In some instances the content of the proposed Act was not properly explained, members of Parliament failed to show up to the hearings, and some hearings were simply postponed without consultation.
The LRC strongly opposes the Act in its current form. It provides for a system where individuals living under traditional authorities are at the mercy of unelected traditional leaders that may not have the communities’ best interests at heart. The advancements in the rights of those occupying communal land will effectively be negated. The Act needs to be aligned with the Constitution, IPILRA, and the existing case law on communal land rights. This is the only way to ensure that vulnerable communities can continue to assert their rights in the face of powerful traditional leaders.