ACL SECOND SEMESTER1 November exam: what to expect Sindisos 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!

Chumas response to a question about her section in the November exam (20 marks): Anythings possible. Problem question? Essay question? Anythings possible.

6. TENSIONS BETWEEN LEGAL REGULATION AND GROUNDED REALITIES Introduction and Overview In this section well be looking, on one hand, at official legal regulation, and on the other, at regulation in terms of living customary law. Well try to see to what extent they are in tension. Well 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

This set of notes only contains Sindisos second semester section (section 6 on the course outline). Chumas 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 wont 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 peoples interests (say, between the traditional authorities and the community), we must ask whether the government is striking the right balance. So if were 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.

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.

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

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.

Well deal with the substance and implications of the legislation, but thats not to suggest that just because the legislation is completely fucked, there is some sort of easy answer. But yes, its 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. Well 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:

Under apartheid, these steps were a necessary prelude to the assignment of African people to ethnically-based homelands. According to this plan, there would be no African people in South Africa, as all would assume citizenship of one or other of the newly created homelands .

Of course, what this meant was that by assuming this citizenship, Africans were losing their citizenship in South Africa.

ii) Authorising forced removals

In terms of s 4(1)(c), tribal authorities were to advise and assist the Government and any territorial or regional authority . . . in connection with matters relating to . . . [among other things] the development and improvement of any land within [their areas of jurisdiction] Another term for this improvement is bettermentor forced removals, 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. It also left a majority of them without legally secure tenure in land. The government came up with the idea to forcibly remove people and put them in townships, ensuring that the agricultural land was some distance away from dense population. This contributed significantly to the slowing down of agrarian activity.

iii) Invented and imposed tradition Were these powers, functions or duties customary? Clearly not, they were largely invented and imposed. As section 4(1)(d) provided: A tribal authority shall, 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. This is a succinct way of saying that the important question was not what customary law required, but rather what the government felt should be happening. There is some precedent regarding the fact that the powers provided by the law were all that the traditional authorities were meant to observe. They undercut the give-and-take nature of customary society, as chiefs no longer had to be accountable to their people, but merely to the government, 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. Testimony was given by the chief headman of the Clau Clau Native Reserve that they must obey law of White man. Mosii v Motseoakhumo 1954 (3) SA 919 (A): the Chief owes allegiance to the Crown only.

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.

iv) Objections

we all know full well that no Chief can retain his post unless he submits to Verwoerd, and many Chiefs who sought the interest of their people before position and self -advancement have been deposed ... . Thus, the proposed Bantu Authorities will not be, in any sense of the term, representative or democratic. (Nelson Mandela, Verwoerds Grim Plot, No.36, May 1959) The modes of government proposed are a caricature. They are neither democratic nor African. The Act makes our chiefs, quite straightforwardly , into minor puppets and agents of the Big Dictator. They are answerable to him and to him only, never to their people. The whites have made a mockery of the type of rule we knew. Their attempts to substitute dictatorship for what they have efficiently destroyed do not deceive us. (Albert Luthuli, Let My People Go,1962) Gone was the old give-and-take of tribal consultation, and in its place there was now the autocratic power bestowed on the more ambitious Chiefs, who became arrogant in the knowledge that government might was behind them. (Govan Mbeki, The Peasants Revolt, 1964)

v) Repeal3

The Black Authorities Act was repealed in 2010 and in the Memorandum to the repeal, it was recognised that the Black Authorities Act, No. 68 of 1951 ... established statutory tribal, 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, and is reminiscent of past divisions and discrimination. It is both obsolete and repugnant to the values and human rights enshrined in our Constitution.

See Sindisos parliamentary submission on the Repeal Bill at the end of this section, which addresses not only the Bill, but the whole legislative framework governing customary law.

As the Constitutional Court held in Tongoane: the Black Authorities Act established a tribal structure for the administration of African people in African areas. One thing to note in the repeal is that even in the Memorandum it observes that the old community, regional and other authorities mentioned in s 28(5) and s 6(a) of the Traditional Leadership and Governance Framework Act 2003, have expired. What this means in practical terms is that tribal authorities become the default structure of rural governance among customary communities, because there are no longer these community authorities. Well deal in some detail with what community authorities are.

c) The Traditional Leadership and Governance Framework Act (TLGFA)

This is a very important piece of legislation, as it is the founding legislation for the recognition and regulation of traditional authority.

i) Section 1: Definitions

Section 1: headman or headwoman means a traditional leader who(a) is under the authority of, or exercises authority within the area of jurisdiction of, a senior traditional leader in accordance with customary law; and (b)is recognised as such in terms of this Act. 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 within whose area of jurisdiction a number of headmen or headwomen exercise authority; Its interesting that the senior traditional leader doesnt have to be recognized as such in terms of this Act, or so this definitional provision suggests (as well see later, 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, without defining them. What we see here is an assumption, 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, or that there will be headmen and headwomen that exist in a particular area, over which a senior traditional leader will now be given jurisdiction. Either way, there is the assumption that there has to be a traditional leader, with an emphasis on the top structures rather than on the bottom-up processes. So the question arises, what if the customary law system that exists in a particular community works on a bottom up basis,

or without a senior traditional leader? Would we not require different wording to capture such a situation? Consider this example. In the Eastern Cape, particularly in the former Ciskei, chiefs were banned because such a hierarchical structure simply didnt exist. But now, under this legislation, the suggestion is that any traditional leaders which had previously in terms of old legislation been given authority over these areas, would now have a right to exist over these headmen and headwomen, who had not had chiefs over them before. 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; (aA) principal traditional leadership; (b) senior traditional leadership; and (c) headmanship.

What are each of these? Senior traditional leadership refers to chiefdom. The person who has within his kingdom a number of traditional communities (tribes) or senior traditional leaders (chiefs) is a king or queen. Having said that, 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, but who do in fact have a number of traditional communities in their sphere of authority. Queenship and principal traditional leadership were new inclusions introduced by the Amendment Act of 2009. In terms of jurisdiction: headmanship aligns with a ward, a village or a sub-community; senior traditional leadership aligns with what the legislation calls a traditional community a tribe, a more macro level; and principal traditional leadership is at a level somewhat akin to the kingship level, with a number of tribes within its jurisdiction.The important thing is that there is a hierarchy here. But, as weve said, what if in terms of living law there is no such hierarchy? In some communities, some of these positions might be missing, such as in the Eastern Cape example. The legislation seems not to make provision for such a possibility. Section 1 then defines a traditional leader as any person who, in terms of customary law of the traditional community concerned, holds a traditional leadership position, and is recognised in terms of this Act. Traditional leadership is defined as the customary institutions or structures, or customary systems or procedures of governance, recognised, utilised or practised by traditional communities. Again, the circularity of this is striking, particularly because traditional communities are themselves defined in terms of traditional leaders. However, there is the following important clause :

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, but such traditional title does not derogate from, or add anything to, the status, role and functions of a traditional leader as provided for in this Act. What this hints at is the fact that traditional leaders status is actually dependent on the governments recognition more than on the peoples particular sense of what the traditional leadership position is. This takes us back to the Black Authorities Act, where the traditional leaders position was at the behest of the state. By now we should be starting to see stark continuities between the former and the present.

ii) Section 2: Community constitution

Section 2 is also in a sense a definition section, 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 communitys customs; and (b) observes a system of customary law. Whats striking here is, firstly, the circularity which weve already discussed, and secondly, the preeminence of traditional leadership. Again, we are forced to ask: what about communities that dont necessarily have a formal traditional leadership structure? There is a requirement of consultation with the community concerned in terms of the provincial laws, although they vary. Another qualification is that these communities must comply with the Bill of Rights, and encourage gender equality etc.

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. (2) (a) A traditional council consists of the number of members determined by the Premier by formula published in the Provincial Gazette, after consultation with the provincial house, in accordance with the guidelines issued by the Minister by notice in the Gazette.

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; and 40% of the members of the Traditional Coiuncil are elected; the other 60% are appointed by traditional leaders. These sections suggest that communities could decide to come together to form the structure of a traditional community, but in fact if you look at the transitional arrangements clause in s 28, 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, is deemed to have been recognised as such in terms of section 9 or 11, subject to a decision of the Commission in terms of section 26. So basically, the traditional leader who is recognized today is the traditional leader who was recognized under prior legislation which existed under apartheid. Section 28(3): any tribe that, immediately before the commencement of this Act, had been established and was still recognised as such is deemed to be a traditional community contemplated in section 2 ... . In other words, the tribe that is recognized is the tribe that existed under apartheid. And so the boundaries which existed for tribes as they were established by the apartheid government are entrenched in this framework. Section 28(4): any tribal authority that, immediately before the commencement of this Act, had been established and was still recognised as such, is deemed to be a traditional council ... . In this subsection, the tribal authority which was entrenched under apartheid legislation is accepted as the traditional council. The net effect of s 28 is effectively to reestablish and entrench the homeland boundaries established by the Black Authorities Act. So, compare the below maps: the one on the left is of traditional councils in 2010; the one on the right is of homelands as they existed in 1986. Notice that the boundaries are almost identical. One might argue that this creates an opt-out system placing the onus on traditional communities to

withdraw themselves, to say: we dont want to be recognised as a traditional community and would like our status as a traditional community withdrawn, and be reconstituted in some other way. As well see, theres a flaw in the opt-out provision which actually makes it impossible for subgroups subsumed into bigger tribes to withdraw from them. The alternative to this, which Sindiso much prefers, is the opt-in system. If communities decided that they didnt want to retain the powers granted to traditional authorities, then that would have implications only for those communities concerned. 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, and consequently give their traditional leader particular powers because they recognise him or her as legitimate. Dont worry if this isnt entirely clear at this stage well revisit it shortly in the context of s 7.

Section 28 ultimately depends on compliance with section 3(2), the re-composition provision requiring that 30% of the council is female and 40% of it is democratically elected. The initial compliance deadline with this provision was one year after the commencement of the Act: 24 Sept 2005. This was extended by provincial Acts (passed in 2005) until 24 Sept 2006. The one year period had always been contested because some had argued that it was inadequate. Ultimately, when the TLGFA Amendment Act of 2009 was passed, the transitional period for tribal authorities to comply was further extended until 24 September 2011. The result is that, presently, 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. There is a current proposal brewing in the National Traditional Affairs Bill, which has not yet even been introduced to parliament, to extend the deadline to 24

September 2012. One thing to note about these electoral procedures, which are to be a key feature of how these traditional councils are to be transformed, is that even where they have happened, for the most part they have not happened in the way in which they were supposed to.

v) Flawed electoral processes

Eastern Cape: Communities were not informed of elections or the call for nominations; and there was no evidence that the requisite community meetings were held. North West: The Provincial House of Traditional Leaders supervised elections, which introduced a conflict of interest. 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, in fact, there were insufficient funds to hire the IEC. Mpumalanga: The head of the Mpumalanga House of Traditional Leaders brought in a private company to carry out elections out in August 2009, but only did so in some parts of the province. The Mpumalanga Provincial House of Traditional Leaders claimed that some communities had not received results by Aug 2010. Limpopo: Seemingly pending. Empowering regulations are said to have been passed. Also North West and KZN are gearing up for a second round of elections. Lets return to the earlier discussion about the difference between an opt-out and an opt-in provision.

vi) Section 7: Possibility of withdrawal from a traditional community

Section 7(1) provides the basis for withdrawal. This is an example of an opt-out clause, and an ineffective one at that.

Remember that s 2 suggests that communities can form themselves into traditional communities that are officially recognized by standing together, suggesting an opt-in approach. But then you find in s 28 that it is in fact an opt-out approach, because the transitional mechanism says that old boundaries are reinforced, and that traditional communities are basically the tribes of old. 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. Now, remember that the traditional community is the tribe at large. So you have all these tribes that were mixed and matched; some of them were complete strangers and brought together; 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, it has to persuade the community at large to approach the Premier to withdraw their status as a traditional community. Theres clearly a structural problem here: it requires a structural minority within a community to persuade the macro-community to approach the Premier, so that the status of the whole group can be withdrawn, allowing for the subgroup to reconstitute itself independently. You can also see that theres a problem for the traditional authority who now runs the risk of losing part of his territory/community. Because land claims dont have to be made by the traditional authority, the community could plausibly secede and take the land with them. Lets 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, may only be considered where (a) the community concerned requests the Premier of a province that its recognition as a traditional community be withdrawn; (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; These subsections allow the provincial government to launch an investigation into the legitimacy of the boundaries, to determine whether it was a mix-and-match job, and whether it is appropriate to regard the community as a single entity. But the details concerning the terms upon which this takes place are unclear. or (c) two or more communities so recognised, request the Premier of a province that they be merged into a single traditional community. So it doesnt speak specifically about improperly joined communities requesting to be divided, but it does speak specifically about communities that may have been artificially divided asking to be merged. So we still have the problem of the structural minority being trapped. In fact, s 7(1)(a) read together with s 28, which entrenches the tribes of old as the traditional communities of today, makes it almost impossible for a subgroup to withdraw.

Despite s 7(1)(b) allowing communities to approach the Premier, there have been documented cases of sub-communities who have tried to persuade the Premier to withdraw them, and been denied. The grounds for this denial, even after recognising the legitimacy of the subgroups claim to be withdrawn, has been that granting relief would open up the floodgates. Because there are so many illegitimately formed communities, there is clearly a fear that the situation could spin out of control.

This, albeit that in terms of section 7(3): The Premier of a province must, in terms of section 2, 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. So clearly the Premier has some sort of obligation to recognize divisions or mergers when an investigation shows it to be necessary. But the provision relating to the investigation itself is permissive, rendering this provision not in fact as mandatory as it seems. In other words, while he must consider the recognition of communities shown by an investigation to have been illegitimately divided or merged, he need not authorize the investigation itself. What you often find Premiers falling back on is the Commissions established under Chapter 6 of TLGFA, which are supposed to investigate disputes over the boundaries of communities as well as over the legitimacy of traditional leaders. But the Commissions themselves have been less than stellar in their performance: - The Ralushai Commission was established in Feb 1996 by the Premier of Limpopo to investigate the legitimacy of the boundaries of the traditional authorities. But the report was not ever publicly released, and we still have no idea what its outcome was. - The Nhlapo Commission was established in terms of Chapter 6 on Oct 2004. Its final report was released on 29 July 2010, but it only dealt with paramountcies. Some of its findings were challenged in court due to the controversial methodology used. If it took 6 years to resolve the issue of paramountcies, can you imagine how long it would take to resolve the issue of traditional leaders in the rest of the country, 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. 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. So communities who, for instance, bought land together in black spots (areas where blacks could by land), and owned that land, were then put under a traditional authority even though they were made up of two or three different cultural groups (say Tsonga, Sotho and Ndebele together), and there were two or three different traditional authorities the government would realise that this could erupt, if they tried to situate them under a single traditional authority. So, 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.

Another instance was areas where there was such a high proportion of traditional communities who didnt have traditional leaders, but were actually being governed by a headman or some kind of committee. These were also sometimes recognized as community authorities. Now, those community authorities are to be disestablished in terms of section 28(5) of TLGFA hence, reference in BAA Repeal Act that: The cut-off periods for the continued existence of the old community, regional and other authorities mentioned in section 28(5) and (6)(a) of the Traditional Leadership and Governance Framework Act, 2003, 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. In reality, the vast majority have not been disestablished and there is no clear indication as to what happens if they are not disestablished. The original deadline for disestablishment was 2005, 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. So basically theres a bit of a bizarre set of circumstances relating to this legislation.

vii) Section 4: Functions of traditional councils

Up until now weve recognised that there are problems with the establishment and recognition of traditional councils, communities, and leaders. But now we proceed on the assumption that they are legitimate, so that we may better consider what it is that they are in fact meant to do in terms of the Act. 4. (1) A traditional council has functions including:

Administering the affairs of the traditional community in accordance with customs and tradition; Assisting, supporting and guiding traditional leaders in the performance of their functions; Supporting municipalities in the identification of community needs; and facilitating the involvement of the traditional community in the development or amendment of the areas integrated development plan (IDP); Recommending, with local and provincial Houses of Traditional Leaderss, appropriate interventions to government that will contribute to development and service delivery within the area of jurisdiction of the traditional council; Participating in the development of policy and legislation at local level; and programmes of municipalities, provincial and national government; Promoting the ideals of co-operative governance, IDPing, sustainable development and service delivery; and sharing information with other councils;

Promoting indigenous knowledge systems for sustainable development and disaster management; and alerting any relevant municipality to any hazard or calamity that threatens the area or people in jurisdiction; Performing the functions conferred by customary law, customs and statutory law consistent with the Constitution.

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, and in applicable legislation. Observe the contrast: section 4 is very detailed; section 19 is not. However, the phrase and in applicable legislation leads us to the much more detailed listing of what traditional leaders may potentially do. 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; land administration; agriculture; health; welfare; administration of justice; safety and security; registration of births, deaths and customary marriages; economic development; environment; tourism; disaster management; the management of natural resources; and dissemination of information relating to government policies and programmes; education (added by way of amendment)

Well focus on two of these in particular this semester: land administration and the administration of justice. Well return to them in more detail in future.

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. All the affected Departments will have a chance to align their plans with what the guidelines intend to achieve. President Zumas 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, Local Government & Rural Local Governance Summit, eThekwini: 5 May 2010 In a nutshell what the guidelines intend to achieve is to bring traditional leaders into government in some way, with the suggestion being that traditional leadership structures may actually displace local government in rural areas. To say diplace is probably inaccurate, given that local government has in many rural areas almost already collapsed.

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 organ of state must (f) ensure, to the extent that it is possible, that the allocation of roles or functions is implemented uniformly in areas where the institution of traditional leadership exists; and (g) promote the ideals of co-operative governance, integrated development planning, sustainable development and service delivery through the allocation of roles and functions. These provisions deal in part with the accountability of traditional leaders. We know from Sindisos first semester pluralistic wankfest that there is a tension between standardisation, certainty, predictability and uniformity on the one hand; and the flexibility of living customary law on the other

hand. This tension is part of what the courts have to reconcile. This legislation seems to be too reflective of uniformity in a context where there is so much diversity. We should have noticed by now, and should continue to notice, some of the buzzwords that repeatedly come up: cooperative governance; service delivery; sustainable development. Well also see more references to the support of institutions supporting traditional leaders, respecting their role, status and functions.

xi) Section 5: Partnership governance

Section 5 entrenches the partnership / cooperative governance model with Traditional Councils. (1) The national government and all provincial governments must promote partnerships between municipalities and traditional councils through legislative or other measures. (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; and (b) be guided by and based on the principles of co-operative governance. (3) A traditional council may enter into a service delivery agreement with a municipality in accordance with the Local Government: Municipal Systems Act, (Act No. 32 of 2000), and any other applicable legislation. This basically allows for the outsourcing of local government functions to traditional leaders. Implicit in this section is the idea weve just dealt with, viz. that the recognition of traditional leadership and traditional councils forms part of the governance function of the state. This might be argued to be at odds with the Constitution, which recognizes only three levels of government. Does section 212(1) of the Constitution allow for this kind of recognition? Its debatable.
212. Role of traditional leaders 1. National legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities.

xii) Consultation

Section 20(2) also 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), that organ of state must (b) consult with (i) the relevant structures of traditional leadership; and (ii) the South African Local Government Association; (c) ensure that the allocation of a role or function is consistent with the Constitution and applicable legislation; (d) take the customary law and customs of the respective traditional communities into account; This consultation requirement is interesting given that uniformity was one of the conditions earlier. So theres clearly a balancing act that organs of state must play. One criticism that can be leveled at these consultation provisions is that there is no consultation with ordinary rural people. Ordinary people are treated as what Mamdani would call subjects people who things just happen to. The Memorandum to the Traditional Courts Bill reads: DEPARTMENTS/BODIES /PERSONS CONSULTED 3.1 As required by the Traditional Leadership and Governance Framework Act, 2003, the Department consulted with the structures of traditional leaders and the South African Local Government Association. Consultation with the structures of traditional leadership took place at national and provincial level. This shows the lack of consultation actually required by the Act. Note that consultation with ordinary rural people is not specifically required by s 20(2). One might argue that ordinary rural people are to be consulted in terms of s 20(2)(d), given that it says that the organ of state must take the customary law and customs of the respective traditional communities into account. But this is an argument unlikely to succeed, because government unfortunately seems to have embraced the idea that traditional leaders are the sole custodians of custom. 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, when, who from and how? what can it do, and how do we make sure that it does that?

Key terms: Support, Powers / Role / Functions, Accountability, (Double) Taxation Traditional leaders can be said to be funded in terms of two major structures. Firstly, they can be funded centrally by the state. Secondly, they can potentially collect levies locally.

1. 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), 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; So it is the organ of state that bears the burden of ensuring that the money is accounted for. Of course, this depends on that organ being accountable enough to have good accounting mechanisms in place this is often unlikely in rural local governments. 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. Such legislation and measures do indeed exist. The Remuneration of Public Office Bearers Act provides for remuneration of traditional leaders; traditional council members receive stipends; traditional council offices are built and resourced, even if only minimally, primarily by provincial government. 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), 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. This is a clearly a very a low bar the function must merely be performed. Interestingly, the National Traditional Affairs Bill proposes to change the requirement to the function being performed efficiently and effectively. (4) Where a traditional council does not perform an allocated function as envisaged in subsection (3), any resources given to a traditional council to perform that function may be withdrawn.

So the funds can be withdrawn if the function is not in fact being performed. The real question is whether this kind or level of oversight required is given effect to in reality. Sindiso is not aware of any resources having been cut for any reason other than governments limited funds.

2. Tribal levies The background to the notion of tribal levies is that there was real resistance to traditional authorities levying money from their communities, because it was so abused during apartheid, and because the apartheid government used traditional authorities to collect money for its coffers. Remember that they wanted the homelands to be self-sustaining, so structures were created whereby traditional leaders were primarily accountable to no one but themselves. For this reason, there was resistance to the payment of tribal levies, particularly in Limpopo and the North-West. This resistance is reflected in the White Paper on Traditional Leadership and Governance, July 2003 (before the TLGFA), which states:
The authority to impose statutory taxes and levies lies with municipalities. Duplication of this responsibility and double taxation of people must be avoided. Traditional leadership structures should no longer impose statutory taxes and levies on communities.

But, in contrast to the White Paper, 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; (b) have its financial statements audited; (c) disclose the receipt of gifts; ... And under section 4(3), more explicitly: A traditional council must ...(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. This is being challenged by those whove resisted it, because in particular, some Provincial Acts recognize the power of levying, and specifically provide for it. For example, in terms of the Provincial Act of Limpopo, section 25(1): A traditional council may, with the approval of the Premier, levy a traditional council rate upon every taxpayer of the traditional area concerned. Others provide for voluntary gifts which in effect are not very voluntary at all. The bottom line is that levies are still widespread. The constitutional problem in terms of levying is that the Constitution only recognizes three spheres of government. Only those three spheres are granted taxation powers. National and provincial government have an inherent power to tax, and provincial government is empowered to delegate it to local government. 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, they do not have the power to tax; if so, then there is potentially

room for national or provincial government to devolve that power to them through legislation. However, the thing to keep in mind is that the National Traditional Affairs Bill has withdrawn the clause in s 4(3) pertaining to levies. It seems quite possible that they have heard these criticisms, and are coming around to the view that levying powers arent legitimate. But given how widespread it is in reality, its questionable whether it will make any difference. In practical terms, what is the argument against traditional leaders levying, other than the constitutional one? It is that the highest proportion of people living in rural areas are women (57%58%), and in having to pay levies, that money is coming mostly from remittances from people who work in urban areas and send money back, or, is coming out of social grants either pension or child grants. 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. 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. The final critique is that these are women who in many areas do not actually have a voice. So they are contributing financially to people who have more resources than themselves, but are still not guaranteed participation in community structures.4

xiv) Section 11: Appointment

Section 11(1) provides that: Whenever the position of senior traditional leader, headman or headwoman is to be filled (a) the royal family concerned must, within a reasonable time after the need arises for any of those positions to be filled, 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, after taking into account whether any of the grounds referred to in section 12(1)(a),(b) and (d)5 apply to that person; and (ii) through the relevant customary structure, 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; and (b) the Premier concerned must, subject to subsection(3), recognise the person so identified by the royal family in accordance with provincial legislation as senior traditional leader, headman or headwoman, as the case may be.

4 5

I feel like a question in which we are required to consider arguments against tribal levies is very possible. These are the removal conditions, which well come to.

Remember that the national legislation is the framework act (as the title suggests), and that there are various provincial Acts all provinces which have traditional leaders have such Acts: North-West; Eastern Cape; Northern Cape; Limpopo; Free State; Mpumalanga and Kwazulu-Natal. The same section, in subsection (2)(b), 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; and (ii) consultation by the Premier with the traditional council concerned where the position of a senior traditional leader, headman or headwoman is to be filled. So, while the Acts earlier reference to a royal family seems to presume a somewhat hereditary process, this provision makes a semi- exception for headmen and headwomen, where provincial legislation could potentially allow for non-hereditary processes (election or appointment). (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, customs or processes, the Premier (a) may refer the matter to the relevant provincial house of traditional leaders for its recommendation; or (b) may refuse to issue a certificate of recognition; and (c) must refer the matter back to the royal family for reconsideration and resolution where the certificate of recognition has been refused. These provisions give rise to a few problems: 1. The assumption that there is always a royal family to drive the process is a fallacious one, especially given the election of headmen and iziphakanyiswa. 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. In KZN for example, an election process is often used rather than a hereditary system. Iziphakanyiswa are specific to KZN, but the phenomenon of elected customary leaders is not. 2. Moreover, by saying that provincial legislation may also provide for the election or appointment of a headman or headwomen, it allows the possibility that Provincial legislation does not provide for election, but only for appointment. For example, in former Ciskei, where chiefs were done away with, all that were left were iziponda (headmen). So the headmen occupy a position which doesnt quite fit with the hierarchical scheme of the TLGFA. 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, through some form of electoral process.

appointment/election takes place) into the Act. That would have specific procedural requirements, which the TLGFA doesnt have. 3. 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. The use of or here is peculiar in those cases where the provision is applied and the process didnt happen in accordance with customary law customs and processes. Firstly, how would the premier know that it hasnt happened in accordance with customary law, in order to be able to challenge the appointment? Secondly, and more importantly, if the Premier has somehow established that it hasnt taken place in accordance with customary law customs or processes, why is it that the premier has discretion? Presumably, if it hasnt happened in accordance with customary law, the Premier should have to refuse to issue a certificate of recognition. 4. If the Premier does issue a certificate of recognition then he must refer the matter back to the royal family. This raises a number of issues itself. Weve spoken already about the fact that a royal family may not even exist in the relevant community. In addition, the referral back to the royal family has been questioned as being potentially inconsistent with the Constitution, because it doesnt allow the community to contribute to the decisions, and doesnt involve any community consultation. But if in fact the matter does come before a court, 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), who forwent the traditional route and instead opted to have a judge intervene in his battle for chieftainship, has succeeded in his legal quest, says a Daily Dispatch report. Eastern Cape Premier Noxolo Kiviet has now been ordered to consider Dudumayos pledge for a traditional leadership position but first his uncle has to be stripped of the same position. The report notes the family feud began in June 2010 when Mhlabunzima Dalasile (77) was awarded headmanship of the Maphuzi administrative area in Mqanduli. Dudumayo disputed his uncles position and claimed that he was in fact the rightful heir, being the biological son of the late headman. Judge Zamani Nhlangulela, of the Eastern Cape High Court (Mthatha), agreed, 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. According to the report, he found that the decision to appoint Dalasile as headman had not been in compliance with the Act. 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, falls foul to the provisions of the Act. Courtesy of Legalbrief Today, 3 Jun 2011

xv) Section 12: Removal

The removal provisions raise some similar problems namely: 1. The assumption that the royal family exists; 2. No provision for a community-driven process or community participation; 3. From a policy perspective, even if the custom is that the royal family typically removes the traditional leader, is this not a power which the Constitution demands we assign along democratic lines, to the community at large?

Specifically, section 12(1) says: A senior traditional leader, 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, based on acceptable medical evidence, makes it impossible for that senior traditional leader, headman or headwoman to function as such; (c) wrongful appointment or recognition; or (d) a transgression of a customary rule or principle that warrants removal.

(2) Whenever any of the grounds referred to in subsection (1)(a),(b) and (d) come to the attention of the royal family and the royal family decides to remove a senior traditional leader, headman or headwoman, 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, headman or headwoman to be removed from office; and (b) furnish reasons for such removal.

xvi) Section 21: Dispute and claim resolution

Section 21(1)(a), as amended in Dec 2009, 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, members of such a community and traditional leaders within the

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. The amended section 21(1)(b) goes on to say If a dispute or claim cannot be resolved in terms of paragraph (a), subsection (2) applies. In terms of s 21(2)(a), the Provincial House of Traditional Leaders resolves the dispute in accordance with its internal rules and procedures; if it is unable to, then in terms of s 21(2)(b) the dispute must be referred to the Premier, who must resolve it after having consulted (i) the parties to the dispute or claim; and (ii) the provincial house of traditional leaders concerned. Failing this, the dispute is referred to the Commission on Traditional Leadership Diputes and Claims in terms of sections (2)(c) and (3). Here it is striking that the Premier is under no obligation to consult the community, but only institutional actors. According to the definition in section 1: a customary institution or structure means those institutions or structures established in terms of customary law. But customary law is not defined in the TLGFA. So its not clear whether it means the official customary law that is constituted by the TLGFA or living customary law, 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. A customary institution probably means the traditional leader and traditional council as referred to in sections 28, 3, 4, 8, 11, 19 and 20. This is a very specific provision dealing with disputes or claims which end up at the Commission. Weve encountered these commissions before in terms of the investigations they carry out, and whose decisions regarding kingship and queenship are often challenged. 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. It says that members of the community and the customary institution concerned must seek to resolve the dispute internally and in accordance with customs. 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);

 Section 28: Transitional arrangements but they are still in force today, and are in a sense an override of ss 2 and 3). 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, buzz words: cooperative or partnership governance, service delivery and development, support for / promotion of the institution of traditional leadership, 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, as they wanted customary law to be independent from the Constitution. Remember that they lost the battle against the gender activists. Whats happened since then though? Jane Guyer makes the following observation in talking about Nigeria:

there is a seeming paradox of restricted constitutional powers but rising political profile of chiefs; 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, both economic and political, deals with high level chieftaincy as with the peoples cultural attachment to the institution.

Asking the question why is important, as we must recognize the fact that the prominence of traditional leaders is not necessarily determined by the will of people in communities. It might be so where traditional leaders rule justly in terms of the will of the community, but where they rule unjustly, and against community will, it has a lot to do with economics and politics. John Comaroff and Jean Comaroff, in their book Ethnicity Inc., 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. It speaks for culture, customary law, and the collective rights of indigenous peoples. Also for the authority of their chiefs and kings, past and present. Contralesa has long been committed to bringing about a change in the national constitution. Its ultimate objective is a nationstate that accords to traditional leaders sovereign autonomy over their realms, a nation-state that puts the dictates of culture at least on a par with, if not above, universal rights of citizens. Meanwhile, Contralesa seeks, by whatever political means possible, to privilege the kingdom of custom. And the customary privileges of kings.

This is not an unfair representation of the current situation. There are a number of arguments made for the rise to prominence of traditional leaders: 1. The argument that traditional leaders bring in the votes: Traditional leaders control the rural vote, so if the ANC is to retain its political stronghold then it has to support traditional leaders. An example of this is the passing of CLARA, which was sped through just before the 2004 general election, because traditional leaders needed to be brought onside and encouraged to canvass for votes in rural areas. 2. The argument that traditional leaders are the custodians of culture: this is one of the general perceptions in the public domain. 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 arent ordinary people custodians of culture if living customary law is what we say it is? 3. The argument that traditional leaders hold a significant amount of social and political capital. We find that the co-Chairperson of the Constitutional Review Committee is a traditional leader, The Portfolio Committee on Justice (responsible for the Traditional Courts Bill) has a traditional leader on it; the Portfolio Committee on Rural Development and Land Reform (responsible for the Communal Land Rights Act) also has a traditional leader on it (Nelson Mandelas grandson). So you have these various traditional leaders involved in political processes, with the reach and ability to speak where ordinary people do not. 4. The economic capital argument: the fact that the interests of traditional leaders have been conflated with the interests of ordinary people. Its assumed that whats best for the Traditional Leaders is best for the people. But is that the case when traditional leaders are

earning government incomes, and when many of them are educated people, 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, namely, the conflation of the promoting institution of traditional leadership with community development and service delivery. 5. The argument that government is desperate: that in the absence of local government, there needs to be someone to fill in the gap. Traditional institutions are an existing apparatus that the government can use for this purpose. But at the same time, 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, where all have citizenship, and everyone has the vote.

e) The nature of governance in terms of living customary law

i) Who makes living customary law?

In one sense, Shilubana provides the basis for saying that the royal family represents the high water mark on decisions regarding succession. In deciding whether the traditional authorities had the authority to bestow chieftanship on Tiniko Shilubana, the daughter of Hosi Fofoza, 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, 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. But it would be a troubling precedent if it was understood to mean that living customary law is determined only by traditional authorities, rather than the community. But the case clearly recognizes the community vote to confirm Tiniko Shilubanas appointment. At paragraph 5, the court finds:
On 5 August 1997 the Royal Council accepted and confirmed that Hosi Richard would transfer his powers to Ms Shilubana. On the same day, 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, and says:
as has been repeatedly emphasised by this and other courts, customary law is by its nature a constantly evolving system of law. Under pre-democratic and apartheid regimes, this development was frustrated and customary law stagnated. 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.

And so while it could be argued that the court does endorse the traditional authorities/royal familys role, the court clearly also endorses the communitys role.

ii) Localised authority structures

Ultimately the reality is that each community has a different form of leadership. Some have royal families; others dont. Some are quite hierarchical, and you might find a chief (nkosi, kgosi) or king (silo, ndabezitha, kgosi) at the apex. But in others you might have a headman (isibonda) at the top, or even a committee of numerous people. We can generalize that traditional communities have councils, but this is where generalization ends these councils are variously constituted: sometimes only members of the royal family form part of the council; sometimes only men, or headmen, or other elders in the community, or a combination. This clearly makes the TLGFAs job very difficult, in terms of trying to universalize the way in which traditional communities look. Each community must be individually discovered, in terms of its history and its present (in terms of the Shilubana test). Leadership can be hereditary, typically in the case of kings / chiefs / headmen, or can be elected, for example, some Eastern Cape headmen and community authority committees. Even royal succession is hardly ever in fact strictly hereditary. The reason it is often thought to be hereditary is that people often speak about it being so. If you ask people, theyll relate historical accounts of how succession took place, without going into the detail of the fact that overthrows happened, etc. This is how communities talk about themselves, and forms part of their own self-identification or selfimagination. But in reality, succession battles are often won through contestation and political processes and maneuvering among community members. Of course, a complete, closed list of authority structures and norms surrounding traditional governance under living customary law is not possible. Good lawyers do the research (and get experts who know the history and present of the community concerned) on a case-by-case basis. So if we, as lawyers, find ourselves presented with a set of circumstances where we need to figure out what the authority and governance structure of a community is, we cant just turn to textbooks. We need to investigate the history, politics and lived reality of that particular community. Having said that, lets attempt to generalize as far as possible. Well now look at some of the themes and general principles which overarch the experience of traditional communities. But bear in mind that these are always contingent upon the reality of a particular community.

iii) Social organisation: bottom up, reciprocal and interdependent

Generally, traditional communities are layered, so you have overlapping levels of authority. They are also nested, so you have polycentric systems of social organization, such as subgroups and clan formations. Okoth-Ogendo describes this in the context of land administration:

a social hierarchy in the nature of an inverted pyramid. The tip of the pyramid represents the authority of the family unit over cultivation and residence; the middle the clan or lineage unit over grazing, hunting or redistribution of resources in space and time and between generations; and the base the authority of the community or nation over a wide range of cross-cutting functions including territorial expansion and defence, dispute settlement and the maintenance of transit facilities.

Heres what that looks like visually. The typical conception sees a chief wielding significant power over the community, the a headman with slightly less power, and then the family head. But Okoth Ogendo is talking about an inversion of that, where the bulk of the power is situated at the bottom tip of the triangle in the family, with the clan holding some of the intermediate power, and the nation or tribe where the chief is situated having the diffused power, not as highly concentrated.

This speaks to the notion that a chief is a chief by the people inkosi yinkosi ngabantu, or morena kemorena kabatho. South African Historian, Jeff Guy says that this saying is critical, as it captures well the direct relation between power and numbers of people. In other words, from the chiefs perspective, having lots of people adds to his domain and his role. It also breaks down the dichotomy between chief and people it not only unifies them but it also gives them equal weight. It counteracts the view, a feature of both pre- and post-conquest eras, that gives power and significance predominantly, even exclusively, to the chieftainship. In other words, the chief and his people are intricately connected, and the chief is not merely an individual independent actor he is deeply dependent on his people. The equal weight of the chief and his people is reflected in the reciprocal relationship between the two. Guy observes that in pre-colonial times, through allegiance, the chief received people (ukukhonza means to give allegiance) who offered him their labour, services and an army. In exchange for this, the people received land, protection and dispute resolution. There was reciprocity. 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, assist them with rain-making, maintain proper relations with the ancestors,

punish witches and resolve difficult disputes in their courts. Subjects were expected to pay tribute to the chiefs in the form of a small proportion of the produce of the fields, their herds and the hunt, and to provide labour when called upon for both military and productive purposes.

iv) Colonial and apartheid interference

What colonialism essentially did was to reduce the amount of land available, thus limiting the potential of people to revolt and move away. This potential had previously been a very important check against despotism. Colonialism secured the chiefs benefits at the expense of ordinary people. Labour migration meant that homesteads often had too few hands on deck for subsistence farming. In the process, 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. (Delius). And so the balance was radically shifted, from a system of reciprocity to one in which chiefs had all the bargaining power. As Jeff Guy says, the pre-standing reciprocity was utterly undermined by colonial and apartheid laws:
efforts to confine the chiefs power by defining his authority in territorial, not in personal terms: an attempt to regulate personal relations which I suspect has not been successfully imposed to this day. This legislative authoritarianism was exacerbated by the more general, but related developments by which homesteads were economically undermined by the loss of access to land, taxation and labour migration, 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. power based on people, the very essence of pre-conquest societies, had to be pr[o]scribed in colonial regimes. Colonial administration sought to restrict chiefly authority by defining it in terms of territory and then limiting it to specific bounded wards. 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. 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.

More on colonial interventions:

When the colonial powers imposed new provincial and international boundaries, the customary method for protesting against unpopular rulers secession was lost, because those disaffected with a chiefs rule were prevented from leaving the chiefdom to settle elsewhere. *and+ an individual wanting to move to another chiefdom, without implying any sense of rebellion against his leaders rule, had to obtain written permission.

Section 3(2) of the Natal and KwaZulu Codes made relocating to another chiefdom without prior permission an offence, and s 31(1)(m) of the Administrative Authorities Act 37 of 1984 (Ciskei) criminalised a traditional leaders incitement or assistance in secession.

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.

v) The importance of opting in and out

Instead of people being connected by the personal allegiances and relationships, people were compelled to particular territorial domains. In the process they lost access to land, and chiefs were able to tax them heavily. The pre-existing personal rather than territorial boundaries had provided for a degree of accountability, because very few rulers were able to rule uncontested. There was thus a degree of insecurity for those in positions of power, and the constant possibility of revolt and secession, that is, the option of opting in or out. As Bennett notes:
Regardless of the term used to describe an office of leadership, it is nonetheless true that few rulers had an uncontested hold on power. If an office holder is constantly under threat of usurpation, he has to take great care to cultivate goodwill and appease hostile factions. Political insecurity explains why an African rulers power could not have been absolute. The wise leader, therefore, did not dictate to his subjects. Ultimately, however, revolt and secession were the only methods for forcing corrupt or incompetent leaders to bow to popular will or relinquish office.

And as Delius notes:

A key characteristic of chiefdoms was a profound tension between the forces of centralisation, which allowed individuals to build up political and economic power, and competition for authority by rivals. Thus, through time, chiefdoms constantly fragmented and reformed as factions gained power, built up strength and subsequently lost control to other groups. The key shortage was of people. As a result, power and wealth depended on being able to build up a large following. Chiefs needed to attract and hold followers. Those who could offer material and military security as well as effective leadership gained followers. Those who were harsh, capricious and incompetent lost followers [and army]. The availability of land made it relatively easy for groups to move between chiefdoms. This mobility also contributed to cultural heterogeneity, which undermines the depiction of these communities as tribes composed of culturally homogenous populations with clear social and geographic boundaries.

Other mechanisms of accountability

Another form of accountability was the existence of councils which represented, and spoke on behalf of the people. The chief generally wouldnt act without having consulted them by virtue of the fact that they let the chief now what the people were saying.

Bennett (citing M W Prinsloo) describes how there were other more subtle accountability mechanisms especially:

[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. Councillors were partly selected on the basis of popular support and achievement and/or representing significant subgroups. (Delius)

Chiefs acted consultatively with community (men) in council. Whilst politically diverse, 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, which ensured that the interests and opinions of commoners could not be easily ignored. (Delius)

vi) Some cases

In the early stages, 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. Also, 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. About two decades later, we find a shift towards recognizing an invented form of customary law, a far cry from living customary law. Mokhatle & Others v Union Government (Minister of Native Affairs) 1926 AD 74: The decision by the Supreme Chief (that is, 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). The question at issue then become whether or not the Governor-General, as supreme chief, would, in terms of native law and custom, need the support of his councilmen and the permission of a court judgment in order to expel members of his tribe. 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, and others need not be consulted. Therefore, even though the court recognises that the community members expressed somewhat different views, it ultimately ruled in favour of chiefly (and, ultimately, state) hegemony and unlimited power. 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. But, despite this trend, people continued to contest the authority of traditional leaders and continued to express their right to have a say in decision making:

Mandhlakayise Ngcobo v Chief Native Commissioner for Natal 1936 NPD 94: the court addresses the tribes dissatisfaction with its leader, one component of which is the chiefs appointment of a principal induna without consulting the tribe. (Cf. Rex v Magano and Madumo, 1924 TPD 129, where court holds: the natives have no say in the election of the council, which is appointed by the chief entirely at his will.) Similarly, in Moepi v Minister for Bantu Administration and Development 1965 (1) SA 533 (T), a tribal community, led by the chiefs councilmen, brings a chief before the Bantu Commissioner for his failure to consult the headmen on matters which required their approval.

viii) Constitutional protection

Section 235 of the 1996 Constitution, provides for the right to self-determination, saying that:
The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation.

Exactly how much of a right to self-determination is there? And, 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, because certain minority groups could certainly claim to be a community sharing a common cultural and language heritage. This is especially so in the context of tribes which had nothing in common being forced together in the formation of a traditional community. The fact that s 7, read with s 28, doesnt allow for subgroups to withdraw means that there is an argument to be made that this particular clause is not being given adequate recognition. We now move onto taxation power and the transformation that traditional authorities power to elicit funds underwent.

f)

Taxation power

i) Origins of taxation power

Under pre-colonial indigenous law, gifts were voluntary. Ukukhonza was a modest gift given to the chief, perhaps a share of the fruits of ones produce; but nothing approximating what we now know

as annual levies and taxes. They were part of the reciprocal relationship we spoke of earlier one would pay allegiance to the traditional authority, who would provide land and protection in return. The form that these levies take today has led some to question what relation they have to precolonial practices. The argument is that the form of taxation that we see in traditional communities isnt derived from indigenous practice, but rather from a process of legislation that occurred under apartheid.

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. 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. They had to be approved at a community meeting before they could be gazetted for collection, and were also subject to approval by the Minister of Native Affairs. They were also only for specific projects, for example the buying of land, the building of a school, or the sinking of a well. As Aninka Claassens observes:
what began as voluntary contributions for specific agreed projects became, in 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.

By the 1980s these levies were very widespread. Even though they were originally connected to the migrant labour system, and were thus primarily attached to households earning an income in the formal economy, they became indiscriminately applied, to any household regardless of whether there was a migrant labourer in the household. 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. You would be given a signature after you paid your levy, and then only would you have permission to work wherever you migrant labour base was. If you failed to pay you then couldnt go and work. There has been a continuation of this in the present day: if people dont pay their levies they may not receive an RDP house, or they may not receive a letter saying theyre a resident and may thus be denied an identity document. The constitutionality of this is dubitable given that urban dwellers dont have to pay levies in order to get onto the RDP housing list.

iii) Implications for s 4 of the TLGFA

What are the implications of this history for section 4 of the TLGFA, which recognises the possibility of the accounting for levies by traditional councils? Where sanctions are imposed for noncompliance for instance, when one isnt allowed to bring their case to the traditional court if ones levies arent up to date tribal levies surely cannot be called voluntary contributions or donations, which some suggest they are. Voluntary contributions To the extent that the TLGFA and other subordinate acts provide for levies (the Limpopo Act specifically permits levying, whereas others, such as the Eastern Cape, North-West and Northern Cape Acts provide only for voluntary contributions), they could be unconstitutional in terms of s 43, 104, 226 230A and s 228(2)(b) of the Constitution. These sections speak about who has constitutionally recognised powers of taxation. In summary, 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. On top of this, there are relatively strict processes for delegation, and for the passing into law of taxes. So, the fact that s 4 of the TLGFA and the Limpopo provincial Act dont provide for the rigorous process by which taxes and levies can be approved, could make them unconstitutional. They could also be deemed uncustomary. 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, NW and NC Acts) are voluntarily approved by the communities to pay them, 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. Historically this was the primary mechanism that black people used to purchase land, documented under the 1913 Land Act (Claassens)

To the extent that people practice this of their will, this could be considered part of living customary law.

g) Indigenous v living customary law

On hearing the historical evidence, you might ask: of what relevance are these historical, precolonial accounts? If living customary law, as Shilubana emphasizes, is not just about traditions but also present circumstances, 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, 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, how much room do the present laws like the TLGFA allow for people to reshape and develop their present practices either in accordance with

pre-colonial values and norms or with contemporary ones, 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. 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, or develop it into something much more in line with the values of the Constitution. To conclude: all the issues that weve dealt with in terms of the TLGFA are things to keep in mind, because as we delve deeper into substantive issues, first of land and then of dispute resolution, well find that these issues recur.

h) Prescribed reading: Parliamentary submission on the Black Authorities Act Repeal Bill by Dr Sindiso Mnisi of the Law, Race and Gender Research Unit This is a submission that was prepared by Sindiso in 2010. Weve covered some of these criticisms already, and will deal with some of them in time to come. I apologize profusely for repetition of what we did in lectures, of which there is a fuckload (Sindiso clearly based some of her lectures on this submission). Think of this as a recap. The LRG welcomes the Bill as an important step in moving away from our apartheid past. However, it is an inadequate step on its own, given the post-1994 measures and legal provisions that, in effect, entrench and exacerbate the legacy of the Black Authorities Act (BAA) itself. In the context of the repeal, they draw the attention of parliament to this set of measures and legal provisions. Governments stated aim is to institutionalise traditional leadership. This policy approach actually dates back to the 19th Century, when Frederick Lugard articulated the policy of indirect rule. This policy embodied three institutional dimensions: i) the recognition of traditional leaders (Native administration); ii) the establishment of Native Courts; iii) Native treasuries to which indigenous leaders collected taxes from their subjects. This dated three-part policy was entrenched by apartheid legislation, including the BAA, and is largely realized in the Traditional Leadership and Governance Framework Act (TLGFA); the Communal Land Rights Act (CLARA); and the Traditional Courts Bill (TCB).

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, on condition that they comply with the requirements in s 3(2) within a year of the Acts commencement. Section 28 (1) deems a traditional leader before the Act to be one in terms of the Act; s 28(3) deems any tribe recognised before the Act to be a traditional community in terms of the Act; s 28(4) deems

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; 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. 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, and thus be converted to tradititonal authorities, until 24 September 2011 meaning that former traditional authorities have effectively become traditional councils; and it extended the existence of elected community authorities only until 24 September 2009, meaning that they ceased to exist even before the promulgation of the Amendment Act. Community authorities are at the additional disadvantage that only their disestablishment and integration into a traditional council is provided for in the Act. That the traditional councils brought into being by the TLGFA are the same traditional authorities introduced by the BAA is uncontroversial, and was recognised by the Constitutional Court in Tongoane. Two conclusions can be drawn. Firstly, that the traditional authorities established by the BAA do not in fact cease to exist but are converted into traditional councils. Secondly, that elected community authorities cease to exist and are rendered a non-option henceforth. The latter point is very unfortunate given that such community authorities specifically resisted inclusion in traditional authorities whose authority they didnt recognize, and that those communities which succeeded in gaining recognition as community authorities thereby gained refuge from violent forced removals. These communities will now be automatically included under a traditional council that they still dont recognize. Dont be fooled into thinking that sections 2 and 3 allow for the continuation of traditional communities s 28(5) categorically undermines this. The mechanism for withdrawal of makes it virtually impossible for sub-groups to withdraw. Section 7 requires that the whole community must apply to the Premier, and necessisitates consultation with the provincial house of traditional leaders, and the king/queen with official jurisdiction the groups most likely to resist the application for independent recognition. 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.

Tribal levies The White Paper on Traditional Leadership and Governance states that double taxation of people must be avoided, and that traditional leadership structures should no longer impose statutory taxes and levies. But in the TLGFA there is no provision outlawing such levies, 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. It thus provides for the possibility that traditional councils will impose levies, in spite of the fact that the Constitution (in sections 43 and 104) vests powers of this kind in national and provincial government only, allowing for delegation to local government by the provincial level. Sections 226 230A of the Constitution anticipates revenue being raised only by national, provincial and local government. The TLGFA also doesnt replicate the accountability

procedure for traditional councils that as is required for provincial taxation by s 228(2)(b) of the Constitution for Money Bills. Their levying powers must therefore be unconstitutional. Amongst the provinces, Limpopo has enacted legislation explicitly allowing for traditional council levies; the North West, Northern Cape and Eastern Cape all ban levies, but permit voluntary contributions and gifts. However, their voluntary nature is debatable as they can become binding provided they are pursuant to a meeting and vote. Members of communities complain of this levying, which is widespread, as being double taxation particularly burdensome in light of rural poverty and the desperate need for development rather than extortion, and particularly acutely felt in the case of rural women.

Failure to effect electoral procedures As mentioned, in terms of s 28(4) of the TLGFA the tribal authorities of old are deemed to be traditional councils, permitting a period with which to comply with s 3(2). Section 3(2) requires a change in their composition to incorporate 40% elected members, and to ensure that 30% are women. Elections held so far in the Eastern Cape, KZN and North West have ben fundamentally flawed. The LRG has collected evidence of this, 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; many of the community meetings were not quorate; in King Williams Town, many village members and organisations rejected the traditional elections through letters, but were ignored; in KZN there were insufficient funds to hire the IEC to monitor the elections, although IEC ballot boxed were nevertheless used; in North West the election process was supervised by the Provincial House of Traditional Leaders; and in some areas people werent allowed to nominate candidates and had to vote for candidates on a pre-determined list.

ii) The BAA and CLARA

CLARA was enacted to provide for the exercise of the land administration function assigned in s 20(1)(b). Here we focus on concerns related to the legacy of the Black Authorities Act pertaining to traditional council boundaries, authorities and their extended powers; and the degree of public participation in CLARAs enactment and the determination of customary law. Remember that the Act was struck down in Tongoane.

Boundaries, Authority and Extended Power CLARA uses the TLGFAs boundaries and allows the traditional council to act as the land administration committee to operate in terms of community rules. The court in Tongoane

recognizes, and is alarmed by the fact that boundaries and institutions are essentially the same as those that existed under apartheid, and finds that CLARA even extends the powers held by apartheid-established bodies of authority in relation to the administration of communal land. 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. The Court highlighted the significance of democracy, freedom and public participation in our constitutional order. The undemocratic process of CLARAs promulgation should be seen within the context of the undemocratic policy move of basing the TGLFA on the BAA. At the same time, the Court reaffirms the recognition of customary law as a legitimate source of South African law in terms of the Constitution, emphasising the importance of living law, and thereby signifying the importance of the role of public participation in both the promulgation and implementation of legislation.; By permitting artificially formed structures which were centralised by apartheid, CLARA runs counter to the customary law lived and developed by communities themselves, and ignores the layered, incluseive model of decision making concerning land. It also gives the most decision making power to institutions in which women have the most limited participation, thereby perpetuating patterns of exclusion and oppression suffered by rural women under apartheid.

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. But, in keeping with 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. Centralisation and Extension of Power Power is centralised to a senior traditional leader, meaning that the powers of an essentially undemocratic court are extended to permit oppressive sanctions such as fining. This is a distortion of customary practices on the ground. It also doesnt recognise customary courts at any level lower than the community-wide chiefs court. This centralisation of power disadvantages women for three reasons: power is centralised in senior traditional leaders, the vast majority of whom are men, and not in traditional councils, which contain women more often; there are strong indications that decentralised power enables women to influence living customary law to a greater extent; and failing to recognise the full range of traditional courts precludes strong women from emerging through participation in decentralised dispute resolution forums. Denial of the Right to Choose

Choice is denied to people that wish to opt out of traditional court jurisdiction in sections 5(1) and 6 of the TCB, retaining and forcibly subjecting rural people to the jurisdictional boundaries established by the BAA. It makes it an offence, even for a passer-by, not to appear in the court of the jurisdiction one is within. 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. 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. Women and children are particularly adversely affected by these failings. Finally, the powers given to traditional courts in the TCB override built-in indigenous protections, such as that a matter as serious as the cancellation of a land right be debated with the community at various levels, and require the endorsement of a general meeting. So, not only is the Bill at odds with the Constitution, but it is also at odds with customary law.

i)

Exam practice

What might exam questions from this particular section look like? Remember that Sindiso is responsible for two thirds of the exam. 10 of her 40 marks will be pure theory from first semester. 10 will be an analysis of some legislation. The largest chunk will be a question bringing together law and policy, but also drawing from living customary law. We must reason these things out in terms of some facts were provided with. Here are two sample questions:7 Sample question 1 Legal analysis (This would probably be a 10 mark question. We probably wouldnt get the Act for this question.) 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 communitys customs; and (b) observes a system of customary law. Refer to any other provisions and laws that may seem relevant.

I apologise that these answers are a bit all over the place, it is simply unavoidable. My reading of Sindisos approach to the exam is that there is quite broad L.T.W. (license to wank).

The critical term here is definition. Not just in terms of meaning, but also in terms of delineation where does a community start and end? The controversy is in part about boundaries. We must read s 2 in the light of s 28 the transitional arrangement. The old boundaries are deemed to be the current boundaries, more-or-less nullifying s 2s plain meaning.8 Then the question becomes: what about communities that dont 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? Thats part of what the question is supposed to bring out, hence the reference to historical as well as contemporary controversies. Basically, we should talk about: Section 2 and recognition, about a system of traditional leaders and associated issues, and problematize the notion of a system of customary law. Then turn to these issues: Section 28(3) in terms of tribes of old becoming traditional communities of present, and that depending very much on: the commission process which is supposed to determine whether groupings are legitimate or illegitimate, and how this process is incredibly slow; the 1913 Native Land Act, limiting peoples ability to move; Black Administration Act 1927 mixing and matching; Black Authorities Act 1951 homelands (bantu/tribal authorities), community authorities; Section 7, and the notions of opting in and opting out would be of only tangential relevance to this question.

Then pull this all together: ultimately, s 2 is in many ways deceptive by virtue of the fact that there is all this very rich history, which s 28(3) takes from the past and makes a current reality.

Sample Question 2 Theory, 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. This chief is beginning to assert himself as their leader by imposing tribal levies and saying they must bring their cases to his court. 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. You are aware that sections 11 and 12 of the TLGFA deal with the appointment and removal of traditional leaders. Based on these provisions and other relevant law, advise the community of Ndwendwe about what legal courses of action are open to them.
8

Basically, if you failed to mention s 28(3) in this question, you failed this question. Section 28(3) explicitly mentions s 2, and it should be straightforwardly obvious that this is the focus of the question.

Ensure that your answer includes arguments based on relevant provisions and legislation, consideration of the Constitution (provisions and precedent), and living customary law as you know it. Include references to knowledge gaps that exist and what evidence is necessary to fill them. You should start by picking out key terms. Those in bold above are what Sindiso though were key. Note that this is in the Eastern Cape, and remember that the Eastern Cape provincial legislation does not allow for election. This also requires some consideration of sections 2 and a 28(3), but if this question was in the same exam as question 1, you would only be expected to bring them up in passing, as its assumed that youve dealt with them. Sections 11 and 12 deal with the appointment and removal of the traditional leader, and one of the big things in those sections is that they assume the existence of a royal family and hereditary succession. Draw on Shilubana to argue that there is strong support for community-based development of the law, while also considering the view that it recognises the role of the royal house. Also, there is the argument that the TLGFA requires the appointment to made in terms of customary law, and that if it isnt in terms of customary law it should be referred to the house of traditional leaders. This is clearly not in terms of living customary law as defined by the community, and drawing from Shilubana, you might argue that the appointment is thus invalid.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. Also, in discussing living customary law, you must mention ss 211and 39(3) of the Constitution. The fact that tribal levies are questionable is something that we need to discuss, although not all that much detail is required as it isnt the focus of the question. Another thing to notice is the committee of twelve. It isnt clear whether the law has ever recognised them as an independent community. This is an important gap in our knowledge, because s 28(4) speaks about community authorities, and the fact that they are to be disestablished. The disestablishment date has passed, meaning that this community may have been a community authority. Anyway, all the above was spoken about in discussion through points raised by members of the class. 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. (refer to section 28(1) of TLGFA). Elected leadership : section 11 regarding appointment; argument in terms of their own customs and law. 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, which speaks about voluntary contributions. It doesnt explicitly prohibit levies.
9

Youll note that there is some ambiguity in the question were told that the traditional leader has been legally appointed, yet the question at least partly points us towards determining whether his appointment was lawful or not. Sindiso says that legally appointed simply means that it took place in terms of s 11 of the TLGFA, not that it was done properly. Questions as to the lawfulness of the appointment remain relevant.

Bringing cases : Black Administration Act 1927 does not ban forum shopping (we will come to this in future sections). So this traditional leader does not have the authority to compel them under existing law to come to their court. But, as well see, if the Traditional Courts Bill were to be in law at this stage, then he would have the authority to force them to come to his court. Other relevant law : dont forget the Constitution (provisions and precedent)! Advise the community of Ndwendwe about what legal courses of action are open to them. Wrap it up challenging the law is a viable option, including challenging the constitutionality of the TLGFA. Ensure that your answer includes arguments based on relevant provisions and legislation, and LCL. Refer to knowledge gaps and evidence necessary to fill them.

2. Land and Resource Management10

a) Introduction

Here are some of the questions that are relevant with regards to land. 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; Communal/Individual; Rights/Authority; Titling; Administration; Surface (above the ground)/Extractive (below the land) rights; Aboriginal title; Benefit (sharing) especially in the context of resources.

As we noted in the context of the TLGFA, government is faced with a tough balance between conflicting interests, but sometimes errs to heavily on the side of traditional leaders as opposed to ordinary people. Its fair to say that in terms of the land administration model, you also have a much more top-down, centralised model than you actually have in terms of living customary law. And so the question arises again whether it is not in fact uncustomary the way in which land administration has been regulated. 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); and

10

6A in the course outline, but was done second.

 Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA) (a very short Act, but the only Act dealing substantively with the protection of land for people in customary areas; Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) (dealing with who has rights to extract minerals). 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, in terms of section 20(1) of TLGFA. CLARA was passed in accordance with this provision. Lets deal with the big picture, looking at what customary land rights look like on the ground, then in the context of traditional governance, and then deal specifically with the legislation.

b) Land tenure in pre-colonial societies

The dichotomy between communal and private ownership is a false one. Theres a popular misconception that everybody owned the land in groups, without individual ownership. The other misconception is that chiefs owned the land, or were trustees of the land. The concept of trusteeship was used by colonists and courts to make sense of what they were seeing, which was unfamiliar to them. In fact there is an overlaying of communal and individual entitlements in traditional landholding arrangements. Rights to land came with membership of localised kinship or residential group that in turn was part of a political unit, usually a chiefdom(Delius). Only married men would traditionally have received homestead land, although all were entitled to land, to a varying extent. There were definitely distinctions between men and women, as well as between family units and individuals. Women who were in polygamous marriages received their own field to work, in order to provide sustenance to their house. If you were not given enough land in an original allotment, additional household land was obtainable by approaching local leaders. If none was available in the area, the local leader would approach the chief or council for land within the wider polity. Even though land was in communal areas, and in a nominal sense was communally held, it was ultimately the land of the person who had been assigned that land, and in that sense there was secure title, because once a household was given land it was theirs to administer. If they decided to subdivide it because the family grew, then they could do so accordingly. Grazing land formed the bulk of the chiefdom, and was thus not as tightly controlled or clearly allocated as farming land. It was open to all with livestock and there were no limits on the number of animals one could graze on the land.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, arable and grazing purposes. So they had early land administration functions in this sense.

We spoke about the layered authority structures in living customary law as opposed to the TLGFA. But now we see it in the context of land too. 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, with individuals having overlapping rights even within the context of this land. It was land that would be shared by individuals to different degrees. This land would be assigned by local leaders and then devolved by inheritance thereafter. If there were any divisions to be made, then these would be overseen by the household head. Fields / farming land: used either by the family or by individuals. Sometimes it was assigned by the family, sometimes by a local leader and sometimes a person could just independently choose land without seeking permission. In the Eastern Cape you would often not need to go to the chief. If you found a piece of land you could just start farming it and claim possession of it. This is indicative of the vast amount of land that there was. Grazing / firewood / water etc. land: this was accessible by either the ward or segment of the tribe, or it was accessible to the tribe at large. It was demarcated and overseen by local leaders and the chief. Land could only be taken from households as punishment for witchcraft or revolt against the chief. We see the same inverted triangle again in terms of land allocation at the different levels. The onthe-ground experience does not conform to the typical conception. Most of the land administration function is exercised at the family and clan level, and then it scales up depending on the kind of property youre dealing with, and whether there is in fact sufficient land.

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. This brings us back to the chiefs dependence on the community. 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.
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, than to descriptions of actual use (Chanock).

This makes sense: if the chief is the one with the power to sell off and hand over land, then the state doesnt have to negotiate with anyone else except the chief, thus making it easier to gain access to large tracts of land.

All members of the tribe are entitled to the use of as much of the land as they need; and the tribal authorities must see to it that their claims are gratuitously satisfied. (Schapera) Chiefs jurisdiction over people and land implies political overlordship (including small economic rights) not ownership in the European sense. (Hunter)

A large part of the problem is one of translation. The land is the chiefs jurisdictional political territory, not his personal property. Ownership is a misnomer for either chiefs or peoples relationship to the land. With such overlapping rights, it is difficult to conceive of as ownership in the sense that we use the term.

c) Colonial policy

The initial approach in the 19th Century was to destroy chiefs authority over the land. There was a policy of direct rule initially in the Eastern Cape, but this moved to a mixed system of indirect and direct rule in the Transkei. There were magisterial districts which were imposed over these communities, which paid no attention to the chiefly domains and boundaries which existed (fluid though they were). They were overseen by white magistrates, who subdivided these areas into locations, which were then overseen by headmen. These headmen were appointed by the administration, and were rarely actually customary headmen. They were sometimes local commoners who the government felt they could trust. Ultimately, it was colonial policies and rules that they had to give effect to. KwaZulu-Natal had a policy of indirect rule. Remember from the first semester historical wankfest, the model of indirect rule that Theophilus Shepstone developed. 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.

d) Union period

The Black Administration Act 1927 introduced a homogenized system, 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. In this way, chiefs were formally incorporated into the land administration system of government, and were given the authority to distribute and administer land. Land shortages introduced by the 1913 Land Act exacerbated land administration problems. Chiefs now also had the pressure of wanting to allocate land, but wanting to do so in ways that would appease their people. To some extent they were still dependent on ordinary people for legitimacy, particularly those who were not recognized by the state. But even those who were recognized by the state still depended on their communities for financial support in the form of tributes from

migrants, fines and fees from court disputes. Land shortages placed strain on the reciprocal nature of the relationship between chief and people, as the chief was supposed to provide land in return for allegiance. It also exacerbated internal political problems as succession disputes could no longer be resolved by mobility, but were addressed by attempting to win the support of white officials and experts.

e) Rising land insecurity

The system predictably became increasingly rigid as land pressures grew, especially in reserves. The way this happened was to the detriment of women. Male household heads rights were emphasized, and they were the only ones who could gain access to land. Women could only gain access to land through a relationship with a male. Unmarried women were generally excluded, whereas previously they would have had access to land. Corruption by chiefs was also made more possible by the system as they became the ones upon whose favour land depended. The people who had the most immediate access were the elders and older men; relatives of chiefs; and headmen. They were preferred to the exclusion of younger married men. In the context of all of this its interesting that communal tenure arrangements retained their flexibility and were ultimately the ones that were more secure. This is because rights are negotiable, 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. Interventions continued, 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. Under the 1936 Native Trust and Land Act, Proclamations 264 of 1939 and 116 of 1949 provided for betterment, reclamation and rehabilitation: demarcation of residential, arable and grazing areas as well as various improvement measures including fencing, diversion banks, contour banks and stock limitation. What betterment ultimately looked like, was taking people, placing them in residential land far removed from their arable land, resulting in a situation where people lived on top of each other, and had to travel great distances to get to their arable land.

f)

Shifting power

In the preceding period, white officials had exercised oversight of land tenure, with chiefs, headmen and other leaders effectively managing it. Now white officials had the central role of allotment, determining size, cancellation of allotments for arable and residential purposes. In this process, widows and single women were very rarely given land allocations. Ultimately, the Native

Commissioners had discretion to determine rules, orders, notices and directions or prohibitions. They had quite extensive powers for instance, they could fine a person for what they deemed to be an unreasonable failure to comply with an order they had made. Initially, even though white officials had power, chiefs were still to be consulted. But soon the chiefs were regarded as an excess that was unnecessary, and the system became coercive. After the 1960s, even though people could still get residential sites, new residents could not get arable land.
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, were most insecure and suffered the highest degree of landlessness over 50 per cent in areas of the Transkei and Transvaal. (Delius; citing Cross).

g) Re-shifting power

You can see that weve gone from a situation of people having masses of land, to people having very little access to land. The end result of the so-called betterment scheme was in fact gross dispossession of land, and a situation of extreme land scarcity. 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. In Delius words, however, the mounting resistance that officials encountered in their attempts to implement betterment and rehabilitation led some to rethink the role of chiefs. So, the massive resistance to this actually began to lead to a policy shift towards the establishment of Bantustans, so-called free homelands. The Black Authorities Act of 1951 came to systematically incorporate chiefs into the administrative system, making them less dependent on their subjects in the process, and making them the primary form of administration in these areas. A tribal authority was defined as a chief-in-council. (Delius). The number recognized was multiplied over time and their stipends increased. The government was no longer interested in bearing primary responsibility for this land. This all fits into the discourse of independence too throughout Africa countries were gaining independence, and the notion of independent homelands fitted well with that international discourse and politics in a superficial sense.

h) Bantu authorities and the establishment of homelands

As you know, chiefs became instruments of control over the black population, in order to ensure the constant supply of cheap labour in the white parts of the country. Those chiefs who resisted the ploy were replaced by those who would cooperate. There were more revolts in the 1950s and 1960s which were violently crushed by state. The power of chiefs was then supported by government,

giving them part of the responsibility for influx control, that is, determining who could and couldnt exit the homelands and participate in the white economy. The state was lending its coercive power in the form of policing and the army, in order to increase the power of chiefs. But at the same time, with the extensive unaccountable power of chiefs, there were more abuses and greater demands on the time, money and resources of their subjects. Because of the migrant labour system, most of the people in rural areas were women and children and it was thus their labour on chiefs fields or homesteads which was often demanded. Projectoriented community collected funds were often misappropriated and used to feed the bellies of chiefs. Even though the BAA 1951 created tribal accounts for public spending, these were poorly accounted for, if at all. Gifts and bribes were increasingly imposed and demanded, whereas they were previously merely voluntary contributions. This pervasive maladministration and corruption in the homelands eventually led to the well-known youths revolt in the 1980s, where places like Bophutatswana (North-West Province today), Lebowa and Gazankulu (Limpopo Province today) erupted. Young people organized into civics and rejected the older generations loyalty and passivity, rejecting tribal authority wholesale, and demanding a place in a democratic South Africa. Womens groups were also involved in these struggles. The demarcation of tribal boundaries was essential to the establishment of Bantustans, and was gazetted under s 2(2) and (3) of BAA 1951.
Tribal authorities were ultimately established throughout the reserve and trust areas. Groups who readily accepted the establishment of tribal authorities were often allocated land claimed by groups who had resisted the system. Some resistors found that when they finally agreed to the establishment of a tribal authority their domains had been substantially diminished. (Delius)

The Black Authorities Act 1951 did not, however, give chiefs legal ownership of land. And as we know, the concept of ownership does not fit well with pre-colonial property relations. However, their increased unaccountable power was leveraged by many chiefs to exercise increased control over land allocation. Minorities were the least protected.

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, as per clause 5, 19(1), 47(3)(a). Special title was given in these areas under two forms of (un)customary tenure. One was quitrent, which literally refers to land that was tenured from government and could not be divided, sold in portions or bequeathed by will. The Minister and his officials had the power to suspend, terminate or cancel quitrent title or appropriate the land. Therefore, it was a very insecure form of land. The other kind of title was permission to occupy (PTOs). The issuing of PTOs for residential and arable plots on trust land became the most pervasive form of title in traditional areas, although the impact

of these regulations on general administrative practice in customary areas was variable throughout the country. The minister and his officials had the same powers in terms of PTOs as with quitrent, and so this too was very insecure tenure. The Proclamations have been done away with, so PTOs dont officially exist anymore. But people do still speak in these terms, and some traditional authorities still issue PTO certificates.

j)

General trends

So thats the historical background. The summation of it is, as Delius points out, is that the government through its laws exaggerated the role of chiefs and diminished the rights of lower levels of political authority and households. This prioritizing of traditional leaders over the rights of decision-making at lower levels is a defining feature of this history. Chiefs retained their role in land allocation in many areas, but in some places and at some times headmen took over. In all cases white officials were given formal control, although their power was often limited in practice. Despite attempts by the legislature, customary practices have proven very resilient communal tenure arrangements persist and have proven to be more flexible and therefore more secure than individualized arrangements, able to absorb changes and pressures coming from land shortages and decreased tenure security. Well deal with this in more detail shortly. So thats it for the historical shit. Now we move to modern day.

k) Communal Land Rights Act (CLARA)

This Act has been struck down as unconstitutional. Nonetheless, it is the primary piece of legislation by which government aimed to give effect to s 25(6) of the Constitution, 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.

i)

Introducing CLARA

Because it has been struck down, we wont deal with it in great detail. But we will look at its basic elements which show part of why, at least in the High Court decision of Tongoane it was ultimately found substantively unconstitutional. Its by virtue of the continuities which it has with the colonial and apartheid legislation that it is problematic (the Constitutional Court, although striking it down purely on procedural grounds, noted this). In a general sense, it has two particularly problematic

aspects: firstly, it entrenched apartheid tribal boundaries; and secondly, it made traditional councils responsible for land admininistration and gave them the power to represent the community as the owner of the land. Basically, it concentrated administration of land at the highest strata of the community, whereas we know that that power is distributed throughout the system of social organization. Specific key problems: Boundaries of community: what used to be referred to as tribes, which the Act refers to as traditional communities, actually subsume other types of landholding. 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), are now not able to administer their land. Instead the traditional council (the authority over the traditional community) is responsible for administering the land. This problem is best illustrated with reference to some of the communities involved in Tongoane. 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. Then there was the Makuleke community, 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, what about the administration of the land of the subcommunity which regards itself as an independent community? The Makgobi community, although agreeing that they were part of the same traditional community as their traditional council, contested the fact that in terms of customary law the traditional council has the right to administer the land. According to their customary law the administering of land happens at lower levels. This is the most pervasive complaint. Layered land rights and decision-making power is a reality in most communities but was not recognized in the Act. In fact, the Act centralizes the power of tribes, which trump the rights held and exercised at lower levels. The chief and headman of the Makgobi community in Tongoane were establishing a village on agricultural land, and the community were not happy with this because they are farmers who dispute that the chief or headman can usurp family-held rights. 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. Content of land rights and the scope of chiefly power: here the issue is one of control and decisionmaking, which are key feature of tenure security). In the example of the Rakgwadi 11 community the village challenged the chiefs interference in land rights, 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. So thats the big picture explaining why CLARA is shit. Lets elaborate.

ii)
11

Basic provisions and critiques

I couldnt hear whether I got this name right, but shes no longer talking about one of the communities in Tongoane.

The Act is based on the TLGFA boundaries. It permits that the traditional council (formerly, traditional authority) might be the land administration committee (Section 21(2)) that will operate in terms of community rules (Section 19)). It assumes that community rules will be renegotiated and established by a land administration committee, even though community rules could be customary law, but ultimately that committee would have the power to determine what the rules are. 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. It also hereby assigns the most decision-making power to structures in which women may have the most limited participation. This is of particular concern based on the fact that women make up 58% of people living in rural areas. 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. The Act requires that a land rights enquiry be performed that can convert old order rights into new order rights (sections 14 and 18). One of the concerns with the land rights inquiry is that it would take forever. Also, old order rights are distorted and were entrenched under apartheid. Do we really want to convert these into new order rights? In terms of the Act, land rights can attribute to either the community (an artificial construct, per the boundaries in TLGFA, and which is constantly contested) or the individual (sections 4 and 5). So only these two entities could have land rights attributed to them. Attributing land rights to the family the true primary possessor of land is not provided for here, which is just absurd. In practice, many women only have land rights insofar as they are embedded in the rights of the family. When specific provision is made for womens rights to land, the Act anticipates married women (sections 4(2) and 18(4)(b)). Single women are not provided for, which again is a problem given single womens lengthy disentitlement.

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, or body of people, holds a plenary right out of which fractions of rights are given to others. It then follows that lesser rights of use and enjoyment are conditional on grants by the owner. On this understanding, it is often said that ownership of land vests in the tribe, and that traditional rulers grant individuals lesser interests from this plenary right. From such a description, it seems as if the tribe has an absolute title, the traditional leader is a trustee and individuals have usufructuary or some similar limited right.

Indigenous land rights should rather be viewed as a system of complementary interests held simultaneously

l)

Tongoane12 basic findings in the Constitutional Court

The Constitutional Courts decision was reached on purely procedural grounds. The Act was passed in terms of the incorrect and less cumbersome section 75 procedure, instead of a section 76 procedure. Section 75 refers to national competency, which means that the National Assembly has primary say. Section 76 refers to shared competency, and aapplies for issues that are of direct concern to the provinces. The National Council of Provinces has a more pronounced role, and consultation is required. The Act was passed according to s 75, when in fact it was a s 76 Act, and provincial consultation should have taken place. However, some obiter dicta were made which render the decision of substantive importance. The unanimous Court explicitly acknowledges the continuous relationship between CLARA and the old apartheid structures imposed by the Black Authorities Act. In particular, 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, and imposed boundaries and authorities. The Court was alarmed by this troubling continuity, finding that the unconstitutional CLARA therefore extends powers held by apartheid-established bodies:
The Black Land Act and the Development Trust and Land Act, together with the regulations made under these statutes, must be read together with the Black Administration Act and the Bantu Authorities Act, 1951 (now the Black Authorities Act). The latter statutes formed part of the colonial and apartheid legislative scheme for the control of African people. Under apartheid, these steps were a necessary prelude to the assignment of African people to ethnically-based homelands. 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. And as we noted in DVB Behuising, [t]hese removals resulted in untold suffering. 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. It also left a majority of them without legally secure tenure in land.

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. Part of governments argument was that the reason that it was passed under s 75 is that it doesnt actually affect customary law, because it doesnt attempt to amend or repeal any existing customary law. But the court observed that that would only be true if one were thinking of customary law in purely official terms. In terms of living customary law, there is an existing system on the ground. 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, even though the outline prescribes the CC judgment. I spoke to Sindiso about this -- she said she does not expect us to know anything about the CC judgment that she hasnt dealt with in lectures, although that is indeed the prescribed case.

a legal vacuum it must be acknowledged and treated with due respect, even if it is to be interfered with:
whether the community rules adopted under the provisions of CLARA replicate, record or codify indigenous law or represent an entirely new set of rules which replace the indigenous-law-based system of land administration, the result is the same: a substantial impact on the indigenous law that regulates communal land in a particular community. the field that CLARA now seeks to cover is not unoccupied. There is at present a system of law that regulates the use, occupation and administration of communal land. This system also regulates the powers and functions of traditional leaders in relation to communal land. It is this system which CLARA will repeal, replace or amend.

n) Living customary law on land13

Weve spoken already about the inverted pyramid, and weve 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. Of land administration, Okoth-Ogendo describes the structure as:
a social hierarchy in the nature of an inverted pyramid. The tip of the pyramid represents the authority of the family unit over cultivation and residence; the middle the clan or lineage unit over grazing, hunting or redistribution of resources in space and time and between generations; and the base the authority of the community or nation over a wide range of cross-cutting functions including territorial expansion and defence, dispute settlement and the maintenance of transit facilities.

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. In terms of this ethic, land is perceived by vernacular groupings as reflecting both a relationship between people and a means of production. It therefore operates at two levels. It is a mistake to assume as development experts often do with regards to tenure security that security is exclusively about production. The assumption that people will be secure

13

From here until the section on IPILRA, Sindiso went at rocket speed, skipping out some of the stuff in the slides. I dont know if it means its less important, or whether she was just determined to get through a certain amount in the lecture, but Ive included stuff from the slides whether she said it or not, but without adding anything to them.

because they produce misses the point. People understand security at the local level in terms of relationships between themselves as people, as well as in terms of production.14 Cross says African groupings arrange land rights along strong relational lines and their relationships form the foundation for their strategies of survival. Relationships between them provide the main basis upon which security is obtained. This should remind you about what weve spoken about in terms of communal land areas, where there was no individualized title over land, being the areas where people had the most tenure security. 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. The land ethic recognises the prior right of settlers, and also the communitys obligation to the poor. You can see how taking care of the poor would be an essential element of dealing with and adapting to changing circumstances, such as decreased land security and increased poverty, and thus communal tenure tended to be more tenure secure than individualisation of property. Cross catalogues the principles that define the living customary law land ethic: Principles Providing General Access to Land: 1. Universal access to land all families have a claim on the community for land. 2. Access to the resources necessary for subsistence: a suitable building site, arable land for fields and gardens, fallow for grazing, and access to firewood, water, reeds, clay and other resources. 3. The principle of use priority those without land can make a claim on those with more land than they need or can use. One can see how this supports the prevention of poverty by providing those without, with a means of obtaining. Principles Sustaining Possession of Land 4. The principle of social exchange: this is the mutual obligation to support the common good, and therefore to share labour, food, social life and ceremonies etc. This is a very communal element. One is part of a community, and therefore shares resources, shares life, and supports others. 5. The principles of return obligation: if anyones need increases, land can be requested for return or enlargement so that no one accumulates large holdings while others are in need, and boundaries are flexible. Basically, the principle is that you have to share. People with a growing need have a claim against those with a surplus.

14

But surely even the relationships upon which people base strategies for survival must be centred around production, no? You must produce in order to eat. If you dont produce and instead form relationships with others, then it is only because they produce that you survive. The fact that land is the predominant customary property form is precisely because of its significance to producing ones subsistence. I chatted to Sindiso about this, and her response was to put the Catherine Cross article on Vula. I dont have time to read it.

6. Occupancy transfer after lengthy occupation or use under loan, the land will slowly become permanent and is thus transferred. If you think in terms of the fact that sometimes under these prior principles people might loan land to someone in need, that person might end up using it for generations, in which case title is basically transferred. Principles Limiting Access to and Transfer of Land 7. The principle of pyramiding claims: the household heads holding of rights in land are subject to the obligations and title of relatives, heirs, wives. A familys occupation of land may also be subject to another family from whom they got the land to use. In such a case, dispossession is subject to consultation with those holding overlapping rights. One can see here that there is a layering of rights. This is exactly what makes the concept of title so difficult in these communities. 8. 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. This includes future heirs, and allows one to hold onto land not presently in use for that future residential purpose (in light of prior principles, means not renting so much land/for so long as to run risk of losing it). For example, if a family is not using the excess land presently, but will have four children who will also have needs in the land, they may need to protect the land not currently in use for future purposes. Therefore, even when loaning land to another family, the loan may be explicitly temporary in order to avoid it becoming permanently transferred. 9. The principle of settlement seniority: those who settled first will have larger landholdings than later-arriving groups, and they provide community leadership. Later-arrivers can gain seniority through prolonged residence and thus more land and leadership.

ii)

Mechanics of the allocation process

In current practice, generally, if an individual or family wants a place to live in a certain traditional area, they do the following: 1. 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; 2. Approach the local headman or some other elected person, with their supporting person, to get approval. He will tell them that they will need approval of the neighbours; 3. In order to get approval from the neighbours: the headman calls a neighbours meeting to enquire into whether they approve of the persons being placed in their locality. If the person comes from elsewhere, they may need a removal certificate (showing that they did not leave because of bad things they had done in their prior neighbourhood). If their request is successful, the headman and neighbours go to place the person in their new site and mark off its boundaries. 4. Tender ukukhonza (maybe R150) to the chief, headmen or traditional council. This may be paid in kind, and one might buy some alcohol for neighbours to enjoy because of him/them 5. They can then build their home and must conform to the local codes.

Its important to note that this is not a process of simply going to the authority and getting permission. Its very much a process of getting approval from the neighbours and community.

iii)

Adaptable norms

Cross concludes: Without providing general co-ownership of land, these tenures offer a basis for either common property rights or different forms of individual property rights under community supervision. In other words, communal systems do not only recognise communal property rights, but also individually held rights. More than that, 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), are consistent with this fundamental value that is being given broader expression. Land that has been allocated is then generally secure, and the rights of the landholders not to be dispossessed similarly so, except by election to leave the area permanently or commit a severe offence. Scholars therefore recognise that these land rights and authority systems are relatively stable, [but] also flexible and negotiable. (Cousins) They are adaptable both ways in both a positive and negative sense. They can be responsively amended to meet circumstances and the needs of the community as they arise; but can also permit self-interested distortion and abuse by those who have the means and power to achieve it. Women rarely form part of the category of those who do have such means and power, but that does not mean that they do not also attempt to use flexibility and stability to their own benefit (and sometimes successfully).

iv)

Socio-political pressures

There are a multitude of challenges to rural land rights justice well, in part a negative consequence of fluidity and adaptability:
Contemporary case studies suggest that many occupants of communal land enjoy de facto tenure security. This is because existing systems, many of them now informal in character, work reasonably well on a day-to-day basis. But these systems are under severe strain as a result of in-migration, overcrowding, informal individualisation, breakdowns in administrative systems, abuses by some traditional leaders, the continued insecurity of many women, and lack of clarity over the role of traditional authorities and local government bodies. (Ben Cousins, citing Jeff Peires)

Even where the apartheid model of land administration has taken root, the above model exists with, puts pressure on, and is challenged by customary ways, defying top-down notions of law and authority. 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, and their respective laws.

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, and asking for payment in the thousands. Weve spoken previously about ukukhonza (an allegiance fee which is around R50-R150). 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. Lack of consultation is often a problem. There are cases of forced removals from land for extractive industry or commercial development reasons. For example, in the Sekuruwe community (a case the LRC is currently working on), the gravesites were removed after the chief struck a deal with Angloplat, for which he is being paid R2500 a year. The community is being forcibly removed. Of course, the R2500 is nothing in comparison to the return that Angloplat is getting. A protest in the area led to 47 violent arrests.

vi)

The case of Sekuruwe

Dec 9, 2009 In the face of mounting protests, on December 3rd, company bulldozers destroyed the Sekuruwe's last remaining farmland, what little they had left since their land rights were handed over to the company last year. 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 after a year of systematic destruction of its most arable land, says Jubilee South Africa in a recent press statement. The community has repeatedly stated that they did NOT give consent for Anglo Platinum to use their land. Despite repeated requests and demands that Anglo Platinum stop working on their land until the dispute is settled, Anglo Platinum proceeded to destroy the community's fields, and call the police to arrest anyone who attempts to go onto their land to protect their crops. However, for a short time it looked like Sekuruwe would be able to claim a well-earned victory. After protesting for days on end, a group of 200 villagers forced Anglo Platinum to scurry behind their fenced-off encampment, also Sekuruwe land. The move surely brought tears of joy to the protesters. Unfortunately, by the time the Bulldozers arrived on December 3, and with the police ready to make their move, those tears dried up, and the villagers could do nothing but stand by and watch.

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. Four families applied and they were granted the interdict. Now they will apply for review of the departments decision to award the land to the chief in the first place. So these are a representations of the fact that these issues are very much alive.

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. It was intended to be a temporary means of legislation, subject to the introduction of CLARA. Its intention is to ensure a basic level of protection for people, as envisioned in section 25(6) of the Constitution. It provides for a mechanism that holds the minister (and by extension, 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, use or access) in land.

ii)

Section 1: Definitions

1. (1) In this Act, unless the context indicates otherwise (i) "beneficial occupation" means the occupation of land by a person, as if he or she is the owner, without force, openly and without the permission of the registered owner; (note that it is not ownership, but as if owner). (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. This definition has been used in a lot of the land reform legislation, but was abandoned in the TLGFA, which took autonomy and decision making power away from communities themselves. (iii) "informal right to land" means

(a) the use of, occupation of, or access to land in terms of (various categories) (i) any tribal, customary or indigenous law or practice of a tribe (basically, living customary law) (ii) the custom, usage or administrative practice in a particular area or community, 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, 1936 (Act No. 18 of 1936); (bb) the government of any area for which a legislative assembly was established in terms of the Self-Governing Territories Constitution Act, 1971 (Act No. 21 of 1971), or (cc) the governments of the former Republics of Transkei, Bophuthatswana, Venda and Ciskei, *nominally independent homelands+ (the distinction between bb and cc, is that bb categories did not actually become homelands, although that process was initialized). (bb) incl. areas that initialised process to homeland status e.g. KaNgwane, KwaNdebele, Gazankulu etc. (cc) areas completed process. (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; or (d) the use or occupation by any person of an erf as if he or she is in respect of that erf, the holder of a right mentioned in Schedule 1 or 2 of the Upgrading of Land Tenure Rights Act (ULTRA), 1991 (Act No. 112 of 1991), although he or she is not formally recorded in a register of land rights as the holder of the right in question. Subsection (b) would include, for example, the Ingonyama Trust Board (ITB) in KZN. Much tribal land there is registered under, and most tribes deposit resources earned from land, into ITB. Subsection (c) is a catch-all provision. 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, labour tenant, 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, on the basis that such permission may at

any time be withdrawn by such owner or lawful occupier (this avoids overlap with PIE). The Act is not actually limited to former homelands, as IPILRA rights also apply on privately owned land as long as it excludes (e) and (f), and thereby avoids overlap with ESTA and PIE. (iv) "Minister" means the Minister of Land Affairs; Today, the Minister of Rural Development and Land Reform. (v) "person" includes a community or a part thereof; A person can be a juristic person in the form of a community or subgroup. (vi) "prescribed" means prescribed by or under this Act; (vii) "tribe includes (a) any community living and existing like a tribe; and (b) any part of a tribe living and existing as a separate entity. This is clearly a piece of legislation which very robustly sees subgroups as able to distinguish themselves from the macro community.

iii)

Section 2: Deprivation of informal rights to land

2. (1) Subject to the provisions of subsection (4), and the provisions of the Expropriation Act, 1975 (Act No. 63 of 1975), or any other law which provides for the expropriation of land or rights in land, no person may be deprived of any informal right to land without his or her consent. (This is the most important section, and is subject to s 4) (2) Where land is held on a communal basis, a person may, subject to subsection (4), be deprived of such land or right in land in accordance with the custom and usage of that 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, the community shall pay appropriate compensation to any person who is deprived of an informal right to land as a result of such disposal. 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. So s 2(2) speaks about deprivation, and s 2(3) speaks about disposal. Section 2(2) had in mind the taking of land by the community iteslf. For example, a person might lose their land rights by virtue of the fact that the community has decided, in terms of their own customary law, that they might reassign certain land for other purposes. Remember that the community would never have a basis upon which to take away ones residential land, but they would have grounds upon which to take away a persons rights to grazing

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

iv)

Section 3: sales and other dispositions subject to informal rights

3. Subject to the provisions of section 2, any sale or other disposition of any land shall be subject to any existing informal rights to that land. Theres a lack of clarity here. By saying that s 3 is subject to s 2, it seems clear that its talking about disposal. But then the section goes on to include any other disposition of any land. 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, by referring to section 2 it is mostly referring specifically to s 2(3), which deals with disposal of land subject to compensation. This is similar to the common-law lease before sale principle, except that we have a situation here where a person doesnt have a lease. It provides for people who dont have a pre-existing formal right or prior permission to inhabit the property.

v)

Section 4: Regulations

4. 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. The minister has not made any regulations, although there are internal departmental directives that exist in terms of IPILRA. They provide for a very detailed process and form that has to be filled out. Another thing to note about IPILRA is that it was initially passed only as an interim solution, only to last for a year. But it has been repeatedly renewed every year that permanent legislation hasnt been introduced.

vi)

Occupation, use and access rights

Section 1 (a) of IPILRA refers to occupation, use and access rights. The fundamental difference between the three is generally recognised in customary law. Remember Catherine Cross speaking about the fact that communal land is a misnomer, 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. The different rights reflect different degrees of entitlement. Occupation rights are stronger than use and access rights, and all three are somewhat different in nature. Occupation rights to residential sites are de facto owned by the inhabiting family, and inherited over generations. Similarly, use rights are also often passed down. Neither occupation, nor use rights, are communal rights in the

strict sense, even in communal areas. All customary systems provide strong specific protection for occupation and use rights, which are treated differently from access rights. Section 2(1) therefore appropriately requires consent for disposal for categories of informal land rights, but should also reflect in the process in which to solicit communal consent in terms of s 2(4), that occupants should have a stronger say than those with mere access, especially in cases of disagreement. So this is one of the deficiencies in IPILRA, that s 2(4) speaks about the majority of holders of such rights but doesnt actually distinguish between the kinds of rights; the degrees of entitlement. Occupation rights are prioritised (as a birthright of community members, 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. This is a built-in principle in customary law. If people have insufficient residential 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, grazing, firewood, water land. This is seen to be interests of the entire community, and in fulfilment of the customary entitlement of community members to residential sites. This is arguably what section 2(2) envisions, which is why it does not require compensation for the person or community or part thereof who loses their access to land. Compensation would make it prohibitively expensive and thwart the purpose of extreme poverty prevention. Another weakness about s 2(4) is its imprecision about such rights? What kinds of rights (i.e. occupation, use or access)? Does one consider the specific locale too? Does it mean within a particular area, or does it refer to a wider terrain? How exactly is that area demarcated for that particular decision? In some cases itll be quite straightforward. But in others it will be less so, because of the overlap of community boundaries.

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, any rights in addition to those which he or she holds in that land. Section 5(1):This Act binds all persons, including the State. So any person who has people with informal rights on his or her land is subject to this provision. 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. 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.

Section 2(4) of IPILRA attempts to streamline the process. One of the major concerns of investment companies is that they dont want to invest in rural areas because of the major burden of consultation. This is supposed to alleviate that pressure: one doesnt have to go door to door to everybody and consult them individually, but merely hold an appropriate meeting and obtain majority consent. Section 2(1) is imprecise about who should give consent. This is a problem insofar as its unclear whether it refers to individuals or groups. This is in light of the definition of person being so broadly defined as to include a community or part thereof. 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. Ultimate rights holders, whose rights are often embedded, are individuals, but they form part of families, clans etc., the male head of which might symbolically hold the right. 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. Publicising and chairing the meeting are thus crucial details to whether or not the process of consent-seeking satisfies the IPILRA requirements.

viii)

Implementation

IPILRA is unfortunately not being properly enforced. The Department of Rural Development and Land Reform sometimes endorses sales or disposals without obtaining the consent of the rights holders themselves. A more serious problem exists where vulnerable rights holders are sometimes dispossessed by local structures or traditional authorities . 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. Regulations and, more importantly, more public education are needed. But this is unlikely to happen; given that the governments present focus is on a replacement for CLARA now that its been struck down.

p) Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA)

i)

Background

This is a long and detailed Act, and were only going to look at a few elements of it, through the lens of the Bengwenyama case.

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, 1991 (Act No. 50 of 1991). Under the Minerals Act, 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. However, after IPILRA came into being, the MPRDA came along, which removed that arrangement, vesting the right to grant mineral rights in the state. The principal Act was amended by Act 49 of 2008 (assented to by President in April 2009), after the Bengwenyama case.

ii)

Preamble

Selected aspects of the preamble: Acknowledging that South Africas mineral and petroleum resources belong to the nation and that the State is the custodian thereof; Recognising the need to promote local and rural development and social upliftment of communities affected by mining; Reaffirming the States commitment to reform to bring about equitable access to South Africas mineral and petroleum resources; Being committed to eradicating all forms of discriminatory practices in the mineral and petroleum industries; Reaffirming the States commitment to guaranteeing security of tenure in respect of prospecting and mining operations; Emphasising the need to create an internationally competitive and efficient administrative and regulatory regime; The Mining Unit, Industry and Energy Division of the World Bank, produced a Strategy for African Mining, 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 brings us back to the decision-making quandary. If companies have to go to every individual to obtain consent, it is inefficient and discourages foreign direct investment. This means that there is a desire to centralize the authority to make those decisions. 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

'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, custom or law: Provided that, where as a consequence of the provisions of this act, negotiations or consultations with the community is required, 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; As we know, this is a central and often problematic concept. The underlined parts were included by amendment, so this wasnt the definition when Bengwenyama was decided. What this definition does, is actually recognize that the community may actually have sub-components, which have rights, and deserve direct consultation when those rights are affected. 'historically disadvantaged person' means (a) any person, category of persons or community, disadvantaged by unfair discrimination before the Constitution took effect; (b) any association, a majority of whose members are persons contemplated in paragraph (a); (c) a juristic person, other than an association, 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; or (ii) is a subsidiary, as defined in section 1(e) of the Companies Act, 1973, as a juristic person who is a historically disadvantaged person by virtue of the provisions of paragraph (c)(i); The typical traditional community were talking about would be comprised of such people. 'owner', in relation to(a) land(i) means the person in whose name the land is registered; or (ii) if it is land owned by the State, means the State together with the occupant thereof; or (b) the sea, means the State;

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

 To grant the State custodianship; (c)to promote equitable access to nation's MPRs to all people of SA; (d) substantially and meaningfully expand opportunities for historically disadvantaged persons, including women and communities, 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; (i) ensure that holders of mining and production rights contribute towards the socioeconomic development of the areas in which they are operating. Consider Sekuruwe, the ongoing case in which the chief is pocketing R2500 a year. This is clearly contrary to the objectives of the Act, because the community itself should have been consulted, and as we see the money should go into state revenue. This Act, in terms of its express objectives, that is, in principle, is supposed to avoid situations such as in Sekuruwe. It is supposed to ensure that wider society benefits.

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, the State, acting through the Minister, may(a) grant, issue, refuse, control, administer and manage any reconnaissance permission, prospecting right, permission to remove, mining right, mining permit, retention permit, technical co-operation permit, reconnaissance permit, exploration right and production right; and (b) in consultation with the Minister of Finance, prescribe and levy, any fee payable in terms of this Act. (3) The Minister must ensure the sustainable development of South Africa's mineral and petroleum resources within a framework of national environmental policy, norms and standards while promoting economic and social development. (4) The State royalty must be determined and levied by the Minister of Finance in terms of an Act of Parliament. So the State is given extensive powers in terms of this section. Is it expropriation? There is, as you can see in subsections (3) and (4), legitimate objectives again. The Mineral and Petroleum Royalties Act has also been passed, which says that the royalties on the profits that the miner makes are paid to the state. It has been argued that the Act is framed in such a way that it could be taken to apply

more broadly than just mining, to the mere extraction of sand or stone. Anyway, thats really just a side note.

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. This is the standard sort of community that weve been dealing with in this course. The court comments specifically on the invasive nature of a prospecting right on the ordinary use and enjoyment of property by its owners. The court comes back to this repeatedly: prospecting rights affect the rights of landowners significantly, even if those rights are only surface rights. The court also notes the profoundly unequal impact our legal history of control of and access to the richness and diversity of this countrys mineral resources and how that impacted on the allocation and distribution of wealth and economic power. The MPRDAs repeated commitment to social and economic development is therefore a legitimate one. It speaks about the effect of past racial discrimination on the ownership of land because we cant really disaggregate ownership of land from the rights to grant prospecting and mining permission. It also speaks of equality, the enjoyment of all rights and freedoms, with a focus on substantive equality. The MPRDA provisions have a material impact on each of the levels referred to, namely, individual ownership of land, community ownership of land, and the empowerment of previously disadvantaged people to gain access to mineral resources. These are the things the court comes back to in speaking about entitlements and limitations that exist under the MPRDA. 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. Dispossession of land aggravated the situation. The court says, therefore, that the legislations objectives are legitimate, 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. The MPRDA says that although the state is custodian, the people who occupy the land obtain the first rights to prospect there i.e. the people who occupy the land have a preferential right. This is a necessary protective mechanism, allowing the state to oversee whether the distribution of access to mining rights is fair. In this case, the community applied for a prospecting right through its company but was denied preference. Another corporation - Genorah - got prospecting rights on the land, without the community even being informed. The court said this was unacceptable, both in terms of the Act, and the Constitution, because:

15

This is Sindisos dealing of the case in class see below for a summary.

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. Thus, The environmental management plan must be submitted to the Regional Manager . Amongst other requirements the plan must investigate, 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. It must contain a record of the public participation undertaken and the results thereof. The Minister must approve the plan within 120 days of its lodgement if it complies with the necessary requirements.

So you see here the consultation requirement included, and a strong emphasis on both socioeconomic and environmental impact. In terms of practical consequences, Court finds that: a. Owners of land may acquire prospecting rights on their own land if they wish to do so (of course, most communities will not have the means, resources or skills tro do so). b. Third parties seeking prospecting rights must engage with the owner of land before acquiring the right, so consultation becomes central. c. Prospecting rights may only be exercised under state authority or permission, again emphasizing the states custodianship. d. exercise of prospecting rights highly invasive owners use, even if the owners are restricted to surface use. Thus, land owners must be consulted at various levels of 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. This is so irrespective of whether one regards a landowners right as ownership of its surface and what is beneath it in all the fullness that the common law allows, or as use only of its surface, if what lies below does not belong to the landowner but somehow resides in the custody of the state.

In this regard, the old (unamended) section 5(4)(c) precluded prospecting and mining without notification and consultation with the landowner or lawful occupier of land. The court then draws a distinction between the common law position where the contract was between the owner and the prospector, and says that under the Act, consultation is required. The court understands consultation not to mean consent, but means more than mere asking the communitys view. It means to act in good faith to meet the communitys needs, and making the necessary accommodations. It cannot be established that there was procedural fairness if the consultation and the result are inconsistent with these prescriptions. The court says that the Act makes provision for compensation to the community in certain circumstances (section 54). Where a community denied the person who has been given the prospecting right access suffers a loss in the process, 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

or lawful occupier and any other affected party and submit the result of the consultation within 30 days from the date of the notice. If the regional manager, after having considered the issues raised by the holder and any written representations by the owner or lawful occupier, concludes that the owner or occupier has suffered or is likely to suffer loss or damage as a result of the reconnaissance, prospecting or mining operation, he or she must request the parties concerned to endeavour to reach an agreement for the payment of compensation. 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, in order for the landowner to assess what impact the prospecting will have on the landowners use of the land; 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; This is why Genorah was not compliant. It failed to comply with this set of requirements. 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, by ticking a box on the form, whether he on behalf of the Community supported its application or not. The form was never signed by the Kgoshi. Genorah did nothing further, despite receiving a letter from the Kgoshi inviting Genorah to get to know each other better.

This does not constitute consultation in terms of the MPRDA. Since Bengwenyama, it has been amended and specifically says that for the purposes of consultation those with affected rights must be consulted. This is an IPILRA-like consultation in term s 2(4) of that Act. Again, 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.

Then the court speaks about Section 25 of the Constitution, which recognizes the public interest in reforms to bring about equitable access to all South Africas natural resources, not only land; requiring the state to foster conditions enabling access to land on equitable basis. A community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of parliament either to tenure which is legally secure, or to comparable redress. The Act gives recognition to these constitutional imperatives:
It recognises communities with rights or interests in community land in terms of agreement, custom or law. 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. 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, namely to apply for a preferent right to prospect on their land. It is only where a prospecting right has already been granted on communal land that the preferent right may not be granted.

The court makes a great deal of the fact that the community is able to lodge this prospecting right. But it doesnt 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. That would surely be questionable in terms of s 25 of the Constitutions requirement of comparable redress. This, Sindiso says, is a potential challenge to the MPRDA which she is waiting to see come to court.

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, particularly with regard to their enjoyment of property rights in order to safeguard their physical and cultural survival;

The commission also held that the protection of indigenous peoples property rights extended to tribal people. 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. In doing so it recognised a special relationship to land, as well as their communal concept of ownership, which is to be legally recognised as ownership rather than mere access; and requires robust consultation with communities, which includes consent. There is a difference in the extent of consultation required in the Endorois case and in Bengwenyama. Even though Alexkor recognises customary tenure as legitimate ownership, Bengwenyama does not recognise the right of ownership of land as including mineral ownership. 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. The Endorois decision, on the other hand, is unequivocal:
[t]he jurisprudence under international law bestows the right to ownership rather than mere access. The African Commission notes that if international law were to grant access only, indigenous peoples would remain vulnerable to further violations/dispossession by the State or third parties. Ownership ensures that indigenous peoples engage with the state and third parties as active stakeholders rather than as passive beneficiaries. members of indigenous and tribal peoples must obtain title to their territory in order to guarantee its permanent use and enjoyment. 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, in consultation with such people and their neighbouring peoples.

As weve noted the Commission speaks of consultation as requiring consent: *i+n terms of consultation, the threshold is especially stringent in favour of indigenous peoples, as it also requires

that consent be accorded (emphasis in original text). 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, accommodation of sorts in respect of the impact on the landowners right to use his land. Its a pretty weak formulation when compared with the robust consent argued for by the Commission. The bottom line is that there are questions remaining. 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, and therefore ownership must be ownership in the full common law sense. What if CC were presented with MPRDA challenge on basis of inequality, not in terms of the present, but in terms of the past? Sindiso thinks they might very well decide that its unconstitutional, but that remains to be seen.

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. In December 2004, the Community lodged objections in writing to the Department against the granting of applications for prospecting, on the grounds that they wanted to be accommodated meaningfully in the prospecting and mining projects. However, there was no response to these objections and Genorahs application for prospecting rights was accepted by the Department. In May 2006, Bengwenyama Minerals pursued its own application for prospecting rights in writing to the Department. The application, after initially being rejected was finally accepted by the department as proper. Kgoshi, the traditional leader of the community, wrote a letter to the Department stating his approval of Bengwenyama Minerals acting on behalf of the Community. Despite continuing exchanges between the community and Bengwenyama Minerals and the Department, the Department made no mention of the fact that prospecting rights on the farms had already been awarded to Genorah. The community was only given notice three months after the prospecting rights were granted to Genorah. 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. Internal Appeal Froneman disagrees with the HC and SCA, finding that an internal appeal in the circumstances was not precluded. 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.

The Constitutional Court held that the 180-day limit began later. Froneman J, emphasises the objects of the MPRDA; the need to protect the rights of landowners. He is particularly appreciative of Bengwenyama Minerals and the Communitys conduct during this process, the communitys disadvantaged status and the inequality of the parties. He condemns the department for taking 4 months to respond and generally for its treatment of the community in failing to accommodate them. 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, 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. The MPRDA deals with the content of the requirements of procedural fairness, 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. Simply notifying Kgoshi and giving him a form to tick was inadequate. He also noted the importance of protecting landowners under customary law and held that the consultative process, with meaningful participation, will ensure that the constitutional recognition of customary law is complied with. Right to a hearing- section 104 Section 104 of MPRDA gives a community a pre-emptive right to prospect on community land. The section is protected by procedural fairness requirements under section 3 of PAJA. Froneman J focuses on this right to hearing in the judgment particularly with regard to the need to protect individual and community property rights, ensure participation in the alienation of these rights, and prevent discrimination. This is why the notice requirement above (section 3) ensures participation and consent by the community to the prospecting group. On the facts, 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, Froneman held that the section 17(1)(c) of the Act, which requires that prospecting will not result in unacceptable pollution, ecological degradation or damage to the environment, had not been complied with and therefore constituted a valid ground of review. Order The court upheld the appeal, setting aside the departments decision to grant a prospecting right to Genorah in respect of the Communitys land.

a) Prescribed reading: Ben Cousins Characterising communal tenure: nested systems and flexible boundaries

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. Biebuyck presents a summary of their views: land was plentiful and exploitation of resources extensive; land was essential for livelihood, but had little exchange value; land was vested in groups represented by chiefs, elders or councils; there was a close relationship between features of social and political organisation and principles of land tenure; and there was often a mythical association between ancestors and land. All members of a group had rights of access to land, derived generally from membership of the group. Individual security was great, provided one respected the ethical code of the group. Land was both communal and individual and can be seen as a system of complementary interests held simultaneously. Colonial and apartheid rule brought the imposition of new forms of authority and economic organistion, 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. State policy sought to retain a form of communal land tenure because this appeared in the interests of the dominant classes, but bore little relation to the pre-colonial system. Rights to transfer were limited; the size of allotments were set; and womens land rights were heavily circumscribed. 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. But it also widened access to independent, land-based livelihoods, and helped communities resist exploitation it was thus often actively defended. Contemporary studies generally characterise land tenure as being simultaneously communal and individual in character. Secure (individual) rights to land and natural resources derive largely from accepted membership of a local community or group. Cross suggests that contemporary communal tenure systems refer back to an indigenous social land ethic. The principles underlying this ethic offer a basis for either common property rights or different forms of individual property rights under community supervision. The most basic principle is of universal access to land. There has been a trend towards higher levels of individualization, but not an abandonment of the ethic, which also underpins de facto tenure systems that emerge in informal settlements in urban areas. Therefore, despite state intervention and control, land rights remain socially embedded, involving complementary interests held simultaneously by members of groups. The challenge for tenure reform legislation is to give appropriate recognition to the nature of such rights. ii) Where do land rights derive from?

The source of land rights in pre-colonial property systems is controversial. Some, like Biebuyck, argue that rights were vested in the group. Others, like Gluckman, assert that these rights were vested in individuals and arose from membership of society. Yet others describe land rights as deriving from allocations by chiefs acting as owners of the land in a trusteeship role.

The latter view, emphasizing chiefly allocation as the source of rights, has been heavily criticized by many, including Chanock. 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. Contemporary literature also contains contrasting characterizations of the source of land rights and, in particular, of the meaning of the term allocation. Some regard it as deriving from an authority structure; others see it as an administrative procedure to ensure fair distribution. Bennett regards the powers of deciding where subjects live, and how much land they are to be given, is a not only a power but a duty. Because most land has today been allocated, in most cases leaders do no more than approve a transfer between existing landholders. The land allocation powers of traditional leadership and the nature of land rights are central issues in the constitutional challenge to CLARA, and well return to them.

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. Male heads of families were given arable land without restrictions on size. But he could never sell it, hire it out or dispose of it for money. In general, the older anthropological literature emphasizes the security of individual rights against arbitrary decisions by socio-political authorities acting as land administrators. The imposition of colonial rule saw many changes in land tenure: increased scarcity; new markets and demand for good quality land; new ideologies of inheritance and economic co-operation; legal interventions; and large scale resettlement. Sale of land became widespread in some areas but elsewhere remained repugnant. Although it varies regionally, the general trend in southern Africa was towards adaptation of customary land tenure to meet new conditions of land shortage. Under apartheid, the security of individual rights within communal systems was weakened in several ways, including the extensive powers given to officials to appropriate land and cancel quitrent titles and PTOs. In Contemporary studies, rights to residential and arable plots are usually portrayed as being held by households with married men at their head. In some communities, single women with children to support are also allocated land. The principle that families need land to establish an independent base for their livelihoods is still widely upheld. But high population densities in communal areas have led to a widespread shortage of arable land, and often only residential land is now allocated, and in many areas sharecropping and lending of arable land takes place. The underlying principle that land cannot be bought or sold is still strongly articulated by residents in many communal areas, although in some areas sales to outsiders clearly do take place. Contemporary studies basically show that many occupants of communal land enjoy de facto tenure security, because of the fact that existing, informal systems work well on a day-to-day basis. Tenure reform must simultaneously provide greater certainty over land rights in the face of threats to these

systems (in-migration, overcrowding, individualisation, abuse by traditional leaders), and recognise the local variations in the definitions of rights and duties.

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 Africas history of state intervention, regulation and repression. Most of the victims of forced removals found themselves in homelands. These massive displacements altered the social composition of rural communities and affected the security of individual land rights in a variety of ways. Some communities accommodated the victims of forced removals. Often the original rightsholders and later arrivals stood together in attempts to resist removals, but clear tensions of land rights have emerged strongly since 1994. In some situations, the underlying land rights of the original purchasers cant be upgraded without placing the land rights of others in jeopardy. Today, land in areas which were occupied by groups of diverse origin and identity is held under different versions of communal tenure. The underlying (registered) titles are sometimes held by different owners and some farms are subject to competing restitution claims. Case studies illustrate that simplistic notions of homogenous communities with clearly defined social and territorial boundaries, and under the accepted authority of traditional leadership, are inappropriate in many communal areas. Tenure reform must: seek to secure the land rights of both original rights holders and subsequent occupiers; and address the legacy of forced tribal jurisdictions and give groups a choice as to which administrative authority they fall under.

v)

Womens land rights

Land was generally controlled by families in large extended households, and with control came a host of social obligations to these groups. Production was family based, with a clear but flexible division of labour. Womens rights to land were embedded in a social context of family rights and obligations. Among the amaPondo of the Eastern Cape, cultivation was primarily the responsibility of women. Once she turned over her soil, she had an exclusive right to cultivate that field, no matter how long she left it fallow, and these rights were inherited by her youngest son upon her death. A common feature in polygynous marriages is the division of a homestead into houses founded by different wives. Each house had its own property in the form of dwellings, livestock, fields etc., and these were generally inherited by children born to the house. The colonial and apartheid periods saw a sharp decline in tenure security of women as PTOs and quitrent titles were issued only to men. 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, unmarried women with children to support can be allocated land, but only through their fathers or other male relatives. Widows generally retain rights of access to the land of their deceased husbands, although they can be

vulnerable to eviction, and in some places are expected to return to their original families. Awareness of constitutional rights to gender equality has led to recognition of the rights of widows and unmarried women in some communities, although the extent of this is uneven. The majority of the population in areas under communal tenure are women, and access to land is of particular importance to them. Marriage is on the decline and single women are increasingly applying for land allocation; HIV/AIDS is impacting on the security of womens land rights through a lack of strong and clear inheritance rights. There is a strong case for tenure reforms that strengthen womens rights. Existing definitions of the rights of women to land need to be transformed in accordance with the constitutional principle of gender equality.

vi)

Common property resources

A key feature of pre-colonial tenure was the right of access to common property resources such as grazing, water and a variety of other natural resources. Rights of access to common property resources were an important component of communal tenure regimes throughout the colonial and apartheid periods. Shared commonage areas remained vital, even where attempts were made to impose individualised forms of land rights, such as quitrent areas. Contemporary studies reveal that rights of access to common property resources are still important for rural livelihoods in many areas, and usually include access to natural resources from the commons. A major problem in many rural areas is the unauthorised exploitation of common property resources by outsiders, in particular by entrepreneurs able to transport large quantities of natural resources. A lack of clarity on these rights makes it difficult for communities to assert their claim. Boundaries of common property resource use are a critical issue when attempting to define a community. 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.

vii)

Nested systems of land administration

Many studies describe pre-colonial land administration functions being undertaken at different levels of authority, nested or layered within one another. In the Tswana system, the acquisition of rights to residential and arable land was highly decentralized and extended upwards from the household. In Pondoland, minor disputes were dealt with at the local level but could move upwards if not resolved. According Sansom and Gluckman, in many cases, land administration was nested in

terms of a set of estates: the chief controlled the entire tribal territory; sub-chiefs and district heads controlled secondary estates of administration; and at the lowest level were estates of production where households used resources to subsist. The imposition of colonial rule, and the imposition of indirect rule impacted on these nested systems and the balance of power within them. Measures designed to limit the power of chiefs resulted in an ongoing struggle between state, the paramountcy and headmen over political control. In terms of the Native Administration Act 1927 Africans were governed in terms of custom, but strictly controlled by the governor-general as supreme chief. The Black Authorities Act 1951 established often authoritarian tribal authorities. In the late 19th and 20th centuries, various forms of communal tenure were found where people purchased farms in order to secure land rights, including land being divided, registered and sold under the administration of a committee. Contemporary case studies show that land administration remains spatially and institutionally nested. Regulation of common property use varies, and despite colonial attempts to centralize decision making, allocation of residential and arable land tends to happen at a local level, sometimes under the supervision of a committee. Land allocation to outsiders is often subject to a fee of some kind, seen as chiefs dues, an indication of the authority of traditional structures (khonza), or an administrative fee. The level of sub-chiefs and headmen play a crucial role in dispute resolution and regulating the use of common property, and often the chief merely ratifies allocations which take place at this, and lower levels. Tenure reform laws and policy need to acknowledge the nested and layered character of land administration in communal systems, and not focus merely on chieftaincy, as this will undermine the involvement of rights-holders in local decision-making on land.

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, although many studies also show community resentment of abuses of power by traditional authorities in relation to land. Some argue that the support for traditional leaders is central to rural identity, whereas others claim it is underpinned by insecurity and fear of punitive action. Ultimately the power wielded by traditional leaders and the popular support they enjoy, depends on: the degree of external support provided to traditional leaders by the state; the degree of their control over land rights; and the ineffectiveness of local government. 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

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 womens 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 weve 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 dont 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 communitys 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 laws 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 countrys 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 Africas 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.

For all these reasons, the Act will undermine existing security of tenure and impact upon the nature and content of customary law in South Africa, conferring on traditional leaders powers that are completely out of kilter with their role under customary law.

c) Sample questions on the land question16

Question one (Legal analysis) Critically discuss IPILRAs definitions of community, person and tribe in light of the TLGFAs definitions; and living customary law. 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; person includes a community or part thereof; tribe includes a) any community living and existing like a tribe; and b) any part of a tribe living and existing as a separate entity. In terms of the TLGFA (section 28(3)): Any tribe that, immediately before the commencement of this Act, had been established and was still recognised as such is deemed to be a traditional community contemplated in section 2, subject to [withdrawal of its recognition under s 7 and a decision by the Commission] Question two (Theory, law and policy) AngloPlat has hired you to assist it to obtain prospecting rights on suspected platinum-rich land in the North West. The land is occupied by the legally-recognised traditional community of Setshaba, which falls under the authority of Chief Dikgomo II. 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. In your advice provide the answer as it is under, as well as the tensions between: i) living customary law ii) IPILRA iii) the MPRDA

16

She didnt go through these, but theyre a sample at least.

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