After considerable efforts from various civil society organisations emphasising the vulnerabilities of the Traditional and Khoi San Leadership Bill, President Cyril Ramaphosa has nevertheless signed the Bill into law. This shock announcement was made in Parliament on Thursday 28 November 2019.
Corruption Watch (CW), together with a number of civil society organisations, had anticipated that the President would refer the Bill back to Parliament after two panel reports warned that provisions of the Bill are in breach of fundamental constitutional rights. Both panel reports, one in 2017 chaired by former President Kgaleme Motlanthe and the other by the president’s own Advisory Panel into Land Reform stated that the provisions of the Bill infringe on customary and informal property land rights protected by section 25 (6) of the Constitution of the Republic of South Africa.
It is of particular concern that despite the influx of submissions by civil society, local non-governmental organisations and community members, including the well-known campaign #StopBantustanBills formed by the Alliance for Rural Democracy, the president chose to ignore these advocacy initiatives which highlight the risk that the Bill will have on the more than 18 million South Africans living in the former homelands.
The Bill gives traditional leaders the right to enter into agreements on the use of land without the consent of the most affected groups – this effectively enables traditional leadership structures to dispossess people of their land without either their agreement or expropriation. While the Bill is ostensibly aimed at giving autonomy to the Khoi-San communities, the same abrogation of rights will take place in those communities as well. It is not the Khoisan people who will achieve autonomy; it is the Khoisan traditional leaders whose effective autonomy from those that they purport to govern is now confirmed and strengthened.
It is important to note that the Bill is in direct conflict with the two landmark constitutional court judgements; Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another, and Baleni and Others v Minister of Mineral Resources and Others. Both the Maledu and Baleni judgements particularly emphasise the right to security of tenure in the mining context of former homeland communities. The judgements specifically state that consent by the most affected group must be obtained where there is foreseeable interference with the use and enjoyment of land rights.
The impact of this Bill cannot be underestimated. Traditional communities will feel the full brunt of the inequality and injustice that this Bill permits. CW noted this vulnerability and put forward submissions warning Parliament about the risk that this Bill will have to communities’ ability to voice their concerns within traditional leadership structures and participate meaningfully in decision-making processes which affect them. This is particularly so in relation to mining activities which may affect their security of tenure, their social and natural environment and other socio-economic conditions.
Over the last few years, CW has conducted extensive research in various mine-affected communities. During consultations, the abuse of power involving traditional leaders was made clear on countless occasions. Community members spoke to the role of traditional leaders and members of royal families in engaging with mining companies in an illegitimate manner; concluding deals, partnerships and agreements with mining companies without consulting the mining affected communities or taking into account their interests; and ultimately failing to provide for communities to benefit from the immense mineral wealth of the region. It is clear that prior to the enactment of the Bill, the realities in traditional communities has been a sustained level of corruption and impunity by their leaders. Now with this Bill, it gives legitimacy to some of the worst corrupt acts this country has yet to truly uncover.
David Lewis, executive director of Corruption Watch, commented: ‘Our work in mining communities has taught that South Africa’s vaunted democracy ends at the boundaries of the big cities. South Africa’s rural population, who do not have ready access to civil rights lawyers and supportive NGOs, do not enjoy the same effective rights as the rest of the population. This is particuarly true of those communities subject to the rule of traditional leaders. We can scarcely credit the President’s decision to sign this appalling act into law and will oppose it using every available avenue’.
For more information, contact:
Phemelo Khaas Cell: 083 763 3472. E-mail: email@example.com