Man­dela didn’t sell out, post-94 ANC did

Two Acts and the Khoi-San Bill, if passed, will dis­pos­sess peo­ple in the for­mer home­lands of their land rights

Mail & Guardian - - Comment & Analysis -

nonex­is­tent land re­form poured out.

While the re­view com­mit­tee chair­per­son strug­gled to con­trol the hear­ings, EFF leader Julius Malema stepped in to con­trol the crowd. But af­ter a while Malema sat back and let Vin­cent Smith be seen to strug­gle and fail to as­sert his au­thor­ity.

Par­lia­men­tary pub­lic hear­ings are not meant to be party po­lit­i­cal the­atre. The Land and Ac­count­abil­ity Re­search Cen­tre at the Uni­ver­sity of Cape Town has mon­i­tored hun­dreds of pub­lic hear­ings and never be­fore seen par­lia­men­tar­i­ans use them to lobby vot­ers in this way. Or­di­nar­ily, MPs sit and lis­ten rather than rile the crowd. When organisers failed to pro­vide food for peo­ple who had trav­elled long hours to get to the venues, the EFF and the DA dis­pensed food and party re­galia.

Ramaphosa con­firmed the party po­lit­i­cal na­ture of these hear­ings by mak­ing his pre-emp­tive an­nounce­ment about the ANC’s de­ci­sion to sup­port an amend­ment to sec­tion 25 of the Con­sti­tu­tion be­fore the re­view com­mit­tee re­port to Par­lia­ment.

This kind of dam­age con­trol will only dig the ANC deeper into the trap that the EFF has set for it. The ANC will need the EFF’s sup­port to reach the two-thirds ma­jor­ity to amend the Con­sti­tu­tion. If the EFF con­tin­ues to set the agenda, as it has done so far, the next is­sue will be state own­er­ship of all ex­pro­pri­ated land.

State own­er­ship is the sys­tem the Na­tional Party put in place for the home­lands to be cre­ated. It en­abled dis­pos­ses­sion dur­ing apartheid, which is still con­tin­u­ing.

Un­der the post-1994 laws, li­cences to mine in for­mer home­lands su­per­sede the cus­tom­ary own­er­ship rights that peo­ple have in­her­ited over gen­er­a­tions to their homes, fields, graz­ing land and the graves of their an­ces­tors. The hold­ers of min­ing li­cences con­fis­cate the land rights of ru­ral com­mu­ni­ties.

Since cus­tom­ary rights are not recog­nised as prop­erty rights and the de­part­ment of min­eral re­sources rou­tinely ig­nores the re­quire­ments of the In­terim Pro­tec­tion of In­for­mal Land Rights Act of 1996, they are not even ex­pro­pri­ated. The Act re­quires that peo­ple with in­for­mal rights to land must con­sent to any de­ci­sion af­fect­ing those rights. If they refuse, those rights must be ex­pro­pri­ated with, for now, at least, the pay­ment of com­pen­sa­tion.

The dis­pos­ses­sion un­der way to­day is made pos­si­ble by the in­ter­play be­tween the Min­eral and Petroleum Re­sources De­vel­op­ment Act of 2002 and the Tra­di­tional Lead­er­ship and Gov­er­nance Frame­work Act of 2003. In com­bi­na­tion, these laws deny the prop­erty rights vest­ing in black South Africans in the for­mer home­lands in favour of min­ing li­cences is­sued by a state that na­tion­alised min­eral rights with the min­eral Act.

These peo­ple are be­ing rou­tinely stripped of the resid­ual as­sets they man­aged to sal­vage from colo­nial­ism and apartheid. This is more far­reach­ing than ex­pro­pri­a­tion without com­pen­sa­tion be­cause it is premised on the de­nial of the own­er­ship of land they have in­her­ited over gen­er­a­tions. What is de­nied is not wor­thy of ex­pro­pri­a­tion and com­pen­sa­tion.

What have sec­to­rial in­ter­est groups who pro­pound their be­lief in prop­erty rights and the free mar­ket econ­omy — such as Busi­ness Lead­er­ship South Africa, the Min­er­als Coun­cil and the ev­er­stri­dent In­sti­tute of Race Re­la­tions — had to say about this on­go­ing dis­pos­ses­sion of the prop­erty rights of the poor­est and most vul­ner­a­ble South Africans? Noth­ing.

When apartheid ended and to buy in­flu­ence with ANC lead­ers and their al­lies, it was worth it for min­ing com­pa­nies to cut prom­i­nent fig­ures into the min­ing in­dus­try with the 26% black own­er­ship share re­quired in terms of the min­eral Act. White min­ing cap­i­tal de­cided it could live with the Act and the Min­ing Char­ter if that was the key con­ces­sion the new govern­ment de­manded of them. They even, in many in­stances, let the de­part­ment of min­er­als and en­ergy dic­tate who their black eco­nomic em­pow­er­ment part­ners would be.

By 2000, the min­ing boom had shifted from the de­pleted gold re­serves of the Wit­wa­ter­srand to the rich plat­inum de­posits in North West and Lim­popo — the for­mer home­lands of Bo­phuthatswana and Le­bowa — where land and cit­i­zen­ship rights are cir­cum­vented by the way in which the tra­di­tional lead­er­ship Act has been in­ter­preted and used by govern­ment. This law su­per­im­poses con­tested tribal bound­aries and iden­ti­ties cre­ated un­der apartheid on all the peo­ple liv­ing in the for­mer home­lands.

The tra­di­tional lead­er­ship Act un­der­cuts the prop­erty rights of ru­ral peo­ple to their plat­inum-rich land and con­signs them to the sta­tus of tribal sub­jects, bound by the de­ci­sions of tra­di­tional lead­ers with un­ac­count­able pow­ers.

Con­certed op­po­si­tion did stop two laws that would have com­pounded this marginal­i­sa­tion. The Com­mu­nal Land Rights Act (Clara) of 2004 was struck down by the Con­sti­tu­tional Court in 2010, and the Tra­di­tional Courts Bill of 2008 could not muster the re­quired sup­port of the ma­jor­ity of prov­inces in Par­lia­ment. But they are both back be­fore Par­lia­ment with a pos­si­bil­ity of be­ing passed be­fore the 2019 elec­tion.

And the govern­ment has con­tin­ued to treat tra­di­tional lead­ers as though they do have the sole au­thor­ity the Tra­di­tional Courts Bill and Clara would have given them to sign min­ing deals bind­ing the land rights of ru­ral peo­ple without con­sult­ing. But the govern­ment has con­ceded that many of these min­ing deals are legally pre­car­i­ous be­cause the Bill and Clara have not sur­vived.

To head off any po­ten­tial chal­lenge and to pro­vide a ve­neer of le­gal­ity to min­ing agree­ments signed without con­sul­ta­tion, con­sent or com­pen­sa­tion, the ANC is at­tempt­ing to push var­i­ous Bills through Par­lia­ment.

The mo­ti­va­tion for a pro­posed amend­ment to the tra­di­tional lead­er­ship Act in­cludes the con­ces­sion that de­ci­sions of tra­di­tional coun­cils may be legally vul­ner­a­ble, but the pro­posed Tra­di­tional and KhoiSan Lead­er­ship Bill, which would re­place the tra­di­tional lead­er­ship Act, goes much fur­ther.

It is jus­ti­fied as pro­vid­ing recog­ni­tion to Khoi-San tra­di­tional lead­ers for the first time, but hid­den in its 99 pages is clause 24, which would au­tho­rise tra­di­tional lead­ers to sign deals with third par­ties bind­ing the land rights of all those within their apartheid-era bound­aries, without their con­sent. This has been hap­pen­ing and the clause is nec­es­sary only be­cause there has been no le­gal au­thor­ity un­der­pin­ning it.

All that the Khoi-San Bill can do is buy time for these min­ing deals be­cause it will also be struck down in time as ab­ro­gat­ing the prop­erty rights and ten­ure se­cu­rity promised by sec­tion 25 of the Con­sti­tu­tion. That is, if sec­tion 25 sur­vives the amend­ment.

I told my friend from Mo­gopa that it was not Man­dela who had be­trayed the peo­ple but those ANC lead­ers who put the min­er­als Act and the tra­di­tional lead­er­ship Act in place, and have grown stag­ger­ingly rich from min­ing deals at the ex­pense of the im­pov­er­ish­ment and prop­erty rights of the ru­ral peo­ple whose homes and liveli­hoods are be­ing de­stroyed.

If the ANC cared, it would stop the Khoi-San Bill, not amend the prop­erty clause.

Poor black peo­ple liv­ing in the for­mer home­lands are be­ing rou­tinely stripped of their resid­ual as­sets

Bleak out­look: The Tra­di­tional Lead­er­ship and Gov­er­nance Frame­work Act, cou­pled with the Min­eral and Petroleum Re­sources De­vel­op­ment Act, un­der­cuts the land rights of peo­ple liv­ing in the for­mer home­lands. Photo: Del­wyn Verasamy

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