Why giv­ing SA’s chiefs more power adds to land dis­pos­ses­sion

African Times - - Politics - SONWABILE MNWANA

POWER over ru­ral land has be­come more and more con­cen­trated in the hands of lo­cal chiefs in post-apartheid South Africa.

This is par­tic­u­larly so in ar­eas that are ear­marked for min­ing.

I have spent more than a decade study­ing the mul­ti­ple im­pacts of plat­inum min­ing on ru­ral com­mu­ni­ties in the North West and Lim­popo prov­inces. The re­search has re­vealed wide­spread grass­roots dis­con­tent, sig­nif­i­cant re­sis­tance to min­ing ex­pan­sion and to lo­cal chiefs, and mount­ing ex­clu­sive group claims over the plat­inum-rich land.

This mat­ters be­cause min­ing af­fects the liveli­hoods of mil­lions of South Africans. That South Africa holds un­par­al­leled re­serves of plat­inum group

me­tals re­serves is well known.

But plat­inum hasn’t been an eco­nomic saviour for the or­di­nary res­i­dents in the mine vil­lages who face grim liv­ing con­di­tions. Most are char­ac­terised by ex­treme poverty, se­vere in­equal­i­ties and high un­em­ploy­ment.

This is even though some of these com­mu­ni­ties have been re­cip­i­ents of sub­stan­tial min­ing rev­enues. But these are con­trolled and dis­trib­uted by lo­cal tra­di­tional au­thor­i­ties, known as chiefs, who have po­si­tioned them­selves as cus­to­di­ans of ru­ral land and min­eral re­sources. They have done so in collusion with the state and min­ing com­pa­nies.

This is not as it should be. Distribu­tive power over land doesn’t rest ex­clu­sively with chiefs. There are mul­ti­ple lay­ers of power that rests in dif­fer­ent so­cial units, fam­i­lies (and in­di­vid­u­als within them). Most im­por­tantly, chiefs have never had pow­ers to alien­ate land rights from or­di­nary res­i­dents.

African land rights are ac­quired through mem­ber­ship to a group – a pro­duc­tive and so­cial unit such as a fam­ily or clan.

Once al­lo­cated, land rights were passed from one gen­er­a­tion to the next. It is at the level of this unit that, by and large, de­ci­sions about dis­tri­bu­tion of such rights were taken in pre­colo­nial times.

The law and chiefs

The post-1994 African Na­tional Congress (ANC) gov­ern­ment at first vac­il­lated about defin­ing and cod­i­fy­ing the pow­ers and sta­tus of chiefs. But it even­tu­ally passed leg­is­la­tion that sig­nif­i­cantly in­creased the pow­ers of chiefs in ru­ral lo­cal gover­nance.

The main piece of leg­is­la­tion that did this was the Tra­di­tional Lead­er­ship and Gover­nance Frame­work Act of 2003. It reen­acts tra­di­tional (“tribal”) au­thor­i­ties to pre­side over pre­cisely the same geographic ar­eas that were de­fined by the apartheid gov­ern­ment. But there’s am­bi­gu­ity around what the pow­ers the act ac­tu­ally gives chiefs. It has been in­ter­preted as giv­ing them and their tra­di­tional coun­cils pow­ers over the ad­min­is­tra­tion and con­trol of com­mu­nal land and nat­u­ral re­sources, eco­nomic de­vel­op­ment, health, and wel­fare, and to ad­min­is­ter jus­tice.

In fact the law doesn’t di­rectly grant chiefs power and con­trol over com­mu­nal land and landed re­sources. But it’s been in­ter­preted that way.

The case of the chiefs’ con­trol over min­ing rev­enues on the plat­inum belt epit­o­mises the con­tra­dic­tion.

Chiefs gain the up­per hand

Over the last 30 years a new trend be­gan to evolve. Lo­cal chiefs be­gan to en­ter into deals with min­ing com­pa­nies on be­half of ru­ral com­mu­ni­ties on the plat­inum belt. Chiefs, as as­sumed cus­to­di­ans of com­mu­nal re­sources, be­came me­di­a­tors of min­eral-led de­vel­op­ment and min­ing deals.

This trend can be traced back to the Bafo­keng com­mu­nity’s mo­men­tous court vic­tory over min­ing roy­al­ties in the 1999. The Bafo­keng chief­taincy se­cured enor­mous min­eral roy­al­ties – os­ten­si­bly on be­half of the en­tire com­mu­nity.

Such a vic­tory ush­ered this ru­ral com­mu­nity, which some have la­belled “the rich­est tribe

in Africa”, into a new era of plat­inum rev­enues and cor­po­rate as­sets worth bil­lions of rand.

Sev­eral ru­ral com­mu­ni­ties on plat­inum rich land in the North West and Lim­popo prov­inces have fol­lowed the Bafo­keng ex­am­ple.

But these de­vel­op­ments haven’t been with­out prob­lems. The me­di­a­tion and con­trol of min­ing rev­enues by lo­cal chiefs has gen­er­ated sig­nif­i­cant ten­sions and con­flict in the vil­lages that host vast min­ing op­er­a­tions.

Lack of trans­parency and ac­count­abil­ity, plus se­ri­ous al­le­ga­tions

of cor­rup­tion have been lev­elled against chiefs. For in­stance, Kgosi (chief ) Nyalala Pi­lane of the Bak­gatla-ba-Kgafela com­mu­nity – per­haps even more than any other chief in South Africa – has been the sub­ject of a litany of mal­ad­min­is­tra­tion and cor­rup­tion

al­le­ga­tions.

The com­bined value of the as­sets of the largely SeTswana-speak­ing Bak­gatla com­mu­nity, who re­side in 32 im­pov­er­ished vil­lages scat­tered all over the north eastern foothills of the Pi­lanes­burg Moun­tains, are es­ti­mated at R25 bil­lion . Yet the mem­bers of the com­mu­nity have yet to re­alise the ben­e­fits.

Min­ing ex­pan­sion has also pro­duced sig­nif­i­cant re­sis­tance to Kgosi Pi­lane’s con­trol over land. Groups of vil­lagers have made strong claims over some of the min­eral rich farms, where some of the largest min­ing op­er­a­tions are sit­u­ated. They as­sert that these farms were bought by their fore­fa­thers as pri­vate prop­erty and so never should have been des­ig­nated “tribal” land.

Many of these land dis­putes have been fought in the courts. So far, the chief has been able to hire top lawyers. He has suc­cess­fully in­ter­dicted and pressed charges against ac­tivists who have called him to ac­count.

Re­sis­tance

The as­sump­tion that chiefs are cus­to­di­ans of ru­ral land and min­eral wealth – and as such can dis­trib­ute and alien­ate land rights and sign com­plex min­ing deals on be­half of ru­ral res­i­dents – has no pre­colo­nial prece­dent. It’s no sur­prise that or­di­nary peo­ple are re­sist­ing chiefly power over their prop­erty.

It’s even more cru­cial to closely ex­am­ine and un­der­stand the char­ac­ter of power over land and landed re­sources as ru­ral land in­creas­ingly be­comes a tar­get for large scale re­source ex­trac­tion. What needs at­ten­tion is how or­di­nary ru­ral res­i­dents ar­tic­u­late what lead­ing land aca­demic Ben Cousins calls the “so­cially

le­git­i­mate” and his­tor­i­cal “pro­cesses through

which power over land is con­ferred” to dif­fer­ent groups and in­di­vid­u­als.

There is an ur­gent need to ex­am­ine how Africans his­tor­i­cally ac­cessed, shared, con­trolled, dis­trib­uted and de­fended their rights to land. These cus­tom­ary pro­cesses must be used to guide the record­ing of land rights, con­sul­ta­tion and com­pen­sa­tion be­fore min­ing can be­gin.

Any at­tempt to legally em­power the ru­ral poor by se­cur­ing their land rights should be­gin with a full un­der­stand­ing of these pro­cesses. Cen­tral­is­ing this power in the hands of chiefs is an­other form of dis­pos­ses­sion.

* Sonwabile Mnwana is As­so­ciate Pro­fes­sor at Fort Hare Uni­ver­sity.

The ar­ti­cle was first pub­lished in The Con­ver­sa­tion

Pic­ture: Le­bo­gang Mak­wela / Visu­alBuz­zSA

Power over ru­ral land has be­come more and more con­cen­trated in the hands of lo­cal chiefs in post-apartheid.

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