New Khoi-San law ‘frees rural leaders’

President Cyril Ramaphosa should have referred the precedent-setting bill that gives statutory recognition to Khoi-San communities back to parliament.

President Cyril Ramaphosa should have referred the precedent setting bill that gives statutory recognition to Khoi-San communities back to parliament, civic groups say.

The groups, led by Corruption Watch, said on Monday while the Traditional and KhoiSan Leadership Bill has good intentions, it technically strips ordinary people in the former homelands of their land rights.

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, Corruption Watch said. While the bill is ostensibly aimed at giving autonomy to Khoi-San communities, the same abrogation of rights will take place in those communities as well.

Ramaphosa signed the bill into law last week despite objections by various groups. The act seeks to transform traditional and Khoi-San institutions in line with other constitutional imperatives, such as the Bill of Rights and restore the integrity and legitimacy of traditional and Khoi-San leadership institutions in line with customary law and practices, the presidency said.

“While certain traditional structures and leadership positions have been recognised by law in compliance with constitutional prescripts, there has never before been statutory recognition of the Khoi-San. To this end, the formal recognition of the Khoi-San communities, leaders and structures required enabling legislation, to which the president has now assented,” the presidency said.

Corruption Watch said Ramaphosa should have referred the bill back to parliament after two panel reports warned that provisions in the bill are in breach of fundamental constitutional rights.

Reports by both panels, one in 2017 chaired by former president Kgalema Motlanthe and the other instituted by Ramaphosa, said these provisions infringe on customary and informal property land rights protected by section 25 (6) of the constitution.

“It is not the Khoi-San people who will achieve autonomy; it is the Khoi-San traditional leaders whose effective autonomy from those that they purport to govern is now confirmed and strengthened,” the organisation said.

“Our work in mining communities has taught [us] that SA’s vaunted democracy ends at the boundaries of the big cities. SA’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 particularly 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,” Corruption Watch’s David Lewis said.

The Land and Accountability Research Centre at the University of Cape Town said numerous submissions warned that the bill undermines the customary and informal property rights protected by the constitution.

“When law enables dispossession without consent or expropriation, as the [Traditional and Khoi-San Leadership Bill] permits, violence, including state violence, is the inevitable consequence,” the centre said.