Communal land is private property

IAM pleased that the ANC has distanced itself from the insulting utterances made by its former deputy president, Mr Kgalema Motlanthe, at its recent workshop on land reform, where he referred to traditional leaders as “village tin-pot dictators” who believed they are the owners of communal land.

He does, however, have fellow travellers within and outside of the ANC, who believe that the bravest and most progressive stance in the quest for land expropriation and redistribution is to separate traditional leaders from their communities.

Motlanthe and his fellow travellers are of the view that the racist and patronising decision of past colonial and apartheid regimes to declare African land that is under traditional leaders state land is the way to go. Africans, to them, cannot deal with their land in a responsible manner and need to be baby-sat by a department of rural development and land reform.

The kings and other traditional leaders – descendants of the rulers who successfully defended the remaining pieces of communal land from the grubby hands of the European settlers – are not capable of carrying out their historical and ancestral responsibilities in the administration of this land, hence Ingonyama Trust must be disbanded.

The idea, of course, is to release this land from the clutches of the traditional leaders and make it available to the market – ie people who have money – by issuing title deeds to Africans over their measly allotments. It does not matter to Motlanthe et al that one of the reasons the housing backlog will never be overcome is the fact that the beneficiaries of state houses continue to sell their houses (in many cases to foreigners) and then go back to the informal settlements, to join the back of the queue for more houses.

To so-called democrats, liberals, republicans and progressives (including some academics), traditional leaders are a soft target (ngumz’ongenazinja).

Over the years, there has been more than ample opportunity for traditional African communities to distance themselves from traditional leaders for their supposed oppressive and backward ways; yet they continue to stick with them.

Motlanthe advises the ANC to stop wasting time seeking the support of traditional leaders, and instead to give communal land to the people directly, as they are the voters.

The ANC, so advises its elder, must forget its roots, forget its raison d’être – i.e. to restore the land that was stolen through the wars of dispossession – and forget the role played by traditional leaders of not only South Africa, but those of Lesotho, Swaziland, Botswana and Zambia in the formation of the organisation.

History shows that the existence and resilience of the institution of traditional leadership does not depend on favours bestowed on it by governments of the day.

Its roots sink deep in the African soil; it is sustained by our ancestors, who look up to the institution to redeem the dignity that they were stripped of by the invaders from across the seas. The present-day heirs (clearly black and white) of those invaders will not succeed where their progenitors had dismally failed. The fact of the matter is that the current crop of traditional leaders are not about to roll over on their backs and allow the powerful, with whoever’s assistance, take back the land so successfully defended by their ancestors.

On the contrary, traditional leaders are on the side of those who call for the restoration of the 87% of South Africa’s land mass to its rightful historical owners, the Africans. Africans should learn to stop fighting over meatless bones among themselves. We should not continue to countenance the spectacle of our people living in squalid conditions in urban informal settlements and on white-owned farms due to their inability to own their own land in Africa.

Let us all aim our arrows at the real enemy and stop being cowards. As they say, umkhonto wegwala uphelela elityeni – the coward keeps on sharpening his assegai until it is no more.

During my time as president of Contralesa, I wrote and spoke at length on the question of land, particularly communal land and, on May 21 2003 (chapter 16 of my book According to

Tradition) I wrote as follows and I stand by what I said to this day: The land falling under the control and administration of traditional leaders and communities constitutes part of the 13% of the South African land mass set aside for African occupation in terms of the Land Acts of 1913 and 1936. The former so-called homelands were formed within the confines of this land. The rest of white apartheid SA, as well as the black urban townships, formed the remaining 87%.

In its futile attempts to make sense of the Bantustan project, the apartheid regime awarded some farms, under controversial circumstances, to some homelands as part of their consolidation as states. The communal lands, however, remained less than 13% of SA’s land mass.

While it is true that the homelands’ communal areas were formalised through the Land Acts, this is the land that had been successfully defended by Africans against the wars of dispossession the British and Boer settlers had waged in the Cape, Natal, Orange Free State and Transvaal. But in some areas, African communities bought land from settlers and went on to occupy and use it as groups.

Under apartheid laws, the communal lands were owned by the state, with one or other minister designated as the trustee.

On the other hand, white-owned land was owned by individuals.

Traditional leaders, under customary law, are the custodians and administrators of the land. Traditional leaders do their work through traditional authorities. The councillors in these authorities are elected and appointed in accordance with custom. The communal land is the private property of a given African community.

Individual families are entitled to residential and arable allotments, as well as grazing fields. These allotments are not given to individuals. Once allocated, this land remains with the family in perpetuity.

Eviction of a family can take place only in extreme circumstances – and in accordance with the constitution. Just as government (nationally and provincially) has no legitimate claim to ownership of communal land, the new local councils cannot be owners of this land. The African communities and traditional leaders are [the] owners. The councils’ responsibility is to provide public services, just as for individual owners in the urban areas.

To ensure continuity and stability in the communal areas, legal ownership of such areas must be transferred from the state to the owners – the African communities and traditional leaders. A single title deed should be issued in respect of the communal land. The legal entity in whose name the title deed should be issued is the traditional authority. Where applicable, the monarch of a given territory must be acknowledged, with such acknowledgement extending also over the towns and cities located in the historical lands of such monarchy. Land in communal areas should not be for sale. Long-term lease agreements should be the tools to facilitate investment and development. Were communal lands to be opened to the market, greater loss of land and poverty would follow. This is a path that can sensibly be considered only upon the final redistribution of the 87% of SA’s land mass.

To do so now would be to open the gates for the moneyed classes to get richer and the poor to be more impoverished.

Our proposal is that holders of family allotments must be given documents which may be used to access funds, but not used for alienation or loss of such land. The traditional authority will have the power to screen proposals. The involvement of the state in the administration and use of communal lands should be minimised and limited only to provision of public services, facilitation of development, and settling of disputes the hierarchy of traditional leadership cannot do.

One of the first steps that should be taken is to do an audit of the land – private, communal, state and public. Also to be investigated is the amount of South African land in the hands of foreign nationals.

Should any of the provisions in the constitution be an impediment to this pressing need for social justice, parliament should be called upon to find ways of overcoming such constitutional obstacles.