The centenary year of the 1913 Natives Land Act is drawing to a close and we are looking ahead to marking two decades of democratic governance in 2014. Many questions arise as to the extent to which the democratisation that seemed imminent in 1994 has been achieved, especially in rural areas in the former homelands.
Rural people are discontented about how the state interacts with them on issues that affect their lives. This emerged at a workshop held with 50 participants from different communities in KwaZulu-Natal to discuss rural people’s experiences and concerns about security of land tenure and traditional leadership in the face of new laws and policies.
The following issues were under the spotlight: who holds land in their home areas, how the land is allocated, whether men and women can access and use land equally, and how communal property associations function. Participants also contemplated the workings of traditional councils where they live, what roles traditional leaders play and women’s participation in these councils.
The most consistently reiterated complaint was that rural communities are not adequately consulted during the drafting of new laws that affect their security of land tenure or how they are governed. The drafting processes of both the Traditional Courts Bill and the Restitution of Land Rights Amendment Bill were criticised for excluding those people most affected by the Bills. Participants at the workshop were largely in agreement that they mainly rely on non-governmental organisations (NGOs) to alert them to legislation that could have serious implications for them.
In discussion sessions about the Restitution Bill, many participants were unhappy that the Bill proposes re-opening the land restitution claims process even though more than 20 000 existing claims are yet to be settled. The participants proposed that settled and existing claims be protected against further claims on the same land. Most of the participants who suggested alternatives will make submissions when the Bill gets into the parliamentary process.
Major concerns were also raised about traditional councils. Their legal status is in doubt since many of them have not met the requirements of the Traditional Leadership and Governance Framework Act (2003). The law stipulates that in order to be converted from apartheid-era tribal authorities to traditional councils, 40 percent of the members of each council have to be elected by the communities they serve and a third have to be women.
No valid elections have taken place in most of the places where participants came from. In cases where women have been made members of traditional councils, they generally suffer the most terrible marginalisation and even violence. One woman spoke of the verbal and physical assaults to which she has been subjected by one of the ‘izinduna’ (headmen) and his thugs for standing up for women when she was on the traditional council. She has even lost a finger and has subsequently been removed from the council. The chief, who is in cahoots with the ‘induna’, has stood by and watched all of this happen. She reported numerous assaults to the police to no avail.
Most members of traditional councils - male and female - who were at the workshop were scathing about the conduct of traditional councils generally. They talked about the councils’ lack of accountability to community members, the random monies levied by traditional councils and/or leaders, and the involvement of some traditional leaders in corrupt activities when it comes to development, and how infrequently some traditional councils meet.
Speakers repeatedly pointed out that they were not opposed to traditional leadership. They believe that traditional leaders have an important role to play in conflict management, keeping peace and maintaining the general well-being of their communities. What people oppose, instead, are the practices of some traditional councils. They question the legitimacy of some of the leaders whose positions derive from the appointment of compliant chiefs by colonial and apartheid authorities.
In the end, workshop participants were clear that they want monies levied by traditional leaders and councils to be better regulated by the state and, in some cases, to be formally abolished. Where such levies are regulated, they want traditional leaders to account to community members on what they do with the money they collect.
They generally want accountability from traditional leaders to their communities, rather than only upwards to the government. Regarding the Restitution Bill, participants are readying themselves to engage with Parliament when the Bill is tabled.
- Dr Mbongiseni Buthelezi is a senior researcher in the Rural Women's Action Research programme at the Centre for Law and Society, University of Cape Town. This article first appeared on Custom Contested.