“The Traditional and Khoi-San Leadership Act seeks to transform traditional and Khoi-San institutions in line with constitutional imperatives, such as the Bill of Rights, and restore the integrity and legitimacy of the institutions of traditional and Khoi-San leadership in line with customary law and practices,” read a statement from the Presidency on Friday.
“It also provides for the protection and promotion of the institutions of traditional and Khoi-San leadership.”
“Furthermore, the act directs that the kingship or queenship, principal traditional community, headmanship, headwomanship and Khoi-San communities must transform and adopt customary law and customs in a manner that is consistent with the principles contained in the Bill of Rights of the Constitution.
“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.”
‘Bill brings back apartheid Bantustans’
While the bill was lauded by some claiming to be Khoi-San traditional leaders, its critics, however, fear it will “effectively bring back apartheid Bantustans”.
The Alliance for Rural Democracy and its partners under the Stop the Bantustan Bills campaigned for the Presidency not to sign the bill.
Stop the Bantustan Bills patrons are former ANC NEC member and minister Pallo Jordan; Constance Mogale, the convenor of the Alliance for Rural Democracy; Aninka Claassens, the chief researcher at the University of Cape Town’s Land and Accountability Research Centre (LARC) and ANC veteran Mavuso Msimang.
On Friday, Claassens and two LARC colleagues, Nolundi Luwaya and Monica de Souza Louw, released a joint statement.
“When law enables dispossession without consent or expropriation, as the TKLB [Traditional and Khoi San Leadership Bill] permits, violence, including state violence, is the inevitable consequence. In the case of the TKLB, it is a consequence that the president could have prevented,” it read.
They said civil society had anticipated Ramaphosa would refer the bill back to Parliament as two panel reports – the high level panel chaired by former president Kgalema Motlanthe in 2017 and Ramaphosa’s own advisory panel into land reform – recommended.
“Numerous submissions warned that the bill undermines the customary and informal property rights protected by Section 25(6) of the Constitution and abrogates the decision-making authority that is the hallmark of citizenship for the 18 million South Africans living in the former homelands. The president, therefore, had strong legal grounds on which to refer the bill back to Parliament. He chose to ignore these,” read the statement.
“The bill provides that traditional leaders and councils can sign deals with investment companies without obtaining the consent of those whose land rights are directly affected. No prior law in South African history, even during colonialism and apartheid, has enabled traditional leaders to dispossess people of their land rights without either their consent, or expropriation.
“While civil society has repeatedly lauded that the bill takes steps to recognise Khoi-San leaders and structures, there is a concern about the cost at which this recognition has come. Khoi-San communities, too, will be subject to the rights abrogations enabled by the bill.”
They added the high level panel, on which Claassens served, detailed how the traditional leadership laws the TKLB would repeal and replace already enabled dispossession and deepening inequality.
“They shatter any hope of social cohesion by defaulting to the racially inscribed boundaries of the former homelands. Access to land rights, justice and decision-making is segregated based on the notion that those living within the former Bantustans are tribal subjects, as opposed to equal citizens.”
Veneer of legality
They said the TKLB sought to provide a “veneer of legality to partnerships of extraordinary greed and complicity that already exist between the government and mining sector”, and there already was an increasing scale of violent protest around mining in the former homelands.
Ramaphosa also assented to the Critical Infrastructure Act, which repeals the apartheid-era National Keypoints Act and provides for public-private co-operation in the identification and protection of critical infrastructure, and the Traditional Leadership and Governance Framework Amendment Act.
The latter, in the main, seeks to address failures to reconstitute the tribal authorities and traditional councils within the prescribed time, including aligning the term of office of the re-constituted tribal authorities and traditional councils with the terms of the National House of Traditional Leaders, read the statement from the Presidency.