Land Conference delegates: Customary law should limit traditional leaders’ powers

Land activists are calling for the communal land tenure bill to be reviewed to limit the powers of traditional/chief leaders in selling land. Their call comes after many community members have been dispossessed of their land without consent and the land sold to mining companies and investors.

According to the communal land tenure bill of 1994-2017, traditional leaders can control all land administration tasks, including approving applications for allocations of land and therefore can sell land.

This was a major discussion point on the second day of the land conference under the theme: The failed Promise of Tenure Security: Customary Land Rights and Dispossession. The three-day hybrid conference held both online and in person — is taking place at several venues across South Africa. 

Community activists gathered in these venues to urge the government to review the customary land tenure bill to give them rights to secure their land and limit traditional leaders’ powers.

“Our concerns stem from the fact that investors and mine owners trump community members’ feelings and views. They sell off our lands to mining moguls who come to pollute our land without our permission. One day you own a plot of land, the next day you are told the land has been given to a certain investor or miner,” said Thabo Mdhluli from KwaZulu-Natal.

Their bone of contention was that the traditional trusteeship system under which the Ingonyama Trust Board and the Royal Bafokeng trusteeships function, among others,  does not give people the right to own the land. They have to lease it from the traditional chief or leader.

Over the years, residents have had to pay rent for the land they occupied.

Mines swooping in 

Margaret Molomo from Mokopane in Limpopo, recounted how one day her neighbour said that a mining company was destroying their homes. She said the chief responded that he was unaware of the mine and that mining was not his business.

“We confronted the chief to say we have documents that prove you have signed the mining deals and even received some compensation,” she said.

She said the community told government officials that they wanted public participation before a surface lease agreement was concluded, and refused to consent to mining but the mining operations began, irrespective of objections and protests. 

The community activists questioned why the traditional leaders had unlimited power when it came to selling land. They blamed the government for giving mining owners and investors the go ahead to displace community members.

Dispossession

One of the main themes that dominated the conference was dispossession. Activists highlighted that the dispossession experienced during apartheid was still prevalent today.

They noted an incident that occurred in KwaZulu-Natal where the Tendele coal mine removed families from their land and excavated graves to move them to a different site. The graves sank into the ground, to the distress of relatives.

As a result, some residents have resisted moving, saying they want to continue farming and preserve the graves of their forefathers.

There is tension in the area after the coal mine applied to expand its operations north of Richards Bay.

Another activist spoke about how residents in Marikana had been moved from their houses to accommodate mining companies in the area. According to Christina Mdau, a resident in Marikana, when Tharisa Minerals started mining in the area, her family was  moved from their home.

She said they were moved to a location just 100m from the mine. She claims that they have been exposed to air pollution, dirty water, and unsafe living conditions.

“The mine is about 100m away, so no matter how much we try to clean our environment, there is a lot of dust we are exposed to. Our children now have asthma and epileptic seizures from the constant trembles from blasting. Women are losing babies or have babies, but they pass on before the age of two because of the nitrate in our water,” she said.

Zibuyisile Zulu, an Amandla Resource Development member from Matshansundu in KwaZulu-Natal, said officials from Jindal, a mining company based in India, arrived at their village in Melmoth to speak to the traditional leader and not with residents.

“The only person the mine communicates with is the chiefs. The mines only communicate using guns and violence. Attempts to get the chief to intervene to stop the mining failed — having promised to support the community against the mine, the chief was then seen in a mine-owned vehicle and claimed not to know about people’s objections to the mine. Violence ensued, people were shot at. 

“If we are to die, let us die for our land”, she said.

On Thursday, activists from all over the country called for a law that prohibits traditional leaders from disposing of their land and removing them without their consent.

Possible solutions

On Wednesday, Sindiso Mniso Weeks, an associate professor of law and society at the University of Massachusetts in Boston, said to address the issue of land within a constitutional framework, there needs to be a way which integrates customary law and common law.

He said the problem was that customary law fell short as it has not been recognised in the constitution.

Land rights activist and lawyer Tembeka Ngcukaitobi said passing the bill in its current form would be unconstitutional.

“The bill seemed to assume that land in communal areas was state land and could be controlled by traditional leaders.

“This was a historical problem because since the Native Administration Act of 1937 and the Native Trust and Land Act of 1936 the state had put chiefs between the government and the people and entrusted them with the control of land.”

Ngcukaitobi said because the Communal Land Rights Bill was “a regressive law” and “calcified” previously existing power relations such as patriarchy and the marginalisation of African people, it had to be rewritten to reflect community views.

“The bill needs to be scrapped. Customary law needed to be non-discriminatory, participative, non-gendered, inclusive of youth and non-patriarchal.”

The communal land tenure bill was opened to public review in 2017.

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