The following op-ed is a collaborative effort by Ona Xolo, Cameron McConnachie and Cecile van Schalkwyk of the Legal Resources Centre.
17 million people in South Africa reside on communal land in areas largely controlled by traditional leaders. These areas are the remnants of the former homelands that were created during the apartheid years for occupation by black people. Communal areas are usually located in rural parts of the country where security of tenure is weak and people only have “use rights” of the land, rather than formal ownership. It is within this context that communities become vulnerable to exploitation and abuse by traditional authorities.
The abuse of power by traditional leaders has been the subject of numerous legal disputes where communities have had to revert to the courts to secure their rights in land on which they have lived for generations. While South Africa’s Constitution recognises the role of traditional leadership in the democratic dispensation, many of the interactions between traditional authorities and their subjects are marred by irrational and abusive practices that highlight a culture of self-enrichment, rather than the exercise of power for the benefit of the community.
Traditional leaders often view communal land as belonging to them in their personal capacity. They take decisions about the land without the involvement or consent of the people living on the land. There is also a failure to give effect to the needs of community members or to acknowledge their agency. These undemocratic and unconstitutional practices create traditional “elites” who exploit and impoverish the communities over which they hold authority.
The Legal Resources Centre (LRC) has been involved in a number of disputes between communities and traditional authorities. Most recently, the LRC represented the rural community of Mphintsho Village in the Eastern Cape. The community resides on Ncerha farms that are about 30km from East London.
The land falls under the control of the Imidushane Traditional Authority. The people of Mphintsho Village have resided on the land for generations. The area was first created in the 1950s when the land upon which it is located was known colloquially as “Kirimane farm” and was owned by a white farmer. The village was initially occupied by farm workers and their families who worked on a number of white farms in the surrounding area. Most of the families found in Mpintsho have been living there all their lives. In the late 1970s and 1980s the land on which Mpintsho is located was expropriated by the South African Government in order to make way for the establishment of the former Ciskei homeland. Following the creation of the Ciskei, the Mpintsho Village and the surrounding farms were able to control their affairs more independently and, under the authority of the traditional leadership, the area expanded and the number of residents grew.
Mpintsho Village is comprised of approximately 90 households and 1000 people. Over the past 60 years, households have expanded due to the natural growth of the village population and this has necessitated the need for the village to expand the number of sites available for homesteads to be built on. Many of the households and the homesteads at Mphintsho are overcrowded and are unable to accommodate the growing number of families. The village’s third generation has come to a point where they seek to set up their own homesteads. The customary practice in the community is for the oldest member of the household to inherit the family home, while the younger siblings move out of the house and establish their own homesteads.
Since late 2013 the Mpintsho Village has been in a dispute with the Imidushane Traditional Authority about the expansion of the village. The community members identified a piece of land close to their existing homesteads and close to the nearest national road. An orderly and practical expansion of the village resulted in the demarcation of some 80 sites for the residents of Mphintsho that wish to set up their new homesteads. The land was identified by the residents themselves and formed a very small part of the larger communal area. The land was not being used for any other purpose, but could accommodate grazing for approximately five cows.
Some residents started to build on their new sites, and some had even completed houses and had moved into their new homes when the traditional authority brought urgent court proceedings to declare these structures illegal and have them demolished. The proceedings were unopposed, the order granted, and nine homes were destroyed by a bulldozer. The demolition of the residents’ homes is a direct violation of the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA). IPILRA ensures that communities have a right to decide what should happen to land in which they have an interest and provides communities with legal protection to assume control over and deal with their land according to customary law and practices. It also violates the residents’ constitutional rights to housing, land, and human dignity, and lays bare the difficulties that communities face when traditional authorities utilize communal land like private owners.
The LRC represented the Mpintsho residents in opposing the traditional leaders’ application which sought a permanent interdict preventing the Mpintsho residents from ever building on the land identified. No rational reasons were put forward for not allowing the development to take place. While the traditional authority yields some control over the land, this control must always be exercised for the benefit of the community who reside on the land and in consultation with the community. After the LRC filed answering papers spelling out the shortcomings in the traditional leader’s position and approach, they have agreed to allocate the 80 sites on the land identified by the community.
The story of Mphintsho is all too familiar for people living on communal land. In 2018 members of the Xolobeni Community on the Wild Coast of the Eastern Cape obtained a court order to ensure that an Australian mining company does not conduct mining on their land without their prior and informed consent. The traditional leader of the community was a director of the mining company and completely ignored the community’s calls that they did not want their land to be used for mining activities. In 2018 the LRC also had to step in when a headwoman in Mthatha embarked on the large scale unlawful eviction of people living on communal land in Mthatha. The headwomen sold the land so that it could be used for the development of student housing. These developments financially benefitted the headwoman, but resulted in many people losing the homes they had been living in their entire lives.
Even though the Mpintsho, Xolobeni, and Mthatha headwoman sagas seem to have been successfully resolved through legal interventions where communities have received free representation from the LRC, hundreds (if not thousands) of similar disputes are playing out across the county every day. It is imperative that the law protects communities on communal land from the abuse of power by the traditional authorities. These disputes cannot all be settled by the courts as this is often costly and very few communities have the resources to access courts.
There is a need to strengthen the implementation of IPILRA. IPILRA is aimed at ensuring that people who hold informal rights in land have these rights protected. This includes the right to reside on the land and to be consulted when decisions are made about the use of the land. IPILRA was always meant to be an interim measure while Parliament enacts legislation to deal more comprehensively with informal land rights holders. It has been renewed every year by Parliament and must be permanently declared. It is also important that the Department of Rural Development and Land Reform (DRDLR) start playing an active role in implementing the provisions of IPILRA. This can be achieved by a mandatory provision compelling the participation of the DRDLR in all cases where IPILRA is raised.
While the Xolobeni case has gone far to ensure that IPILRA is given effect to in cases dealing with mining rights, it is imperative that IPILRA and the Mineral and Petroleum Resources Development Act, 2003 be amended to reflect that IPILRA has to be considered in cases dealing with mining rights and communal land. Such an express provision will go far in ensuring that the occupants of communal land are consulted when decisions are taken about the land, particularly in the context of mining activities. These are but some suggestions to strengthen the rights of communities on communal land and help to protect them against the abuses of power by traditional leaders. Legislative amendments are however not enough. A change in attitude is needed as well. Traditional authorities cannot view their positions as gateways to personal wealth, but must appreciate the important role that they play as custodians of the land for the benefit of the community. True democracy in communal areas does not constitute the creation of traditional elites who elicit control to the detriment of everyone else. Constitutional democracy means that communities have agency and have equal rights and protections to negotiate their rights in the land without fear of abuse or exploitation.