Black Authorities Act Repeal Bill [B9-2010]: Public hearings

Meeting report

Appointment of Acting Chairperson
The Committee Secretary informed the meeting that the Chairperson was ill, and requested that the Committee appoint an Acting Chairperson. Ms H Matlanyane (ANC) was appointed as Acting Chairperson.

Black Authorities Act Repeal Bill [B9-2010] (BAARB): Public hearings
The Acting Chairperson explained that the public hearings would enable the Committee to hear public submissions on the Black Authorities Act Repeal Bill (BAARB). She particularly welcomed the input from the large number of community members present in the meeting, which would help the Committee to assess and understand the effect of the repeal of the Black Authorities Act (the Act) on them. She noted that this Act had been a cornerstone of the apartheid system and the  former Bantustan policy, as it had legislated for the setting up and boundaries of Tribal Authorities. She listed the parties who would make submissions, and noted that the written submissions had already highlighted some crucial issues, including the legacy of this legislation for communities, and said that the Committee valued these contributions. She hoped that those making oral presentations would include some practical suggestions and recommendations to address any challenges outlined.  

University of Cape Town (UCT) Law Race and Gender Research Unit (LRG) submission
Dr Sindiso Mnisi, Senior Researcher, Law, Race and Gender Unit (LRG), University of Cape Town, noted that the LRG (welcomed the repeal of the Black Authorities Act (the Act) as an important step in moving away from the country’s apartheid past. However, merely repealing the legislation was not sufficient to address the legacy of that legislation. The submission focussed on a set of post-1994 measures and legal provisions that in effect entrenched and exacerbated the legacy of the Act, and asked that the Committee should take further steps to ensure that the legacy was completed erased.

LRG noted that Section 28 (“Transitional Arrangements”) of the Traditional Leadership and Governance Framework Act, No 41 of 2003 (TLGFA) provided for tribal authorities to continue to exist as traditional councils. It effectively discredited community bodies that were established and functioned in a democratic fashion, and forced them to be subject to the authority of the traditional councils. This authority had already been challenged during the liberation struggle.

LRG added that rural people who preferred a more democratic system of authority were dissatisfied with the fact that traditional leaders were allowed to appoint 60% of traditional councils, whilst 40% could be elected in terms of the TLGFA.

Although the Constitution restricted the power to impose levies on national, provincial and local government, and required that this must be exercised subject to very strict processes, the TLGFA also allowed that traditional councils could impose tribal levies on people residing in their jurisdiction, and did not replicate the strict processes and controls.

LRG added that the Constitutional Court had declared the Communal Land Rights Act, No 11 of 2004 (CLaRA) to be unconstitutional, as it had been built on the Black Authorities Act (BAA), and had not eliminated it. CLaRA had extended the powers of the traditional authorities to include wide-ranging land administration powers. The process of public consultation and participation during the processing of the Bill was not extensive enough.

The Traditional Courts Bill [B15-2008] (TCB) replicated the same errors made by the TLGFA and CLaRA in adopting the boundaries and authority structures created by the BAA and Black Administration Act, No 28 of 1927. The TCB centralised all decision-making and law making powers to the senior traditional leader. It thus excluded community councillors and dispute resolution forums that existed at lower levels in the community. LRG contended that when this Bill was drafted, there had not been sufficient consultation with the rural people who would be most affected by it, especially women, whom the TCB did not allow to be actively involved in court proceedings.

LRG therefore summarised that the effect of the legislation described was to re-create a form of second class citizenship for people living in the former homelands. It reversed all the gains made by the change of government and entrenched the oppressed circumstances under which they lived before 1994. LRG thus asked that the Committee must urgently engage with other relevant Portfolio Committees and structures to ensure effective elimination of all anomalies. LRG also urged Committee Members specifically to consult more closely with the rural people who were affected directly by these laws. Previously, the legislative processes had  tended to favour the more dominant voices of traditional leaders who were benefiting from the laws.

Discussion
Ms A Steyn (DA) asked what input LRG had given on the recently-passed TLGFA, and what the response to that had been.

Dr Mnisi answered that there was a process of public participation prior to promulgation of the TLGFA was promulgated, but at that stage this particular project was not yet in existence at the LRG, although other colleagues at UCT and Legal Resources Centre had been involved.

She added that it was important to consider two points. Firstly, there had been much debate how long it would take to convert tribal authorities to traditional councils in terms of Section 28 of the TLGFA. Although that timeframe was initially stated as one year, this was later extended, and currently the process had lasted for seven years, during which communities had been ruled by the very tribal authorities who had oppressed them in the apartheid years.

Secondly, Sections 2 and 3 of the TLGFA had been regarded as less problematic than Section 28, and during the consultation process there had been an indication that Sections 2 and 3 would dominate. In reality, these had been window-dressing, and Section 28 dominated in practice. Some communities, who had community authorities but no chief, then had a chief imposed upon them, based on the TLGFA and apartheid boundaries. Although they were private landowners, it had been assumed that they should subject themselves to a tribal authority, perpetuated through traditional councils.

Mr M Swathe (DA) asked whether Dr Mnisi thought boundaries should be changed. He cited as an example the boundaries of the areas of jurisdiction of King Zwelethini or King Sekhukhune. If they were to be changed, then he enquired what would replace them. He also asked for her suggestions to resolve the conflict between community structures and chiefs.

Dr Mnisi said that LRG could not speak to boundaries, and as a researcher she could only speak in general terms, based on the research that LRG had conducted. However, representatives from the different communities were present to give first-hand accounts of their experiences on the ground, and whether the boundaries should be shifted. They would also have recommendations and suggestions. She added that not all traditional leaders were abusing their powers and not all boundaries of traditional authorities were illegitimate, but there were enough incorrect cases to warrant urgent attention being paid to the issues.

She also said that some people wanted the traditional authority to be modernised and democratized, while others preferred to be governed solely by municipal authorities. It was, however, important that these communities should have the freedom to choose which option they preferred, instead of an authority being imposed upon them.

Mr S Ntapane (UDM) asked whether land claims did not respond to the issue of boundaries.

Dr Mnisi replied that the LRG, during its involvement with CLaRA, had found that in some cases land claims made the situation worse. Some communities who had gained land through a self-initiated land claim wanted to administer their own land. They might originate from a clan or tribe different to the tribal authority imposed upon them by the apartheid government. A tribe might have the land administered in a Trust or in a Community Property Association (CPA), but be told that the land should have been claimed in the name of the dominant tribe, and would be administered by the latter, so that they could not develop their own land as they saw fit.

Nkosi Z Mandela (ANC) stated that he was a traditional leader, residing in the rural community of Mfezwa. In his personal experience, the people elected 40% and the existing structures accounted for the remaining 60%. He described the structure there as comprising himself as chief, two headmen who worked with him, and one representative from each of the seven villages that fell under his jurisdiction. Those seven board members representing the villages were elected by the people of the village, not by himself. The community took charge of the issues on the ground, according to custom. In the rural areas, there were court systems. He stressed that the primary structure on the ground was that of families, because disputes would arise between members of the same family or between different families. These disputes needed mediation. An unresolved dispute would be taken to a board member, then to the headmen, and then to the chief, and then, if it was still unresolved, to the king.

He noted that some traditional chiefs tried to democratise the traditional system of government. The Chief was appointed through the blood line. However, more than 60% of the representatives were elected by the people. He stressed that his experience differed from the examples shown by Dr Mnisi and asked where she had received her information.

He added that during his four years as chief, he had never imposed a levy on any individual for any reason. He followed the example set by his grandfather, Nelson Mandela, who had used his salary to start the Nelson Mandela Children’s Fund. Nkosi Z Mandela had created a trust fund for the community with his R10 500 from the government, to pay for the community’s developmental projects. The Chief and his family were not funded by levies, but instead the indigent could approach the Chief for help, and this was the role of a traditional leader in these societies.

He disputed the assertion that women were marginalised by these traditional institutions and practices. These institutions were rooted in the community. These structures were just an extension of Parliament, as both consisted of elected representatives. He asked LRG to explain its assertion that the structures should be removed, rather than suggesting that the structures be improved and democratised.

Dr Mnisi responded that the LRG drew its information regarding the election processes from those people with whom it had interacted. In addition, her colleague Mazibuko Jaga had conducted research in the Eastern Cape amongst community based organisations (CBOs) and non governmental organisations (NGOs). The newspaper Eastern Cape Today had also reported on widespread failures to conduct elections properly. The provincial government acknowledged that it had not notified people in time about the call for nominations. She was pleased to hear that matters were dealt with properly and democratically in the Mfazwe District where Nkosi Mandela presided, but said that this was definitely not the case in all areas under traditional rule.

Dr Mnisi commended Nkosi Mandela for donating his salary to his community and acknowledged the fact that tribal communities, as well as the practices upheld by their leaders, varied. She acknowledged that perhaps an incorrect impression might have been created in her presentation that certain incorrect practices applied to all tribal communities, saying that this was not the case, but the fact remained that there were some tribal communities where the chiefs and headmen oppressed the communities and abused their power, including forcing people to pay money from which the community would derive no benefit, which was unconstitutional and would not be sanctioned by traditional law.

Mr Ntapane said that he was also a traditional leader. He took issue with Dr Mnisi’s assertion that a traditional court was a “one-man show”. His experience had been that all board members had the right to question the litigants. When all sides of the story had been heard, the court adjourned for the council to discuss the issue, and all members of the council had the right to put forward their views. The Head of the traditional council then made a judgment after taking into account the inputs made by the members.

Mr Ntapane thought that there was not a problem with voluntary gifts, which had to be disclosed, and also did not understand why there should be a problem with levies, since communities regularly agreed to pay certain amounts towards an agreed project or communal expense. He agreed, however, that this had to be regulated.

Dr Mnisi said that the problem was that although some communities did not acknowledge the traditional courts, they were forced to make use of this court system. People who had a different identity to the dominant tribe may also not recognise the chief as their authority, and might, for instance, wish to be governed by a local authority. A person who failed to pay a levy to the tribal authority could find himself hauled before a traditional court, and be forced to fall under the jurisdiction of that traditional court by the continuing apartheid boundary.

Dr Mnisi apologised if her presentation seemed to suggest that traditional courts were one-man shows – this was not what she had meant to say. She expanded that the Traditional Courts Bill said that traditional courts were one-man shows. However, this was not correct in terms of living customary law, they were not. The input of Nkosi Mandela, as well as the statements on the Contralesa website, showed that the traditional court system was multi-layered, integrated, and involved community participation. The Traditional Courts Bill was thus distorting existing practice on the ground.

Nkosi Mandela asked whether it would not be preferable that traditional leaders should be capacitated to understand their role and duties, rather than merely doing away with the institution, which was an important part of African tradition. Traditional leaders were the custodians of the culture, and he feared that African culture would suffer if they lost their position in society.

Dr Mnisi agreed that traditional leaders should be capacitated, and the parties involved should be educated. However, she still maintained that people should have the freedom to choose, as promised by Section 23 of the TLGFA, whether they wished to be governed by a traditional leader. Leaders should not be forced on them.

The Chairperson said it would be useful for the Committee to continue communicating with the LRG on these matters.

Mr Thabang Motsoeneng submission
Mr Thabang Motsoeneng, in his private capacity as a Community Development Worker (CDW) in a rural area, made a submission. He noted that he was born in the Eastern Cape and was currently a Community Development Worker in King William’s Town. He had been involved in economic development since 2004, and was very excited about rural development being given a place on the national stage. Although previously it was difficult to access assistance from the State, this was now easier.

He urged that the Bill be passed in other to repeal the Black Authorities Act, as its continued existence suggested that the country had not, in reality, moved away from the apartheid system.

The Preamble to the Constitution referred to “We, the People of South Africa” and not to the “Vaderland” or the “Homelands”. The continued existence of the BAA, however, indicated division and categories of citizenship. The historical background of this Act had to be taken into account, and he summarised this, leading up to the creation of the homelands. The BAA was part of the process of dispossession and dehumanisation.

The current system was founded on Parliamentary sovereignty, meaning that Parliament was directing the lives of people, resting on the three pillars of human dignity, equality and freedom. Equality, as explained by Nelson Mandela, meant that all should benefit from South Africa’s wealth. South Africa belonged to all South Africans, with black families structured under the traditional leadership. It must be remembered that there were also traditional leaders in Europe. Unfortunately the African traditional leadership institution was sometimes regarded as backward and offensive. He expressed the opinion that some Africans forgot who they were and had no sense of identity.

He questioned to what extent South Africa had embraced its Constitution. His personal observations were that around 60% of the population was still poor although South Africa was rich in resources. The concept of community upliftment envisaged that communities should start to use the little land at their disposal, using communal activities to produce what they consumed. There were budgets and plans to do so, although State funding was allocated to municipalities, who worked with the Department of Social Development, not CBOs.

He noted that the Bill of Rights spoke to property rights. Ideally, all land in South Africa should be communal so that all could benefit from land use, and so that disadvantaged communities had access to land and the means to produce food. Black people had a history of producing what they consumed. Arrangements could be made to acquire the necessary skills where there was a shortage.

In regard to land claims, he noted that these made reference to different tribes. He was not ashamed of being either a native or a tribesman.

The Constitution also spoke to community development, which meant that communities, under the leadership of traditional leaders, would develop themselves, rather than the leader have the responsibility to develop the community. The word “community” was derived from “common” and “unity”. Community was about the common good. People had to make use of the land in order to survive. The past programmes had consciously estranged people from the land, and some of these restrictions were still in place. Rural development was an afterthought for the government, although a large percentage of the votes that brought the ruling party into power had emanated from these areas. Because the land was not accessible for work and productivity by the rural populations, people were flocking to the urban areas in all provinces, to live in squalor in squatter camps.

Currently, rural communities could be allocated communal land. He was currently running an agricultural programme in a community in Eastern Cape, which had received a production budget from the Department of Agriculture, Forestry and Fisheries.  This programme aimed to generate a household income for each family involved in the project. He noted that any development programs that did not achieve a household income for participants were not realistic.

Mr Motsoeneng did not believe, personally, that the BAA had any place in the modern South Africa. However, he did recognise tribal authorities.  When he wanted to start his project in King William’s Town, he had to speak to the chief, who had called the community together, and, with that community, examined the merits and demerits of embarking on the project. Only after endorsement of the project by the community could it begin. When they were satisfied that it was a positive endeavor, the community endorsed the project and he was free to start working on it. This method of working in the traditional leadership had to be understood.

Mr Motsoeneng said the question of land ownership had to be discussed. Chiefs did not own land, but were administrators of land that belonged to the tribe or community.

Mr Motsoeneng said that if the BAA were to be repealed, something must take its place, and this should allow the communities to produce what they consumed. These communities, as active participants in the emerging economy, must begin to engage with and exchange skills in the private sector. This would, however, be impossible if traditional leadership was viewed in a negative light.

Mr Motsoeneng was very offended by Roman Dutch Law, which he saw as a legal system from a foreign society. He noted that law was formulated not only in Parliament under certain principles, but that community members could contribute towards formulation of new laws to govern rural development. He believed that Parliament should create enabling environments through suitable legal frameworks, whilst CDWs would formulate programmes in communities, which should have protocols to ensure they could work successfully, by way of traditional values and practices. Al laws must give effect to the provisions in the Bill of Rights. The right to dignity made it clear that the BAA must be repealed.

Mr Motsoeneng then turned to the role of municipalities, whom he saw as administrators who must undertake budgeting and planning to assist rural communities, although the latter should be allowed to decide what they wished to do, based on traditions and values. These roles for these entities had to be set out clearly in the Constitution. Through the Minister for Rural Development and Land Reform, legislation should be established so that communities could present their collective economic plans to the traditional council, who would account to the different authorities on the specific aspects of their development.

Discussion
Mr M Swathe (DA) asked which system Mr Motsoeneng would suggest be followed, if he was offended by the Roman-Dutch legal system. She also questioned how he supported the Constitution but did not agree with the sections dealing with legislation.

Ms Steyn also noted that the LRG presentation had said that the effect of the Black Authorities Act was perpetuated through the TLGFA, and asked whether Mr Motsoeneng had studied that piece of legislation, and would be happy with the laws that were to replace the BAA.

Mr Motsoeneng responded that Roman-Dutch Law talked about authority giving rise to law. South Africa had a Constitution, which took cognisance of the injustices of the past. Had black people been included in the law making process in the past, there would have been no need for a liberation struggle. He had never received a proper answer from lawyers about the founding law of the Constitution.

He said that although the Roman-Dutch law was structured along the lines of ruler and subjects, this was not true of African traditional government, where the building block was the family, then the village, under the leadership of their representatives, headmen and chief, working to the common good of the community. Under traditional leadership, a person’s identity was linked to his clan, and all black people belonged to clans, meaning that a child who might be orphaned in fact would be looked after by the clan, as would senior citizens, and material and practical assistance would be given to any family whose head had died.

The colonialists had made Africans believe that African law was inferior, although in truth Roman Dutch law, like the African systems, was founded on norms and traditions. There were no links between South Africa and Rome. There was no reason why truly South African norms and traditions should not apply. 

Ms I Ditshetelo (UCDP) said that people should be equal and there should be freedom.  However, a negative consequence of freedom and equality seemed to be that some people then tended to disrespect the traditional leaders. She believed that they should be respected, and in return should ensure that their people were cared for. These were sensitive relationships.

Mr Motsoeneng said that in order to receive respect, it must be given. BAA had undermined black people by making it impossible for chiefs to fulfil their duties and therefore should be scrapped.

Mr Motsoeneng said that there was an obligation on all public representatives to uphold the Constitution and to yield to the rights contained in it. Many people in the villages had still not experienced real freedom. He was pleased that now rural development was a priority now.

The Acting Chairperson informed Mr Motsoeneng that most of the Committee Members were from the rural areas or were living in areas governed by traditional law. She thanked Mr Motsoeneng for his participation.

South African National Civic Organisation (Eastern Cape) submission
Mr Mqondisi Mgogo, Organising Secretary, Eastern Cape SANCO, said that his organisation saw the BAA as a continuation of  Act 23 of 1920 and Act 12 of 1936. SANCO saw that Tribal Authorities were often instruments of oppression in rural communities, and made people second class citizens in the country of their birth.

SANCO EC called for the BAA, the TLGFA, the Provincial (Eastern Cape) Traditional Leadership Act, No 4 of 2005 , CLaRA and the TCB all to be repealed or withdrawn, saying that it believed that all were based upon apartheid laws.

SANCO was puzzled as to why the government, which consisted of the comrades and cadres of SANCO, would entrench apartheid laws that had caused and still caused a lot of suffering in communities under tribal law. Under the banner of the United Democratic Front, civic organisations had fought against, and defeated, the headmen system. The ANC-lead government not only failed to consolidate and defend the gains of that struggle, but reversed it by forcing those communities to accept being governed by headmen once again.

SANCO  EC was also suspicious of the procedures followed to promulgate these laws, because it was never aware of White paper, Green paper or Bill phases.

The TLGFA caused conflict and confusion amongst the traditional leaders and the communities they governed. The function of the Act to transform the Tribal Authorities into Traditional Councils was lost. His submission cited a number of case studies that showed how the space that the TLGFA created was used by people to impose themselves on communities as chiefs and headmen. In some cases they ran the tribe without ever consulting with the communities. These studies also showed that the people on the ground were never consulted or educated about the laws that reinstated tribal authorities or about the election of traditional councils. In some areas where chiefs had imposed themselves, they were stirring up ethnic conflict in areas where communities co-existed peacefully before.

Mr Mgogo said that during 1956 to1960 government had run a ‘betterment’ scheme, under which people were moved to congested areas, were dispossessed of their land, and no compensation was offered for damage caused. Some of the chiefs at the time helped the government with the betterment schemes, because BAA gave powers to develop in black rural areas. SANCO EC had been trying to get the government to redress these losses, and a case would be heard in Court the following week.

He noted that many chiefs did not want councillors in their jurisdiction, instead preferring to control all development and funds meant for development. This also meant that communities themselves could not drive their own development.

3 000 out of 95 0000 potential voters voted in the tribal authority elections on 6 March 2010. This indicated the amount of support and respect that rural people had for tribal authorities.

SANCO, in summary, recommended that the laws be repealed, that the credentials of kings, chiefs and headmen be examined before more tribal authorities were established, and that its attempts to address restitution for the victims of the “betterment” plans be supported. It also asked the Committee to ask Minister Nkwinti why he opposed victims of betterment being compensated. It also requested the Committee to ensure that those who benefited from land reform and restitution had the freedom to form their own structures, without being forced to be subjected to a chief.

Discussion
Mr Ntapane pointed out that 90% of the incidents reported in the submission were based in one particular area of Ciskei, which was not representative of all areas under traditional rule in South Africa. He asked whether lack of conformity to procedures by some people meant necessarily that the law itself was unsuitable. Whilst he also could not understand how a chief could refuse to work with his community, he questioned whether failure to do so necessarily made the whole institution irrelevant.

Mr Mgogo replied that he agreed that Gagabe was a small area of the EC. He said that he pointed out the problematic areas specifically, because there were areas where there were no problems.

Mr Mgogo said that SANCO believed that both the BAA and its remnants should be removed, because it was an apartheid law. The TLGFA created conflict in communities. This Act was implemented the wrong way, and there were differing interpretations between the people and the chief, which created squabbles in the community. Even officials from the department could not articulate what the Act was about. Officials always agreed with chiefs, and hid information from the people In Gagabe some Nkosana’s guns were kept at the police stations.

Mr Ntapane was concerned about two seemingly contradictory statements in the submission. The “Recommendations” section inferred that SANCO was not prepared to wait, whilst a later sentence contained the words “ Therefore we appeal that let us wait until the findings are finalised.” He asked that the contradiction be explained.

Mr Ntapane asked Mr Mgogo to qualify his assertion that the subjects of a certain king were slaves.

Mr M Swathe (DA) also asked for substantiation on this point.

Nkosi Mandela said that the allegations levelled at kings, chiefs and headmen were quite serious. He wanted Mr Mgogo to substantiate his claims.

Ms Ditshetelo asked how a chief could be smuggled. She asked who had allegedly imposed the headman in the Chris Hani District referred to in the submission.

Mr Mgogo said that when there were disagreements between factions in a tribe, people made up cliques to fight against each other. There would be two camps. They then would “import” or “smuggle” one chief to topple the other chief. Gwaque village was a township that took shape when people who previously lived on farms, had nowhere to go. Someone was imposing himself as a chief on the people. Although he did not have the name, a case had been started with the Legal Resources Centre in Grahamstown.

Nkosi Mandela said that people that came from farms in Gwaque settled there in a township situation. This whole area was situated in Thembuland. That community was headed by Amala. Some traditional leaders reclaimed land that was lost to them previously.

Ms Ditshetelo asked whether SANCO advised councillors not to dictate terms to the chiefs. Conflicts would arise where the councillors entered and worked in areas within the jurisdiction of the chief, without involving or informing him. Councillors had to approach the chiefs and work with them for the improvement of the living conditions of the community.

Mr Mgogo responded that in Gagabe, councillors did go past chiefs, because of the chief’s assertion that councillors were “butterflies” whom he did not want in his village.

Mr Swathe questioned whether this submission was not compromised because it was one from the Eastern Cape SANCO rather than the National office. He enquired as to the position in the other areas of the country.

Mr Mgogo took note of the concern why the submission did not come from SANCO National Office instead of the EC branch. He said that the purpose of the meeting was to repeal the remnants of apartheid legislation, and that was what he came to do. The EC branch was the strongest branch of SANCO nationally, and the branch was always ready to represent its membership, irrespective of the situation.

Mr Swathe asked what SANCO was doing to influence the position where apparently there was one government for the rural areas, another for the townships and yet another for the suburbs.

Nkosi Mandela asked what Mr Mgogo meant by his statement that tribal authorities made the people suffer in rural areas. He enquired how the “oppression” referred to was taking place. He pointed out that in his own area, King Dalindeyebo was recognised and served proudly by his chiefs. It was thanks to him that Mfazwe had four access roads, a high school, a clinic, and the primary school was renovated.

Mr Mgogo said that it seemed that government was attempting to create a fourth sphere of government, as well as the existing three spheres of local, provincial and national. The living conditions of people in the locations were better than the people in the rural areas .The laws that governed the rural areas make life hard for the people. For instance, in the rural areas a woman could not get a piece of land. That was part of the suffering. Only 2% of areas were governed in the way that Nkosi Mandela was talking about. 98% of traditional leaders were arrogant towards the people.

Nkosi Mandela felt that the allegations that Nkosis and Nkosanas were about to kill each other had no place in this meeting. The chief and royal family evaluated which headman would work with the chief. He did not think it was the mandate of this Committee to discuss conflict in royal circles.

Mr Mgogo said that there were often squabbles between the people, and some people who claimed to be nkosi or nkosana were not even of royal blood.

Nkosi Mandela disputed the statement that Mooiplaas and Kwelena were free from tribal authority. This land, lying between the Kei and the Buffalo Rivers, was Xhosa tribal land. It was taken during the rule of Queen Adelaide and was the subject of many battles and belonged to the senior house of the Gcalekas. He asked whether Mr Mgogo wanted the PC to believe that those communities were free from tribal authority, and how he had reached his conclusions.

Nkosi Mandela noted that traditional leaders were in place before apartheid and colonial times. He questioned the assertion that they collaborated, pointing out that many kings and chiefs were incarcerated on Robben Island for their activities in the freedom struggle.

Mr Mgogo said that there were incidents where chiefs worked in “cliques” and with people who were not elected by the communities. He knew about a situation where the monthly tribal meetings did not happen. In the Mbombane area, the king wanted to secede from South Africa, and penalties were imposed on the people in this area. He noted that during the UDF era, the Mooiplaas area fought for a free South Africa. There was no tribal authority. One is currently being imposed on the people living there. He noted Nkosi Mandela’s assertion that prior to 1948, the kings and chiefs used to fight battles with the people, but added that after the advent of apartheid, some chiefs were used as informers for the apartheid system.

Nkosi Mandela said that he wanted the Committee to understand the situation in Mbombane. Here, Advocate Majola was behind the attempt to secede, and this had not emanated from a chief or king, or the Thembu nation.

Nkosi Mandela questioned the assertion that chiefs were working in “cliques” saying that he had yet to see any traditional institutions that defined themselves this way. He reiterated that the structure, from the top down, was king – chief – headmen – board members – communities/villagers. He wanted to know where cliques fitted into this traditional institution. He asked whether Mr Mgogo did not understand the role of traditional institutions in the communities they served.

Nkosi Mandela also noted the statement that chiefs were the fourth sphere of government, but asserted that he would prefer to think of them as the first sphere. The rural areas were the first sphere approached for votes during elections or membership for organisations. People defined themselves according to traditional leaders. That was why today there were tribes like Pedi, Thembu, Pondo or Afrikaners.

Nkosi Mandela also wanted to respond to the complaint that women could not get land in rural areas, and said that the Roman-Dutch law was probably influencing people to think of this as incorrect. There was good reason for this. The Xhosa brought up their daughters with the understanding that they should get married and to move off to another tribe. That was how relationships between tribes were built. Women were not supposed to linger in their birth community. Deflowered girls stayed at home, but the tribal house had to look after them, so they had no need of their own land. He once again said that Mr Mgogo’s understanding of traditional institutions, and how they operated, should be scrutinised.

He added that it seemed that SANCO had not fully grasped all the issues around Mooiplaas, Kwanelega and Gwaque.

Nkosi Mandela also wished to comment upon the submissions in relation to autocracy and the chief being the ultimate ruler. The government, which was very well represented by all the parties present, came to embrace democratic principles. Even traditional institutions had been informed by the journey thus far. Traditional leadership came a long way fighting the struggle for liberation, in order to know not to stand for oppression.

Land Access Movement of South Africa (LAMOSA) submission
Ms Constance Mogale, Executive Director, Land Access Movement of South Africa, and Mr T Z Molwantwa, Chairperson, Community Property Association (CPA) of the Barokologadi, presented their submission. Ms Mogale explained that LAMOSA was a federation of community based organisations (CBOs) whose members were originally forcibly removed from their land and had then claimed land through the Restitution of Land programmes. They were living in communal areas and fighting for their tenure rights LAMOSA was formed in 1991 through the “Back to Land” campaign. It was working in areas of the former Transvaal province. The Barokologadi Communal Property Association was a member of LAMOSA in the Northwest Province, under the Moses Kotane Local Municipality.

LAMOSA welcomed the Bill, as it believed that the BAA was not created to strengthen traditional rule, but specifically to engineer the oppression of black people by other black people under apartheid. It claimed that traditional leaders had been taught, under the apartheid days, how to enforce laws that would oppress people. Those who had toed the apartheid line had remained in power, while those who tended not to support the apartheid government had been victimised, being dispossessed of their land and animals. LAMOSA claimed that essentially, the BAA had been fully implemented where traditional leaders who agreed with and abided by it.

LAMOSA had used specific examples, drawn from the Barokologadi around Madikwe, as a case study to demonstrate the impact of the BAA but there were many similar cases throughout South Africa.

This specific case study was describing the situation where a group of people were dispossessed. They had won some land back through restitution processes, but were under the jurisdiction of a traditional leader with whom they did not identify, and were victimised, badmouthed and discriminated against by the dominant tribe in whose jurisdiction they lived. The BAA imposed the chieftainship of the dominant tribe of the area upon them.

Mr Molwamtwa said that the repeal of the BAA was welcomed, and this was long overdue as its tentacles had spread through to other legislation that perpetuated and built on the past.

Mr Molwamtwa described how his own family had been poorly treated, including their cattle being impounded and a levy imposed to return them, by their water source being fenced off by the apartheid regime, and people being harassed on their way to collect water, destruction of household belongings and arrests.

He also explained how people were resettled. In the jurisdiction of the Barokologadi Tribal Authority, there were different communities who did not identify themselves as Barokologadi, being private landowners who bought the land and had their own authority, yet were forced to submit to Barokologadi authority. Another community was allowed to have its own authority, which had an affinity with the dominant tribe. In another instance, a community that was part of the Barokologadi Tribe had lost their ancestral land, and were settled near and agreed to fall under the Batolokwa Tribal Authority. Both communities he had described had different cultural practices and values from the dominant tribe, but could not live them out, and there was much tension. Although paid levies, they did not receive services from the dominant tribe. There was no obligation of accountability from the dominant tribe to the subjugated tribe. No financial statements were provided. The Provincial government was not prepared to help in this regard, as it did not wish to “open the floodgates” of discontent. He said that communities wanted the right to choose whether or not to fall under the dominant tribal authority.

Ilizwi Lama Fama Small Farmers’ Union (the Union) submission
Mr Mlulami Nziweni and Ms Miriam Matheza, representatives of the Ilizwi Lama Fama Small Farmers Union, explained that the Union operated in the former Border region of the Eastern Cape and had over 3000 members in 44 villages in the Buffalo City, Mncuhla, Amahlati and Ngongolo Municipalities. The Union worked with a variety of communities, and was well aware of experiences under chiefs’ rule. The Union welcomed the repeal of the BAA but warned that even if it were to be repealed, many problems would still need to be addressed. Under both the TLGFA and CLaRA, several villages in various areas where the Union operated were divided. Chiefs in those areas claimed that these laws enhanced their powers, and the Union was not happy with the principle that they were using “divide and rule” that had applied in apartheid days, despite struggles to overcome this regime.

The Union noted and described processes that had not followed proper procedure during the election of tribal authorities, as well as vote rigging. Section 28 of the TLGFA also proved to be a thorn in the flesh of the Union.

The Union thus said that the repeal of the BAA should result in structures that were democratic in nature, instead of another structure that followed the same practices.

The Union said that there were also problems with the chief insisting that farmers had to get the permission of the tribal chief when they wanted to open a bank account. The chiefs did not account for monies generated in the name of the tribe. There were never any financial reports. Land was allocated at the whim of the chief. Rural people were treated as subjects, not as full citizens, and the repeal of the BAA must result in them being able to exercise their full rights as citizens. For this reason, Parliament had to look at other legislation whose effect was similar to the BAA. This included CLaRA and TLGFA.

Another problem was that women could not represent themselves in the traditional councils. They had to be represented by a male relative.

Ms Miriam Mathesa, Member, Ilizwi Lama Fama Small Farmers Union, who recounted her own story in isiXhosa.

Rural Peoples’ Movement (RPM) submission
Ms Nomonde Mbelekane, President, The Rural People’s Movement, noted that she lived at Mhlambe village, near Fish River. She had received death threats as a result of her work for the RPM, when she had raised awareness in communities about the traditional council elections, and although the police had failed to investigate those death threats properly, the matter was being taken up by the Independent Complaints Directorate.

The RPM had gauged the opinion of people about the repeal of the BAA. People had wanted to know specifically whether the repeal would mean also the removal of the chiefs who were returning to rule them. They felt that the BAA had changed the chiefs being representatives of the people to collaborators with apartheid. The BAA, TLGFA, and related laws caused untold problems and misery to rural people. During 1991, Cyril Ramophosa had been to Pedi to dissolve headmen structures, and the people were unhappy that their former struggles effectively came to naught when the TLGFA was passed, since it gave chiefs the same advantages as the BAA, and gave them control, including over land. The magistrate in Pedi no longer took cases from the rural areas. Those people had to make use of the traditional court system in the areas where they lives. Some chiefs had accused women of being impure, dirty and involved in witchcraft. During a recent case where a woman had claimed damages for impregnation, she was told that because the man was from a rich and influential family, she was merely attempting to sully his name, and she, despite the fact that she was eight months pregnant, was sentenced to corporal punishment.

Rural women felt that they did not have rights. Women could not apply for a child support grant without a letter from a chief. Rural people were forced to pay levies. Although information was sought from the Provincial Government offices prior to the elections, nothing was provided, and very few voters voted.

There were accounts of chiefs and traditional councils being imposed against the wishes of the people, conflicts between the chiefs and the councillors, and the chiefs contributed, in the view of the RPM, to causing conflict. Communities would rather run themselves along democratic lines, and thus asked Parliament to free them of the rule of the chiefs and headmen.

Ms Mbelekane thus recommended that consideration be given to whether the TLGFA and Traditional Courts Bill were in line with the Constitution. She asked that Parliament must ensure that rural people did not suffer, and their wishes to have democratic rule of the people by the people, rather than by individuals, be respected. The Minister should be clear about her role. Rural women, who suffered in particular, wanted to have ward councillors and municipalities, not chiefs whom they perceived as benefiting only themselves. They would be reluctant to support the present government during the next elections if their voices were not heard on these issues.

Discussion

Mr Swathe noted that none of the presenters were happy with the current borders and asked each what they suggested should be done about those borders.

Mr Swathe asked how the presenters saw their own cultures, pointing out that traditional leaders were products of African cultures.

Mr Swathe asked for further clarity on why the presenters would welcome the repeal of the BAA although they were not happy with the new laws introduced more recently, nor with traditional leadership.

Ms A Steyn (DA) empathised with the female presenters who had needed to air their criticisms of the traditional leaders in their presence.

Ms Steyn cited cases where some people, on lodging their claims for land restitution, were told that they could not receive their land back as it had not been annexed by white people, but by those of another tribe. Details of this case would be given to other Members. She asked whether there were any other similar cases.

Nkosi Mandela said that it was very disturbing to hear so many examples of women being continually oppressed, despite the fact that many women in South African history had ruled their tribes, such as the famous Queen Nonqause and Queen Mojaji. He asked whether the failure of a particular chief to perform his duties correctly meant that the whole Act should be discredited. He also pointed out that just as a chief was inaugurated under certain procedures, he could also be removed from office, and enquired what might have been done to have a chief removed where he was not doing his job properly.

Nkosi Mandela referred to Ms Matheza’s reference to payment of levies, and asked why none of the presenters had approached Contralesa or the House of Traditional Leaders to complain about the chiefs.

Nkosi Mandela also indicated that if 40% of the board members of a tribal council were not elected by the community, the election process was flawed. If that was so, he enquired if any of the presenters had engaged with the MEC or the Department of Cooperative Government and Traditional Affairs (CoGTA).

Nkosi Mandela pointed out to the Ilizwi Lama Fama Small Farmers Union that chiefs were custodians, not owners, of items like tractors, and he said that the presenters would have to be quite specific when they made their claims.

Mr Ntapane asked LAMOSA whether the farms were transferred to communities when they were first bought.

Mr Ntapane took note of the scenarios described, but said that he would take issue not so much with levies, but with the allegedly different treatment meted out to the different members of the community.

Mr Ntapane noted, in regard to the RPM presentation, that Ms Mbelekane had averred that chiefs served the apartheid authorities rather than representing the people. He pointed out that the apartheid system had in fact used everyone against each other, with police and teachers, for instance, also furthering the aims of that regime. It seemed, however, that the chiefs were being singled out for criticism.

Mr Ntapane pointed out to RPM and the Union that failure to implement an Act properly did not necessarily make the Act wrong.

Mr Nziweni, representing the Ilizwi Lama Fama Small Farmers Union, responded in isiXhosa to the question about the tractors that were given to the chiefs.

Ms Mbelekane, RPM, also responded to certain questions in isiXhosa.

Mr Molwantwa clarified the situation he had earlier described, saying that in respect of the tribe falling under the Barakologadi, two out of the four communities had privately owned land under their own title deeds. Although they had been managing their own affairs, they were now incorporated under the tribal authority of Barokologadi. He pointed out that only the land obtained through their own restitution processes belonged to the Barokologadi.

He agreed that in the second situation he had described the problem was not that of levies, but service delivery. Although the splinter group were entitled to part of the land now restituted, they had since been incorporated into a different tribal authority, and would have to obtain the permission of this tribal authority in order to develop the splinter group’s land, could not obtain the consent of the different tribal authority to be re-incorporated back with the main group of Barokologadi, and could not exercise their cultural practices as they pleased. He reiterated that the matter had been reported to the Provincial Government, who was unwilling to assist. He asked that the splinter group should be allowed to return to the main group, and the boundaries had to be redrawn, so that those who owned the land had to be free to develop the land as they saw fit.

Ms Mogale added that she wished to comment on Mr Ntapane‘s statement about the effect of apartheid laws. She could not understand why traditional leaders were now defending the same laws that also had oppressed them. All parties should work together to discuss alternatives, around how best to administer the rural areas. She suggested that there should be an inquiry to look into the best strategy for re-negotiating the boundaries.

She added that in one instance, women had owned land, under title deeds, but the chief had simply informed those women that because of their gender, their land would be subdivided amongst others.

LAMOSA’s argument, however, was not pinned so much on individual cases, as against the law that empowered chiefs to do what they were doing, and if those laws were empowering the chiefs to abuse others, then they must be repealed. Respect had to be earned, and ruling by fear was not the correct approach.
She added that when there was a process of land restitution, there should be post-settlement support by the government to sort out remaining problems.

Ms Steyn asked LAMOSA who had incorporated the Barokologadi into the jurisdiction of the other tribe, when did this happen, and what was the community’s response at the time.

Mr Molwantwa answered that this process had begun in 1958, when the BAA was used to incorporate the Barokologadi into the area of another tribe. On 10 September 2004 the Director for Traditional Leadership in the Office of the Premier of the North West had explained that this was done for the purposes of “administrative feasibility”.

Nkosi Mandela asked the Ilizwi Lama Fama Small Farmers Union to forward the details of the case where chiefs allegedly received tractors from the State yet did not make them available to the people.

Nkosi Mandela said that the question of the rigged elections should be taken up with the IEC.

Nkosi Mandela also challenged councillors how far their commitment stretched to really serving the people.

Nkosi Mandela clarified that the BAA was not responsible for introducing the concept of chieftainship, which had existed before the colonial era and before apartheid. He did not believe that Contralesa and the House of Traditional Leaders were “grooming dictators”.

The meeting was adjourned.