Black Authorities Act Repeal Bill [B9-2010]: public hearings Day 2

Meeting report

Rural Women's Movement (RWM) submission
Ms Sizani Ngubane, Director: RWM, stated that the RWM was based in KwaZulu-Natal and worked around issues of women's inheritance and land rights. She stated that she had personally experienced the loss of her home due to her gender and the inability of traditional law to allow her to be allocated land. Her brother-in-law had evicted her and her mother from their home, which he was allowed to do according to traditional law. As women they were regarded as minors, without any power. Out of 300 chiefs, she had found only one who was willing to allocate her land in her own right. She appealed to the Committee to ensure that traditional leaders recognised women's rights as well. There was concern over young girls being married to older men, it was not part of their culture to force a 12 year old to marry. This was a distortion and was leading to the feminisation of poverty, due in part, to young girls being forced to drop out of school. Practices such as these needed to be stopped.

Twelve Committee of Daggakraal (TCD) submission
Mr Eric Twala, General Secretary & Media Liaison Officer: TCD, came from Daggakraal in eastern Mpumalanga. He stated that in the past a conveyancer had acquired Daggakraal, consolidated the properties, subdivided them and sold them to farmers. These farms were Daggakraal, Driepan and Driefontein. These farms were purchased by black farmers. The African Native Farmers Association (ANFA) bought these farms, 60 families were involved in the purchase. This occurred before the Native Land Act of 1913. A bond on these properties was later raised. During 1916 it was made clear that a Free State chief, Papa Moloi, bought land in Daggakraal. Two as a normal citizen, without any traditional authority. After the Black Authorities Act (BAA) of 1951, the government tried to give a mandate to the chief as they split people according to “culture”.

The Twelve Committee is represented by 12 members from the area. There is no chief and three members are elected to office from the 12. Papa Moloi was not the chief of Daggakraal, just an ordinary landowner, he had no authority. After he became a tenant he was instructed to move to Kwakwa. This information showed that Daggakraal never had a traditional authority. In 1995 Edward Moloi started to impose himself as the traditional authority despite the communities refusal to acknowledge him. His position was bolstered by government recognition. Premier Mabusa had advised that they would look into it in 2010. The Daggakraal landowners felt marginalised by both the province and national government as they learnt that traditional leaders and government had stripped them of their power as community leaders. They refused to recognise any chief over them and recommended that Chief Moloi be removed as chief of Daggakraal, that the Black Authorities Act be repealed and that new acts did not put them in a worse position. The “chief” of Daggakraal was illegitimate.

Discussion
Mr M Swathe (DA) asked for clarity on Mr Twala not wanting traditional leaders in the area and asked whether he was not happy with the system of traditional leaders in South Africa. He asked for views on new acts being passed and noted that he was not happy with Section 28 of the Traditional Leadership and Governance Framework Act (TLGFA) of 2009. The RWM had also indicated that that they were not happy. He asked them to give him an understanding of the issue.

Mr Twala replied that they had fought against the Black Authorities Act (BAA) and did not want to entertain anything stemming from it, such as traditional authority in the area. It amounted to support of the BAA. This was his community mandate and they would not entertain anything propagating the legacy of the BAA such as the TLGFA.

Mr N Mandela (ANC) said that Ms Ngubane had mentioned that children were being abducted and married and asked if she could clarify her statement that this was a distortion of our culture. He asked her to explain the culture from which she came. Around the issue of title deeds he raised the problem that even though the community sought to protect land, in the case of individual title deeds, if the landowner defaulted on payment, the bank sold the land to someone else. In light of this, he asked how they secured land for the community in the traditional sense.

He stated that Mr Twala talked about land purchased during 1916 and the Moloi dispute, but neglected to provide information on who owned the land before 1916, as there might be the complication of a land claim from a chief pre-1916.

Mr S Ntapane (UDM) asked whether the area in Daggakraal belonged to a chief.

Mr Twala replied that before 1916 the land was owned by a Mr Gouws and Mr Potgieter, therefore there was no prior land act claim. He added that it was important to “know one’s history”.

The Acting Chairperson interjected that with due respect, members wanted to establish the facts and that while treating each other with respect, they needed all the details and information. If one was required to answer, they should do so and try to keep emotion out of it. She asked Mr Twala to retract his statement about knowing one's history, she added that Mr Mandela knew his history. She stated that there needed to be an atmosphere conducive to interchange.

Ms A Steyn (DA) disagreed and felt that Mr Twala was within his rights. Mr Mandela's question was unfair as it was pre-1916, when in fact the topic under discussion concerned what happened afterwards.

The Acting Chairperson replied that she simply wanted everyone to be able to ask for information and that the way Mr Twala responded was slightly hostile.

Mr Swathe interjected that he did feel offended. Mr Twala's statement had shown that there was no traditional leader in the area. However, he was asking if they we happy with traditional authority mechanisms otherwise.

The Acting Chairperson asked that they move on.

Mr Mandela stated that it was important to understand the theory around his question. He asked who owned the land before Mr Gouws because in land claim cases if there was a traditional leader that submitted a claim saying that he owned the land before Mr Gouws then the Department of Rural Development and Land Reform would need to consider his claim. This was why he had asked his previous question.

The Acting Chairperson added that the members respected the presenters and asked Mr Twala to withdraw his response to Mr Swathe.

Mr Twala apologised and stated that according to the Nhlapo Commission, Chief Edward Moloi originated in Kwa-Kwa and therefore could not impose his chieftain-ship in Daggakraal.

Mr Mandela stated that his question on title deeds was not answered. He added that the Nhlapo Commission dealt with the question of illegitimate kings and that it would also deal with the question of illegitimate chiefs after it had finished with the kings. He added that he was trying to look at ownership before 1916 in order to correct injustices before farmers had sold land to black people.

Kalkfontein B&C Trust submission
Mr Stephen Tongoane, Deputy Chairperson, Kalkfontein B&C Trust, stated that with regard to Kalkfontein, the Minister of Rural Development and Land Reform agreed with them that they did not have secure tenure and that they would repeal the Communal Land Rights Act (CLRA) of 2004 as it is unconstitutional. The community was delighted that the BAA was being repealed as it was one of the cornerstones of apartheid. The Kalkfontein B& C farm was bought by Mr Tongoane's forefathers and the original co-purchasers were from different ethnic backgrounds and had no chief. Every three years they would elect an executive. The Kalkfontein B&C farm was bought through an exemption from the Natives Land Act, however with the introduction of the BAA it enabled the government to appoint a chief over them. In 1980, this had lead to violence against the community from the chief.

The Willem Kruger Commission found that the chief should be removed. In 1996 the Kalkfontein B&C Trust was registered and after litigation the trust was given ownership of the land, this was emphasised by the Constitutional Court indicating that the area was being governed by a lekgotla. These functions were now performed in a similar manner by the trust. The Constitutional Court had recognised their system, which had worked until the traditional authority had usurped power. The Native Administration Act had appointed Danial Mahlangu as chief, who had treated the community as his own personal property. Newcomers in Portion A of the farm were given residential land on the ploughing fields of the previous owners. The Kruger Commission had found the chief guilty of extortion in the form of levies. The Commission recommended that Daniel Mahlangu be withdrawn and the tribal authority dismantled. However Mr S Mahlangu continued as acting chief. After 1994 the community continued their struggle for their land. The Constitutional Court agreed that their case was legitimate. However the repeal of the BAA was insufficient as the Traditional Leadership and Governance Framework Act (TLGFA) and the Traditional Courts Bill (TCB) entrenched the same problems found in the BAA. The TLGFA permitted the traditional council to impose levies, which amounted to double taxation. The then Department of Provincial and Local Government’s White Paper On Traditional Authority Governance from 2003, stated that the traditional authority should not impose levies. The TCB was guilty of this. The Kalkfontein B&C Trust was willing to participate, if invited, in writing a new land tenure law. Anything that replaced CLRA should not assume that the traditional council was the default authority or owner. A recognition of customary law must be ensured. A relevant body should be constituted to deal with private community land. He requested that the Committee visit the community.

Ramunangi Clan submission
Mr Johannes Ramatangwa, Ramunangi spokesperson, stated that their clan had been the custodians of the Ramunangi sacred sites of Guvhukuvhu and Ndwadzongolo in Limpopo from before the division between South Africa and Zimbabwe. They were the Vhadau Vhangona, part of the Mapongubwe. After being conquered by the Tshivhase chiefs they accepted their authority as they respected the Ramunangi's custody of the sacred sites. This was fine up until the predecessor of the current headman. The scared site of Nwadzongolo was destroyed in 2006, when a road was built, now the Guvhukuvhuku site was also under threat.

The site was a natural area, containing a waterfall where the ancestors resided, as well as big stone pots made by them. The area was a sacred place, where firewood could not be collected and animals were not supposed to be killed. In the past these taboos were respected by the chiefs and headman. Previously there was only a small path leading to the site, now a road had been built and the forest was being destroyed. In 2001 the Headman, Jerry Tshivhase, turned the area into a picnic area without consulting the Ramunangi. Access to the area was controlled by security guards who charged an entrance fee. Other people were allowed free access to the sacred sites, which was taboo. These people had further desecrated the site with empty alcohol bottles and used condoms.

They then proceeded to meet with the Headman but met with no success, a councillor had said that the site did not belong to the Ramunangi, but the Tshivhase. They did not know what to do as the Tshivhase were chiefs. They had gone to various government departments but received no help. In June 2010 they had discovered bulldozers digging up the sacred site in order to build new roads and six chalets. No one had consulted the Ramunangi about this at all. On 9 July 2010 a court order was obtained to stop the desecration of the site for 20 days. The Ramunangi do not wish to own the site, but merely wish for it to be respected. In this regard they want it restored to its natural state.

The Ramunangi Clan support the repeal of the BAA, but want Parliament to ensure that traditional authorities were not given absolute power over their land and that they retain control for specific purposes.

Mrs Tshavhungwe Nemarude, Ramanungi Clan, said watching the site being destroyed was very painful and that they had already destroyed Nwadzongolo. The construction of a resort would destroy their sacred site.

Sekhukhune Land Ad Hoc Committee (SLAHC) submission
Mr Patric Mashego, Chairperson: SLAHC, stated that they were not here to present their grievances to the House of Traditional Leaders or the tribal authority, but to a Portfolio Committee of Parliament. They lived in an area which was still affected by the promulgation of the BAA. One Khosi was selected by apartheid to establish a Bantustan. He was offered land to buy, however he could not purchase it all. Thus a large portion was held in trust with the Khosi supervising it. However, supervision did not amount to ownership. Since 1958 they were required to pay the trust money, they did not mind this because it was thought that eventually they would be able to pay for the title deeds. However since 1997 the chief had appointed headmen with no consultation or election. Headwomen were not appointed unless they were widows of former headmen. Since 1997 the chief had started to abuse power. The headmen were invariably loyal to the chief, who appointed elderly men who knew nothing about the Constitution and served as little more than watchdogs. They were unsure whether a repeal of the BAA would lead to the cessation of this. In 1999 they had demanded an explanation for a 1995 statement by the chief that the land now belonged to the tribe and was in his name as he had the title deeds. The community was rebuked by the chief for this.

One of the problems was that the BAA allowed levies. The significance of this power needed to be understood in terms of the socio-economic climate of the community. They were against the Traditional Courts Bill as it would be run by people without legal knowledge. It was impossible to appear before a traditional court without paying a fine. In Sekhukhune's case, these courts were not properly constituted as no election had been held. The traditional authority was simply converted into a traditional court. They furthermore regarded themselves as the Matlala Local Government and had created stamps and other paraphernalia that implied they were a sphere of government. They received payments as well. He added that he unaware of any other area with four spheres of government and two local governments.

The real local government had no power as they were in-fact subjects of the chief. The chief was not accountable in law as a local government was. This was a terrible abuse of power. The lack of government sanction against traditional leader abuse of power amounted to the support of it. They were not opposed to traditional authorities and customs, but wanted them to be held accountable. Parliament needed to revise the Traditional Leadership and Governance Framework Act to remove all aspects which promoted the legacy of the BAA. Levies needed to be scrapped. Levies had been the custom in a time when the chief received no government support. SLAHC submitted the levy system be changed into a community fund to be used for the community and not for the chief's own personal use. Traditional councils were supported insofar as the law was strong enough to cap the power of these leaders.

Cala University Students Association (CALUSA) & Siyazakha Land and Development Forum (SLDF) submission
Mr Douglas Ntamo, CALUSA and SLDF representative, stated that in Cala people did not make a noise unless there was a problem. Chief Matanzima had tried to impose chiefs on them and had failed. Cala has always elected its headman. In his claims Chief Matanzima had insisted on imposing a headman because he claimed to a law behind him, it was discovered that this law was the BAA. They were thus happy that the BAA was being repealed. However it still left some wounds behind. Tsengiwe's history of electing a headman extended back to 1883. Matanzima tried to change their culture using the BAA. There was a problem with laws in the Eastern Cape, as they were free to elect headmen up until 2007. Mr Mkhize of the committee of headmen informed the community of Tsengiwe that there would be an Nkosana who would take the place of the headman, an Nkosana was a person of royal blood or a prince. After this announcement a small group of the community installed the Nkosana. The majority of the community was not happy with this and formed a committee to deal with the problem of an unelected headman being turned into a Nkosana. They then wrote letters to the structure that put together headmen and these were sent to and fro. This took forever and they were eventually forced to go to the provincial government in Bisho. They were then told to go back to the seat of King Dalindyebo in Qamata. Chief Zanzolo came to address them eventually and told them the Nkosana was the Nkosana of Tsengiwe and that there was nothing more to it. This greatly upset the people of Tsengiwe. The new Nkosana got a court order against the ward-councillor preventing him from coming to Tsengiwe unless he was supervised by the Nkosana. The community then went to CALUSA to organise a workshop between the parties. After this they went to the Public Protector, who advised them that they had missed the 90 day complaint period for the Traditional Leadership and Governance Framework Act. The visit by King Dalindyebo did not help the community as he used it solely as a platform to insult the committee of headmen on other matters.

As this was the case, they felt that the BAA must be deleted along with all of it derivative acts, which continued the legacy of the BAA under different guises.

Discussion
Mr Mandela asked Mr Tongaone to clarify what their system of lekgotla entailed. He asked how a chief had been able to cancel pensions and welfare, when it was in fact a government departmental competency. He asked Mr Ramatungwa whether the roads being built were for the betterment of the people and if the chief owned the title deeds to the area under dispute. He asked Mr Mashego who conducted the traditional council elections and whether it had been the Independent Electoral Commission (IEC). He stated that a stamp with the traditional authorities name did not constitute a fourth sphere of government as anyone was entitled to have a stamp.

Mr Tongoane replied that the different co-purchasers came from different ethnic groups, so they instituted a gathering of all the men in the village under the leadership of an executive committee. The withdrawal of state benefits from dissenters occurred in 1979, when the 'chief' could do anything.

Mr Ramatungwa replied that they respected the chief very much and that they were not fighting for title deeds, but to protect the sacred site from desecration.

Mr Thomas Moshitoa, SLAHC, replied on behalf of Mr Mashego that the stamp said local government, not just tribal council and as such it implied that it was a legitimate fourth sphere of government. The election was supposed be under the Premier's office and the IEC were supposed to have come. However no election was held and the traditional authority was simply converted into the tribal council.

Ms Steyn asked who installed a headman and how. She stated that the main complaint seemed to be about tribal levies and added that people also needed to pay land tax. There was a need to find out what the chiefs did with this money. She added that there was the complaint that municipalities did not get taxes, but added that even if there was no tribal tax, they would still have to pay municipal levies. She asked Mr Ramatungwa whether an Environmental Impact Assessment (EIA) had been done before the building of the resort and roads had started.

Mr Ntamo replied that the headman was elected by the community and that only chiefs were born.

Mr Mandela interjected and said that the translator had made an error and that Mr Ntamo had said that uSibonda members were elected not headmen.

Mr Ramatungwa replied that no EIA had been done.

Mr Moshitoa replied that if levies or taxes were used to develop the area then they were fine. He added that he was not mandated to argue about levies, but rather about the problem that there was no accountability.

Mr Ntapane asked Mr Tongoane from whom his forefathers had bought the farm. He sympathised with Mr Ramatungwa and noted that it was important for people to respect each other’s beliefs. In this regard, he felt that government was letting them down. He stated that he was a traditional leader himself and that it was embarrassing to see proof of abuse of power. He added that it was his understanding that if there was a levy, it was supposed to be agreed upon by the community. Levies were supposed to be for community needs in order to achieve objectives for the community, not the other way around.

Mr Ramatungwa replied that it was heartening when people in Parliament sympathised with there case.

The Acting Chairperson noted that they had made a copy of the receipt Mr Mashego had supplied as proof of the traditional authority misrepresenting itself as a local government.

Mr Mandela asked Mr Mashego to explain who did the elections for the tribal council and which office handled these elections.

Mr Moshitoa reiterated that there had been no elections and that the chief had simply converted the traditional authority into the traditional council. The IEC should have come after being instructed by the Premier's Office, as Traditional Affairs was under the Premier's Office in Limpopo.

Legal Resources Centre (LRC) submission
Ms Nomfundo Gobodo, Director: LRC, endorsed the repeal of the Black Authorities Act and supported any debates about any new laws dealing with CLRA and the TCB. Any repeal of the BAA must occur in the particular historic context and be aligned with the spirit of the Constitution. In this light it was not possible for the legislature to at-will establish authorities and define their functions. Traditional authorities must function subject to the Constitution and legislation. Furthermore the allocation of customary land should only be the preserve of traditional leaders. Traditional authorities must be curbed and monitored. Furthermore they need to be included in the incorporation and development of indigenous law as living customary law. The repeal of the BAA was good, but any legislation filling its place must be true to the principles of the Constitution. Thus traditional authority should be exercised in terms of living customary law, which needs to be identified. There was an obvious link between Section 28 of the TLGFA and the BAA as it allowed for the same traditional authorities to continue. The BAA did not represent living customary law and unless that occured any new legislation would also be deemed unconstitutional.

Discusssion
Ms Steyn stated that members were put in a difficult position as they were here to listen to comments on the repeal of the BAA, which had to happen. However everyone present had raised the issue of the TLGFA and the TCB, which the Committee had no hand in. Thus in order to discuss the TLGFA it might be necessary for the Committee not to repeal the BAA in the interim, in order to open a space to debate the TLGFA and the TCB. She welcomed any other solutions.

The Acting Chairperson stated that they would have to engage with other parliamentary committees and make a recommendation.

Mr Shirhami Shirhinda, LRC, replied that in the rural set-up, there was a situation which was affected by other acts and they needed to look at all of these acts in conjunction, as failing to do so led to conflicts.

Dr Sindiso Mnisi, Senior Researcher at Rural Women’s Action-Research project of the Law, Race & Gender Unit, University of Cape Town, welcomed the suggestion that they needed to gather everyone together and added that it was important to include the actual people concerned as well. She added that it was disheartening that at the end of the day’s hearings only three committee members were present. People needed their stories to be heard. Parliament’s Constitutional Review Committee (CRC) was meeting later that week, which avenue had only recently come to her attention. The lack of publicity around this matter would lead to further marginalisation of rural people who would have no idea about the meeting.

Farm Evictions and Development Committee
Ms Maria Mabaso, FEDCO, submission was not translated in the meeting. [PMG awaits a translation]

Bakgatla Bakautlwane submission
Mr Mmuthi Pilane, Bakgatla Bakautlwane Royal Family representative, stated that Nyalala Pilane had been imposed upon the Bakgatla people as a paramount chief by the apartheid government on the advice of a chief living in Botswana. The Bakgatla had no history of paramount chieftainship. Rather all Bakgatla royal families were on equal footing. However the apartheid government redefined the Bakgatla as the Bakgatla baKgafela, the Bakgatla baKgafela was turned into a paramount chieftainship, under which all other Bakgatla royal houses fell. This was an artificial apartheid construction. However now the issue was that Nyalala Pilane had been found guilty of corruption in 2008 and still had control of the large platinum wealth that rightfully belonged to all the people. The chief had furthermore appropriated revenue from the local clinic and post office for himself. The Bakgatla Bakwautlwane had decided to establish themselves as a separate traditional community due to this. Nyalala Pilane's traditional council had tried to stop them from holding meetings to discuss this.

Silwanendlala Farming Cooperative (SFC) submission
Mr Solomon Mabuza, Chairperson of Silwanendlala Farming Cooperative, spoke in Xhosa and explained that he came from Buffelspruit Village under Nkomazi Local Municipality in Mpumalanga Province. Since his father’s death in 1981, regents had run the tribal authority.  Individuals with the same surname who had chased the chief away ran the tribal authority.  This matter was taken to the former Premier, Mr Matthews Phosa, who promised to fix the matter but his term ended before he could do so. Those who were in tribal authority also abused the power given to them by the government. There was no change in governance in the area spoken of. The tribal authority used laws that were legislated by the apartheid government for example the Black Administration Act 38 of 1927 (which allowed for forced removals) and the Black Authorities Act 68 of 1951 (which gave tribal authorities the power to control the lives of black people in the rural areas). The present government had given more powers to traditional leaders, for example the Traditional Leadership and Governance Framework Act of 2003 and the Communal Land Rights Act of 2004. The Traditional Courts Bill would stop the community from instituting complaints regarding the wrongs of traditional authorities since complaints would be taken to the same traditional authority.

The community was not being accommodated in this democratic society since it was allowing chiefs to take advantage of the community. The government should initiate strong monitoring of the areas complained of. The Chiefs were in breech of customary and constitutional law provisions. In summary the main problems were that the tribal authority was hampering development, selling land that it did not own and was charging levies but not providing service to the community. The government had to stop the tribal authority from applying old law but replace them with constitutional values. The government had to make laws in consultation with the community. Tribal authority must not be given to royal families who abuse it. The traditional council should come from the 12 blocks of the Matsamo Tribal Authority area. Tribal authorities should not have power to control development projects or to allocate land to the community.  The authorities should also stop collecting levies from the people because this was double taxation in other words VAT and tribal levies.  The Departments of Rural Development and Land Reform and Local Government must release application forms for title deeds and give them to the people as they were ready to apply.

Discussion
The Acting Chairperson stated that the complaint from everyone was the same, that the BAA and all its derivatives be scrapped. This meeting was the first step to do so.

Mr Ntabane agreed that was a complaint against levies and misuse of property by traditional authorities. He asked what FEDCO had done to challenge this and asked Mr Pilane how it was possible that the proceeds of a school or clinic be appropriated by an individual.

Mr Pilane said that he had made a mistake and that what he meant was that they had built the building which housed the post office and the the South African Post Office paid rent – this was appropriated by Nyalala Pilane. At the clinic it was revenue from the erection of a cellphone mast.

Ms Steyn said that she was humbled by the submission and that previously she did not realise the extent of the issue. She was happy that the Committee had been enlightened. She was shocked by the issues that had been raised. She added that the presenters should not feel discouraged by only three committee members being left in the room, as they represented three parties.

The Acting Chairperson thanked everyone for coming and sharing their stores.

The meeting was adjourned.