BLACK AUTHORITIES ACT REPEAL BILL

SUBMISSION TO PORTFOLIO COMMITTEE: RURAL DEVELOPMENT AND LAND REFORM.
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1.	HISTORICAL  BACKGROUND: 
1.1	Our political history predates the colonial era much as our economic model and social order. Our identity as Black people and our body politics are still evident to those with conceptual understanding of politics and the economic order. With the partitioning of Africa in what was to be known in history books as the scramble for Africa, European countries descended on our continent and colonized African countries thus imposing laws that were directed at subjecting the will of Africa to the will of the colonial master. The vestiges of colonial past exist in various forms and shapes both in our politics and economic order. 
1.2	This explains why Blacks are the face of poverty, disease, under development, ethnic warring when in our pre colonial history there are no records of poverty, oppression and suppression. There are no records of torture and jails because our systems of existence was governed by customary, cultural and traditional values and which had to give way for the colonial customs, culture and traditions. Roman Dutch system of norms would replace English laws and we would be governed through parliamentary sovereignty in which parliament would assume powers that are supreme and above the law. In this political model, the state would assume the direction and supervision of the society. 
1.3.	This explains how the legal personality as characterized by duties, rights and competencies conferred by law on legal subjects is such a force in the allocation and distribution of resources.  It confers status on a person and with the status comes privileges. As a result in their official capacity, legislatures and jurists were above the law; for, as competent bodies posited to make and apply legal rules to regulate the conduct of society, they cannot be legal subjects. The concept of the rulers and the subjects has its origins on this political set up. The Black Authorities Act of 1951 was legislated in that context and should be understood as such – it posited rules on the tribes so as to regulate their behavior and was not initiated and adopted by the tribes themselves.
2.	CONSTITIONAL DEMOCRACY
2.1.	With the advent of democracy, the State would be constituted on the recognition of individual citizenship with duties, responsibilities and equal rights. This is a radical departure from the sovereignty regime that would recognize people based on their standing in law. In citizenship one has responsibilities and which would demand accountability; as such, everyone would be equal before the law and would be consciously accountable for his/her actions.
2.2.	The laws of the country would be changed when we rejected parliamentary sovereignty and adopted constitutionalism in which legislative, executive and judicial authorities would be under the State Constitution such that law or conduct inconsistent with the State Constitution would be invalid.  
2.3.	Law would be recognised as benefitting and protecting fundamental human rights such that in interpreting any legislation and developing common law, the purport, object and spirit of the Bill of Rights must be upheld. Since interpretation is on the understanding it would follow that clear understanding of the Bill of Rights has to be contextualized in terms of law (interpretation of statutes and common law).  
2.4.	A valid law in the circumstances would be the one that embodies human dignity, equality and freedom and these being the cornerstone of our democracy.
2.5.	From this provision arises both the science and philosophy of law and can assist us in developing constitutional jurisprudence. At our disposal we have the Bill of Rights and the State Constitution as the departure points or in engineering language co ordinates points.
3.	PRINCIPLES AND RELATIONS – THE ABSTRACT
3.1.	Schematically, a delegated right constitutes authority and which when instituted gives rise to power. Power would exist as duty and gives rise to responsibility and which in turn creates accountability. Accountability is a reporting mechanism on the state of affairs and therefore gives complexion to theory and it being the values and principles governing an act. An act in turn is on will. The will is driven by desire. Desire is driven by motive and the motive is triggered by a need. A need must be satisfied. In satisfying the need goods and service must be produced. National resources are employed in the production process. Income is earned on production and is spent on goods and services produced in what we call, the economy. The economy therefore reflects on politics and has land as its domain with various activities in the range. National land is communal land and at national level it is administered by the State whereas at local and village level it is administered by Traditional Leadership. Both the State and Traditional Leadership are constituted. This brings us to issues of politics and the law.
3.1.1.	Politics and law
People undergo a process of reproducing themselves in what we call birth and therefore are born from the common union of a female and a male. As individuals people therefore have their foundation on common union and based on the common good this common union would establish a relation between people. 
3.1.2.	The relation defined by the common good for the common unity is Politics such that the object of politics is the common good with community as the subject. What emerges is that in a relation there are commitments to a performance.
3.1.3.	And in the case of politics it is the common good that commits common unity as in community such that when we talk of the common good we readily know that it founds the community and the subject matter is politics.
3.2.	Arising from the relation is a rule and a rule that governs an action or performance is a principle. In governing, a commitment to performance is compelled and we can safely conclude that a principle compels compliance with commitments to performance and is Law. 
3.3.	Government is on law with primary function of public service and administration.
3.4.	Politics founds the Law and in turn the Community founds Politics and which on the other hand is founded by the common good. This takes us to what constitutes the good to a human being.
4.	THE BILL OF RIGHTS
4.1.	Food, shelter, water, health care and  hygiene, peace, and other life fulfilling provisions are all good to human beings as such they are collectively referred to as the goods. By the nature of a good, life cannot be sustained without and these goods would then constitute fundamentals in human existence. Production of goods for need satisfaction constitutes the economy. 
4.2.	They are essential needs and if deprived, human right to existence is disturbed; hence, they are Fundamental Human Rights and are basic. As a unit these basic rights exist and are recognised as the Bill of Rights. 
4.3.	The State Authority would be constituted through the delegation of a right for the collective protection of the common good and individual freedoms.  
4.4.	This explains why the Bill of Rights is entrenched in the State Constitution.
5.	CONSTITUTIONAL OBLIGATIONS:
5.1.	What emerges is that the State is an issue of politics and not a political issue and that the State as constituted has the fulfillment of the purport, object and the spirit of the Bill of Rights as its obligation. 
5.2.	This, it achieves through public service and administration as instituted in the legislature, executive, judiciary and other state organs as identified in Chapter Nine. Justice would then be defined in terms of a just administrative provision in the Bill of Right. Parliament and our Courts no longer operate on status but on the Bill of Rights and this development creates certainty as to accountability in our reporting lines.
6.	TRADITIONAL LEADERSHIP AND TRIBAL AUTHORITY
6.1	We now know that the community is the foundation of the state and that rural communities exist as native clans in villages. Their common union is on traditions, customs and cultures. 
6.2.	Traditional Leadership as the custodian of these values is recognised in Chapter Twelve of the State Constitution and therefore closed the chapter of domination with clear reporting lines on common good. Rights in the Bill of Rights are affirmed and that means they can only be given effect and not to be contested. 
6.3.	In repealing the Black Authorities Act due regard has to be in the realization of the constitutional rights for the people in rural villages.  That is not all, the enabling law that gave rise to Black Administration Act must also be abolished. 
6.4.	Much as the Black Authorities Act established tribal land and authority, tribal land and authority did not arise from that act just as my clan was not created by colonial laws.
6.5.	Traditional Leadership as the custodian of our traditions and culture and being village community leaders should take charge in implementing the rural development and the ministry concerned should therefore process legislation that gives effect to the communal land rights for villagers as well as budget allocations for food production.  
7.	RURAL ECONOMY DEVELOPMENT
7.1.	Section 153 of the Constitution is clear about government interventions in community development but due to insight and ignorance by local government officials, the response they give when approached with rural economy development is that they only finance projects identified in their Integrated Development Programmes (IDPs) and which is nothing but coordination of departmental plans.
7.2.	Human dignity is one of the cornerstones of our democracy and is a provision in the Bill of Rights. As a tenet of human dignity the capacity to provide for one’s needs reigns supreme and land is such a basic provision for wealth creation.  
7.3.	Land alone without production has no value and that means villagers must be assisted by the state through its departments to engage in production. 
7.4.	Since communal land cannot be alienated, the state has an obligation to give collateral for the economy development.
8. 	SUBMISSIONS
8.1.	All land is communal land and the State by virtue of being a delegated right for the collective protection of the common good and individual rights, is the authority on national land.
8.2.	Traditional Leadership being constituted by village community is the authority on tribal land. Both the State and Traditional Leadership do not own land 
8.3.	National land consists of rural and urban land and must benefit village communities as they are the rightful owners of all national land which, was taken without compensation as section 25 of the Constitution provides.
8.4.	Rural land consists of farm land and villages.
8.5.	Villagers had to give way for farm land without compensation.
8.6.	The State has a duty to impose levy on all land use value and revenue thus realized to be allocated to the Department of Land Affairs and distributed through Rural Development.
8.9.	 Land as the national asset and it being the greatest wealth creator would have been distributed equally and fairly when the land use levy is collected.
8.10.	Land that is not in use will be redistributed and this would mean that allocation of land is on land use. Villagers will then have to prepare and present production plans or be assisted to produce so that they too must contribute to the land use levy.
8.11.	Mining as the primary sector also falls to be levied on land use value based on the output realized and not on profits and this would mean that all levies would be on gross profit margins.
9.	BENEFICIATION
			In repealing unjust laws we should be able to produce legislation that is consistent with the Constitution and this would mean that the Land Use Act that is envisaged should address all the tenets of constitutional democracy.
			9.1.	RECOGNITION OF OWNERSHIP
a.	South African land belongs to all of us and the ownership type is therefore communal.
b.	Communal Land Rights founds property rights.
c.	Property rights would be on use and to the benefit of the community.
d.	Land Use Rights as proposed and envisaged should allocate financial benefits to the communal land ownership in a special fund created for Rural Development.
e.	Beneficiation from land use becomes nationalized yet recognizing the freedom of trade by private land users with financial rewards to entrepreneurship.
		9.2.	ECONOMY DEVELOPMENT
	9.2.1. 	Fruits from land use are for the exclusive benefit for the land use and not consumption.
	9.2.2.	Only land that is for use will be funded from the Rural Development Fund and land that is not in use will be distributed to those with use. (Villages will be assisted to access and choose production plans on offer)
	9.2.3.	Employment will therefore increase when capital resources are in use.
	9.2.4.	The tax base will be broadened and this will reduce the tax burden as currently experienced.
	9.2.4.	Those private entities that exceed the limits on paying levy for land use should be considered for further tax breaks proportionate to their payment.
	9.2.5.	Manufacturing, mining and municipalities alike occupy land and are liable for land use levy for Rural Development Fund.
	9.2.6.	This will increase private cooperation in contributing to the just cause of sharing the wealth with fellow countrymen.
9.3.	HOUSEHOLD INCOME AND LIFESTYLE
	9.3.1.	Wealth can only be created when value is valued for its valuable value and this readily recognizes that value contributes to exponential growth and therefore creates wealth.
	9.3.2.	Without household income the principles of economy are compromised; as such, the household income derived from land use will found rural economy.
	9.3.3.	Poverty would be eradicated through wealth creation as people begin to take charge of their economic lives.
	9.3.4.	Markets will grow as common interests begin to show. Common interests found society just as common good founds community.
	9.3.5. 	The face of Africa would be prosperity, growth and development.
9.4.	THE LAW
	9.4.1.	With the advent of constitutional democracy laws of this country changed in complexion but just like the rest of Africa we continue to be subjected to colonial rules. 
	9.4.2.	It is common to see judges still wearing wigs and which is a symbol of race superiority in that it is only people with curled hair who possess legal wisdom and as classical Greek philosophers postulated that it is the wise that must rule and the wise are those imbued with virtue and have  mental capacity to learn. 
	9.4.3.	Theory and philosophy of law are critical in the interpretation and application of our law.
	9.4.4.	Magistrates Courts should therefore be repealed and Community Courts be established instead. The same applies to the High Court as it should as Human Rights Court since the Bill of Rights applies all law.
	9.4.5.	The Supreme Court of Appeal as the authority on law currently can be associated with the founding principles of the legal system that sustained the Black Authorities Act and therefore is irrelevant to our cause and stands to be scrapped.
	9.4.6.	In line with principles of consistency and with the Constitution being the supreme law of the country, the Constitutional Court can be the only supreme court of the country.
 Clearly the conceptual understanding of politics goes a long way in determining the different roles by various players in the public domain. Traditional leadership is constituted and government is instituted and the two can only complement each other rather than subject or rule over one another. Municipal councilors have a political mandate and chiefs have community mandate for villagers and operate on communalism.
Compiled and presented for submission by
Thabang Victor Motsoeneng
4 Kirstenbosch Crescent
Northcliff Ext 19
1709
Johannesburg
Cell: 076 583 2308
Email: motstv@yahoo.com