Namibia & South Africa - Online discussion on customary law - 28 June - 9 July | Land Portal

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2nd Week

5 - 9 July

In the 2nd week, the discussion took place in the plenary space

 


1st Week

28 June - 4 July

 

This is the discussion thread on Namibia and South Africa, as part of the Online Discussion "Customary law and institutions - Protecting or undermining community land rights in Southern Africa?"

 

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Related material

To better understand the land governance context in these countries, check the country portfolios for:

Comentarios

Welcome to this country focused discussion space where we aim to critically examine changing policy and practice relating to the role of customary law and institutions in the management and administration of land under customary tenure.

We start the discussion by trying to understand a little about the history of the two countries. While Namibia and South Africa have very different colonial histories they both experienced apartheid policies and rule in their pre independence periods. We aim to better understand how this conflicted past continues to influence the present. So we are starting the discussion by asking you to reflect on 

 

  • What were the main approaches taken by colonial and apartheid governments in South Africa and Nambia to customary law and governance systems?

  • In what ways have post-colonial governments in South Africa and Namibia tried to change these inherited systems?

  • What has been the thinking behind these changes?

​See the returns submitted for the Google form examining the status of customary law and institutions in Namibia 

We are posting the amalgamated results from the pre discussion Namibia profiling survey. This is a really valuable resource. Thank you all who took the time to complete this. Returns have been anonymised.

Land Portal Online Discussion

Customary law and institutions - Protecting or undermining community land rights in Southern Africa?

Namibia

Google form returns summarised

Approximately what percentage of land used for grazing, farming, forests and conservation is held under customary tenure systems? 

  • 30%

  • 40%

  • 30%

  • 40%

Data source

Are there established chiefdoms and customary decision making fora playing a role in land allocation and governance?

  • Yes. Land managed under customary tenure is administered by the traditional authorities which function under their respective customary laws, the Traditional Authorities Act and the Communal Land Reform Act. Traditional Authorities have hierarchical structures comprising of different fora where decision making is done. For example  at the lower level of traditional authorities' structure there are headmen or Councillors who are supported by village level leadership committees in land allocation. The next level of hierarchy is a district and then high level office of the particular Traditional Authority. Because of the diversity of traditional authorities, the processes may differ. 
  • Yes. The processes strongly depend on the ethnic group. I am familiar esp. with Kavango, Herero and Nama customary laws.
  • Yes. There are Traditional Authorities that may allocate land in specific traditional authority areas as defined in the Traditional authorities act. These allocations must be ratified by Land Boards that are constituted for specific areas in accordance with the Communal Land Reform Act.
  • Yes. Traditional leaders continue to play a central role in the allocation, verification and cancellation of private customary land rights to land. Private rights refer to land for cultivation and residential purposes, which by custom include rights of inclusion and exclusion. Their roles in managing access to commonages for communal grazing are very weak, if existing at all.

Is there national legislation governing the role of traditional leadership institutions?

 

Status of customary law

  • It is legally recognised alongside statutory law

  • There are legally recognised traditional courts

  • There is a reliance on codified customary law

  • There is a reliance on living customary law

Legislation provides for the establishment of Community Courts to hear matters in terms of customary laws. The extent to which the former have been established is not clear. Such courts will only be established when a traditional authority applies for it.

Is traditional leadership hereditary?

  • Yes

  • Not necessarily

  • Yes

  • Yes

  • Yes

  • Not necessarily

 

Are there instances when traditional leaders are locally elected by their community?

  • Yes

  • Yes

  • Yes

  • Yes

  • Yes

  • Yes

Are there mechanisms in customary law to replace a hereditary traditional leader if they lose the confidence of the community?

  • Yes. Over the past years, in some 'traditional communities' as defined by the Traditional Authorities Act,  upon death of the traditional leader (mostly at village level) have elected new leadership who is not family to the deceased and therefore breaking that hereditary system of leadership. Perhaps there are not particular mechanisms in place, but this happens on a needs basis.
  • Yes  Again, it depends on the community. In Kavango for instance it is a mix between hereditary and democratic selection rules.(Your questionnaire is far too simple to capture the complexity of customary law even in one country.)
  • Likely to differ from traditional community to traditional community. But the Traditional Authorities Act, 2000 provides for the removal of a traditional leader from office 'in accordance with the customary laws of that community'. There is no clear evidence on how traditional leaders are appointed. Historically, traditional leadership was inherited in many communities. There is evidence however, that calls for elected leadership have been made in many communities. Legislation provides for the election of appointment of senior traditional leaders.

Can women assume traditional leadership positions?

  • Yes

  • Yes

  • Yes

  • Yes

Do recognised traditional leaders receive salaries or stipends from the state?

  • Yes

  • Don’t know

  • Yes

  • Yes

  • Yes

Can they legitimately impose levies or fines on communities they represent?

  • Yes. Traditional authorities have powers and these are instituted in the customary laws -- for some, there are even booklets published on levies and fines. Traditional Authorities of the Aawambo people in north-central Namibia for example impose levies on land allocation, they impose fines on different transgressions for example, misuse of natural resources, impregnating a married woman, insults, killing etc.
  • Yes. As per the recognition of customary law by the constitution. In addition, different sectoral laws give responsibilities and governance rights to TAs, e.g. the Communal Land Reform Act.
  • Yes In settling disputes traditional authorities may often resort to fines or payments for compensation. These remedies are always subject to the court of law if the party fined does not consent to the process.
  • No. Legislation does not provide for this. Community courts can only have jurisdiction over matters relating to 'claims for compensation, restitution or any other claim recognised by the customary law'. Powers of traditional leaders to fine people under their respective jurisdictions has been regularly contested in court before Independence

How would you rank the political influence of traditional leadership institutions?

  • [8] There is a strong political influence on traditional leadership institutions. It has even become more common that retiring political elites are joining traditional leadership institutions.
  • [8]
  • [6] Despite the clear legal recognition of customary laws and TAs, statutory law clearly dominates. The Council of Traditional Leaders has mainly advisory roles. At the same time, given the low capacity of the state to reach to local rural citizens, traditional authorities are very important for the actual governance of esp. rural life and resource management.
  • [6] Real power has diminished over the years but increasingly people are resorting to and aligning with traditional authority structures.
  • [9] Traditional leaders particularly in the crop growing areas which account for a majority of the rural population continue to be powerful political players. Part of the reason must be sought in Namibia's system of proportional representation which, in short, boils down to politicians at national level joining Parliament on a party list, i.e. have no constituency they are accountable to. Regional Councillors on the other hand are elected by constituencies. At the sub-regional, rural level they are competing with traditional leaders for support and power. In this power triangle, traditional leaders are important allies of national politicians. - Apart from that, many communities are increasingly mobilising their members around ethnic and hence traditional authorities. The genocide issue of 1904-107 and demands for restitution are an important factor in this. It is fair to say that traditional leaders in the predominantly livestock farming communal areas in the central and southern parts of the country do not wield much political influence.

What role do traditional leaders and customary institutions play in allocating land to those living in areas under customary tenure?

  • Traditional leaders and customary institutions have been mandated with the primary function of land allocation and in general land administration in communal land (managed under customary tenure). This mandate is provided for by the Communal Land Reform Act, 2002.
  • This depends on the communities and is at least in some a complex procedure. I wrote more about this in info:7v53sNXHoLcJ:scholar.google.com
  • No answer
  • In law they have been accorded a central role in the allocation and cancellation of customary land rights. In practice, however these powers are only exercised with regard to land required for cultivation and residential purposes. Traditional leaders do not manage and control access to commonages across all communal areas. Customary rights to communal grazing areas of groups of users do not enjoy legal protection

How is land inherited and passed down the generations?

  • After the institution of Communal Land Reform Act, 2000, land is inherited by surviving spouse and the children.
  • This depends on the communities and is at least in some a complex procedure. I wrote more about this in info:7v53sNXHoLcJ:scholar.google.com 
  • No answer
  • Not sure. Different communities have different inheritance systems. In addition, it would appear that there is an uneasy relationship between customs and the law.

Do customary law and institutions enable women to access land independently of men?

  • Under certain conditions but there is discrimination.
  • Theory and practice differ. During research done in the north of the country, traditional leaders answered this question in the affirmative. The picture on the ground suggested otherwise. Amongst other things social sanctions (witchcraft, allegations of wanting land for prostitution) were invoked to dissuade women to apply for land in their own right.

How would you rank the security of women's land rights under customary tenure systems in Namibia 

  • [8] The security of women's land rights is increasingly becoming secure. While under the old customary tenure systems women had no security of tenure, today's customary tenure is largely influenced by state processes that made it possible to secure women's rights to land. However, there are still some few pockets of women experiencing insecurity over land, especially on generationally inherited land (See Nghitevelekwa (2020) Securing Land Rights: Communal Land Reform in Namibia).
  • No answer
  • [4] It is certainly still an issue
  • [7] The response above is a guess for lack of hard evidence. The legislation naturally seeks to protect the rights of women to land, but once again the situation on the ground may be very different.

What role do traditional leaders and customary institutions play in mediating land related disputes?

  • Traditional Authorities play a key role in dealing with land related disputes on communal land. Cases are first addressed at village level, then district levels, then the high office of the particular traditional authority). When these structures are exhausted and either parties are not satisfied with the outcomes, they can appeal to the Minister of Agriculture, Water and Land Reform, who will direct the Communal Land Boards to institute an investigation committee into the dispute. However, you do find some cases where grieved parties would approach private lawyers directly. 
  • No answer
  • This depends on the communities and is at least in some a complex procedure. I wrote more about this in info:7v53sNXHoLcJ:scholar.google.com
  • They probably are the first ports of call in land disputes because they are the most accessible institution for land rights holders. But legislation and regulations do not provide any guidelines to make this process more transparent at local level. In many cases aggrieved parties seek relief by going to Communal Land Boards. However, the latter have no legal powers to hear and decide on disputes. Women have been found to follow this route, hoping to get a fairer 'hearing' than at village level. A big majority of traditional leaders at local, village level are men.

Which statement best describes customary institutions in the country under review?

  • There are examples of both types of practice - accountable and responsive and corrupt and authoritiarian

  • There are examples of both types of practice - accountable and responsive and corrupt and authoritiarian

  • There are examples of both types of practice - accountable and responsive and corrupt and authoritiarian

  • There are examples of both types of practice - accountable and responsive and corrupt and authoritiarian

General remarks and additional information

  • Traditional Authorities remain important institutions in land administration, however, there is need for capacity building so as to be able to manage contemporary land related transformations.
  • Despite the central role that traditional leaders play in the administration of customary land rights, the current legislation does not provide for improved accountability and transparency downward. Communal Land Boards have been introduced to ensure that land allocations and cancellations are done according to the law, i.e. introducing accountability towards the state. But traditional leaders are not obliged by law to consult members of their community on major land alienation decisions such as for large scale irrigation projects or oil exploration.  
  • Traditional leaders can only perform the functions provided for in the Communal Land Reform Act if they are recognised by government in terms of the Traditional Authorities Act, 2000. The process of determining whether a traditional leader should be recognised or not is not transparent and it is widely believed, with some evidence to support this belief, that political expediency rather than any other consideration is the determining factor. Many communal areas fall under the jurisdiction of traditional leaders that are not recognised. This means, in practice, that the customary land rights of people under their jurisdiction cannot be validated before registration as required by law. In addition, disputes have arisen between recognised traditional leaders who have extended their jurisdictions over areas under the control on non-recognised leaders. 
  • The Communal Land Reform Act, 2002 provides for the registration of customary land rights in communal areas. Traditional leaders play a key role in confirming such rights before they are mapped and registered. This system has only been applied to 'private' land rights (land for cropping and residential purposes) not exceeding 50 ha. Customary land rights to commonages do not enjoy any legal protection. 

We have posted the various responses to our prediscussion survey. This is a very valuable resource. Many thanks to those who took the time to contribute. Responses have been anonymised.

Land Portal Online Discussion

Customary law and institutions - Protecting or undermining community land rights in Southern Africa?

South Africa

Google form returns summarised

Approximately what percentage of land used for grazing, farming, forests and conservation is held under customary tenure systems? 

  • 50% (respondent may have misread the question)

  • 60% (respondent may have misread the question)

  • 10%

  • 20%

  • 10%

  • 10%

  • 20%

  • Data source

  • Land audit report
  • No source cited
  • No source cited
  • No source cited
  • Previous historical knowledge and estimations of land reform initiatives where customary tenure may have also been adopted
  • Under apartheid, African indigenous people were only allowed to occupy about 13% of the land surface. This situation has not changed much since democracy. 

Are there established chiefdoms and customary decision making fora playing a role in land allocation and governance?

  • It depends on the nature of traditional authority.

  • Yes

  • Yes

  • Yes

  • Yes

  • Yes Generally, traditional leaders allocate and govern land tenure arrangements. These leaders are generally structured hierarchically with local level authorities having more direct involvement in land allocation. However, there are also reasonably strong family rights which can not easily be interfered with. In other communities, those which were significantly destroyed by previous colonial and apartheid regimes, there is currently a process of trying to rediscover, or reassert traditional or customary practices. This is especially important in those situations where the community or group has acquired land through the land reform programme. This is particularly important given new legislation that has been introduced in South Africa recently (Traditional and Khoisan Leadership Act) which makes particular assumptions about customary law and leadership which does not seem to fit with particularly communities understanding - and in the process imposes a hierarchical system on a previously non-hierarchical system. In this process, working with such communities it becomes necessary to codify (and write down) customary law which is contradictory because customary law is dynamic

  • Yes. In customary areas, land allocation is done by traditional leaders

Is there national legislation governing the role of traditional leadership institutions?

  • Yes.

  • Yes

  • Yes Traditional leaders at different (nested) levels of governance, including chiefs and headmen, play a variety of roles in land administration, including land 'allocation'. In the precolonial era, community leaders were subject to mechanisms which ensured a degree of downward accountability, such as the requirement that a council of elders be consulted, or that a dissatisfied subgroup could secede from a larger chiefdom, or even assassination. Under colonial and apartheid rule, traditional leaders were upwardly accountable to the state, and helped to implement its decisions in relation to land, as well as labour recruitment. Leaders were seen as holding land 'in trust' for community members, or as 'custodians' of land, but in practice the lack of downward accountability mean that many (but not all) leaders became corrupt. Some accepted key positions in Bantustan administrations. These 'distortions' of customary governance have persisted in the post-apartheid era, with corruption now taking different forms, such as entering into personalised business deals with mining companies. 'Allocation' has to be understood as a process that originally meant an administrative procedure to demarcate the boundaries of residential and arable plots of people who were accepted as rights holders by the community. This procedure usually takes place at local or village level, overseen by a 'headman' (village level leader). This is still the case in many areas, but in some cases corrupt chiefs play a direct role in allocating land to cronies or business in interests.

    • Traditional and Khoisan Leadership Act 3 of 2019

    • Traditional Leadership and Governance Framework Act 41 of 2003

  • Yes Traditional leadership and traditional councils as recognised by law

    • Traditional and Khoisan Leadership Act

  • Yes. Traditional and Khoisan Leadership Act.

  • Yes. Traditional Leadership and Governance Framework Act: https://www.gov.za/sites/default/files/gcis_document/201409/a41-03.pdf 

 

Status of customary law

  • It is legally recognised alongside statutory law

  • Customary law remains informal and in the margins

  • It is legally recognised alongside statutory law

  • There are legally recognised traditional courts

  • There is a reliance on codified customary law

  • There is a reliance on living customary law

  • It is legally recognised alongside customary law

  • Customary law remains informal and in the margins

  • It is legally recognised alongside statutory law

  • There are legally recognised traditional courts

  • There is a reliance on living customary law

  • Customary law remains informal and in the margins

  • It is legally recognised alongside statutory law

  • There is a reliance on codified customary law

  • There is a reliance on living customary law

  • It is legally recognised alongside statutory law

  • There are legally recognised traditional courts

  • There is a reliance on codified customary law

  • There is a reliance on living customary law

Is traditional leadership hereditary?

  • Yes

  • Yes

  • Yes

  • Yes

  • Not necessarily

  • Not necessarily

  • Not necessarily

Are there instances when traditional leaders are locally elected by their community?

  • No

  • No

  • No

  • Yes

  • Yes

  • Yes

Are there mechanisms in customary law to replace a hereditary traditional leader if they lose the confidence of the community?

  • No

  • No

  • Yes. In precolonial society, if a traditional leader was insane or convicted of a major crime he or she could be deposed by a traditional council; this still applies in some cases today.

  • No. Prior to 1994 traditional leadership in the former Ciskei had nearly collapsed. It was revived in the democratic dispensation.

  • Yes 

  • Yes. Statute law falls short but living customary law provides for assassination, secession, litigation, and recognition of other contenders to leadership positions

  • Not sure

  • No

Can women assume traditional leadership positions?

  • Yes

  • Yes

  • Yes

  • Yes

  • Yes

  • Yes

  • Yes

  • Yes

Do recognised traditional leaders receive salaries or stipends from the state?

  • Yes

  • Yes

  • Yes

  • Yes

  • Yes

  • Yes

  • Yes

Can they legitimately impose levies or fines on communities they represent?

  • No answer

  • Yes

  • Yes. Traditional courts are empowered to impose fines for transgressions of customary law (e.g. in disputes between neighbours over land boundaries), and and traditional leaders can impose levies for a variety of purposes (including local 'development' projects).

  • No. Statute law is unclear about their power to impose levies.  To the extent that they can this power is regulated by Premier of Province, but it is general practice for traditional leaders to impose levies and they are often supported by govt in doing so.  Litigation to challenge tribal levies is underway in Limpopo but the matter has not yet been argued in court.

  • Yes

How would you rank the political influence of traditional leadership institutions?

  • [7]

  • [7]

  • [8] The Congress of Traditional Leaders of South Africa (Contralesa) is seen by the ruling African National Congress (ANC) as an influential institution representing an important interest group. Traditional leaders are viewed as allies of the ruling party, as a result of their (perceived) capacity to influence rural voters. Recent legislation provides key powers over land to traditional leaders, as a reward for their loyalty to the ANC, with few mechanisms for downward accountability.

  • [6] While legislation is not precise on the role of traditional leaders, government pays them salaries, which reinforces the relationship -- upwardly accountability.

  • [8] There is state recognition by law and above all in policy statements by senior politicians. but this is contested from below in many areas

  • [5] It appears that in the current context that while their role is recognised (they have recently bee consulted on the Covid lockdown proposals) they are one of many groups and do not have particularly powerful voice. I have an impression (and only an impression, fed by the liberal press) that within the post-Zuma period the political power of the traditional leadership has decreased

  • [8]

What role do traditional leaders and customary institutions play in allocating land to those living in areas under customary tenure?

  • Their role is significant. Traditional leaders allocate land to those who pay allegiance to them.

  • No answer

  • 'Allocation' has to be understood as a process that originally meant an administrative procedure to demarcate the boundaries of residential and arable plots of people who were accepted as rights holders by the community. This procedure usually takes place at local or village level, overseen by a 'headman' (village level leader). This is still the case in many areas, but in some cases corrupt chiefs play a direct role in allocating land to cronies or business in interests.

  • They play a de facto role but they do not have legal powers to allocate land as the law that would have provided such power was struck down by the Con Court

  • Depends on the location. In some, they are central to the allocation (although taking family and other rights into account) but in other allocation happens through the municipality or through the communal property institutions.

How is land inherited and passed down the generations?

  • As per the law of succession though there are remnants of primitive thoughts of not wanting to pass down the land to women unless there is a man to hold that piece of land under his name.

  • Land is held by families, not individuals, with male heads of families being seen as representative of wider family interests in land.  Male primogeniture is the dominant rule in South Africa, but family land can also be inherited by a living spouse, even if female, until a male child reaches adulthood. In practice, it is often the youngest son who takes over family land, given that older siblings will often have already secured land of their own.

  • Common law is very clear in this regard, but customary rights remain unclear

  • Within the family.  Previously to a son, but often to women these days.  It often passes to the child who bears the main responsibility for caring for aged parents and the home

  • Generally in families. But in other situations land reverts to the general community and then gets reallocated.

  • Normally through the male lineage

Do customary law and institutions enable women to access land independently of men?

  • Increasingly yes

  • No answer

  • Increasingly yes

  • There is variation from area to area

  • Increasingly yes

  • Increasingly yes

  • Increasingly yes

How would you rank the security of women's land rights under customary tenure systems in South Africa

  • [5]

  • No answer

  • [4] Constitutional commitments imply that women should enjoy security if tenure, and in many areas it is gradually becoming accepted that single women with children can be allocated land. But many women remain insecure given the lack of legislation at national level.

  • [3]

  • [6] Married women face great vulnerability when their husbands die or at divorce. But increasingly marriage rates are plummeting and single women (unmarried and widows) are accessing their own land in their own right.

  • [3] I understand that in many situations when the male member of the household dies, the broader family will intervene and the land will be reallocated to another male. In other situations, the women do retain rights to the land

  • [5] Protected by the Constitution, but often not observed in practice

What role do traditional leaders and customary institutions play in mediating land related disputes?

  • Traditional Authority court  (Inkantolo yeSizwe) and traditional council (Umkhandlu wenkosi) under the leadership of traditional leader play that mediating role.

  • No answer

  • Land governance is nested, and some disputes are settled between households, others at village level with a key role being played by village headmen. A few cases reach the chief's court.

  • Varies from area to area - not legislated

  • Depends on the area but in deep KZN and some parts of E Cape they play a very significant role. In some provinces they play very little role.  Former Transkei big role, Former ciskei much less.

  • Theoretically, they facilitate a solution. It appears that in some situations where the leaders have an interest in the dispute, they use their influence and power to achieve a decision which favours their interest.

  • In customary areas, they are the first port of call.

Which statement best describes customary institutions in the country under review?

  • There are examples of both types of practice - accountable and responsive and corrupt and authoritarian

  • No answer

  • They have been increasingly captured by elites and have become vehicles to accumulate power and wealth

  • They have been increasingly captured by elites and have become vehicles to accumulate power and wealth

  • There are examples of both types of practice - accountable and responsive and corrupt and authoritarian

  • There are examples of both types of practice - accountable and responsive and corrupt and authoritarian

  • There are examples of both types of practice - accountable and responsive and corrupt and authoritarian.

General remarks and additional information

  • Land rights are always both socially and politically embedded, and these realities are only partially reflected in laws and administrative processes. In South Africa, land remains  a hot political potato, in relation to land tenure as well as redistribution and restitution. The promise of a fully democratic reform of land rights and governance has not been fulfilled some 26 years after the transition to democracy, reflecting a slow transformation of the inherited realities of structural inequality and the power relations that form a key part of these realities.

  • I think that there are assumptions made about traditional leadership which is that it is generally a hierarchical, hereditary system. In practice I understand that it is more nuanced across the country and has been added to by the recent developments which appear to be attempting to reestablish historical traditional practices

 

Land managed under customary tenure is administered by the traditional authorities which function under their respective customary laws, the Traditional Authorities Act and the Communal Land Reform Act. Traditional Authorities have hierarchical structures comprising of different fora where decision making is done. For example at the lower level of traditional authorities' structure there are headmen or Councillors who are supported by village level leadership committees in land allocation. The next level of hierarchy is a district and then high level office of the particular Traditional Authority. Because of the diversity of traditional authorities, the processes may differ.

In post-independence Namibia the powers and functions of traditional authorities are legislated. See

Traditional Authorities Act (Act No. 25 of 2000) https://laws.parliament.na/cms_documents/traditional-authorities-38f13b9... Land Reform Act (Act no. 5 of 2002)https://laws.parliament.na/cms_documents/communal-land-reform-75a65055b0...

 

Traditional leaders and customary institutions have been mandated with the primary function of land allocation and in general land administration in communal land (managed under customary tenure). This mandate is provided for by the Communal Land Reform Act, 2002.

Traditional authorities have powers and these are instituted in the customary laws -- for some, there are even booklets published on levies and fines. Traditional Authorities of the Aawambo people in north-central Namibia for example impose levies on land allocation, they impose fines on different transgressions

Over the past years, in some 'traditional communities' as defined by the Traditional Authorities Act, upon death of the traditional leader (mostly at village level) have elected new leaders who is not family to the deceased and therefore breaking that hereditary system of leadership. Perhaps there are not particular mechanisms in place, but this happens on need basis.

Traditional Authorities play a key role in dealing with land related disputes on communal land. Cases are first addressed at village level, then district levels, then the high office of the particular traditional authority). When these structures are exhausted and either parties are not satisfied with the outcomes, they can appeal to the Minister of Agriculture, Water and Land Reform, who will direct the Communal Land Boards to institute an investigation committee into the dispute. However, you do find some cases where grieved parties would approach private lawyers directly.

What landmark Kwazulu-Natal court ruling means for land reform in South Africa

In a landmark judgment a South African high court has declared that people living on customary land in the province of KwaZulu-Natal, notionally held in trust by the Ingonyama (king) of the Zulu people, are the “true and beneficial owners” of that land.

It confirms that the Ingonyama Trust Board is not the real owner of this land. It, therefore, cannot convert the customary land rights of occupiers to rent-paying leases as it has been doing.

The Trust is in fact only a notional owner of this land. It is mandated to administer the land “for the benefit, material welfare and social well-being” of members of the affected rural communities. It administers around 2.8 million hectares, amounting to about one third of the whole of the province.

The court also found that the minister in charge of land reform has breached her duty to respect, protect and promote these informal land rights, as required by law. She is responsible for overseeing the operations of the Trust, and ensuring that the land rights of communities are not infringed upon.

The judgement has massive implications for the government’s land reform programme. Tenure reform policy has yet to deliver legislation to secure the land rights of people in communal areas. The fact that the legislation required by the Constitution is still absent, after 27 years of freedom, is a major blemish on the record of the governing African National Congress.

The reasons for the lacuna are primarily political, centred on the contested roles and powers of traditional leaders in a democratic South Africa. In turn, this issue connects to the wider politics of “state capture” - the refashioning of state institutions during the presidency of Jacob Zuma, (May 2009-February 2018), to serve the interests of politically-connected elites.

The judgment lends support to efforts by President Cyril Ramaphosa to turn the tide on both state capture in the narrow sense, and on corruption more generally.

The judgment also sheds light on the marginal role of parliament in overseeing land affairs, the lack of transparency and accountability of bodies such as land trusts, and the absence of state capacity to deal with questions of land administration. It also highlights the lack of interest by successive ministers in curtailing the self interested actions of rural elites.

All these problems have been in evidence over many years. This is clear from even a cursory review of government support for corrupt traditional leaders in areas with large deposits of platinum, coal or titanium.

Ingonyama Trust Board

The Ingonyama Trust Board was founded by the apartheid government in 1994, just before the first democratic election. This is widely believed to have been a sop for the Inkatha Freedom Party to participate in that election, which it was threatening to boycott.

The democratic government amended the Trust’s founding act in 1997, establishing a board for the Trust. It also made it subject to the Trust Act of 1988. As with other customary land held in trust by national government, “ownership” by the Trust is nominal. Administration of the land must be for the benefit of those occupiers.

In communal areas, most daily land administration tasks, such as approving applications for allocations of land, are carried out by traditional leaders (amakhosi) and village-based headmen (izinduna). Customary land rights derive from locally accepted membership of rural communities, mostly through descent but also of newcomers. They are protected by the Interim Protection of Informal Land Rights Act, 1996.

Some 12 years ago the Trust began to convert rights of customary ownership to rent-paying leases. It planned to escalate rental by 10% a year, to increase its own income. Residents who did not pay could in theory be evicted - although none have been to date. The court found that the land rights holders did not give consent to these “conversions”. It also provides details of how they were intimidated and deceived into signing leases. Both Trust officials and local traditional leaders were involved in the dispossession.

The portfolio committee of parliament for traditional affairs and its panel on post-apartheid legislation, chaired by former president Kgalema Motlanthe, have called attention to these problems, but to no avail. Now, litigation against this abuse has succeeded, with the court ordering the Trust to repay the funds it extorted.

Tenure reform and customary land rights

What does this judgement mean for land rights in communal areas, home to the largest proportion of rural South Africans, who form one third of the population?

These areas provide essential resources, services and livelihoods to the poorest sections of South African society. They are a crucial cushion against rampant unemployment and the insecurities inherent in capitalist economies today.

The court characterises these land rights in the following terms: land is allotted to a family head as residential and arable plots and access to communal pasture; no financial payments are involved, and land rights are inheritable. Land becomes the property of the family, and nothing may be done with such land without the involvement and consent of the owner.

Land rights are closely tied to social and cultural relationships, and tenure security is derived in large part from locally legitimate landholding.

The challenge for tenure reform policy is to express these principles in law in a way that provides certainty, and ensures the protection of land rights holders. This will lay a firm foundation for administrative systems focused on both support for rights holders (for example, in resolving disputes over land), and to facilitate development planning and service provision.

A further challenge is to clearly define and delimit the powers and functions of traditional leaders in relation to land. Policy has to promote full transparency and accountability in all aspects of land administration. This requirement can be met by the vesting of rights to land in families and not in institutions. Traditional leaders, trusts or other bodies with administrative roles would then have to be accountable to land rights holders.

The parameters suggested by the judgment should frame tenure reform. Worryingly, current drafts of the Communal Land Tenure Bill are based on the same paradigm as the 2004 law that was struck down in 2010 by the Constitutional Court, in which traditional leaders were empowered to act as if they are owners of the land. Any law informed by this paradigm is sure to be challenged again.

Need for pressure from below

If land reform is to return to a strong focus on the rights, opportunities and needs of ordinary black South Africans, as was the case in the 1990s, building the capacity of institutions responsible for both implementation and oversight of policies is vital. But, national policies also need clear political direction.

Here the main obstacle is the lack of mobilisation of rural dwellers, as well as those living in informal settlements, to push for pro-poor, structural change within a democratic political framework.

Although litigation using human rights lawyers is essential for preventing abuse, it is expensive and time consuming. This constrains wider impact. Often only the bravest of rural people are willing to stand up and make their voices heard as applicants and witnesses, as in this case.

But their courage shows what is possible. In greater numbers, and applying more sustained pressure from below, ordinary South Africans can ensure that the state begins to deliver the promises enshrined in the Constitution.

This article originally appeared in the  the Conversation on 22 June 2021

This particular case is the latest in a string of others which demonstrate how the judiciary has consistently taken a pro-poor approach in defending the constitutional imperative of recognition of customary law as an independent source of law.   The characterisation of the state as “an assemblage” and “a network of interests” as opposed to an entity is apt, in in understanding this particular case in that it mounts a frontal challenge to the dominant conceptual paradigm of the state as a unified coherent constellation.  One other case along these line is Baleni and Others v Minister of Mineral Resources and Others (73768/2016) [2018] ZAGPPHC 829; [2019] 1 All SA 358 (GP); 2019 (2) SA 453 (GP) (22 November 2018).  Another is Maledu and Others v Itireleng Bakgatla Mineral Resources (Pty) Limited and Another [2018] ZACC 41 2019 (1) BCLR 53 (CC); 2019 (2) SA 1 (CC) (25 October 2018).  In both cases the state’s interests in mineral rights, and the underlying customary rights foreground the legal principle of free informed prior consent (FIPC) before mining can proceed in a context where the community’s informal land rights are protected in terms of the Interim Protection of Informal Land Rights Act  #31 of 1996 (IPILRA). Upholding the community’s customary rights against the state, Justice Petse began his ruling by quoting Frantz Fanon’s The Wretched of the Earth "[f]or a colonised people the most essential value, because the most concrete, is first and foremost the land: the land which will bring them bread and, above all, dignity. Thus, strip someone of their source of livelihood, and you strip them of their dignity too." Another landmark judgement along similar line is Gongqoshe and Others v Minister[1] pertaining to statutory regulation of access to natural resources and fishing in a conservation area pitted against customary law rights of local communities has far-reaching implications across a range of natural resources such as water, mineral resources, fauna and flora.  Notwithstanding that,  law makers and government machinery have been going in different directions or doing nothing.  What this is demonstrating is that the different parts of the state have no coherence around customary law and customary land rights.

 

 

[1] Gongqose and Others v S; Gongqose and Others v Minister of Agriculture, Forestry and Fisheries and Others (CA&R26/13) [2016] ZAECMHC 1; [2016] 2 All SA 130 (ECM); 2016 (1) SACR 556 (ECM) (18 February 2016).

Why does this incoherence persist? What steps must be taken to create the required coherence.  What form should this take? Elsewhere Gaynor Paradza has written about the homogenisation of discourse about women's land rights.  Is there a risk of homegenising customary law and institutions in the same manner? 

One of the challenges limiting land reform in South Africa has been application of inappropriate theory.  Tembeka Ngcukaitobi mentions this in his latest book, Land Matters: South Africa’s Failed Land Reforms and the Road Ahead​, and I provide an analysis in the Land journal. Counsins, Kingwill and others also mention it in Untitled: Securing Land Tenure in Urban and Rural South Africa. The central idea is that the State has a misplaced reliance on land titles as the solution, following the de Soto school of thought, whereas evidence on the ground suggests that this is not the way forward. I don't have an alternative solution other than that it needs to be innovative and something that land rights-holders can identify with. In the daily summaries I've repeatedly read that context is key, which I wholeheartedly suport. Solutions need to be appropriate for the context (fit-for-purpose, to use the popular expression) and not based on Western-derived notions of what is the right way forward.

The role and function of traditional authorities and customary institutions in Namibia

Currently 40% of land in Namibia is held under customary tenure systems. Traditional leaders continue to play a central role in the allocation, verification and cancellation of private customary rights to land. Private rights refer to land for cultivation and residential purposes, which by custom include rights of inclusion and exclusion. Their roles in managing access to commonages for communal grazing are very weak, if existing at all.

Legislated functions of traditional leaders

The functions of traditional leaders are set out on a general level in the Traditional Authorities Act, No. 25 of 2000;  the Community Courts Act, No. 10 of 2003 and specifically with regard to land in the Communal Land Reform Act, No. 5 of 2002.

Recognition of customary law

Customary law is legally recognised alongside statutory law, but there remains a reliance on living customary law. Legislation also provides for the establishment of Community Courts to hear matters in terms of customary laws. The extent to which the former have been established is not clear. Such courts will only be established when a traditional authority applies for it.

Traditional leadership succession

Traditional leadership is not necessarily hereditary and there are instances where traditional leaders are elected by their community. There are mechanisms to replace a hereditary traditional leader if they lose the confidence of the community. These mechanisms are likely to differ from traditional community to traditional community. But the Traditional Authorities Act, 2000 provides for the removal of the traditional leader from office “in accordance with the customary laws of that community”. Historically, traditional leadership was inherited in many communities. There is evidence however, that calls for elected leadership have been made in many communities. Legislation provides for the election and appointment of senior traditional leaders.

Traditional leader sources of revenue

Currently traditional leaders receive salaries and/or stipends from the state. However traditional leaders are not legitimately empowered to lead the impose levies or fines on the communities they represent as legislation does not provide for this. Community courts can only have jurisdiction over matters relating to “claims for compensation, restitution or any other claim recognised by the customary law”. Powers of traditional leaders to fine people under their respective jurisdictions were regularly contested in court before independence.

The political influence of traditional leadership institutions

The influence of traditional leadership institutions is growing in Namibia. Traditional leaders, particularly in the crop growing areas which account for a majority of the rural population, continue to be powerful political players. Part of the reason must be sought in Namibia’s system of proportional representation which, in short boils down to politicians at national level joining parliament on a party list, i.e. they have no constituency that they are accountable to.

Regional councillors on the other hand are elected by constituencies. At the sub-regional, rural level they are competing with traditional leaders for support and power. In this power triangle, traditional leaders are important allies of national politicians. Apart from that, many communities are increasingly mobilising their members around ethnic and hence traditional authorities. The genocide issue of 1904 to 1907 and demands for restitution are an important factor in this.

It is fair to say the traditional leaders in the predominantly livestock farming communal areas in the central and southern parts of the country do not wield much political influence.

Land inheritance

With regard to inheritance different communities have different inheritance systems. In addition, it would appear that there is an uneasy relationship between customs and the law.

Women’s land rights under customary tenure systems

Women may assume traditional leadership positions in Namibia. With regard to women’s land rights and the right to access land independently of men, theory and practice tend to differ. During research done in the north of the country, traditional leaders answered this question in the affirmative. The picture on the ground suggested otherwise. Amongst other things social sanctions (witchcraft, allegations of wanting land for prostitution) were invoked to dissuade women to apply for land in their own right.

There is little hard evidence to confirm the security or lack of security of women’s land rights under customary tenure systems in Namibia. The legislation naturally seeks to protect the rights of women to land, but once again the situation on the ground may be very different.

Land allocation responsibilities

In law traditional leaders have been accorded a central role in the allocation and cancellation of customary land rights. In practice, however these powers are only exercised with regard to land required for cultivation and residential purposes. Traditional leaders do not manage and control access to commonages across all communal areas. Customary rights to communal grazing areas of groups of users do not enjoy legal protection.

The mediation of land related disputes

With regard to the role of traditional leaders and customary institutions in the mediation of land related disputes, they are probably the first ports of call in land disputes, because they are the most accessible institution for land rights holders. But legislation and regulations do not provide any guidelines to make this process more transparent at the local level. In many cases aggrieved parties seek relief by going to Communal Land Boards. However the latter have no legal powers to hear and decide on disputes. Women have been found to follow this route, hoping to get a fairer hearing and at a village than at village level. A big majority of traditional leaders and local village level are men.

Accountability of traditional leadership institutions

Despite the central role the traditional leaders play in the administration of customary land rights, the current legislation does not provide for improved accountability and transparency downward. Communal Land Boards have been introduced to ensure that land allocations and cancellations are done according to the law, i.e. introducing accountability towards the state. But traditional leaders are not obliged by law to consult members of their community on major land alienation decisions such as for large-scale irrigation projects or oil exploration.

Legal recognition

Traditional leaders can only perform the functions provided for in the Communal Land Reform Act if they are recognised by government in terms of the Traditional Authorities Act, 2000. The process of determining whether a traditional leader should be recognised or not is not transparent, and it is widely believed with some evidence to support this belief, that political expediency, rather than any other consideration is the determining factor.

Many communal areas fall under the jurisdiction of traditional leaders that are not recognised. This means, in practice, that the customary land rights of people under their jurisdiction cannot be validated before registration as is required by law. In addition, disputes have arisen between recognised traditional leaders who have extended their jurisdiction over other areas under the control non-recognised leaders.

The Communal Land Reform Act, 2002 provides for the registration of customary land rights in communal areas. Traditional leaders play a key role in confirming such rights before they are mapped and registered. This system has only been applied to private land rights (land for cropping and residential purposes) not exceeding 50 ha.

One thing that stands out from this very helpful overview of the situation in Namibia is the lack of restrictions on the powers of traditional leaders to alienate land for investment. Such investment may create profit and jobs for a few but dispossess and removes people whose livelihoods depend on the land. This is a powerful theme that is starting to emerge in different country clusters - particualrly Mozambique with the example of the Cabo Delgado conflict.

In South Africa the Land and Accountability Research Centre and other civil society groupings have argued that clause 24 of the Traditional and Khoisan Leadership Act (TKLA)  empowered traditional councils to enter into agreements with external entities such as mining companies and did not take into account the need to obtain consent from land rights holders.  The objections of land rights activists and judgments in court cases  finding that community consent was required to approve developement on their land were ignored  and Section 24 stands. In this instance the state is specifically  empowering traditional councils and creating grey areas to fast track mining deals on communal land.

I actually think that in Namibia Traditional Authorities are quite constrained in their power and face numerous restrictions with regards to the alienation of land for investment. The authority of traditional authorities to alienate land is generally restricted to a fairly local level of use and must be ratified by the Land Board. (I think this was also was also pointed out by Wolfgang Werner.)  If the land is to be used for investment it must be approved by the responsible Minister.

Here is a link to an article in th elocal newspaper, where even the King of a Traditional Authority is using the court system to contest land rights that he claims he did not allocate to the persons in question. This kind of traditional land dispute being resolved in the court system is fairly common.

Does this speak to the lack of power or (diminishing role) that traditional authorities actually have in the legal/statutory allocation of rights?

https://www.namibian.com.na/102769/read/King-sues-siblings-over-land-tak...

Thanks Charl Thom for this perspective.

I think the issue is whether traditional authorities are required to consult and obtain informed consent from communities whose land rights would be adversely affected in the case of land being alienated for investment. As you point out traditional authorities have limited power to independently authorise land alienation which must be approved by the Land Board and the responsible Minister.  However  does this prevent elite capture and deal making where politically connected traditional authorities and others can collude to alientate land without substantive involvement and approval by those who land rights and livelihoods will be affected?

Hi Rick, you are right that this type of illegal alienation of rights is all to common. My reading of the requirements in Namibia is that TA's and government are required to get the informed consent of communities, but that they often do not. So the question is really about two isses. One, what are the requirements, and in Namibia they are reasonably clear. The second question is about how these requirement are set aside/ignored so that so-called elites (traditional, politicians, businessment etc) are able to circumvent the law, or even break the law with very little in the way of consequences/repercussions. 

The second issue I have been wondering about is whether it would not be appropriate  to consider that the alienation of customary land should be seen as akin to an expropriation process, not simply a matter of informed concent but strict public interest perspective as well (this is normally a much stricter process and addresses the issue of compensation). After all the owners of the land is the community, not the state or the TA's.

Whether one is looking at land right or beyond, customary law is not limited to former homelands.  It operates and individual, family, clan and lineage  groups.  This is part of one of the challenges which arise from conceptual understanding of the scope of customary law. 

It is correct to say that tenure security of women has improved gradually since Independence. Land legislation and policy - which emphasise the importance of making land rights of women more secure - are necessary but not sufficient interventons to address the issue adequately, as it is not dealing with inheritance systems that are largely rooted in powerful patriarchal systems. The Communal Land Reform Act, 2002 contains no provisions that seek to change customary inheritance practices. A practical example of this problems is that while many more widows are now able to stay on the land they worked with their deceased husbands -  in this regard a change of customary laws in the crop growing areas the eraly 1990s to affect this preced the CLRA, 2002 - in many instances relatives continue to strip assets of the widows' households such as livestock etc. in terms of customary  inheritance practices.

Like with any land - freehold or customary - the state has the right to expropriate for public purposes. The issue to me seems, however, that local communities are not included in negotiations on the size of land to be alienated/expropriated and the conditions of alienation.  In this context the issue of compenation is important, but not dealt with adequately in the CLRA, 2002.  The legal framework simply does not provide adequate checks and balances to protect ordinary customary land rights holders. A recent example that has received international attention involves the dispossession of some local households of their land in Kavango East Region by ReconAfrica for oil exploration with the blessings of government.

Thommy has raised an important point about a King turning to the courts to solve a land dispute. It highlights two different points. The first, positive one, concerns the rights of aggrieved parties, be they a King or an ordinary holder of customary land rights, to turn to the courts for relief, i.e. to appeal a decision. The second one is that although the legislation provides traditional leaders with considerable powers in the administration of customary land rights, it does not provide for appropiate measures to enforce their decisions.  Without any clarity on this, people, and in particular those with the means to engage lawyers, can play off  customary laws againt statutory laws, weakening the powers of traditional leaders. 

The Ingonyama case law demonstrates that customary land rights holders were consulted, but provided insufficient and incorrect information.  Rights holders were pushed and intimidated into submission.  The case clearly demonstrates that while the Ingoyama Trust was operating outside legal parameters, it ddid so with no oversight provided in law.

Before one reflects on some of the issues coming from week 1 it is necessary to critique the very frame of customary law and customary institutions.  Firstly customary law cannot be conceptualised as an equivalent of Western legal system.  Customary law is an key part of Indiginous Knowleddge systems (IKS) or a   an important knowledge reservoir.  IKS and customary law in particular are constitute ways of knowing, which are pivotal in the processes of re-imagining people-land relationship (Ludwig & Macnaghten, 2019). The point one is making is that the intersection between people and land is replete with physical, social as well and spiritual dimensions, which in the post-colonial context complexify public policy processes.  Some of the context complexities  arise poor appreciation and understanding understanding of indigenous values, as well as how those can be mainstreamed into state led policy processes.  Directly linked to conflating customary law with chieftancy systems gives rise to a number of conceptual flaws.  Firstly this frame incorrectly places chieftaincy systems at the centre of customary law, when they are are not - they are a very small part within a bigger system.  Secondly such a frame essentialises chieftaincy system, by default.  Thirdly such a conception forecloses onther more important institutions of customary such as marriage, inheritance and succession, which are centred around family, lineage and clan scales.  For example chieftaincy systems have no role in marriage rules - these operate outside of traditional leaders.  Much of the land is accessed via marriage and inheritance institutions, which are not contrlled by chieftancy systems.  In a nutshel customary law institutions cannot be limited to a debate about chieftancy systems.  The fourth problem emanating from this conceptual flaw results in recognition of customary law as adjunct to chieftaincy systems instead of the other way round.  This anomaly is not only prevalent is South Africa, but unfortunately repeats itself in many countries in Southern Africa.  This  is particulalr evident in South Africa's constitution which also fall in this flaw, by recognising traditional leaders and then customary law as adjunct.  In a nutshel debate about customary law should not revolve around traditional leadership institutions, but should explore the system of  customary law in its entirety -- go beyond the role of chietancy.  In my view this conceptual flaw constitutes the most fundal flaw for policy development linked to customary law.   Fifthly,  this conceptual flaw does only only misdirect policy questions, but it limits policy debates to a narrow space.  Policy debates should be about a cross-spectrum of institutions of customary law, hybridisation approaches, procedures and principles for ascertainment, etc.  In that way traditional leaders would emerge as only one small -- but important --  part of the system.   In essence our challenges in Southern Africa are essentially about managing dual legal systems within a single polity, rather thatn about the role of chieftaincy.   Notwithstanding my point, a policy discussion of the role of chiefly systems in land governance is important in its own right, without conflating it. 

Siyabu's comments above are pivotal for this discussion. He makes  the crucial points that:

  • Chieftaincy systems are not at the centre of customary law - they are a very small part within a bigger system. 
  • Centering  chieftaincy systems in our discussion, only serves to essentialise them  and sidelines more important institutions of customary such as marriage, inheritance and succession, which operate at family, lineage and clan scales. 
  • Chieftaincy systems have no role in marriage rules.  Much land is accessed via marriage and inheritance institutions, which are not controlled by chieftancy systems.  

The latter points have direct relevance for our discussion this week where we start by exploring the extent to which customary law is recognising  and supporing women's land rights.

Dear participants,

For the second week of discussion starting on Monday (5h July) we will move the conversation back to the plenary space. The country pages will remain open over the week as 'read only’. 

Let us know your thoughts! This week we will talk about:

1. How customary law is adapting to protect women's land rights?

2. What good practices exist in liking statutory and customary institutions?

3. If SADC was to develop a policy on land governance, what would be your recommendations so that it recognises customary law and institutions?

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