NORTHERN PROVINCE HOUSE OF TRADITIONAL LEADERS
SUBMISSIONS TO THE NATIONAL PORTFOLIO COMMITTEE ON LAND AFFAIRS ON THE WHITE PAPER ON SOUTH AFRICAN LAND POLICY
19TH FEBRUARY 1998
Mr Chairman, Members of the Portfolio committee on Land Affairs, Honourable Traditional Leaders present here today, other stakeholders and members of the media, the Northern Province House of Traditional Leaders expresses its appreciation for having been invited to appear before your Portfolio Committee. However, allow me to point-out from the outset that due to financial constrains, other members of the House could not attend these hearings. It was also not possible for me to have attended the hearings since Monday the 16th. And it is regrettable that I have to leave immediately after my presentation because no arrangements have been made for me to stay over.
2. Mr Chairperson, numerous problems prevented the establishment of the House of Traditional Leaders in the Northern Province. These problems were only resolved at the beginning of last year. Consequently, the House was only established in April of last year. Up to now, the House is still grappling with teething problems. By far the biggest problem is the lack of a budget for the House in the 1997/98 financial year! Consequently, the House has not yet formally discussed the White Paper on Land Policy. Arrangements are underway to hold workshops within the province on the White Paper. What I will be presenting are certain aspects on land matters which have been discussed by the Portfolio Committee on Land of the House of Traditional Leaders of the Northern Province.
3. The Portfolio Committee on Land Local Government and Development of the Northern Province House of Traditional Leaders has discussed land issues relating to Land Reform Programmes, Land Development and Land Administration.
3.1. LAND REFORM PROGRAMMES
3.1.1. LAND TENURE REFORM
Our view on this aspect is that Communal Tribal Land belongs to the Tribes and not to the Central Government. Traditional Leaders - in - Council hold the land in trust for the Tribal Communities and for their use in accordance with their needs and interests.
The Central Government must therefore transfer Tribal Land to the respective tribes.
The Title Deeds must be transferred with their Mineral Rights. This will ensure that Tribal Communities are economically empowered.
Tribal Authorities must be recognized as legal entities capable of acquiring title deeds on behalf of the Tribal Community. There is no need for a Tribal Community or a Tribe to register as a Communal Property Association in order to acquire, hold and manage property. Our view is that a Tribal Authority is a legal entity. The Communal Property Association Act, 28 of 1996, must therefore not apply in Tribal Land. The Communal Land tenure is the de facto vested right of the Tribal Communities which must be recognized and protected by the Constitution.
3.2. LAND RESTITUTION
Tribes in our land have lost their land through discriminatory laws and practices In some cases the dispossession took place prior to 1913.
Our view is that the 1913 date should be reviewed clue to the complex nature of the claims by Black communities, especially Black Tribes. We therefore propose an amendment to the Restitution Act in order to accommodate claims dating back to a period before the 19th of June 1913. The criteria should be to establish that the dispossession was as a result of discriminatory legislation or practices.
We are grateful that Parliament has extended the cut-off date for the submission of claims from 30th April 1998 to December 1998, however, we feel that this date should still be extended by at least another two years, i.e. until December in the year 2000.
Furthermore, we are also concerned about the criteria laid down by the Restitution Act for acceptance of claims. These criteria are too technical for ordinary rural people of our country. Our view and recommendation is that claimants should be afforded legal assistance in the preparation and submission of their claims in order to ensure that their claims meet the required criteria for acceptance.
We also note with great concern, as already stated above, that the Restitution Act does not recognise Tribes and Tribal Authorities as being capable of claiming restitution, but only recognises individuals and communities. This is a very serious omission as it undermines the de factor vested rights of Tribes living under Communal Land tenure system. Our respected view is that tribes do not have to form Communal Property Associations in order to qualify for restitution. Traditional Authorities have been recognised by the Constitution as legal entities and therefore does not need to be registered under the Communal Property Association Act in order to qualify for restitution. We therefore recommend that Tribal Land and Tribal Communities should and must be excluded from the application of the Communal Property Association Act, 28 of 1996.
3.3. LAND REDISTRIBUTION
As stated in the White Paper, the purpose of the Land Redistribution programme is to provide the poor with access to land for residential and productive use, our view is that Tribal Communities are amongst the poorest of the poor. In most tribal areas, there is a lot of overcrowding, there is not enough land for grazing and agricultural activities, there is no infrastructure for water and other services. Unemployment is above 90%.
We therefore urge the Government to target the rural areas, especially tribal areas, in the implementation of the above programme. Tribes and Tribal Authorities must be able to acquire land on behalf of their communities under the Land Redistribution Programme. Such land must be held communally by the tribe and for the use of the tribal communities in accordance with their needs and interests.
4. LAND ADMINISTRATION
In line with our views, that (a) Communal Tribal Land belongs to the tribe and not to the Government; (b) that Central Government must transfer all Communal Tribal Land to the respective tribes through the Tribal Authorities; it follows therefore that the administration of such Tribal Land must remain with those Tribal Authorities.
The Tribal Authorities will therefore allocate land in accordance with the needs and interests of the communities.
Our view is that to allow an Authority other than the Tribal Authority to administer Tribal Land would be a source of conflict and should be avoided at all costs.
5. LAND DEVELOPMENT
Traditional Leaders, Traditional Authorities and their Communities are committed to developing their areas. In some areas, Traditional Leaders have taken the initiative in spear-heading development. This has been done through the mobilization of the communities by establishing Village Development Forums which were tasked to identity development projects in their respective villages. The projects would then be prioritized in terms of the needs of the communities and business-plans would be drawn and submitted to Government at Local, Provincial or Central, as well as to NGO's , for funding.
The above scenario appears to be preferred to the one where Local or Provincial Government approaches Traditional Communities with Developmental Projects without any input from the Communities themselves.
The fact that Traditional Institutions have been recognized in the constitution, makes it imperative that Traditional Authorities be recognised as agents for rural development.
However, our concern is that the Development Facilitation Act, No.67 of 1995, was passed without consultation with Traditional Leaders and their Communities. The Development Facilitation Bill was never presented to the National Council of Traditional Leaders as required by the Interim Constitution, nor was the Bill sent to the Provincial Houses of Traditional Leaders.
Traditional Leaders need direct representation in the Provincial Tribunals as well as in the National Commission.
In conclusion, we wish to emphasize that Land is the cornerstone and it is central to the Institution of Traditional Leadership. It is therefore important to involve Traditional Leaders and their Communities in every aspect involving their land. This in turn will bring stability in the rural areas.
I therefore once again take this opportunity to thank the Portfolio Committee for having invited us to these public hearings.
I thank you!
HOSI S. C. MHINGA
CHAIRPERSON, PORTFOLIO COMMITTEE ON LAND, LOCAL GOVERNMENT AND DEVELOPMENT.
THE HOUSE OF TRADITIONAL LEADERS - NORTHERN PROVINCE