TRAC-MP SUBMISSION TO PORTFOLIO COMMITTEE OF AGRICULTURE
AND LAND AFFAIRS ON THE COMMUNAL LAND RIGHTS BILL
Established in 1982 as a programme of the Black Sash, the Transvaal Rural Action Committee opposed the Apartheid regime's policy of forced removals of black communities to homeland areas and isolated townships. Since the unbanning of the liberation movements and the establishment of a new democratic state TRAC has worked with rural communities including farm dwellers and residents of state land in the former homelands to secure their land rights and access to development resources. The following inputs are based on actual experiences of TRAC-MP staff in the Province of Mpumalanga over the past few years. TRAC-MP is grateful for the opportunity to present these experiences to portfolio committee on agriculture and land affairs and hopes that this presentation contributes positively to the ongoing process or securing land rights for occupants of state land and the democratization of our society.
TRAC-MP's Experience of Land Rights in Former Homeland Areas.
Over the past six years whilst operating in the Province of Mpumalanga TRAC-MP has identified a number of critical challenges regarding the provision of security of tenure of residents of state land under tribal jurisdiction. These Homeland areas remain the most underdeveloped, marginalized and impoverished regions of the country and in terms of TRAC-MP's analysis the unresolved tenure arrangements are the single most important obstacle towards the development of these areas and the improvement of the lives of the millions of residents occupying state land under tribal jurisdiction. The following presents some of the most distressing features of TRAC-MP's experience of these areas:
The capacity of the Department of Land Affairs. Both in terms of number of staff and the skills of the staff this Department remains completed under resourced to facilitate significant delivery in terms of tenure upgrading of these homeland areas. Typically applications for the vesting of State land take over two years to be processed by the DLA. In cases where abuses of tenure rights have occurred by either tribal authorities or other structures - the DLA has not been able to address these abuses by protecting the rights of the vulnerable. In one instance where a local authority (Mbombela Municipality) expropriated residential lands without compensation the DLA failed to intervene, sanction such behaviour or provide any support to the residents who lost substantial property. In other instances where Tribal Authorities abused the rights of residents such as in Buffelspruit (Nkomazi) with the women crop farmers, the DLA and the Provincial Government's solution was to remove the women and promote the interests of the tribal authority. In essence there is a lack of political will on behalf of the DLA to sanction such conduct and challenge human rights abuses and exploitation of poor and vulnerable people on state land. This lack of capacity, resources and political will continues unabated.
- The relationship between Tribal Authorities and other tiers of government. Tribal Authorities throughout the Province have not participated constructively with government departments undertaking development work in their area. Rather Tribal Authorities have intervened in these processes in order to obtain benefits, resources and influence over the development process. Because of the lack of clarity regarding their status, most government departments have consulted with them as representatives or the community as opposed to proper community consultations. A water project in Nzikazi has been stalled for two years because the tribal authority refuses to allow a community resolution to take place- insisting rather that it represents the community. It appears that the state is unwilling to bypass tribal authorities and continue with their development activities.
- The inability of the DLA to protect the tenure rights of residents. The processes that the DLA to date has followed to secure the rights of residents have been unsystematic and varied from one project to another and from one official to another. This is particularly the case in terms of the facilitation of land rights enquiries; community resolutions and resolving conflicting land rights. In Kamaqhekeza township (R293) in Nkomasi the DLA has stalled a tenure upgrade project for the entire community for over two years now due to a frivolous restitution claim by an adjacent tribal authority. The result has been that over 2000 households still do not have their residential rights secured in ownership.
- The continued relationship of patronage established by Tribal Authorities. The Apartheid government conferred responsibilities to tribal authorities to administer land allocations in various homeland areas through the issuing of permissions to occupy (PTOs). Tribal Authorities have continued to allocate these PTOs in the post-Apartheid era to people who can pay the tribal authority. Relatives of the chiefs and local elites have been the main beneficiaries of this practice with tribal authorities allocating them large stands and agricultural lands for their own benefit. Much of this land in the past was used by the entire community for grazing, crop farming and harvesting of natural resources. These are now the exclusive reserve of the local elites who have established commercial crops such as sugar cane in Nkomazi or extensive cattle ranches. As such growing inequalities have been created between those parties affiliated by blood or patronage to the chief and the poorer members of the community and particularly women subsistence farmers. The tribal authorities have in many cases (Msogwaba and Louieville) extended this practice of providing access to resources and services upon payment to various other duties such as the issuing of pension forms, social grants and other documents that they were paid by the state to issue. To date these practices have gone unchecked by the state who turns a blind eye to the exploitation of residents under a tribal authority.
- The preferential treatment of local elites and opportunistic investors as opposed to poor rural occupants of state land under tribal control. Tribal authorities have favored the interests and needs of local elites to access land for their own development purposes rather than providing support to poor residents who rely on natural resources to supplement their meager incomes. In one instance (Shongwe tribal authority- Buffelspruit in Nkomazi District) the use of land for cropping purposes by women subsistence farmers was removed by the tribal authority and allocated to a Cattle farming group after payments were made to the tribal authority. The women in protest of this loss of land marched naked on the tribal authority and were arrested and jailed for five days by the Police. No sanction of the tribal authority took place. In nearby Schoemansdal, the tribal authority supported the application for the development of a shopping center by an outside investor whilst refusing local business people the right to acquire their business sites that were established in some cases over twenty years ago. Tribal Authorities in Daantjie, Louiville and Tjakastad have favoured the development of conservation areas in land under their administration and for which they receive rentals, power and infrastructure over the needs of poor residents who have used these lands for time immemorial.
- Conflict and violence between tribal authorities and rural communities. In Msogwaba tribal authority (Nzikazi) land previously allocated to subsistence farmers were reallocated to people looking for residential stands. The subsistence farmers lost crops and grazing land as over I 000 stands were allocated in a matter of months. The tribal authority charged residents R 250- R 500.00 per stand. Houses were burnt crops and cattle destroyed and physical confrontations between the parties led to violence and physical injury. The DLA and Provincial Government did nothing to intervene and the tribal authority has continued this practice over an extensive area without any sanction. None of the former occupiers were compensated or gained access to additional land.
- Conflict and rivalry between tribal authorities over boundaries and the right to allocate lands. Significant tensions exist between various tribal authorities all claiming historic ascendancy to an area. Rival tribal authorities have used the land reform processes, especially restitution, to claim each other's property (Tenbosch -the largest land claim in South Africa is stalled due to this rivalry). In addition through allocations of land tribal authorities have encroached onto the lands administered by adjacent tribal authorities and private property. This has led to violence and damage to property with the poorest people being left homeless and without access to land.
- The impasse between tribal authorities and local governments blocking development initiatives. In numerous cases tribal authorities have stalled delivery of services and development infrastructure through intimidation and threats of violence. In Matsulu the Tribal Authority has encouraged the vandalization of water pipes and the encroachment onto servitudes by people paying fees to the tribal authority causing interruptions to water supplies and other services to the entire township. The tribal authority continues to allocate lands and receive monies despite legal action from the Municipality. The National and Provincial Government have not intervened sufficiently in this matter to prevent this abuse from continuing.
- The resistance of tribal authorities in recognizing the rights of residents, particularly women to secure tenure. Tribal Authorities in Nzikazi (Msogwaba, Louiville and Matsulu) have resisted every initiative by the state to provide residents with title deeds for their residential sites. In one project the tribal authority invaded a site office, seized equipment and destroyed records of the residents who were applying to have their PTOs upgraded to title deeds. Women headed households are furthermore discriminated against by the tribal authority insisting on only issuing PTOs to men. These households often have to name a distant relative as the rights holder to access land.
- The lack of recourse residents face when their tenure rights are threatened. Despite registering cases of human rights abuse (tenure is a basic human right in terms of the Constitution) with the South African Human Rights Commission and informing both the Provincial Departments, the Minister of Land Affairs and the Department of the abuse of tenure rights, there have been no official enquiries or other processes put in place to address these abuses. Recourse to the courts remains out of reach of most poor occupiers of state land and these abuses continue without sanction. In the case of a municipality expropriating residential land without compensation there has still been no support to the residents or to TRAC-MP from the state. Only legal action or community mobilization can resolve this situation.
- Lack of protection of natural resources and their exploitation by internal and external parties. Tribal Authorities have not managed the natural resources in areas under their jurisdiction in a sustainable manner. In contrast upon receipt of fees the tribal authorities allow outside parties to exploit the natural resources of an area. It has been estimated that about 500 tons of medicinal plants are taken out of communal areas in Bushbuck ridge each year. None of the income from this exploitation is invested in the community.
- The lack of sanction by the Provincial and National government in cases of corruption, exploitation and human rights abuse by Tribal Authorities. There have been no cases recorded where the National or Provincial government have intervened in corrupt practices of chiefs or tribal authorities. In Emjindini (Barberton) the chief allocated stands on a farm belonging to a community trust (acquired through the DLA's redistribution programme) to approximately 800 non-trust members. Neither the DLA nor the province has opposed this behaviour. In another instance Eskom paid monies for servitude over a property belonging to a community Trust (also acquired through the redistribution programme). This money was paid over to the chief who has not accounted for this money. Again despite the DLA and the Province being aware of this situation, no measures have been put in place to recover this money.
TRAC-MP'S CONCERNS WITH THE CURRENT BILL
In terms of the above situation in the Province it is clear that there needs to be substantial legislation and resources committed by the state to protect the rights of occupants of the former homeland areas. The objectives as set out in the Bill are to be supported and respected. However an analysis of the contents of the Bill reveals that it will not address these stated objectives and furthermore provides opportunities for continued undemocratic and corrupt practices in the administration of lands under tribal jurisdiction.
- Lack of consultation regarding the recent amendments to the Bill. Whilst there was a process of consultation on former versions of the Bill the current Bill contains significant amendments, particularly in terms of the role of traditional authorities. These amendments were never work shopped with key stakeholders and the public at large remains ignorant of the provisions. One questions why community based consultations only took place in Limpopo Province and further who were the people actually consulted. The so-called reference group was also marginalized by the timing of this new draft and no meeting has been called to discuss these amendments.
- Lack of clarity regarding the recourse offered in cases where disputes erupt. The Bill does not provide any possible review or recourse to parties who feel that the decisions of Land Administration Committees, Land Boards or the Minister were not fair or Constitutional. There needs to be a review mechanism to challenge decisions taken by these institutions.
The extensive powers conferred on the Minister. With all due respect to the person, it is unlikely that the Minister would be in a position to have extensive knowledge of the land, tenure and old and new order rights in each area where a Board will be instituted. Thus the Minister would have to rely on statements from Officials in making final decisions on Boards and on awarding of land. It is unlikely that opposing opinions and conflicting interests would be pointed out to the Minister by Officials concerned with delivery and their own positions. In such instances it is possible that the Constitutional Rights of excluded groups would be ignored without any further recourse.
- The marginalisation of women in terms of representation on Land Administration Committees. 33% is far short of equality prescribed in the Constitution. In addition the Bill does not preclude a Tribal Authority from making female family members of the chief the women representatives. Even with 30% independent women on the Committee there is still no guarantee that the rights of other women to access land or to secure their land are going to be recognized. Intimidation, bribery or marginalisation of the women on the Committee could continue the situation of gender inequality in tribal areas.
- The dismissal of democratic rights of all residents to make decisions on their land. The Bill does not provide for a community to decide on its own how to upgrade land rights or allocate lands. Rather this function rests with a committee. Members of the committee may have direct interests in such decisions and use their positions to their own advantage. The communitiesí right to decide is therefore subjected to the interests of a group of people that they have never voted into office in tribal areas. This lack of democratic practice and accountability undermines the democratization of these areas.
- Land Administration Committees may take decisions that do not favour local elites or a tribal authority. If the current state has no will or capacity to oppose these interests currently what likelihood is there that a local structure, without resources and experience and support, would be able to withstand intimidation and coercion in their place of residence. Therefore the likelihood is strong that such Committees will never challenge the interests and decisions of a tribal authority.
The impact of the Bill on other legislation relevant to the development of State Land under Tribal Control. Whilst the Bill does try to ensure co-operation between Land Administration Committees (tribal authorities and their supporters) it is unlikely that these structures are going to constructively engage in development processes without trying to secure advantages for themselves and their followers. As such development initiatives will remain stalled due to the agendas of the Land Administration Committee in accessing benefits for themselves.
- In many parts of South Africa tribal authorities exist in name only. Chiefs were driven out in the 1980s as they were seen as collaborators of the government. The Bill provides for tribal authorities to become Land Administration Committees in areas where they are recognized irrespective of whether they enjoy community support or not This is going to lead to high levels of conflict in many areas
- The sweeping powers of Land Administration Committees to make their own rules. Again the Committees must create their own community rules. There is no provision for public participation and final approval of these rules. In addition these may be amended without review by the Community.
The lack of capacity by the state to monitor the functioning of these committees. Currently the DLA is failing hopelessly in all aspects of Land Reform. Its limited staff and resources are thinly spread. The additional responsibilities and bureaucratic processes outlined in the Bill will further drain this capacity and increase programme failure across all DLA programmes. The DLA has in the past displayed an inability to intervene successfully in cases of corrupt land practices and abuse of tenure rights - there is no likelihood that the will be able to prevent the Committees from carrying our such deeds in the future. Public participation would be the most likely manner of ensuring accountability and fair practice. Unfortunately there is no provision for this in the Bill.
- The high risk of conflict and violence between rival tribal authorities and between tribal authorities and residents and community based organizations. This risk is very acute and should be assessed prior to the drafting of such legislation. The volatile relationships between various tribal authorities and Community Based Organizations in many parts of South Africa imply that further powers being extended to tribal authorities is going to result in a violent response.
- The processes outlined in the Bill are costly and time consuming. Not only do they imply huge levels of staff and surveying and conveyancing costs but the length of these processes is going to hamper development, investment and upgrading of these areas. The DLA currently does not have sufficient funds for its programme areas and a massive additional amount would be necessary to give meaningful value to this Bill.
RECOMMENDATIONS TO PORTFOLIO COMMITTEE
TRAC-MP implores portfolio committee consider the following.
Have effective public consultation on the contents of this Bill in its new format. There are significant changes that were made recently that need proper consultation.
The Constitutionality of certain clauses, especially the power of the Minister, in the Bill needs to be reviewed and tested. This requires time and resources the value of this process now is that it will prevent lengthy litigation in the future.
Enshrine the principles of gender equality, democracy and public participation in the Bill rather than making the tribal authorities the automatic choice as Land Allocation Committees. Greater space for public debate, participation and decision-making needs to be built into the Bill to protect the interests of the public.
Specific attention needs to be given to the rights of women, 30% is not equality and the nomination of representatives should again be democratic not based on the recommendations of the existing tribal authority. Specific principles should be included in the Bill making it compulsory for all previous rights vested in a male head of household to be transferred into co ownership. This is essential to avoid the formalization of gender discrimination by merely upgrading the rights conferred to males.
A process of recognizing all occupational rights not just those as defined in the Bill (five years prior to 1997) should be undertaken as a first step. This would in effect be a significant cut off date that could act as a benchmark against further arbitrary allocations by tribal authorities and protect the rights of those who have occupied land since 1992 (all of which seem at risk right now).
Distinguish between residential rights that should be conferred on a household or individual to the communal rights shared by residents. There should be different procedures for investigation and upgrading these two sets of rights. Residential rights if properly obtained should not be influenced by outside parties. Communal rights should recognize different degrees of rights to communal land, e.g. exclusive use by one family for cropping, grazing rights and harvesting rights. The process of compensation for loss of rights (comparable redress) should also not be limited to market value of the property which in most cases does not exist or is significantly distorted in these areas. Rather the Bill should prescribe comparable redress to include replacement costs of various infrastructure and natural resources.
In conclusion TRAC-MP is encouraged that after eight years of Land Reform the state is beginning to develop legislation that could provide lasting solutions to the problems besetting the millions of South Africans trapped in the former homeland areas. It is also encouraging that the state wants to devolve power to locally based institutions. However the Constitutional Rights to Democracy, gender equality and security of tenure are not guaranteed in this version of the Bill and therefore believe that wider consultations, closer scrutiny of the Constitutionally of the Bill and a carefully study of the systems and procedures outlined in the Bill needs to be undertaken to ensure that they will work in practice. In essence therefore it is believed that we have not achieved the ideal Act that will adequately address the needs and rights of poor rural communities. We should not sacrifice their heritage and rights for political expediency and therefore give the needs of these people the attention they so deserve.