Category Archives: The Traditional Courts Bill

CLP Padkos No 25: The Traditional Courts Bill

Wednesday 20 June 2012

The Traditional Courts Bill

There’s a widespread expectation that CLP, being an NGO, should ‘engage’ government policy a lot. Regular readers of CLP’s Padkos will not be surprised that we tend to ignore this instruction. It’s not as if we think policy “doesn’t matter” and nor do we “ignore the government” (both of these being recurrent accusations from civil society). As we put it in a statement last year clarifying our position on ‘the land question’ (full version attached): “good government policy is better than bad policy, but the policy terrain and process itself reinforces:

· the idea that a small group of clever experts (including those in ‘civil society’) decide things on behalf of the people;
· the dominance of powerful and rich elite interests;
· the power of the state over the people;
· silencing and ignorance of the real struggles, insights, practices, lives and issues of the masses of the people.

Learning from, and supporting the struggles of, those who tend not to be counted in the dominant systems:

· gives better insight into what it is that actually needs to be dealt with and how,
· strengthens the forces for effective and just transformation, and
· enables us to subject our social and political life to the will of the people

In conclusion: the land, and the ‘land question’, is best resolved in the hands and the minds of the people” (CLP, 2011).

North American activist scholar, David Graeber, nails it in his “tiny manifesto against policy:

The notion of ‘policy’ presumes a state or governing apparatus which imposes its will on others. ‘Policy’ is the negation of politics; policy is by definition something concocted by some form of elite, which presumes it knows better than others how their affairs are to be conducted. By participating in policy debates the very best one can achieve is to limit the damage, since the very premise is inimical to the idea of people managing their own affairs” (Graeber, 2004. Fragments of an anarchist anthropology, Prickly Paradigm Press, Chicago.)

Even so, in this edition of Padkos we are sharing two pieces, written by good friends of CLP – Richard Pithouse and Jeff Guy – that pick up aspects of debate sparked by the current government policy process on a “Traditional Courts Bill”. But neither Pithouse nor Guy think and write under the deadening thrall of a state politics – not even a ‘civil society’ politics. What is common to both pieces is the clear and respectful engagement with the reality of the life and history of actual people. So much of the critique of the Traditional Courts Bill, especially from the NGOs/civil society, presents ‘tradition’ as the problem and (either explicitly or implicitly) nominates liberal democracy as the answer. Make no mistake, this Bill is terrible and deserves criticism – at their AGM this year, the Unemployed People’s Movement (UPM, Grahamstown) described it as “the next blow to the rural poor” (UPM, Brief Report on the UPM AGM, 3 April 2012). But the thinking of the state (including that part of the state in society called ‘civil society’) gets us nowhere, except to hint at the size of the gap between the state and the life of the people. By contrast, Pithouse’s piece, “Locusts on the Horizon”, explores some of the nuances of what the Bill reveals about the state we’re in and Guy’s piece, “A chief rules by people power”, demonstrates its utter failure to tap into emancipatory strands in that ever-vibrant, always-contested thing called ‘tradition’.

Dream of true freedom lies smouldering in the grave


Dream of true freedom lies smouldering in the grave

INSIGHT – Nomboniso Gasa

“THE democratic genie has been let out of the bottle” pronounced Neil Coleman, of Cosatu in the heady days after the election of President Jacob Zuma and his government.

It was a government described as open, accessible, people friendly and pro-poor.

Coleman is not only a decent man. He is also a man of principle.

There was no rancour, populism or triumphalism in his words. His was a deep yearning to see our democracy maturing.

So what has happened to the democratic genie?

Today, images and messages are everywhere, they give us a glimpse of what lies ahead. Slowly and systematically our hard won freedom is being limited. The stranglehold is political, economic and geographic.

In Makhaza township in the Western Cape, the DA gave the poor its Hobson’s Choice – open toilets or continues the bucket system. “The choice is yours.”

This of course, was not about a provincial government that was willing to explore options with the citizens in the light of financial constraints. No, it was an open and direct display of contempt for the poor.

The DA is not alone in its contempt for the poor. In Bizana, Eastern Cape, people were forcibly removed from the “squalor” in which they lived, their shacks mowed down in an action reminiscent of the apartheid era. Yet some of the hands and brains behind the bulldozers this time were those of comrades with whom some of the community had once shared battle trenches.

For some, these were their sons and daughters, metaphorically and literally.

These shacks probably took a long time to put together. Squalid as they seemed, they were the only homes the people of this community had. The people were given no alternative accommodation as the law requires.

Municipal councils flout the very laws they are supposed to uphold and enforce. They do so unabashed because they know crimes against the poor are crimes for which they will not be held accountable or risk losing their jobs. Why should they?

The minister of human settlement, in a fit of populism, knocked on someone’s door and spent a night there, while the owner went to sleep with the neighbours. She hoped this unwanted intrusion was a small price to pay for the change that would be brought once the minister had “experienced” sleeping in the shack.

Well, things did not turn out that way. As soon as the cameras stopped clicking and ink of journalists had dried, Tokyo Sexwale promptly forgot about the tourist experience in the shack. It was only when people claimed their agency and began to protest and reminded the one- time, one-night visitor of their existence that the minister went back.

He partly remembered his word.

This is an era of short term mass appeal – camera, lights and action.

Even the President took time to help someone settle in a better home. We saw him unpacking the refrigerator, lounge suite, microwave and all, including, I hope electric vouchers.

The government with a human heart was in full swing.

Now, the other day, Sexwale described informal settlements as ugly eyesores and this was not for the first time. People live there wena, we muttered accusingly at the television screens, shaking our heads with embarrassment.

Why do people live in these conditions, we asked angrily pointing at the screen.

Look at what has become of this democratic genie.

Now, if the promise of the President to the National House of Traditional Leaders is realised, by December 2010 South Africa will have a dual legal system. The areas that were formally marked as “homelands” on the map before 1994 will be rezoned as “traditional communities”.

The Traditional Courts Bill is no Mickey Mouse law. We are Africans, are we not? In the name of restoring our cultural dignity and honouring the wise ways of our forebears, “traditional” leaders will decide on economic development and even hear criminal cases and disputes and much more. For the subjects in traditional communities, the magistrates’ courts will not be courts of first instance.

Reading the draft Traditional Courts Bill the question arises, why should people in these communities vote in the forthcoming local government elections? The municipal and local government system has nothing to do with these communities. There leadership and governance are predetermined. So, what will they be voting for?

Everywhere, we see images of a troubled land and its people. The dream lies smouldering in the grave, says the poet.

The gap between grandiloquent statements, cameo appearances amid the drama of poor people’s lives and the real lived experiences of a world shrunken by poverty and the indifference of the powerful is becoming wider by day.

Freedom will only have any real meaning if citizens claim it for themselves. This requires careful and deliberate building of a promised nation. Freedom is earned every day. Only then, shall we find that democratic genie which we will have to continually protect.

Nomboniso Gasa is a researcher, writer and columnist on gender, politics and cultural issues

M&G: ‘New land Act like apartheid’

‘New land Act like apartheid’
YOLANDI GROENEWALD – Oct 23 2008 06:00

The land ownership rights of about half of South Africa’s population hinges on a landmark court action heard last week. Four communities from three different provinces are challenging the constitutionality of the controversial Communal Land Rights Act (Clara) in the Pretoria High Court.

The Act will affect about 21-million people living under traditional leadership, by handing control of their communally owned land over to traditional leaders for administration. The intention of the legislation — scheduled to come into effect at the end of this year — is to give millions of rural South Africans security of tenure.

The communities of Kalkfontein, Makuleke, Makgobistad and Dixie from Limpopo, Mpumalanga and North West, argue that Clara is invalid and unconstitutional and will take them back to “apartheid-era tribal units”.

“The restitution process has already established the communities’ property rights,” said legal resource attorney Henk Smit. “Under Clara it will now be redefined, taken away from the communities and placed under a larger tribal authority.”

The applicants argue the Act will give traditional leaders undemocratic and unprecedented powers and undermine women’s rights and black ownership of land.

“We submit that the evidence shows that far from securing the applicant communities’ land tenure, Clara actually undermines their tenure and makes it more insecure,” the communities argue. “This applies at both community and individual levels.”

Critics pointed out that Clara reinforces the old tribal boundaries created by the architects of apartheid.

Each community embroiled in the suit has their own unique story of how the new Act will upend their lives.

In the case of the Kalkfontein community they fear that an undemocratically elected chief will steal the land, which they won back in 1994, from them. Over the years the community has petitioned to divorce themselves from the tribal authority but without success.

Under Clara the Kalkfontein community would fall under this unwanted authority and would be denied its right to hold full title, secure rights of use and administration to its land, custom law expert professor Thandabantu Nhlapo, from the University of Cape Town, argued.

The Dixie community farm borders the Kruger National Park, Manyeleti Game Reserve and Sabie Sands Reserve. The community fears that its valuable land will be sold out from under it as the tribal authority cuts deals with developers. The farm was originally placed under the jurisdiction of the Mnisi Tribal Authority in the Fifties even though it had no historical association with the Mnisi.

Under Clara, land use and development of the farm would potentially fall under the jurisdiction of a traditional council, taking away the Dixie community’s right to decide what to do with its land.

The Makuleke community, famous for winning back its land in the Kruger Park, is also worried about the Act. The Makuleke community was placed under the jurisdiction of the Minga Tribal Authority during their forced removal. As part of their restitution settlement, the Makuleke were granted rights to the Nthlaveni area.

But Clara would remove the land from the control of the Makuleke community’s democratically constituted communal property association and place it in the hands of a traditional council, Nhlapo argued. “The destruction of land-holding instruments of the local community, and placing control in the hands of a larger institution would inevitably undermine the tenure security of members of the local community.”

“The Act will undermine our rights that we won in the restitution case,” said Eric Tivani, the chairperson of the Makuleke community’s property association.

The association also said that Clara discriminates against black property owners because whites do not have to deal with a tribal authority and have full title to their land.

The applicants argue that Clara was rushed through Parliament ahead of the elections in 2004 without following the proper procedure in the National Council of Provinces and that public hearings as required by the Constitution did not take place.

The communities fear that the Act will render the tenure of women more insecure in the same way that colonial and apartheid laws gave rights exclusively to men.

In reply the government argued that Clara will secure land tenure for millions of South Africans and allow them to use their land as security. In court papers the state argued “the instigators of the attack on Clara chose, as their flag-bearers, four communities or sub-groupings as applicants who can be described as either disgruntled, a-typical, or in some respects non-functional communities or sub-groupings within larger communities.”

Source: Mail & Guardian Online
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