The former bantustans

The land rights of those living in these areas remain undocumented and insecure. Post-apartheid legislation continues to entrench the old homeland boundaries and the reinforce old relations of power between chiefs, local elites and ordinary citizens. These relationships have been further reinforced by the recent signing into law of the Traditional and Khoi San Leadership Bill and the Traditional Leadership and Governance Framework Amendment Bill on 20 November 2019. 

A short history of the bantustans

The 1913 Land Act

The 1913 Land Act designated 7% of South African land as “native reserves” in which Africans could acquire land, prohibiting Africans from acquiring land outside of those areas (and prohibiting non-Africans from acquiring land inside the reserves). The area of the “reserves” was expanded in 1936 by the Native Trust and Land Act to 13.6% of SA land.

Apartheid and the “bantustans”, betterment and resistance

The name “bantustan” was an apartheid term for the land in these reserves. Apartheid laws sought to consolidate the bantustan “homelands” as the basis for separate development.

With the passing of the Bantu Authorities Act (No. 68 of 1951) the apartheid state set out to take total control over the institution of chieftainship, already distorted by decades of colonial interference. The Bantu Authorities Act abolished the Bhunga council system established in 1894 which had combined elected and nominated members for local governance purposes.

As time passed, a new generation of more compliant, salaried chiefs was installed. These chiefs were allocated increased powers by the state. Colonial and apartheid codification of customary law distorted the social and governance functions of chiefs. In exchange for their salaries and benefits compliant chiefs were expected to vigorously implement a hugely unpopular suite of measures associated with the “betterment” and land rehabilitation programmes. These measures, ostensibly designed to address environmental degradation due to overcrowding on the land, (a direct consequence of dispossession) resulted in forced villagisation and restrictions on land use and livestock.

Betterment-related removals provoked widespread rural resistance and triggered a series of rural uprisings. The Pondo rebellion, the Tembu and Poqo insurrections erupted in quick succession. These rural struggles (documented by Govan Mbeki) spread to other areas in the country including Witzieshoek in the Orange Free State and Sekhukhuneland in the Transvaal. An emergency proclamation was gazetted in 1960 and the rebellions were crushed by mass arrests and military force.

The apartheid state proceeded to promote “self-government” for ethnic groups as defined by the state. This was enabled by the Promotion of Bantu Self-Government Act (No. 46 of 1959) which formally introduced homelands and ethnic bantustans to the political landscape. Four of these bantustans (Transkei, Bophutatswana, Venda and Ciskei) became “independent”, while the remainder (KwaZulu, Lebowa, Qwaqwa, KaNgwane, Gazankulu and KwaNdebele) remained as “self-governing” territories.

As can be seen from the map below most of the bantustans consisted of scattered pockets of land, despite ongoing attempts to consolidate them.

Resistance in the 1980s and the re-incorporation of the bantustans into provinces

Mounting popular resistance during 1980s forced the apartheid state to abandon its goal of creating ten “independent” homelands where black people would have citizenship based on their presumed ethnicity. As part of the negotiations process leading up to the democratic transition in 1994, it was agreed that the bantustans would be dissolved and reincorporated into the nine new provinces shaping the new South Africa. However the bantustans did not disappear as planned.

Despite the formal dissolution of the bantustans in 1994 and their reincorporation into a unitary democratic state, the rule of chiefs and the growth of this black middle class have a deep-rooted legacy in the post-1994 era. As several contemporary commentators have noted, South Africa has witnessed the “bantustanificaton” of the post-apartheid landscape. – (Phillips, L. 2017).

Most importantly it has been noted that six out of the nine new provinces drew heavily on the 650 000 strong, but often corrupt and patronage-based bantustan civil service to staff the new provincial administrations (Phillips, L. 2017). Likewise, the distorted institution of chieftaincy was also retained largely intact. This has been a major contributory factor towards the expansion of predatory elites and the accelerating propagation of a culture of state criminality and capture which recent South African history shows has infiltrated to the heart of government institutions.

Land and tenure security in the former bantustans

Twenty five years after the democratic transition, the South African state has failed to pass permanent legislation to secure the land rights of people in the former bantustans. People residing in these areas comprise more than half of an estimated 60% of South Africans whose property rights remain undocumented and off-register.

In rural villages within the former homeland areas, heads of households were issued with Permission to Occupy (PTO) certificates which specified their rights to a residential site and an arable allotment where available.

In proclaimed townships within the former bantustans, Deeds of Grant for residential and business stands were issued in terms of Proclamation R293. These deeds were registered in the Deeds Office. Although not fully equivalent to freehold title, the Upgrading of Land Titles Adjustment Act (No. 111 of 1993) made provision for R293 deeds to be upgraded to title where desired.

The democratic government has remained as the landowner of land allocated to the former bantustans as it continues to act as a trustee on behalf of black persons. At the same time, the government is responsible for administration and development on this land, resulting in a problematic conflation of roles and functions.

Interim legal protection for land rights

Land administration in the former bantustans is virtually non-existent. Permission to Occupy certificates (PTOs) are no longer issued and, with the dissolution of the homeland administrations, the majority of these land records were lost or destroyed.

The only legislative protection those living in the former bantustans for rural people’s land rights is currently provided by the Interim Protection of Informal Land Rights Act (No. 31. of 1996) (IPILRA) which, as the name suggests was intended to be a temporary law which has to be renewed every year. There is widespread agreement that IPILRA has not been widely promoted or effectively enforced. This has made residents in the former homelands vulnerable to land grabs, particularly in relation to mining deals.

IPILRA recognises and seeks to secure the undocumented rights of people who own or use land, but has been almost universally ignored in the negotiation of mining rights on communal land. (Manona, S. et al. 2018).

The recent passing into law of the TKLB has removed many of the protections provided by IPILRA. This however is likely to be the focus of a Constitutional Court challenge in 2020. At the same time, much “old order” legislation governing land tenure in the former homeland areas remains on the statute books, although some sections of these laws have been repealed. This creates a complex legal and administrative landscape. Citizens’ rights cannot be realised due to the persistence of unaccountable chiefly governance structures and the absence of coherent land administration institutions with capacity and systems to recognise and record rights in land and provide a framework for succession and inheritance.

The government intended to move away from a permit-based system (that characterised apartheid land holding) to a rights-based approach. The Communal Land Rights Act (CLRA) (No. 11 of 2004) sought to transfer land title for communal land from the state to communities. It sought to register individual land rights within communally owned area and mandate the traditional council to administer the land and represent the community as owner. The Act was declared unconstitutional in 2010.

In July 2017, the Department published the draft Communal Land Tenure Bill (CLTB) which has many similarities with the CLRA of 2004:

• the definition of community reverts to the definition in the Framework Act, of a traditional community with a chief;
• land will be transferred in title to the “community”, but the CLTB also provides for the possibility of “ownership” for individual community members (although this remains very unclear).

There are also significant differences as the CLTB:

• provides for the community to choose its land administration body, but from two options only: a traditional council or a Communal Property Association;
• attempts to include households in decision making through establishing a “household forum”;
• seeks to regulate decision-making in communities by providing for majority requirements
• does not apply to Ingonyama Trust Land which is discussed further below.

Overall there remains a legal and policy vacuum surrounding land tenure security, land rights administration and governance on land in the former bantustans.

Traditional leadership and governance

The law defining traditional leadership and governance has also been particularly contested. The intersection between traditional leadership, land allocation and administration remains unclear.

The Traditional Leadership and Governance Framework Act (No. 41 of 2003) (TLGFA), seeks to define residents in these areas as subjects of ‘traditional communities’ (or ‘tribes’). The TLGFA re-enacts traditional (tribal) authorities, created through the Bantu Authorities Act of 1951, to preside over precisely the same geographic areas that were defined by the apartheid government. (Manona, S. et al. (2018).

This has major implications for land tenure security in former bantustan areas:

Chiefs have been empowered by the state to the point where they behave as proxy owners of the land at the expense of rights holders. This problem has consequences when mineral rights accrue to companies to whom the chiefs act as agents from which traditional authorities accumulate the benefits. (Manona, S. et al. 2018).

The lack of legislative protection and/or lack of implementation of the strong protections in IPILRA that do exist, have enabled elites to take advantage of the insecure land rights of communities. These elites include transnational mining companies, foreign investors, traditional leaders, traditional councils, and commercial farmers.

Perspectives from the HLP report

At public hearings hosted by the Panel, many ordinary South Africans spoke about how existing laws affect their daily lives. People spoke about how the TLGFA had resulted in abuses and unaccountable conduct by some traditional leaders and councils. Some also spoke about how their customary law and constitutional rights to land, equality, transparency, security, freedom of association and cultural identity have been undermined.

The HLP report recommended that:

• proposed laws such as the TKLB and TLGFAB should be urgently reviewed or withdrawn from Parliament because they threaten social cohesion, constitutional rights and equal citizenship;
• existing law, namely the Framework Act, should be amended to:
  • emphasise that customary law is a voluntary and living system;
  • define “traditional communities” as groups with shared affiliations, identities, governance structures and laws, rather than being based on previous “tribal” boundaries;
  • strengthen accountability and consultation mechanisms (for example, the Code of Conduct);
  • apply the Interim Protection of Informal Land Rights Act to decisions about communal land;
  • clarify that for traditional councils to make valid decisions, a customary consultation process must first be followed, the council must be correctly constituted and financial accounting and reporting duties must be maintained;
  • prohibit “tribal” levies and only allow voluntary contributions;
  • clarify that small groups and individuals hold rights and can participate in court cases – not just traditional leaders, councils and large “traditional communities”;
  • increase proportions of elected and women members on traditional councils;
  • Set limits on the roles and powers of traditional authorities;
  • require the Disputes Commission to report regularly and make findings public.
  • Parliament should pass new legislation that clarifies the different roles and status of structures with authority over land versus political authorities;
  • the position of women in traditional communities should be improved by repealing existing patriarchal laws, consulting women about new laws, ensuring women’s equitable representation and tailoring laws to women’s lived realities.

Post HLP inertia

Parliament has failed to substantively discuss or adopt the recommendations made in the HLP report.  

New laws under consideration

Government has proposed three new laws that deal with traditional leadership, currently being processed by Parliament. Government could use these draft laws as an opportunity to address the problems that people have been experiencing with the TLGFA. Instead, critics argue that they threaten to make conditions worse for rural people.

Traditional and Khoi-San Leadership Bill 23 of 2015 (“TKLB”)

This was signed into law on 20 November 2019. It replaces current national laws on traditional leadership and introduce legal recognition for Khoi-San communities and leaders for the first time. The new  TKLB’s provisions  give traditional authorities extensive roles without ensuring that they are accountable, or that they will consult with ordinary people. The TKLB also gives new life to previous “tribal” boundaries and fails to ensure that traditional councils are legitimate and transformed according to the Constitution.

Traditional Courts Bill 1 of 2017 (“TCB”)

Public hearing are currently being held on this Bill which will govern dispute resolution in forums recognised as “traditional courts”. The TCB has a long and controversial history in Parliament, with previous versions widely criticised in public hearings and by civil society. The new TCB is an improved draft by the Department of Justice which, for example, now includes a mechanism to allow individuals to opt out of the jurisdiction of traditional courts.

On 2 December 2020, the National Council of Provinces (NCOP) passed the Traditional Courts Bill [B1D-2017] (TCB) in a plenary session, after a rushed process that ignored significant concerns raised by numerous stakeholders.

The passage of the TCB follows on the heels of the Traditional and Khoi-San Leadership Act 3 of 2019 (TKLA) that was signed into law by the President in November 2019. Although it has not commenced operation yet, this law will also have detrimental consequences for traditional communities. This Act removed almost all references to democracy, transparency and accountability that were contained in the traditional leadership legislation it will replace. In terms of section 24, traditional councils are able to enter into agreements and partnerships with third parties without the consent of directly affected individuals and communities. Consultation requirements in the Act are weak and do not include customary decision-making processes. The TCB could therefore provide traditional leaders and councils with an enforcement mechanism to further suppress democratic customary law processes in rural areas.

Together, these two pieces of legislation constitute an onslaught on rural democracy, the constitutional rights of rural citizens and resuscitate Bantustan geography.

The passage of these laws expands the ANC playbook which seeks to keep traditional leadership sweet while creating an enabling environment for land and mining deals in the former bantustans for the benefit of an elite few.

Traditional Leadership and Governance Framework Amendment Bill 8 of 2017 (“TLGFAB”)

This Bill was also signed into law on 20th November 2019 and makes changes to the existing Framework Act of 2003. For more than a decade government has failed to transform “tribal authorities” into traditional councils with 40% elected and one third women members, as the Framework Act required. Thus most traditional councils have largely been operating invalidly.

The TLGFAB proposes new opportunities for traditional councils to transform, but also threatens to disguise the consequences of their past unlawful operations.