Portfolio Committee on Rural Development and Land Reform 21 July 2010 Nomfundo Gobodo Shirhami Shirinda LEGAL RESOURCES CENTRE SUBMISSIONS 1

Background Background of the Legal Resource Centre Previous submissions to Depart &Committee: Communal Land Rights Bill in 2003 Traditional Leadership & Governance Framework Bill 2003 Traditional Court’s Bill 2008 The BAA is related to all of the above as it affects the governance of Rural Communities 2

Black Authorities Act Repeal Bill We endorse the objective repeal of BAA & support any debates about any new laws dealing with communal land Rights Act and the Traditional Courts Bill Such repeals must occur in a particular historic context and be aligned with spirit of the Constitution. It is in this light that we make our observations below: 3

Development of customary law LRC is not opposed to the institution of traditional leadership, or to customary law. The concern is about what sometimes is a distortion of customary law, and unilateral chiefly power that undermines indigenous accountability mechanisms and equal citizenship of all South Africans 4

The Constitution The Constitution is the supreme law of the land. 211 Recognition: The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution. A traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendments to, or repeal of, that legislation or those customs. The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. 5

212 Role of traditional leaders National legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities. To deal with matters relating to traditional leadership, the role of traditional leaders, customary law and the customs of communities observing a system of customary law- 6

Cont….. national or provincial legislation may provide for the establishment of houses of traditional leaders; national legislation may establish a council of traditional leaders. In a constitutional Democracy it so no longer possible for the legislature to -at will- “establish” authorities and define their functions 7

Constitutional Court In the Certification-case, the Constitutional Court held that the ‘role’ of traditional leaders does not include the governmental role they played in terms of the BAA – and therefore national legislation providing for the role of traditional leaders may not include governmental powers and functions to be awarded to traditional leader. 8

Nelson Mandela wrote in 1959: “Moreover, in South Africa, we all know full well that no Chief can retain his post unless he submits to Verwoerd, and many Chiefs who sought the interest of their people before position and self - advancement have, like President Luthuli, been deposed....Thus, the proposed Bantu Authorities will not be, in any sense of the term, representative or democratic”. 9

ANC Polokwane resolution The resolutions of the African National Congress 52ND National Conference held in Polokwane in December 2007 are relevant to the lawmaking initiatives of the governing party in Parliament. Various resolutions under the chapter heading Rural Development, Land Reform and Agrarian Change and resolution 84 under Social Transformation, read as follows: 10

Resolution cont… “ Strengthen the voice of rural South Africans, empower poor communities and build the momentum behind agrarian change and land reform by supporting the self-organisation of rural people; working together with progressive movements and organisations and building forums and structures through which rural people can articulate their demands and interests... “Build stronger state capacity and devote greater resources to the challenges of rural development, land reform and agrarian change... 11

Resolution cont… “Ensure that the allocation of customary land be democratised in a manner which empowers rural women and supports the building of democratic community structures at village level, capable of driving and coordinating local development processes. The ANC will further engage with traditional leaders, including Contralesa, to ensure that disposal of land without proper consultation with communities and local governments is discontinued. 12

Resolution cont… “84 The allocation of customary land be democratised and should not only be the preserve of the traditional leaders”. Other resolutions include a) the curbing and monitoring of policing functions of the “traditional authorities” and their alignment with SAPS functions; b) “there must be an alignment of traditional courts with our new constitutional dispensation and particular attention must be paid to the incorporation and development of our indigenous law”; c) “traditional leaders should be mobilised to play a more significant role in promoting peace and stability in rural areas”. 13

Black Authorities Act Repeal Bill The Black Authorities Act of 1951 represented the Apartheid government's abuse of parliamentary sovereignty in order to enable state organs and their delegates to yield power arbitrarily and without question. 14

Repeal Cont….. The repeal of Black Authorities Act signals one of the significant final steps in removing traces of parliamentary sovereignty and ‘indirect rule’ from our democracy. However, if the repeal is to be meaningful, it is crucial that any legislation that fills the gap be true to the principles of our Constitutional Democracy. 15

The nature of the Bantu Authorities Act of 1951 The Bantu Authorities Act was enacted to ‘provide for the establishment of certain Black authorities and to define their functions’. History tells us that this abuse was applied as a means of subordinating the majority black population of South Africa. 16

BAA..…..Context cont… It represented the arbitrary subordination of the rural black population: arbitrary, as in the words of Albert Luthuli, it was 'neither democratic nor African'. 17

New Constitutional Context Based on three principles: civil and political rights to be accorded to all regardless of race; the doctrine of parliamentary sovereignty to be replaced by that of constitutional supremacy ;and the strong centralised government replaced by a decentralised system of governance. 18

Constitutional context cont… The repeal of the Black Authorities Act signals a final step in the removal of parliamentary sovereignty and indirect rule from our democracy. For the repeal to be more than symbolic, we need to begin to identify what custom is on the -ground for traditional leadership – ‘living customary law’. 19

Living customary law In Shilubana v Others v Nwamitwa 2009 (2) SA 66 (CC) at para 45: 'As has been repeatedly emphasised by this and other courts, customary law is by its nature a constantly evolving system. Under pre-democratic colonial and apartheid regimes, this development was frustrated and customary law stagnated. This stagnation should not continue, and the free development by communities of their own laws to meet the needs of a rapidly changing society must be respected and facilitated'. 20

Constitutional Democracy In a constitutional democracy, power and authority can only be lawful if it is derived from the Constitution. The Constitution provides that traditional leadership must be sourced from custom and tradition. 21

Accountability Accountable governance is a central feature of our constitutional democracy. Elections, recall, reporting and motions of no confidence are tools to ensure accountability. Under customary law countervailing decision making bodies and secession provide checks against abuse of power. These tools are absent from the TLGFA and the provincial laws. 22

Links with new Legislation There is an obvious link between some new pieces of legislation and the Black Authorities Act. Section 28 of the TLGFA allows for tribal Authorities established under the Black Authorities Act to continue. We submit that the BAA did not represent living customary law and unless that happens, any new legislation will be unconstitutional. 23

TLGFA cont… Further, sections 5 and 20 of the TLGFA fail to define the role of traditional leaders which should not include any governmental powers – we refer back to the Constitution. 24

Traditional Courts Bill The Traditional Courts Bill presented to parliament in 2008 also has an obvious link to the Black Authorities Act: Defines a traditional leader as the presiding officer Representation of parties a by spouse; No right to legal representation; No right to opt out. 25

26 We submit that in order to do justice to the issues that affect the rural communities under traditional leadership and customary law, relevant portfolio committees must engage meaningfully with these communities at village level so as to get a better understanding of customary law otherwise the legacy of the Black Authorities Act survives.