1 00:00:15,010 --> 00:00:18,970 My name is Tim Burke, and I took on I'm chairing the session, 2 00:00:18,970 --> 00:00:27,920 so it's meant to be an hour and 30 minutes and twenty minutes presenter and thereafter we can have a conversation. 3 00:00:27,920 --> 00:00:33,640 I remember customer law being taught to me at Universal Transcribe Professor. 4 00:00:33,640 --> 00:00:41,080 I remember him telling us that the customer law is valid insofar as it is not inconsistent with the common law. 5 00:00:41,080 --> 00:00:47,500 It's just that I've been surprised that even under the constitutional dispensation, 6 00:00:47,500 --> 00:00:54,310 it's still valid insofar as it's not inconsistent with the Constitution. The more things change, the more they stay the same anyway. 7 00:00:54,310 --> 00:00:59,680 Maybe the Constitution is different to a common law, you know, and this is this. 8 00:00:59,680 --> 00:01:03,730 Isn't this a problem? Westbrook isn't up. Isn't this? 9 00:01:03,730 --> 00:01:12,580 Isn't this the problem that you know you've got customary law that must continue to exist, but it must insofar as it's not inconsistent with them. 10 00:01:12,580 --> 00:01:17,350 So I think somebody spoke about the starting premise is wrong. 11 00:01:17,350 --> 00:01:18,490 So in other words, 12 00:01:18,490 --> 00:01:26,740 it should be part and parcel of the fabric of the system as opposed to something that's parallel and is sometimes measured against the Constitution. 13 00:01:26,740 --> 00:01:32,050 So how do you really make sure that customary law is part and parcel of the Constitution, 14 00:01:32,050 --> 00:01:38,710 so it doesn't really run in parallel to the Constitution, as if the Constitution is just an extension of the common law? 15 00:01:38,710 --> 00:01:43,350 Anyway, that's one of the problems. But that's just me. The other problem, of course, is what? 16 00:01:43,350 --> 00:01:50,560 What on earth is this customary law doing in the contest this year, says South Africa's democratic constitution. 17 00:01:50,560 --> 00:01:55,120 So which means that you elect on the wall-to-wall basis? 18 00:01:55,120 --> 00:02:01,870 So now you've got these guys that are not elected. They tell us that they are leaders by virtue of being born. 19 00:02:01,870 --> 00:02:08,230 So what is the role, then of traditional leadership as a distinct business of political authority? 20 00:02:08,230 --> 00:02:09,880 So it's not actually. 21 00:02:09,880 --> 00:02:20,980 So that is, I think the two questions that we should probably try to explore in this session is about the session that I'm sure it's where are we now? 22 00:02:20,980 --> 00:02:24,640 So I think that's good enough because it is ambiguous enough. 23 00:02:24,640 --> 00:02:31,920 You can say anything and everything. No one is going to judge you. So it just says, where are we now? 24 00:02:31,920 --> 00:02:36,690 So anyway, I'm pleased to introduce our two speakers. 25 00:02:36,690 --> 00:02:45,340 The first one is Anita Claassens. She is the former director of the Land and Accountability Research Centre at the Blah Blah Blah. 26 00:02:45,340 --> 00:02:49,450 And I mean, I think it's great. 27 00:02:49,450 --> 00:02:56,000 I've worked with her for a long, long time, and she is probably one of the most thoughtful persons in this area, 28 00:02:56,000 --> 00:03:04,940 and she has taught me a lot about what it actually means to litigate customary law in a practical and progressive, forward looking way. 29 00:03:04,940 --> 00:03:11,620 I don't think we could have had a better speaker than a new car in the stadium. 30 00:03:11,620 --> 00:03:19,000 And then there's Peter Delius. I mean, again, he's a yeah, but you know, I am working with Peter right now. 31 00:03:19,000 --> 00:03:29,350 He has not produced the report yet, but I'm I'm expecting him to produce the report because he combines an understanding of history and 32 00:03:29,350 --> 00:03:34,480 understanding of land dispossession and an understanding of how those two combined with the law, 33 00:03:34,480 --> 00:03:45,100 which is absolutely brilliant. So both of these speakers excellent people that I am very delighted to be facilitating a session with. 34 00:03:45,100 --> 00:03:53,720 So who is going first to this and has just told me that I'm OK on the historical overview? 35 00:03:53,720 --> 00:03:59,320 Yeah. Now that's also about where we're where we then. That's that's also a nice to begin with. 36 00:03:59,320 --> 00:04:04,870 All right, Peter, you go first. This, I think, is going to do the now think of these things. 37 00:04:04,870 --> 00:04:10,360 I'd rather stand up if I can. I don't want a PowerPoint, three days of corporate. 38 00:04:10,360 --> 00:04:17,440 I hope to outlive them. I'm working on it, so I'm doing quite well. 39 00:04:17,440 --> 00:04:21,040 All right. So I'm going to take us a long way back in juice of some. 40 00:04:21,040 --> 00:04:28,870 I'm quite uncertain point in time, but some some time before colonial control was established across African societies. 41 00:04:28,870 --> 00:04:35,290 And the reason for that is that a good part of the debate about the role of Chieftain Chip and the role of customary law 42 00:04:35,290 --> 00:04:44,560 has is its as its reference point and notional history so that we need to appreciate the way in which chieftain chip, 43 00:04:44,560 --> 00:04:55,780 for example, is rooted in in an African past and therefore not in the same way compromised by colonialism as other institutions in the society, 44 00:04:55,780 --> 00:05:00,910 is that it is that a key function of custom? 45 00:05:00,910 --> 00:05:07,480 So what are these kinds of things? Are the arguments made for why we should have chief kingship as part of the society? 46 00:05:07,480 --> 00:05:12,220 But interestingly, when you actually look at what kind of chief kingship is being referred to and 47 00:05:12,220 --> 00:05:18,220 what has actually been incorporated into our initial post democratic framework, 48 00:05:18,220 --> 00:05:26,030 surprisingly, it's not historical. Chieftain should. In fact, it's not an identifiable institution from pre conquest control. 49 00:05:26,030 --> 00:05:34,210 It's very much the form of chieftain ship that was created and incorporated within colonising South Africa and ultimately, 50 00:05:34,210 --> 00:05:40,960 you know, developed most comprehensively under the apartheid system to the bone to bone to authorities act. 51 00:05:40,960 --> 00:05:47,410 So the irony is we have a debate about chief kinship, which is it's the repository of African history and culture, 52 00:05:47,410 --> 00:05:56,800 and the model that we're drawing on is in fact the model of chief kinship comprehensively reconstructed, redesigned by colonialism. 53 00:05:56,800 --> 00:06:04,660 So when I went to try and do in this brief talk is to talk about what can we say about Chieftain Ship? 54 00:06:04,660 --> 00:06:10,870 A schematic view of some of the key dynamics of chieftain ship prior to conquest. 55 00:06:10,870 --> 00:06:17,200 Now this is the kind of approach which is designed to drive a professional historian completely deranged. 56 00:06:17,200 --> 00:06:25,960 I mess around with periodisation time this quality, and I would almost certainly be drummed out of the profession, 57 00:06:25,960 --> 00:06:31,030 except for the fact that I'm already fading away, so there's not much point in throwing me out. 58 00:06:31,030 --> 00:06:40,660 So this is the case for my defence. The other thing about what what I have to say is it is utterly unoriginal. 59 00:06:40,660 --> 00:06:44,500 There's absolutely nothing which I have to say which is in any way novel. 60 00:06:44,500 --> 00:06:51,730 So those of you hoping to be enlightened? What is striking about this utterly unoriginal set of insights, 61 00:06:51,730 --> 00:06:58,600 which I'm about to present you is is it is so utterly remote from contemporary debates about chieftains. 62 00:06:58,600 --> 00:07:05,260 So it's quite an interesting sense of the sort of disjuncture between an academic literature, if you like, 63 00:07:05,260 --> 00:07:14,440 and contemporary debates about these sorts of things, because a great deal of what I'm going to be talking about can be found reasonably easily. 64 00:07:14,440 --> 00:07:22,990 And will some this no Griffey's in copies of published oral traditions going back aeons and nothing 65 00:07:22,990 --> 00:07:28,520 I'm going to say is not available or has not been available in the academic literature for some time, 66 00:07:28,520 --> 00:07:35,230 but it's simply missing from so much of the active discussion about the nature of this institution. 67 00:07:35,230 --> 00:07:42,160 It doesn't draw on these resources. So to start with what I'd like to do is to stop it. 68 00:07:42,160 --> 00:07:51,970 If you look in some detail at the composition of a particular chiefdom and I'm not, if you want to experiment, I'm using the term chiefdom. 69 00:07:51,970 --> 00:08:00,040 I sit about in some length in the paper. But if you look at this complexity as, for example, the crickets did in the 1930s, 70 00:08:00,040 --> 00:08:05,920 what you discover is that each African chieftain, while it has a ruling lineage, 71 00:08:05,920 --> 00:08:11,560 is composed of a multiplicity of different groups who've joined different times, 72 00:08:11,560 --> 00:08:17,270 who've come from different places, who very often have arrived speaking different languages. 73 00:08:17,270 --> 00:08:27,110 So that the sense of this homogeneous tribe, which has been so dominant in certainly official discourse in South Africa, 74 00:08:27,110 --> 00:08:33,110 completely belies the facts of an ongoing complexity and an ongoing process. 75 00:08:33,110 --> 00:08:39,470 What's clear about these chieftain chips is that people are moving to and fro between chieftain chips all the time. 76 00:08:39,470 --> 00:08:48,980 And part of the reason that they're moving to and fro between chieftain chips is to use a cliche in African history in South African history. 77 00:08:48,980 --> 00:08:54,740 The fact that Africa was for most of its history, a relatively underpopulated continent, 78 00:08:54,740 --> 00:08:59,990 and that as a result of that, the critical resource that people competed for was people. 79 00:08:59,990 --> 00:09:08,990 Rather than, say your power as an African leader was rooted on Europe in your ability to accumulate people around you, 80 00:09:08,990 --> 00:09:17,450 and you could do that in a whole variety of ways. But as easily as you could accumulate people, so could you lose them? 81 00:09:17,450 --> 00:09:23,330 So there's a double dynamic here. If you want to be powerful, you need to be in a position to accumulate. 82 00:09:23,330 --> 00:09:32,840 You have to be an effective ruler. And if you're not one of those things, you may find that your subjects simply fade away. 83 00:09:32,840 --> 00:09:37,730 So there's a there's a profound change operating in the system right from the beginning. 84 00:09:37,730 --> 00:09:41,870 If people don't like the way you rule, they will move away. 85 00:09:41,870 --> 00:09:48,860 Now, how easy or difficult it is to move away is a process subject to a whole set of other criteria. 86 00:09:48,860 --> 00:10:00,820 Can you possibly match your water processing? After 40 years of lecturing, I still get a much and. 87 00:10:00,820 --> 00:10:07,750 The other thing about thinking back into the past is that, in fact, Chiefs and Chick was far from comprehensive. 88 00:10:07,750 --> 00:10:13,870 We have this vision that, you know, South Africa is was populated wall-to-wall by chiefs, 89 00:10:13,870 --> 00:10:17,440 and historians have been poverty responsible for this because we've tended to focus 90 00:10:17,440 --> 00:10:23,230 on focus of power rather than the areas between the focus of power of chiefs. 91 00:10:23,230 --> 00:10:29,260 But in fact, chief the authority of Chiefs was by no means pervasive. 92 00:10:29,260 --> 00:10:30,910 And in the areas between, 93 00:10:30,910 --> 00:10:40,300 there was a great deal of scope for degrees of autonomy all the way through to independence and the and the domains of chiefs were far from clear cut. 94 00:10:40,300 --> 00:10:46,390 So you had a situation in which chiefly boundaries which were primarily determined by who, 95 00:10:46,390 --> 00:10:59,220 where your followers were rather than by physical demarcations, very often overlapped, intermingled, changed with purists and said. 96 00:10:59,220 --> 00:11:03,430 All right, so. Against that context. 97 00:11:03,430 --> 00:11:09,970 Part of what the dynamic is that we have is an ongoing process of what people have described as fission and fusion, 98 00:11:09,970 --> 00:11:16,420 which is I was talking about 40 years ago in anthropology, and I'm sure it's no longer a fashionable term. 99 00:11:16,420 --> 00:11:25,060 But one of the crucial factors in in this process of splitting and joining up was the issue of succession. 100 00:11:25,060 --> 00:11:32,050 Now, one of the critical flashpoints within societies was the of which was the issue of succession to high office. 101 00:11:32,050 --> 00:11:37,030 And this is a critical point because we have a comprehensive disjuncture teams, 102 00:11:37,030 --> 00:11:42,220 in my view, between what actually happened in the past and most people, 103 00:11:42,220 --> 00:11:49,510 certainly most people in the legislative and judicial domains idea of what happened in the past. 104 00:11:49,510 --> 00:11:54,940 Now your ability to succeed was not rule bound. 105 00:11:54,940 --> 00:12:03,610 There were a set of rules which indicated who the preferred candidate would be, which I won't bother to specify now that broadly uniform. 106 00:12:03,610 --> 00:12:12,490 In reality, those rules, as Shapira pointed out in the 40s, Komarov pointed out in the first ever issue of Jesus, 107 00:12:12,490 --> 00:12:16,490 which gives you a sense of how well known this is in 1974. 108 00:12:16,490 --> 00:12:26,080 I think that in reality, those those rules were infinitely manipulable, so the rules didn't determine the outcome. 109 00:12:26,080 --> 00:12:31,900 The rules were bent to fit in with the outcome that was determined in reality by which 110 00:12:31,900 --> 00:12:37,000 of the contenders had most support in the society that could be tested in various ways, 111 00:12:37,000 --> 00:12:41,950 but ultimately would be tested by military confrontation if necessary. 112 00:12:41,950 --> 00:12:45,970 And the winner would take all, and we would like to take a kidney, for example. 113 00:12:45,970 --> 00:12:52,490 We would then adjust the rules, including to that, often leaving a sort of shallow alternative. 114 00:12:52,490 --> 00:12:57,430 You know, people are saying that it wasn't done properly and. 115 00:12:57,430 --> 00:13:07,150 So if we look at history just to name a few cha cha a shocker to Larry CUNY, you could go on and on and on. 116 00:13:07,150 --> 00:13:12,520 None of these leaders who are famous now history and celebrated as great resistance figures. 117 00:13:12,520 --> 00:13:17,050 Well, actually, if you look at the rules, the legitimate heir. 118 00:13:17,050 --> 00:13:24,700 They succeeded because they were the most effective contenders for power and the rules were accordingly adjusted. 119 00:13:24,700 --> 00:13:31,510 The other thing about the system was that because you had this dynamic operating system in 120 00:13:31,510 --> 00:13:35,530 the crucial thing I was trying to point out here is it was in this pre-colonial system. 121 00:13:35,530 --> 00:13:41,470 A critical determinant of access and retention of power was your ability to 122 00:13:41,470 --> 00:13:47,110 maintain levels of support in the society that varied in different contexts. 123 00:13:47,110 --> 00:13:55,180 But nonetheless, it presented a profound check on your ability to abuse your subject to which you abuse your power. 124 00:13:55,180 --> 00:13:58,330 And it means that in most African chief terms, again, 125 00:13:58,330 --> 00:14:05,560 with varying degree processes of consultation with both into the system, they were limited by gender. 126 00:14:05,560 --> 00:14:15,160 Of course, they're limited by age seizure by no means a model of democratic consultation, but they were nonetheless forms of consultation. 127 00:14:15,160 --> 00:14:26,170 And it was an unwise rule indeed, who didn't seek to make sure that he was carrying a good body of his subjects with him, mainly him, I'm afraid. 128 00:14:26,170 --> 00:14:33,370 Before taking tough decisions now, this could, of course, go could go badly wrong because second, Cooney, for example, 129 00:14:33,370 --> 00:14:44,470 1878 79 confronting the British Army, which had just defeated the Zulu kingdom, called a mass meeting at the capital and said two subjects. 130 00:14:44,470 --> 00:14:57,340 I think fighting the British is not a good idea. They said, You are a fool, a moron and a coward, and we will fight whether you like it or not. 131 00:14:57,340 --> 00:15:05,620 And they he bowed before popular opinion, and that duty fought and got comprehensively defeated, mainly to their credit, 132 00:15:05,620 --> 00:15:10,910 I might say by the Swasey, rather than the British who has tended to happen in these situations. 133 00:15:10,910 --> 00:15:16,750 The colonial forces hung back and allow their surrogates to do the fighting for them. 134 00:15:16,750 --> 00:15:19,750 All right. So this is, as I expected, a very crude, 135 00:15:19,750 --> 00:15:27,460 but I think broadly effective model schematic model of a critical dynamic within chieftain shift in the pre-colonial. 136 00:15:27,460 --> 00:15:37,150 It was a competitive process. Your success depended insignificant measure on your ability to gain and retain popular support. 137 00:15:37,150 --> 00:15:42,520 Right, well, along comes colonialism, and after a long and protracted process, 138 00:15:42,520 --> 00:15:47,620 which I won't bore you with, which I have spelt out in various other contexts, 139 00:15:47,620 --> 00:15:57,730 you had a first rather patchy but ultimately pretty comprehensive incorporation of chieftain ship into the apartheid system. 140 00:15:57,730 --> 00:16:02,560 It pretty much was across the most of the reserve areas. 141 00:16:02,560 --> 00:16:06,850 And what enabled you to become a chief was two things. 142 00:16:06,850 --> 00:16:15,010 And one was that officials decided that the way to find out who the chief was was to go to genealogies. 143 00:16:15,010 --> 00:16:17,470 So there was none of this competitive rubbish. 144 00:16:17,470 --> 00:16:25,870 You got your genealogical table, which was housed in the department is that is no graffiti in the Department of Bantu and various other affairs. 145 00:16:25,870 --> 00:16:32,020 And you would work out, according to the genealogy, who the chief should be and say, that's the person. 146 00:16:32,020 --> 00:16:38,140 And then you would check whether this person had been giving you any trouble or bother in the Department of Native Affairs, 147 00:16:38,140 --> 00:16:40,870 which case there immediately fell off the list. 148 00:16:40,870 --> 00:16:47,380 But if they were the right person and have the right to general history of compliance, they became chiefs. 149 00:16:47,380 --> 00:16:53,650 And that's the basis of modern system of chieftain. Kinship in South Africa is overwhelmingly people. 150 00:16:53,650 --> 00:16:54,760 There are a few exceptions, 151 00:16:54,760 --> 00:17:03,430 but overwhelming these individuals who went through or whose forebears went through that process and were appointed as official chiefs. 152 00:17:03,430 --> 00:17:11,810 Now. In this period, there were, of course, succession disputes. 153 00:17:11,810 --> 00:17:19,490 But at the high points of apartheid power want parents in Africa, there is fairly limited scope. 154 00:17:19,490 --> 00:17:24,200 Certainly, the officials didn't look with any faith on people trying to mesh with their choices, 155 00:17:24,200 --> 00:17:32,210 and they had a pretty formidable range of powers that they could play against people who they felt were getting uppity. 156 00:17:32,210 --> 00:17:37,550 But there were some court cases. There were these court cases, issues were raised, 157 00:17:37,550 --> 00:17:46,700 disputes festered on in the society as the homeland system comes into existence and you have a delegation of power. 158 00:17:46,700 --> 00:17:57,230 That pattern of disputed succession, particularly since the disputed succession ending up in the courts, became more and more pervasive. 159 00:17:57,230 --> 00:18:02,000 So just to give you an example of the Chieftain ship, the Meriting Chieftain ship, 160 00:18:02,000 --> 00:18:08,780 the Petit Kingship Paramount CEO, what you call it, depending on which way you're looking at. 161 00:18:08,780 --> 00:18:13,730 When I first arrived there in 1976, doing my fieldwork with a Ph.D., 162 00:18:13,730 --> 00:18:21,890 one of my difficulties was that there was a bitter succession dispute underway between the then appointed chief engineer. 163 00:18:21,890 --> 00:18:28,190 All the detail of this gets been mind numbing, but fair to say from 1975 to today, 164 00:18:28,190 --> 00:18:34,250 not a year has gone by when there hasn't either been a case in court, 165 00:18:34,250 --> 00:18:41,380 a case about to go to court, a process of collection of funds to ensure that somebody could go to court. 166 00:18:41,380 --> 00:18:51,050 And in that time, I can't give you an exact estimate, but I would reckon millions of rands have been raised to fight these succession disputes. 167 00:18:51,050 --> 00:18:56,660 Most of that money has been raised from collections, from ordinary subjects. 168 00:18:56,660 --> 00:19:06,380 So it's the ordinary people who pay in a variety of forms, including levies, to support this and ending process of litigation. 169 00:19:06,380 --> 00:19:12,290 The beneficiaries, of course, of this process of litigation have been some of the people sitting in this room. 170 00:19:12,290 --> 00:19:20,630 It's lawyers who manage to make money out of it. And historians who make less money by writing about it anyway. 171 00:19:20,630 --> 00:19:25,400 So happy results, but not for the ordinary people. 172 00:19:25,400 --> 00:19:36,160 Now. Well, I want to say something else about this pattern of dispute. 173 00:19:36,160 --> 00:19:42,230 And one of which is that in the 40 years that I've been travelling around the South African countryside, 174 00:19:42,230 --> 00:19:49,690 I think it's an unusual village to enter into with Asian, not some sort of succession dispute underway. 175 00:19:49,690 --> 00:19:53,720 Yeah, the degree of intensity of that succession dispute varies. 176 00:19:53,720 --> 00:19:57,000 But it's a pervasive reality. 177 00:19:57,000 --> 00:20:06,500 And the other thing about these succession disputes is that they very often act as a profound brake on any other kind of development in the society. 178 00:20:06,500 --> 00:20:15,560 And then in the 1980s and since I in a not very effective way, I got drawn into various development initiatives and attempts. 179 00:20:15,560 --> 00:20:27,770 But. Over and over again, your ability to work in a community to get things done in a society was blocked by the succession disputes because 180 00:20:27,770 --> 00:20:35,210 inevitably you got seen as being on one side or the other and the other side will almost always try and block you. 181 00:20:35,210 --> 00:20:42,260 They didn't want to see resources being accumulated or delivered by somebody they thought was an inappropriate candidate. 182 00:20:42,260 --> 00:20:50,920 So. It's a it's a festering, ongoing, pervasive process across the rural areas of South Africa, 183 00:20:50,920 --> 00:20:55,750 which is not in the main, I think, recognised for the extent to which it taking place. 184 00:20:55,750 --> 00:21:01,510 Neither is it recognised for the extent to which is actually preventing other kinds of initiatives, 185 00:21:01,510 --> 00:21:07,150 more positive initiatives being played out and the extent to which it's actually removing hard 186 00:21:07,150 --> 00:21:16,900 earned cash and social grants from the pockets of ordinary people to sustain this ongoing battle. 187 00:21:16,900 --> 00:21:26,860 Or right, so come come 1994, and we'll end the debate turning up to 1994 and the transition to the new parliament. 188 00:21:26,860 --> 00:21:33,910 The new government. One of the really striking things about this period of debate is it seems to me that there was 189 00:21:33,910 --> 00:21:41,110 virtually no real debate about the nature of traditional leadership or chief kinship as an institution. 190 00:21:41,110 --> 00:21:48,190 And what what were the essentials one would take from this in the context of a democratising society? 191 00:21:48,190 --> 00:22:00,670 Was it appropriate to take a top down colonial model, or should one have been thinking about a more Bottom-Up, more competitive representative system? 192 00:22:00,670 --> 00:22:07,060 And the latter, I'm afraid, got left out? Now, since since then, we've had a variety. 193 00:22:07,060 --> 00:22:10,720 We've had the process of incorporation of chieftain ship, the status. 194 00:22:10,720 --> 00:22:16,120 It's been given the various bits of tinkering with it in terms of gender and elections, 195 00:22:16,120 --> 00:22:20,530 neither of which have in fact played out with any degree of reality anywhere. 196 00:22:20,530 --> 00:22:28,110 And they certainly haven't limited the essential the heredity, stroke, hereditary stroke appointed nature of the institution. 197 00:22:28,110 --> 00:22:37,530 There have been a series of commissions appointed to try and make to deal with the problems of the illegitimacy generated in the apartheid era. 198 00:22:37,530 --> 00:22:42,180 And I'm afraid for Professor Flapper, all of them. 199 00:22:42,180 --> 00:22:48,880 I'll bet his neck, despite the fact he flayed very early on. 200 00:22:48,880 --> 00:22:55,080 But I don't think anybody else wanted to carry that load. So they stuck it, stuck it to him. 201 00:22:55,080 --> 00:22:57,000 Now the thing about this, 202 00:22:57,000 --> 00:23:06,480 this process and and the legal processes which are being played out and I've had the misfortune to be asked to look at a number of background to a 203 00:23:06,480 --> 00:23:16,710 number of six of the largest succession disputes is that the model that's being used within the courts to adjudicate these and certainly by officials, 204 00:23:16,710 --> 00:23:23,640 is exactly the same model. It was used in the Department of Noguchi in the 1930s by Iceland. 205 00:23:23,640 --> 00:23:27,480 From vomiting to various other luminaries of the apartheid order. 206 00:23:27,480 --> 00:23:35,790 They've still got their genealogies. They still call. In fact, some of the old they just off some of those apartheid officials and said, you know, 207 00:23:35,790 --> 00:23:44,290 we'll have to court, give them oxygen and then they proceed to proceed to do much the same as they did then. 208 00:23:44,290 --> 00:23:48,000 And what is in fact happened is that you have these bizarre and I mean, 209 00:23:48,000 --> 00:23:56,040 the commission has overstepped its mandate in various contexts and especially 1927 act was supposed to be anyway. 210 00:23:56,040 --> 00:24:02,640 But people head off into the distance past that, trying to work out who the real successor should have been. 211 00:24:02,640 --> 00:24:06,810 Small groups of people leading quite large not to very much anybody have suddenly 212 00:24:06,810 --> 00:24:12,180 been amazed to discover that they've being installed as paramount chiefs and kings. 213 00:24:12,180 --> 00:24:22,380 So it's an absolutely bizarre process. We have this rule bound utterly, utterly and sent insensitive to the particular context. 214 00:24:22,380 --> 00:24:28,800 This rule bound model is being applied. And on top of it, of course, 215 00:24:28,800 --> 00:24:41,250 we've created a whole process of recognising chieftaincy and that has produced a surge across South Africa of people who feel that they were left out, 216 00:24:41,250 --> 00:24:49,410 who want to be recognised. And in many cases, I mean, I did research on a community which is very powerful, around about 1500. 217 00:24:49,410 --> 00:24:57,240 They read my book and are extremely excited because they wanted to return the whole of the townsfolk on the basis of that of 50 100. 218 00:24:57,240 --> 00:25:03,630 I was very keen to do the history, but I felt unable to represent them in this particular case. 219 00:25:03,630 --> 00:25:09,880 So anyway, that's that's what I have to say. See, it seems to me that the critical thing is that. 220 00:25:09,880 --> 00:25:20,590 Extraordinarily, given that one of the most perverse and obscene things about the apartheid system was a bifurcated society in 221 00:25:20,590 --> 00:25:28,060 which one section of the society had full rights and the other section of the society had pretty much no rights. 222 00:25:28,060 --> 00:25:33,850 So vastly diminished struts, post-1994, that bifurcation remains. 223 00:25:33,850 --> 00:25:39,260 We still have a double order between people who live in the domain of the old reserves and 224 00:25:39,260 --> 00:25:45,820 under chiefs and those who are considered to be full constituents of the new society. 225 00:25:45,820 --> 00:25:52,840 And while we continue to debate about what on earth we should do with that and the tendency at the moment is to age ever, 226 00:25:52,840 --> 00:25:59,030 ever faster and stronger towards the colonial model, the reality is that those groups, 227 00:25:59,030 --> 00:26:06,580 those groups in rural areas which have been most comprehensively excluded from democracy and from development 228 00:26:06,580 --> 00:26:13,840 for as long as one can think continue to be last in line for new opportunities and equal rights. 229 00:26:13,840 --> 00:26:27,080 Thank you very much for. Thank you, Professor Delius has presented for us. 230 00:26:27,080 --> 00:26:37,820 I would say a compelling critique of the rule bound model as being inconsistent with the political processes of the past and the political process, 231 00:26:37,820 --> 00:26:42,410 the real political processes that determine the outcome. 232 00:26:42,410 --> 00:26:48,920 They are, of course, a couple of questions that ought to be asked. The law itself requires us to apply rules, 233 00:26:48,920 --> 00:26:54,560 and so it is not surprising that we scramble around for rules and the rules are 234 00:26:54,560 --> 00:27:00,140 themselves rules designed as part and parcel of the justification of the outcome. 235 00:27:00,140 --> 00:27:04,790 And so the rules are distorted, but we are compelled by law to look for the rules. 236 00:27:04,790 --> 00:27:14,600 And so we have to think about what are the ways in which we can think about the rules in a way that itself doesn't simply extend the colonial project. 237 00:27:14,600 --> 00:27:23,840 But the sort of historian in me requires you to explain why you skipped the entire colonial process you moved from. 238 00:27:23,840 --> 00:27:32,270 The pre-colonial to the apartheid is the opposite in many respects is simply an extension of the colonial project, 239 00:27:32,270 --> 00:27:42,410 and that the the actual setting of the colonial project was decided during the colonial era. 240 00:27:42,410 --> 00:27:56,930 And so if we are to reconsider and to reimagine what the proper customary systems are should be, we have to look at that colonial process. 241 00:27:56,930 --> 00:28:07,760 It's probably the most educated the idea of convergence of an entire native people, you know, in the ways or in the image of the West. 242 00:28:07,760 --> 00:28:13,370 And then finally, of course, I'm also interested in the migration of these processes, 243 00:28:13,370 --> 00:28:18,380 from the political to the legal and particularly in the conspiracy of the judicial 244 00:28:18,380 --> 00:28:23,270 branch in converting political processes into legal processes and in many respects, 245 00:28:23,270 --> 00:28:28,670 justified and not so much leadership by conquest itself. 246 00:28:28,670 --> 00:28:39,650 We have many judgements that simply reflect this. And so those judgements remain stubborn because they defy the law and they defied the customs. 247 00:28:39,650 --> 00:28:43,460 So we have not really thought about them. I mean, one case is better. 248 00:28:43,460 --> 00:28:53,870 You know this as additional magistrate guidance, which is just astonishing in relation to its atheistic approach to custom. 249 00:28:53,870 --> 00:28:59,930 But in any event, it's, you know, it's lawful. It's justified, it's part and parcel of the Constitution. 250 00:28:59,930 --> 00:29:04,700 Anyway, I'm not here for that and into the case. 251 00:29:04,700 --> 00:29:10,070 It's so. All right. 252 00:29:10,070 --> 00:29:16,430 So South Africa is, if not the most unequal country in the world, 253 00:29:16,430 --> 00:29:25,730 then one of the most unequal countries in the world and the geography of poverty and marginalisation points to the structural factors that drive that. 254 00:29:25,730 --> 00:29:33,740 So the dark blue on on on this side are the areas of the issues of poverty and the likely poverty, 255 00:29:33,740 --> 00:29:44,630 and those root outlines are the areas of the former homelands. So you can see that poverty is deeply concentrated in the former homelands. 256 00:29:44,630 --> 00:29:47,510 This is just the next one. Yeah. 257 00:29:47,510 --> 00:29:54,260 I mean, you can have a look at some of the figures in terms of the scale of poverty compared to the rest of South Africa. 258 00:29:54,260 --> 00:29:58,550 Now, the homeland system has been a massive driver of inequality. 259 00:29:58,550 --> 00:30:07,040 It's closely linked to the migrant labour system, an influx control, and both of those were generated in large part by the mining industry. 260 00:30:07,040 --> 00:30:16,280 So what this paper does is it looks at how laws and rules re entrenched the fundamental divisions that were put in place during colonialism, 261 00:30:16,280 --> 00:30:21,830 conquest and the Land Act, and then during apartheid and wonderstone consolidation. 262 00:30:21,830 --> 00:30:26,870 And the key feature of this legislation is that no, like then, 263 00:30:26,870 --> 00:30:37,520 it denies that the the property rights derived from customary law constitute ownership for black people just as under colonialism. 264 00:30:37,520 --> 00:30:42,320 The land was treated as an owned and therefore terra nullius free for the taking, 265 00:30:42,320 --> 00:30:49,280 and it denies that black people are decision making, have decision making authority over their natural resources, 266 00:30:49,280 --> 00:30:52,400 so it denies their fundamental citizenship rights, 267 00:30:52,400 --> 00:30:59,570 and it treats them as subjects of traditional leaders who have decision making authority on their behalf. 268 00:30:59,570 --> 00:31:08,450 In practise, this has led to processes of dispossession and extortion of tribal levies that have been strongly resisted by rural people, 269 00:31:08,450 --> 00:31:19,810 which has led to violence, intimidation and assassination in a process that has got much worse since we first started tracking these bills after 94. 270 00:31:19,810 --> 00:31:32,410 So you're seeing much more disposition now in 2015, 16, 17, 18 and 19 then you were seeing in the 90s and you're seeing much more violence. 271 00:31:32,410 --> 00:31:40,210 And that is really why it's necessary to have coercive powers, such as the coercive powers that are in the traditional Coatesville. 272 00:31:40,210 --> 00:31:44,650 So when you talk about a package of bills that were introduced from 2002, 273 00:31:44,650 --> 00:31:50,980 and Jade says that this is my conspiracy theory, but let's get back to who draughted these bills. 274 00:31:50,980 --> 00:31:54,460 It was Seth and Ty, an advocate who subsequently been struck off the roll. 275 00:31:54,460 --> 00:32:04,750 Really? And and let's go back to who has really pushed them from this position of Minister of Justice, and that was just hot debate. 276 00:32:04,750 --> 00:32:07,810 So, you know, let's have a look at the dates. 277 00:32:07,810 --> 00:32:17,710 So in 2002, you have the Mineral and Petroleum Resources Development Act, which cut black people in to a guaranteed share of mining, 278 00:32:17,710 --> 00:32:23,290 which has always been the biggest source of capital and enrichment in South Africa. 279 00:32:23,290 --> 00:32:28,450 Then in 2003, you have the traditional Leadership and Governance Framework Act that necessitates 280 00:32:28,450 --> 00:32:32,590 the very tribal boundaries put in place during by the Buncha Authorities Act 281 00:32:32,590 --> 00:32:40,390 of 1951 massively resisted but enforced through putting down the Thunder and 282 00:32:40,390 --> 00:32:45,940 Sekhukhune rebellions and also by the processes of forced removals of the 1990s. 283 00:32:45,940 --> 00:32:52,810 So what you have is those very lineages that we recognise during apartheid now getting official status 284 00:32:52,810 --> 00:32:58,360 and those contested boundaries now becoming the boundaries of traditional authority going forward. 285 00:32:58,360 --> 00:33:04,420 But the laws didn't give much direct power to traditional leader, the Traditional Leadership and Governance Framework Act. 286 00:33:04,420 --> 00:33:10,270 All it did was give them status and territorial jurisdiction, which is very, very important. 287 00:33:10,270 --> 00:33:13,900 Then you had the Communal Land Rights Act of 2004, 288 00:33:13,900 --> 00:33:21,520 which would have given traditional leaders complete control and ownership of all the land in the former homelands. 289 00:33:21,520 --> 00:33:26,110 But it was struck down by the Constitutional Court on procedural grounds in 2010. 290 00:33:26,110 --> 00:33:34,750 And also, let's go back to 2003, when you had the South African Law Commission proposed the customary coastal, 291 00:33:34,750 --> 00:33:40,660 which was vehemently rejected by the traditional leader lobby because it allowed people to opt out 292 00:33:40,660 --> 00:33:47,560 of other courts to opt out of traditional courts and use other courts instead if they so choose. 293 00:33:47,560 --> 00:33:54,670 This was vehemently rejected, and that rejection led to the traditional courts fall of 2008. 294 00:33:54,670 --> 00:33:59,260 So despite the fact that the key bills that would have given power direct path 295 00:33:59,260 --> 00:34:04,720 to traditional leaders had been sorted the one by the Constitutional Court, 296 00:34:04,720 --> 00:34:11,800 the other by parliament in the first time ever voting against a bill so that 297 00:34:11,800 --> 00:34:15,460 the traditional courts will couldn't get the majority support of parliament. 298 00:34:15,460 --> 00:34:21,400 Despite this, government has in practise today treated traditional leaders as though they own the land. 299 00:34:21,400 --> 00:34:26,140 And it has treated them as the sole representatives of rural communities. 300 00:34:26,140 --> 00:34:33,850 This is most obvious in relation to mining deals, where the Department of Mineral Resources has advised the mining houses and the Chamber of Mines 301 00:34:33,850 --> 00:34:38,320 that the people it must deal with in relation to getting consent are traditional leaders, 302 00:34:38,320 --> 00:34:49,390 not the people whose land rights are directly affected. So yet the Constitution in Section 25 provides for tenure, security promises, tenure, 303 00:34:49,390 --> 00:34:54,910 security and it promises tenure security for people who are structurally vulnerable now, 304 00:34:54,910 --> 00:35:02,950 who is more structurally vulnerable than people living in the former homelands who bore the brunt of the 1913 Land Act and forced removals. 305 00:35:02,950 --> 00:35:09,250 Then you have the Interim Protection of Informal Land Rights Act, providing that no one was an informal right to land. 306 00:35:09,250 --> 00:35:18,640 An informal right to land is defined to include people living in the former homelands may be deprived of that right, except with their consent. 307 00:35:18,640 --> 00:35:23,260 And if they do not give their consent, then they must be expropriated. 308 00:35:23,260 --> 00:35:30,700 And that has been absolutely ignored if Hillary has been ignored by government, despite the fact that it renewed every year. 309 00:35:30,700 --> 00:35:39,580 So government's approach has enabled a series of abuses and resulted in a series of legally vulnerable mining and other investment deals. 310 00:35:39,580 --> 00:35:42,220 So let's take the case of Port St. Johns. 311 00:35:42,220 --> 00:35:54,070 Where can the massive demasi of Western Wonderland has entered into a deal with the Chinese holding company in terms of which he cedes 30 kilometres 312 00:35:54,070 --> 00:36:05,710 of coastline and 10000 hectares all around ports and johns to this company in exchange for a million rand a year lease a million and a year, 313 00:36:05,710 --> 00:36:13,360 which will be used to compensate the people whom the king agrees will be cleared of that portion of the coastline. 314 00:36:13,360 --> 00:36:17,350 And after all, the various things that the Chinese companies are going to develop, 315 00:36:17,350 --> 00:36:24,280 which included Disneyland mining, a fish processing plant upon their village. 316 00:36:24,280 --> 00:36:26,230 After all these things are in operation, 317 00:36:26,230 --> 00:36:34,390 the king will own 25 per cent of those things and then will no longer be payable that same kingdom, the and Demasi. 318 00:36:34,390 --> 00:36:45,070 Is now getting a police station, and it's going to be built directly in his royal palace, as are the other kings in in the Eastern Cape, 319 00:36:45,070 --> 00:36:51,080 they're rolling out a programme of supply, supplying traditional leaders with police stations. 320 00:36:51,080 --> 00:36:56,390 Then let's look at the recent judgement in the Eastern Cape court, 321 00:36:56,390 --> 00:37:08,030 where a woman Bossi was told by her hit head woman that she must pay 10000 rand for each of her two sides. 322 00:37:08,030 --> 00:37:14,900 One fact she had looked on since 1980 and the other side she had acquired in 1990 and rented out to somebody. 323 00:37:14,900 --> 00:37:22,370 She and her neighbours were told that they must pay £10000 each for these sites, and when they refused, the sites were barricaded. 324 00:37:22,370 --> 00:37:26,890 They were barricaded into their houses and some of the houses were demolished. 325 00:37:26,890 --> 00:37:32,530 If she had not been able to get to the High Court, there would be nothing she could have done. 326 00:37:32,530 --> 00:37:36,490 It's the traditional courts bill had been in place. There would be nothing she could have done, 327 00:37:36,490 --> 00:37:42,410 but she did get to the High Court and this order was granted to interdict the 328 00:37:42,410 --> 00:37:48,010 head woman and her thugs from continuing to barricade and demolish these houses. 329 00:37:48,010 --> 00:37:48,580 So, you know, 330 00:37:48,580 --> 00:37:56,410 the other examples which are well known that the Public Protector found that 600 million rand is missing from the accounts of the Berkeley family, 331 00:37:56,410 --> 00:38:08,770 people who mined the law who own the land, the mines, and that 25 billion rand has gone missing in relation to the land belonging to the budget villa. 332 00:38:08,770 --> 00:38:17,300 And most of this 25 billion has ended up offshore. Now, these patterns of abuse, some of which are big scale, 333 00:38:17,300 --> 00:38:22,580 some of which are intimate and the most intimate of all is this one of traditional leaders at 334 00:38:22,580 --> 00:38:27,920 all levels demanding payment for land and threatening people with eviction if they do not pay. 335 00:38:27,920 --> 00:38:31,970 These are only possible because government is deeply implicated. 336 00:38:31,970 --> 00:38:40,100 Premier Mahumapelo refused to depose the WaPo and Bogota chiefs, who are responsible for the 600 million and the 25 billion, 337 00:38:40,100 --> 00:38:45,770 despite the commission appointed in terms of the GFA saying that they must be deposed. 338 00:38:45,770 --> 00:38:51,470 The money that disappeared from the bottle by Mahali accounts disappeared from the Premier's office. 339 00:38:51,470 --> 00:38:54,020 What we have now is government, 340 00:38:54,020 --> 00:39:02,190 the Department of Rural Development routinely signing of surface leases for mining without enforcing the protections contained in the programme. 341 00:39:02,190 --> 00:39:08,930 All this, all they want is a tribal resolution and a sign of the rights and respect of the surface. 342 00:39:08,930 --> 00:39:14,360 So you have a confiscation of black people's lives as a systematic confiscation 343 00:39:14,360 --> 00:39:19,550 of black people's land rights without even court processes or expropriation. 344 00:39:19,550 --> 00:39:28,550 You have a Human Rights Commission report on mining, which found that Patrice Motsepe uses his social and labour plan money that's meant to go for 345 00:39:28,550 --> 00:39:35,780 schools and amenities to improve the quality of life to build traditional council offices. 346 00:39:35,780 --> 00:39:48,600 And you have our deputy president, David Mabuza, routinely distributing cars and cattle to traditional leaders before elections. 347 00:39:48,600 --> 00:39:51,810 This is all in the context of the discourse about the nature of land rights 348 00:39:51,810 --> 00:39:55,680 is completely different now from when it was from what it was in the 1990s. 349 00:39:55,680 --> 00:40:00,450 Then the discourse was that the people who live on the land are the owners of that land. 350 00:40:00,450 --> 00:40:09,450 They are the underlying owners. And what we need to do is change the legal system to recognise the underlying ownership rights. 351 00:40:09,450 --> 00:40:21,360 And what we have in these processes of dispossession is the impact of policies and of those that didn't even make it into law, 352 00:40:21,360 --> 00:40:25,440 propping up this knowledge of autocratic, chiefly power. 353 00:40:25,440 --> 00:40:35,970 But the problem is that the resultant deals are legally precarious. There is now in South Africa no law that authorises traditional leaders to 354 00:40:35,970 --> 00:40:40,590 be the sole representatives of communities of people living on communal act. 355 00:40:40,590 --> 00:40:44,520 There's certainly no law that authorises them to sign away people's land rights. 356 00:40:44,520 --> 00:40:48,000 That's what the traditional unquestioned leadership role is for. 357 00:40:48,000 --> 00:40:52,780 And that's the bill that just got rammed through Parliament just before the elections. 358 00:40:52,780 --> 00:40:59,440 They also legally precarious because the traditional Leadership and Governance Framework Act of 2003 said that the old the tribal authority 359 00:40:59,440 --> 00:41:09,240 of old could be converted to the traditional councils of the future only if they included 40 per cent elected members and one third women. 360 00:41:09,240 --> 00:41:13,590 They have refused to include any women in the paper, and they've had no elections. 361 00:41:13,590 --> 00:41:18,360 Government has admitted that all of the traditional councils and the proponent problems 362 00:41:18,360 --> 00:41:24,480 are invalid and that most in North West and many of the other provinces are too. 363 00:41:24,480 --> 00:41:29,880 And as I've said, they're also invalid because the rights of people have in terms of section 25, 364 00:41:29,880 --> 00:41:39,000 six of the Constitution and the Pilbara have not been upheld. Plus, there are other laws that are routinely flouted environmental protections, 365 00:41:39,000 --> 00:41:45,270 water laws, and it's because of that legal vulnerability that we have these new rules. 366 00:41:45,270 --> 00:41:50,310 The Traditional Leadership and Governance Framework Act amendment bill takes away the consequence 367 00:41:50,310 --> 00:41:56,410 of legal invalidity for traditional councils have refused to include women or elected members. 368 00:41:56,410 --> 00:42:06,550 The traditional and Khoisan leadership bill includes 24 empowers chiefs to sign deals with external parties, so it empowers them to sign nine deals. 369 00:42:06,550 --> 00:42:13,990 This is the first time in South African history, including under colonialism, that traditional leaders have had this kind of power. 370 00:42:13,990 --> 00:42:21,820 Initially, it said they had that power with no consultation whatsoever after protests that included some kind of some consultation. 371 00:42:21,820 --> 00:42:29,290 And then after the Malawi Constitutional Court judgement of October 2018, that included a little bit more about consultation. 372 00:42:29,290 --> 00:42:39,390 But it's not with the people directly affected, it's with the overarching tribes that make those directly affected structural minorities in all cases. 373 00:42:39,390 --> 00:42:47,520 And then we have the traditional courts bill to provide the coercive power that is necessary when you introduce laws that systematically 374 00:42:47,520 --> 00:42:57,720 dispossess people of their land rights and strip them of their citizenship right to make decisions about their own resources. 375 00:42:57,720 --> 00:43:02,730 Copeland Holt argues that violence and authoritarianism is already necessary to contain the 376 00:43:02,730 --> 00:43:07,590 levels of structural inequality and the marginalisation of the poor that exists in South Africa, 377 00:43:07,590 --> 00:43:14,370 and he argues that that violence and intimidation is going to become increasingly necessary. 378 00:43:14,370 --> 00:43:19,650 I argue that this legislative history shows that government understood that in 2003, 379 00:43:19,650 --> 00:43:29,660 already when the the early customary courts bill was rejected in favour of the draconian traditional courts bill. 380 00:43:29,660 --> 00:43:35,840 The levels of looting that the bills have elicited is, in my view, a sign of short termism. 381 00:43:35,840 --> 00:43:46,210 It's all about the ability to loot downwards in relation to the poor through levies and to take a cut of any deal that's on the table. 382 00:43:46,210 --> 00:43:57,850 Even if it's peanuts, like the postage on steel where you're selling, you know, extraordinarily important environmental land and many, many, 383 00:43:57,850 --> 00:44:04,690 many people's livelihoods for a million around a year or even when you know that all of it's going to end up offshore, 384 00:44:04,690 --> 00:44:09,010 as has happened in the Bahamas, I have ever faced a situation. 385 00:44:09,010 --> 00:44:16,300 So what the bill's what's most depressing about the bills is that they indicate that there is no alternative vision for mining or development. 386 00:44:16,300 --> 00:44:24,280 There's no vision for how to mine in a way where people can be properly compensated and rural livelihoods can be retained. 387 00:44:24,280 --> 00:44:31,900 What these bills are about are about balancing and protecting existing vested interests, 388 00:44:31,900 --> 00:44:36,880 and many of those existing vested interests are legally vulnerable. 389 00:44:36,880 --> 00:44:43,480 And so a lot of the talk is about how the Premier can retrospectively say that specific 390 00:44:43,480 --> 00:44:51,140 deals that were done before it came into operation are OK and comply with the provisions. 391 00:44:51,140 --> 00:44:53,330 You know, endemic corruption is one thing, 392 00:44:53,330 --> 00:45:01,790 but it is another to use law to attempt to legalise discrimination and subvert the constitutional rights of the most vulnerable South Africans. 393 00:45:01,790 --> 00:45:08,270 The evil of the law of these laws is not only that they condone existing corruption, but that they in the SAPS. 394 00:45:08,270 --> 00:45:11,330 They went in this more and at all levels of society. 395 00:45:11,330 --> 00:45:21,470 What we've seen over the last five years is a shift away from focussing only on kings and senior chiefs to now including Hedland and all lower levels. 396 00:45:21,470 --> 00:45:27,590 And what we've seen with that is a great increase in extorting money for land. 397 00:45:27,590 --> 00:45:32,120 And so we see this process entry into the most vulnerable aspects of people's lives. 398 00:45:32,120 --> 00:45:39,080 A basic social structure. And what it seems to me is happening is that the government has turned its back on 399 00:45:39,080 --> 00:45:45,620 any kind of vision of stopping this process of dispossession in favour of widening 400 00:45:45,620 --> 00:45:50,480 the people who profit from it and therefore having a wider grouping of people 401 00:45:50,480 --> 00:46:01,216 who are invested in retaining this process of basically helping South Africa.