My name is Tim Burke, and I took on I'm chairing the session,
so it's meant to be an hour and 30 minutes and twenty minutes presenter and thereafter we can have a conversation.
I remember customer law being taught to me at Universal Transcribe Professor.
I remember him telling us that the customer law is valid insofar as it is not inconsistent with the common law.
It's just that I've been surprised that even under the constitutional dispensation,
it's still valid insofar as it's not inconsistent with the Constitution. The more things change, the more they stay the same anyway.
Maybe the Constitution is different to a common law, you know, and this is this.
Isn't this a problem? Westbrook isn't up. Isn't this?
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.
So I think somebody spoke about the starting premise is wrong.
So in other words,
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.
So how do you really make sure that customary law is part and parcel of the Constitution,
so it doesn't really run in parallel to the Constitution, as if the Constitution is just an extension of the common law?
Anyway, that's one of the problems. But that's just me. The other problem, of course, is what?
What on earth is this customary law doing in the contest this year, says South Africa's democratic constitution.
So which means that you elect on the wall-to-wall basis?
So now you've got these guys that are not elected. They tell us that they are leaders by virtue of being born.
So what is the role, then of traditional leadership as a distinct business of political authority?
So it's not actually.
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?
So I think that's good enough because it is ambiguous enough.
You can say anything and everything. No one is going to judge you. So it just says, where are we now?
So anyway, I'm pleased to introduce our two speakers.
The first one is Anita Claassens. She is the former director of the Land and Accountability Research Centre at the Blah Blah Blah.
And I mean, I think it's great.
I've worked with her for a long, long time, and she is probably one of the most thoughtful persons in this area,
and she has taught me a lot about what it actually means to litigate customary law in a practical and progressive, forward looking way.
I don't think we could have had a better speaker than a new car in the stadium.
And then there's Peter Delius. I mean, again, he's a yeah, but you know, I am working with Peter right now.
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
understanding of land dispossession and an understanding of how those two combined with the law,
which is absolutely brilliant. So both of these speakers excellent people that I am very delighted to be facilitating a session with.
So who is going first to this and has just told me that I'm OK on the historical overview?
Yeah. Now that's also about where we're where we then. That's that's also a nice to begin with.
All right, Peter, you go first. This, I think, is going to do the now think of these things.
I'd rather stand up if I can. I don't want a PowerPoint, three days of corporate.
I hope to outlive them. I'm working on it, so I'm doing quite well.
All right. So I'm going to take us a long way back in juice of some.
I'm quite uncertain point in time, but some some time before colonial control was established across African societies.
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
has is its as its reference point and notional history so that we need to appreciate the way in which chieftain chip,
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,
is that it is that a key function of custom?
So what are these kinds of things? Are the arguments made for why we should have chief kingship as part of the society?
But interestingly, when you actually look at what kind of chief kingship is being referred to and
what has actually been incorporated into our initial post democratic framework,
surprisingly, it's not historical. Chieftain should. In fact, it's not an identifiable institution from pre conquest control.
It's very much the form of chieftain ship that was created and incorporated within colonising South Africa and ultimately,
you know, developed most comprehensively under the apartheid system to the bone to bone to authorities act.
So the irony is we have a debate about chief kinship, which is it's the repository of African history and culture,
and the model that we're drawing on is in fact the model of chief kinship comprehensively reconstructed, redesigned by colonialism.
So when I went to try and do in this brief talk is to talk about what can we say about Chieftain Ship?
A schematic view of some of the key dynamics of chieftain ship prior to conquest.
Now this is the kind of approach which is designed to drive a professional historian completely deranged.
I mess around with periodisation time this quality, and I would almost certainly be drummed out of the profession,
except for the fact that I'm already fading away, so there's not much point in throwing me out.
So this is the case for my defence. The other thing about what what I have to say is it is utterly unoriginal.
There's absolutely nothing which I have to say which is in any way novel.
So those of you hoping to be enlightened? What is striking about this utterly unoriginal set of insights,
which I'm about to present you is is it is so utterly remote from contemporary debates about chieftains.
So it's quite an interesting sense of the sort of disjuncture between an academic literature, if you like,
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.
And will some this no Griffey's in copies of published oral traditions going back aeons and nothing
I'm going to say is not available or has not been available in the academic literature for some time,
but it's simply missing from so much of the active discussion about the nature of this institution.
It doesn't draw on these resources. So to start with what I'd like to do is to stop it.
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.
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,
what you discover is that each African chieftain, while it has a ruling lineage,
is composed of a multiplicity of different groups who've joined different times,
who've come from different places, who very often have arrived speaking different languages.
So that the sense of this homogeneous tribe, which has been so dominant in certainly official discourse in South Africa,
completely belies the facts of an ongoing complexity and an ongoing process.
What's clear about these chieftain chips is that people are moving to and fro between chieftain chips all the time.
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.
The fact that Africa was for most of its history, a relatively underpopulated continent,
and that as a result of that, the critical resource that people competed for was people.
Rather than, say your power as an African leader was rooted on Europe in your ability to accumulate people around you,
and you could do that in a whole variety of ways. But as easily as you could accumulate people, so could you lose them?
So there's a double dynamic here. If you want to be powerful, you need to be in a position to accumulate.
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.
So there's a there's a profound change operating in the system right from the beginning.
If people don't like the way you rule, they will move away.
Now, how easy or difficult it is to move away is a process subject to a whole set of other criteria.
Can you possibly match your water processing? After 40 years of lecturing, I still get a much and.
The other thing about thinking back into the past is that, in fact, Chiefs and Chick was far from comprehensive.
We have this vision that, you know, South Africa is was populated wall-to-wall by chiefs,
and historians have been poverty responsible for this because we've tended to focus
on focus of power rather than the areas between the focus of power of chiefs.
But in fact, chief the authority of Chiefs was by no means pervasive.
And in the areas between,
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.
So you had a situation in which chiefly boundaries which were primarily determined by who,
where your followers were rather than by physical demarcations, very often overlapped, intermingled, changed with purists and said.
All right, so. Against that context.
Part of what the dynamic is that we have is an ongoing process of what people have described as fission and fusion,
which is I was talking about 40 years ago in anthropology, and I'm sure it's no longer a fashionable term.
But one of the crucial factors in in this process of splitting and joining up was the issue of succession.
Now, one of the critical flashpoints within societies was the of which was the issue of succession to high office.
And this is a critical point because we have a comprehensive disjuncture teams,
in my view, between what actually happened in the past and most people,
certainly most people in the legislative and judicial domains idea of what happened in the past.
Now your ability to succeed was not rule bound.
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.
In reality, those rules, as Shapira pointed out in the 40s, Komarov pointed out in the first ever issue of Jesus,
which gives you a sense of how well known this is in 1974.
I think that in reality, those those rules were infinitely manipulable, so the rules didn't determine the outcome.
The rules were bent to fit in with the outcome that was determined in reality by which
of the contenders had most support in the society that could be tested in various ways,
but ultimately would be tested by military confrontation if necessary.
And the winner would take all, and we would like to take a kidney, for example.
We would then adjust the rules, including to that, often leaving a sort of shallow alternative.
You know, people are saying that it wasn't done properly and.
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.
None of these leaders who are famous now history and celebrated as great resistance figures.
Well, actually, if you look at the rules, the legitimate heir.
They succeeded because they were the most effective contenders for power and the rules were accordingly adjusted.
The other thing about the system was that because you had this dynamic operating system in
the crucial thing I was trying to point out here is it was in this pre-colonial system.
A critical determinant of access and retention of power was your ability to
maintain levels of support in the society that varied in different contexts.
But nonetheless, it presented a profound check on your ability to abuse your subject to which you abuse your power.
And it means that in most African chief terms, again,
with varying degree processes of consultation with both into the system, they were limited by gender.
Of course, they're limited by age seizure by no means a model of democratic consultation, but they were nonetheless forms of consultation.
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.
Before taking tough decisions now, this could, of course, go could go badly wrong because second, Cooney, for example,
1878 79 confronting the British Army, which had just defeated the Zulu kingdom, called a mass meeting at the capital and said two subjects.
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.
And they he bowed before popular opinion, and that duty fought and got comprehensively defeated, mainly to their credit,
I might say by the Swasey, rather than the British who has tended to happen in these situations.
The colonial forces hung back and allow their surrogates to do the fighting for them.
All right. So this is, as I expected, a very crude,
but I think broadly effective model schematic model of a critical dynamic within chieftain shift in the pre-colonial.
It was a competitive process. Your success depended insignificant measure on your ability to gain and retain popular support.
Right, well, along comes colonialism, and after a long and protracted process,
which I won't bore you with, which I have spelt out in various other contexts,
you had a first rather patchy but ultimately pretty comprehensive incorporation of chieftain ship into the apartheid system.
It pretty much was across the most of the reserve areas.
And what enabled you to become a chief was two things.
And one was that officials decided that the way to find out who the chief was was to go to genealogies.
So there was none of this competitive rubbish.
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.
And you would work out, according to the genealogy, who the chief should be and say, that's the person.
And then you would check whether this person had been giving you any trouble or bother in the Department of Native Affairs,
which case there immediately fell off the list.
But if they were the right person and have the right to general history of compliance, they became chiefs.
And that's the basis of modern system of chieftain. Kinship in South Africa is overwhelmingly people.
There are a few exceptions,
but overwhelming these individuals who went through or whose forebears went through that process and were appointed as official chiefs.
Now. In this period, there were, of course, succession disputes.
But at the high points of apartheid power want parents in Africa, there is fairly limited scope.
Certainly, the officials didn't look with any faith on people trying to mesh with their choices,
and they had a pretty formidable range of powers that they could play against people who they felt were getting uppity.
But there were some court cases. There were these court cases, issues were raised,
disputes festered on in the society as the homeland system comes into existence and you have a delegation of power.
That pattern of disputed succession, particularly since the disputed succession ending up in the courts, became more and more pervasive.
So just to give you an example of the Chieftain ship, the Meriting Chieftain ship,
the Petit Kingship Paramount CEO, what you call it, depending on which way you're looking at.
When I first arrived there in 1976, doing my fieldwork with a Ph.D.,
one of my difficulties was that there was a bitter succession dispute underway between the then appointed chief engineer.
All the detail of this gets been mind numbing, but fair to say from 1975 to today,
not a year has gone by when there hasn't either been a case in court,
a case about to go to court, a process of collection of funds to ensure that somebody could go to court.
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.
Most of that money has been raised from collections, from ordinary subjects.
So it's the ordinary people who pay in a variety of forms, including levies, to support this and ending process of litigation.
The beneficiaries, of course, of this process of litigation have been some of the people sitting in this room.
It's lawyers who manage to make money out of it. And historians who make less money by writing about it anyway.
So happy results, but not for the ordinary people.
Now. Well, I want to say something else about this pattern of dispute.
And one of which is that in the 40 years that I've been travelling around the South African countryside,
I think it's an unusual village to enter into with Asian, not some sort of succession dispute underway.
Yeah, the degree of intensity of that succession dispute varies.
But it's a pervasive reality.
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.
And then in the 1980s and since I in a not very effective way, I got drawn into various development initiatives and attempts.
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
inevitably you got seen as being on one side or the other and the other side will almost always try and block you.
They didn't want to see resources being accumulated or delivered by somebody they thought was an inappropriate candidate.
So. It's a it's a festering, ongoing, pervasive process across the rural areas of South Africa,
which is not in the main, I think, recognised for the extent to which it taking place.
Neither is it recognised for the extent to which is actually preventing other kinds of initiatives,
more positive initiatives being played out and the extent to which it's actually removing hard
earned cash and social grants from the pockets of ordinary people to sustain this ongoing battle.
Or right, so come come 1994, and we'll end the debate turning up to 1994 and the transition to the new parliament.
The new government. One of the really striking things about this period of debate is it seems to me that there was
virtually no real debate about the nature of traditional leadership or chief kinship as an institution.
And what what were the essentials one would take from this in the context of a democratising society?
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?
And the latter, I'm afraid, got left out? Now, since since then, we've had a variety.
We've had the process of incorporation of chieftain ship, the status.
It's been given the various bits of tinkering with it in terms of gender and elections,
neither of which have in fact played out with any degree of reality anywhere.
And they certainly haven't limited the essential the heredity, stroke, hereditary stroke appointed nature of the institution.
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.
And I'm afraid for Professor Flapper, all of them.
I'll bet his neck, despite the fact he flayed very early on.
But I don't think anybody else wanted to carry that load. So they stuck it, stuck it to him.
Now the thing about this,
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
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,
is exactly the same model. It was used in the Department of Noguchi in the 1930s by Iceland.
From vomiting to various other luminaries of the apartheid order.
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,
we'll have to court, give them oxygen and then they proceed to proceed to do much the same as they did then.
And what is in fact happened is that you have these bizarre and I mean,
the commission has overstepped its mandate in various contexts and especially 1927 act was supposed to be anyway.
But people head off into the distance past that, trying to work out who the real successor should have been.
Small groups of people leading quite large not to very much anybody have suddenly
been amazed to discover that they've being installed as paramount chiefs and kings.
So it's an absolutely bizarre process. We have this rule bound utterly, utterly and sent insensitive to the particular context.
This rule bound model is being applied. And on top of it, of course,
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,
who want to be recognised. And in many cases, I mean, I did research on a community which is very powerful, around about 1500.
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.
I was very keen to do the history, but I felt unable to represent them in this particular case.
So anyway, that's that's what I have to say. See, it seems to me that the critical thing is that.
Extraordinarily, given that one of the most perverse and obscene things about the apartheid system was a bifurcated society in
which one section of the society had full rights and the other section of the society had pretty much no rights.
So vastly diminished struts, post-1994, that bifurcation remains.
We still have a double order between people who live in the domain of the old reserves and
under chiefs and those who are considered to be full constituents of the new society.
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,
ever faster and stronger towards the colonial model, the reality is that those groups,
those groups in rural areas which have been most comprehensively excluded from democracy and from development
for as long as one can think continue to be last in line for new opportunities and equal rights.
Thank you very much for. Thank you, Professor Delius has presented for us.
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,
the real political processes that determine the outcome.
They are, of course, a couple of questions that ought to be asked. The law itself requires us to apply rules,
and so it is not surprising that we scramble around for rules and the rules are
themselves rules designed as part and parcel of the justification of the outcome.
And so the rules are distorted, but we are compelled by law to look for the rules.
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.
But the sort of historian in me requires you to explain why you skipped the entire colonial process you moved from.
The pre-colonial to the apartheid is the opposite in many respects is simply an extension of the colonial project,
and that the the actual setting of the colonial project was decided during the colonial era.
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.
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.
And then finally, of course, I'm also interested in the migration of these processes,
from the political to the legal and particularly in the conspiracy of the judicial
branch in converting political processes into legal processes and in many respects,
justified and not so much leadership by conquest itself.
We have many judgements that simply reflect this. And so those judgements remain stubborn because they defy the law and they defied the customs.
So we have not really thought about them. I mean, one case is better.
You know this as additional magistrate guidance, which is just astonishing in relation to its atheistic approach to custom.
But in any event, it's, you know, it's lawful. It's justified, it's part and parcel of the Constitution.
Anyway, I'm not here for that and into the case.
It's so. All right.
So South Africa is, if not the most unequal country in the world,
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.
So the dark blue on on on this side are the areas of the issues of poverty and the likely poverty,
and those root outlines are the areas of the former homelands. So you can see that poverty is deeply concentrated in the former homelands.
This is just the next one. Yeah.
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.
Now, the homeland system has been a massive driver of inequality.
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.
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,
conquest and the Land Act, and then during apartheid and wonderstone consolidation.
And the key feature of this legislation is that no, like then,
it denies that the the property rights derived from customary law constitute ownership for black people just as under colonialism.
The land was treated as an owned and therefore terra nullius free for the taking,
and it denies that black people are decision making, have decision making authority over their natural resources,
so it denies their fundamental citizenship rights,
and it treats them as subjects of traditional leaders who have decision making authority on their behalf.
In practise, this has led to processes of dispossession and extortion of tribal levies that have been strongly resisted by rural people,
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.
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.
And that is really why it's necessary to have coercive powers, such as the coercive powers that are in the traditional Coatesville.
So when you talk about a package of bills that were introduced from 2002,
and Jade says that this is my conspiracy theory, but let's get back to who draughted these bills.
It was Seth and Ty, an advocate who subsequently been struck off the roll.
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.
So, you know, let's have a look at the dates.
So in 2002, you have the Mineral and Petroleum Resources Development Act, which cut black people in to a guaranteed share of mining,
which has always been the biggest source of capital and enrichment in South Africa.
Then in 2003, you have the traditional Leadership and Governance Framework Act that necessitates
the very tribal boundaries put in place during by the Buncha Authorities Act
of 1951 massively resisted but enforced through putting down the Thunder and
Sekhukhune rebellions and also by the processes of forced removals of the 1990s.
So what you have is those very lineages that we recognise during apartheid now getting official status
and those contested boundaries now becoming the boundaries of traditional authority going forward.
But the laws didn't give much direct power to traditional leader, the Traditional Leadership and Governance Framework Act.
All it did was give them status and territorial jurisdiction, which is very, very important.
Then you had the Communal Land Rights Act of 2004,
which would have given traditional leaders complete control and ownership of all the land in the former homelands.
But it was struck down by the Constitutional Court on procedural grounds in 2010.
And also, let's go back to 2003, when you had the South African Law Commission proposed the customary coastal,
which was vehemently rejected by the traditional leader lobby because it allowed people to opt out
of other courts to opt out of traditional courts and use other courts instead if they so choose.
This was vehemently rejected, and that rejection led to the traditional courts fall of 2008.
So despite the fact that the key bills that would have given power direct path
to traditional leaders had been sorted the one by the Constitutional Court,
the other by parliament in the first time ever voting against a bill so that
the traditional courts will couldn't get the majority support of parliament.
Despite this, government has in practise today treated traditional leaders as though they own the land.
And it has treated them as the sole representatives of rural communities.
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
that the people it must deal with in relation to getting consent are traditional leaders,
not the people whose land rights are directly affected. So yet the Constitution in Section 25 provides for tenure, security promises, tenure,
security and it promises tenure security for people who are structurally vulnerable now,
who is more structurally vulnerable than people living in the former homelands who bore the brunt of the 1913 Land Act and forced removals.
Then you have the Interim Protection of Informal Land Rights Act, providing that no one was an informal right to land.
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.
And if they do not give their consent, then they must be expropriated.
And that has been absolutely ignored if Hillary has been ignored by government, despite the fact that it renewed every year.
So government's approach has enabled a series of abuses and resulted in a series of legally vulnerable mining and other investment deals.
So let's take the case of Port St. Johns.
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
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,
which will be used to compensate the people whom the king agrees will be cleared of that portion of the coastline.
And after all, the various things that the Chinese companies are going to develop,
which included Disneyland mining, a fish processing plant upon their village.
After all these things are in operation,
the king will own 25 per cent of those things and then will no longer be payable that same kingdom, the and Demasi.
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,
they're rolling out a programme of supply, supplying traditional leaders with police stations.
Then let's look at the recent judgement in the Eastern Cape court,
where a woman Bossi was told by her hit head woman that she must pay 10000 rand for each of her two sides.
One fact she had looked on since 1980 and the other side she had acquired in 1990 and rented out to somebody.
She and her neighbours were told that they must pay £10000 each for these sites, and when they refused, the sites were barricaded.
They were barricaded into their houses and some of the houses were demolished.
If she had not been able to get to the High Court, there would be nothing she could have done.
It's the traditional courts bill had been in place. There would be nothing she could have done,
but she did get to the High Court and this order was granted to interdict the
head woman and her thugs from continuing to barricade and demolish these houses.
So, you know,
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,
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.
And most of this 25 billion has ended up offshore. Now, these patterns of abuse, some of which are big scale,
some of which are intimate and the most intimate of all is this one of traditional leaders at
all levels demanding payment for land and threatening people with eviction if they do not pay.
These are only possible because government is deeply implicated.
Premier Mahumapelo refused to depose the WaPo and Bogota chiefs, who are responsible for the 600 million and the 25 billion,
despite the commission appointed in terms of the GFA saying that they must be deposed.
The money that disappeared from the bottle by Mahali accounts disappeared from the Premier's office.
What we have now is government,
the Department of Rural Development routinely signing of surface leases for mining without enforcing the protections contained in the programme.
All this, all they want is a tribal resolution and a sign of the rights and respect of the surface.
So you have a confiscation of black people's lives as a systematic confiscation
of black people's land rights without even court processes or expropriation.
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
schools and amenities to improve the quality of life to build traditional council offices.
And you have our deputy president, David Mabuza, routinely distributing cars and cattle to traditional leaders before elections.
This is all in the context of the discourse about the nature of land rights
is completely different now from when it was from what it was in the 1990s.
Then the discourse was that the people who live on the land are the owners of that land.
They are the underlying owners. And what we need to do is change the legal system to recognise the underlying ownership rights.
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,
propping up this knowledge of autocratic, chiefly power.
But the problem is that the resultant deals are legally precarious. There is now in South Africa no law that authorises traditional leaders to
be the sole representatives of communities of people living on communal act.
There's certainly no law that authorises them to sign away people's land rights.
That's what the traditional unquestioned leadership role is for.
And that's the bill that just got rammed through Parliament just before the elections.
They also legally precarious because the traditional Leadership and Governance Framework Act of 2003 said that the old the tribal authority
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.
They have refused to include any women in the paper, and they've had no elections.
Government has admitted that all of the traditional councils and the proponent problems
are invalid and that most in North West and many of the other provinces are too.
And as I've said, they're also invalid because the rights of people have in terms of section 25,
six of the Constitution and the Pilbara have not been upheld. Plus, there are other laws that are routinely flouted environmental protections,
water laws, and it's because of that legal vulnerability that we have these new rules.
The Traditional Leadership and Governance Framework Act amendment bill takes away the consequence
of legal invalidity for traditional councils have refused to include women or elected members.
The traditional and Khoisan leadership bill includes 24 empowers chiefs to sign deals with external parties, so it empowers them to sign nine deals.
This is the first time in South African history, including under colonialism, that traditional leaders have had this kind of power.
Initially, it said they had that power with no consultation whatsoever after protests that included some kind of some consultation.
And then after the Malawi Constitutional Court judgement of October 2018, that included a little bit more about consultation.
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.
And then we have the traditional courts bill to provide the coercive power that is necessary when you introduce laws that systematically
dispossess people of their land rights and strip them of their citizenship right to make decisions about their own resources.
Copeland Holt argues that violence and authoritarianism is already necessary to contain the
levels of structural inequality and the marginalisation of the poor that exists in South Africa,
and he argues that that violence and intimidation is going to become increasingly necessary.
I argue that this legislative history shows that government understood that in 2003,
already when the the early customary courts bill was rejected in favour of the draconian traditional courts bill.
The levels of looting that the bills have elicited is, in my view, a sign of short termism.
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.
Even if it's peanuts, like the postage on steel where you're selling, you know, extraordinarily important environmental land and many, many,
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,
as has happened in the Bahamas, I have ever faced a situation.
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.
There's no vision for how to mine in a way where people can be properly compensated and rural livelihoods can be retained.
What these bills are about are about balancing and protecting existing vested interests,
and many of those existing vested interests are legally vulnerable.
And so a lot of the talk is about how the Premier can retrospectively say that specific
deals that were done before it came into operation are OK and comply with the provisions.
You know, endemic corruption is one thing,
but it is another to use law to attempt to legalise discrimination and subvert the constitutional rights of the most vulnerable South Africans.
The evil of the law of these laws is not only that they condone existing corruption, but that they in the SAPS.
They went in this more and at all levels of society.
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.
And what we've seen with that is a great increase in extorting money for land.
And so we see this process entry into the most vulnerable aspects of people's lives.
A basic social structure. And what it seems to me is happening is that the government has turned its back on
any kind of vision of stopping this process of dispossession in favour of widening
the people who profit from it and therefore having a wider grouping of people
who are invested in retaining this process of basically helping South Africa.