court challenge to laws on chiefs’ land powers 
14 October 2008

Four rural communities are challenging the constitutionality of two acts of Parliament in a landmark case, the outcome of which will affect the lives of an estimated 21-million people living under traditional leadership.  The communities claim the two acts, the Traditional Leadership and Governance Framework Act and the Communal Land Rights Act (Clara), give traditional leaders undemocratic and unprecedented powers that undermine land rights under customary law and gender equity, and introduce a new tier of government not recognised by the constitution.

Legal opinion is that the two acts could drastically increase the number of people without access to land by undoing land restitution awards, reincorporate the communities into apartheid-era tribal units, and reverse gains in gender equality.

The applicants, the Kalkfontein, Makuleke, Makgobistad and Dixie communities, from Limpopo, Mpumalanga and North West, have named Agriculture and Land Affairs Minister Lulu Xingwana, all nine provincial premiers and the speaker of Parliament as respondents. The respondents will argue that the constitutional attacks on the legislation are based on a misunderstanding of traditional leadership, and that there is no basis for a constitutional challenge to the acts. Opening arguments will be heard in the Pretoria High Court today.

One of the bases of the challenges is section 25 of the constitution, which requires that land tenure rights must be strengthened, protected and guaranteed. The communities say Clara is likely to change customary law to allow traditional councils to become administrators of community land. That means Clara discriminates against black property owners, as white owners in a similar position have full title to their land and are not treated in the same way. The act also discriminates against women by making their tenure more insecure in the same way colonial and apartheid laws gave rights exclusively to men and undermined the status and security of land rights held by women.

A further challenge to the act’s constitutionality is that the bill was rushed through Parliament before the 2004 elections without following the provincial consultation process required by the constitution. The challenge to the Framework Act is that it introduces a new tier of government for rural Africans, which will in most cases be staffed predominantly (about 60%) by unelected traditional councils.

In many instances the councils are made up of apartheid-era tribal authorities now being given recognition in terms of the act. The applicants say the Framework Act incorporates autonomous communities into the jurisdiction of unrelated tribal authorities created under apartheid and reconstituted as traditional councils. The act gives traditional councils power over property rights on behalf of communities with whom they have little or no historical connection.

They argue that this act also discriminates against women, that it obliges national and provincial governments to promote partnerships between municipalities and traditional councils, and that it seeks to regulate the process by which state agencies allocate roles to traditional councils and choose the people to be consulted.

Neels Blom,  www.businessday.co.za