Traditional and Khoi-San Leadership Act that ‘recreates the Bantustans’ heads to ConCourt

Njalo ngonyaka sikhokh’ imali yamasim’ enduneni (Every year we pay land fees to the chief), goes the line in the hit song, Imbizo, released in 1992 by maskandi legends Phuzekhemisi and his late brother Khethani. Nithi siyithathaphi imali? it asks a little later. Where do you think we get the money from?

More than 30 years later, rural citizens living under traditional leaders are asking themselves why they are still fighting for their customary rights, and why the leadership of the country has seen fit to entrench the apartheid legacy that ignored customary law. 

Their newest fight goes to the Constitutional Court on 23 February 2023 when oral arguments will be heard in the matter of Constance Mogale and Others v Speaker of the National Assembly and Others, CCT 73/2022. In this case, rural citizens and civil society will be challenging the constitutional validity of the Traditional and Khoi-San Leadership Act (TKLA) that President Cyril Ramaphosa signed into law in 2019.

Rural citizens argue that by signing the TKLA, the President made the abusive actions of traditional leaders legal. They have no issue with the fact that at last the law recognises Khoi and San leaders and communities. This important move is long overdue and should have been implemented much earlier in our democracy.

The regulation of traditional leadership is also welcomed – this recognises the institution of traditional leadership, and it recognises customary law which is an important part of the identity of rural citizens. However, rural citizens strongly object to aspects of the TKLA that pose serious threats to rural democracy, especially in the area of land rights. 

Critically, section 24 of the TKLA allows traditional councils to enter into agreements and partnerships with anyone, including mining companies, without the consent of the landowners or those whose land rights will be directly affected. The upshot is that rural citizens are at risk of being dispossessed of their land without their consent.

Rather than securing protections for rural citizens, section 24(3) states that any partnerships and agreements agreed by traditional councils must be entered into in terms of the TKLA only. This provision excludes the only piece of legislation that until now has protected the land rights of rural citizens; the Interim Protection of Informal Land Rights Act 31 of 1996.

Section 2(1) of this act says that no one may be deprived of their land rights without their consent, which is a stronger requirement than provided for in the TKLA.

Another concern is that the section of the TKLA concerning the management of finances of traditional councils lacks robust mechanisms to enable rural communities to hold their traditional leaders and councils accountable. It requires traditional communities’ money from any source to go into a government-controlled account.

This is despite evidence collected by traditional communities who have lost huge sums of money through the actions of traditional councils, traditional leaders, and the government. In North West, the Baloyi Commission revealed that the Bakgatla ba Kgafela lost an estimated R5-billion due to financial mismanagement by their traditional council, while a report of the Public Protector revealed a loss of R800-million by the Bapo ba Mogale in the same manner.

Read more in Daily Maverick: “The chief, the mines and the lost Bakgatla billions”

Section 25 allows government departments to allocate their functions to traditional leaders and councils. This effectively creates a fourth sphere of government. But the Constitution, mindful of the need to ensure governance accountability, provides that only elected government structures can hold governmental powers.

If traditional leaders abuse the powers they have been allocated, how are they going to be held accountable as they are not elected?

Similar provisions in the now-repealed Traditional and Governance Framework Act 41 of 2003 (which was replaced by the TKLA) also resulted in traditional leaders taking on a wide range of powers that should correctly have belonged to municipalities or other community structures. This included land allocation, including burial sites, as well as issuing of proof-of-address letters which citizens need to get identity documents to open bank accounts and to access other critical services.

In Limpopo some traditional leaders used these powers to force people to pay levies. Those who failed to pay the levies were denied these services. Later this year, on 15 May, the Limpopo High Court will hear oral arguments in Mohlaba and 11 Others vs Minister of Cooperative Governance and Traditional Affairs and 10 Others, when rural citizens from Limpopo take seven tribal authorities to court for forcing them to pay levies.

Another criticism of the TKLA is that it recreates the former Bantustans. Much like its predecessor, the act retains structures created by the colonial and apartheid governments, under new names. “Tribes” have become “traditional communities”, and “tribal authorities” are now “traditional councils”.

These structures were created under apartheid through the violence of forced removals and land dispossession. Many communities were forced to live under traditional leaders that they do not recognise, and disputes in this regard are still playing out today.

The mechanisms that were included in the Framework Act to democratise structures have failed. The Commission on Traditional Leadership Disputes and Claims (the Nhlapho Commission), was established to deal with leadership disputes and many of its outcomes have been challenged in court.

Elections in which community members were supposed to vote for 40% of the members of traditional councils were not properly conducted in many communities. In Limpopo the elections never took place.

The Framework Act had a cut-off date for reconstituting tribal authorities into traditional councils, after which those that had not been reconstituted were to be deemed constitutionally invalid.

However, many untransformed tribal authorities have simply continued to operate, and continue to enter into deals and agreements on behalf of communities. This is despite the fact that where the transformation requirements of the Framework Act were not met, these deals and agreements became constitutionally invalid.

Rural citizens now find that with the repeal of the Framework Act, the TKLA, instead of holding the untransformed tribal authorities accountable, has simply granted them more time to transform. The cut-off date for transformation is coming up in March and very few provinces have announced traditional council elections.

It seems that this process is likely to fail again, and constitutionally invalid structures will continue making decisions and entering into agreements that affect people’s land rights without the consent of the landowners.

Called out in song

The issue has been highlighted in popular culture through the music of Phuzekhemisi, who has always had his finger on the pulse of social issues. He may be considered a vernacular intellectual in the vein of figures such as Bob Marley, Muhammad Ali and others, who Grant Farred, in his book What’s My Name, describes as “… oppositional public figures who use the cultural platforms and spaces available to them, but not ordinarily accessible to their disenfranchised communities, to represent and speak in the name of their communities”. 

Read more in Daily Maverick: “Traditional and Khoi-San Leadership Act ‘brings back apartheid Bantustans’, say activists”

Phuzekhemisi called out most of the problems rural citizens are now objecting to in the TKLA about 30 years ago – about 11 years before the first post-democracy piece of legislation on traditional leadership was enacted in 2003. His discography covers all kinds of subjects, from love to family politics, the youth, death, land and leadership. But some of his most popular songs turn the spotlight on the conduct of traditional leaders towards rural citizens.

Between 1992 and 1998, the six albums Phuzekhemisi released each contained one or more songs where he highlights this. Imbizo was the first that introduced Phuzekhamisi and Khethani to audiences across the country.

The song calls out traditional leaders, headmen in particular, for always calling rural citizens to meetings and requiring them to pay money, including for their annual ploughing of fields. The song’s chorus captures the plight of rural citizens: “Ungaboni siphila kulomhlaba, siyawukhokhela” (we exist or we continue to exist on this soil/Earth, because we are paying for it.) Over the chorus Phuzekhemisi asks traditional leaders directly, “Nithi siyithathaphi imali?” (Where do you think we get money from?).

At the time this album was released, the country was witnessing the dying days of apartheid and it was the era of the Codesa negotiations. This was also the period of violent conflict between the IFP and the ANC in Gauteng and KwaZulu-Natal.

But even in the face of all the other turmoil before the transition to democracy that consumed many commentators, Phuzekhemisi chose to use his music to highlight his deep concern about the conduct of traditional leaders. The song stands as a record of the nature of the relations between traditional leaders and rural citizens during apartheid.

And it counters the common narrative given by traditional leaders that they were on the people’s side during apartheid. Many were happy to accept the undemocratic apartheid structures that enabled benefits for them.  

In 1994 Phuzekhemisi and Khethani had another hit release, Inja Yami, in which they called out headmen again for charging rural citizens a tax for owning dogs. Dog tax is not the only money that rural citizens have to pay. Just living in an area that falls under traditional authorities can trigger a levy, as can moving areas or seeking a burial site.

The Limpopo communities who have turned to the Constitutional Court to challenge the issue are not alone in saying they’ve had enough.

Imbizo was re-released in 1995, a year after the democratic transition, underlining Phuzekhemisi’s concern that things were not changing for rural citizens. Imbizo appears again in the 1996 album, Ngo-49, but here it morphs into two songs, Duku-duku imbizo and Sisabizelwa embizweni, in which Phuzekhemisi notes again how rural citizens in the new South Africa are still being regularly called to meetings by traditional leaders to pay monies.

In his further work Phuzekhemisi keeps his focus on the experience of rural citizens. In 1997, he returns to the issue of dog tax in the song Bakithi ngisizeni (Everyone, help me), and on the 1998 album Phans’ imikhonto (Put Down the Spears) he picks it up again in the song Ngikhalela izinja zami (I’m crying/complaining for my dogs).

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In the 1997 song Phuzekhemisi historicises the origin of the problem to the colonial years. Rural citizens have been struggling since 1908, he notes, and they are still struggling (in 1997). The year 1908 is a significant reference – it was the year of the Bambatha rebellion against British rule and taxation in Natal.

In the song Phuzekhemisi speaks in the third person when he sarcastically begs everyone to drag their dogs to the headman and pay tax for them because the traditional leaders have said Phuzekhemisi told the people to stop paying dog tax.

The 1998 song sets the record straight, pointing out that Phuzekhemisi was never against headmen, he was just complaining about the headmen making him pay the tax. Rural citizens frequently express the same distinction – their opposition to the TKLA does not mean they are against traditional leaders or custom, all they want are laws that make traditional leaders accountable to the people.

Read more in Daily Maverick: “New law on traditional leadership is more hindrance than help to unstable mining communities” 

The 1998 album also looks at land ownership and land taxes. In Lomhlaba wawenzekeni (What happened to this land?) Phuzekhemisi asks what has been done that people must pay for the land. They are paying but there is no development. Who owns this land?

In Asina Lutho (We have nothing), the singer again underlines that he is not fighting traditional leaders but he poses more questions about land ownership. Here he asks whether traditional leaders are suggesting that the forefathers of rural citizens had no land, no country? The people have nothing, they have no ploughing fields, no cattle, everything belongs to traditional leaders, he says. Where then did the forefathers of rural citizens come from? 

Phuzekhemisi’s music is a useful lens through which to see that the challenges faced by rural citizens in relation to their treatment by traditional leaders are not new. In fact, they go as far back as the colonial era, and apartheid reinforced them.

This perspective is shared by the Stop the Bantustans Campaign that the current set of laws on traditional leadership being shaped by our democratic Parliament is in effect taking rural communities back to the former Bantustans.

It is deeply unfair to citizens in rural areas that almost three decades after the end of apartheid, the barriers to democratic change are being entrenched rather than removed by supposedly transformative laws such as the Traditional and Khoi-San Leadership Act. DM

Thiyane Duda is a researcher at the Land and Accountability Research Centre based in the Department of Public Law at the University of Cape Town. His research focus is traditional governance and living customary law.