A summary of conference highlights follows below. See also the condensed analysis in the follow up article

Day One: Summary

Welcome & introduction - Nolundi Luwaya

The conference convenes activists, academics and allies to draw attention back to the urgent need to secure the tenure, land and resource rights of vulnerable communities — as a precondition for development, and not as a trade-off for it. Question why a democratic government, itn eh draft Communal Land Tenure Bill - again seems to be siding with vested interests particularly elite and corporate interests, against those of rural communities who hold informal and customary rights to land - and to other natural resources. Irony that government and traditional leaders are aiming, in the name of custom, to transform customary rights into a western form of property. The conference brings us together to support exchange of knowledge and experience in a space of solidarity among activists, leaders, lawyers, researchers and others allies. We aim to contribute to strategies and practices of community mobilisation, policy initiatives and litigation approaches to resist and defend tenure security in the former homelands, but also elsewhere on Trust land and on land reform land more generally.

Remembrance ceremony - Nokwanda Sihali

In the remembrance ceremony we paid tribute and commemorated land defenders who have passed away, including some who have been assassinated. These were visionaries who championed the struggle for land - especially powerful women also leading these struggles for land. Many have lost their lives at the frontline of resistance, in South Africa.

 

PLENARY 1 OPENING PLENARY

 

Grace Maledu

I grew up eating food from the soil, drinking fresh milk from the cow. When our land was being taken, I refused to be moved. The wanted to mine our land and even started mining through open cast mining. Can we teach our children to work the land? Women can you fight for our children and they land that they will have to grow from. Lets plant and live off the land. They can give you money, cars and all the resources but without the land we where will we stay.

“To the women of our country, forward we go, forward we go!”

 

Sindiso Mnisi-Weeks

Customary law can be supported and developed as living customary law, without being sidelined, defined as parallel to common and statutory law, or codified and therefore fixed into one version. Sindiso set out 3 options:

• First, to combine customary and common law, and thereby codify the content of customary law. That is not a preferable route, because by codifying customary law, you turn it into official static customary law, and kill ‘living’ customary law, because it is a system that is flexible and living. You fix it and limit its ability to evolve and be flexible. “Customary law ceases to exist” isn’t realistic because living customary law’s existence defies any attempts to abolish it. [You can’t abolish customary law!]
• Second, to treat customary law and common law as two parallel, separate systems, and to apply them separately. When we do this, it does allow the living customary law to evolve and be flexible, but this means that you do not infuse common law with customary law principles. This is when you can get common law decisions that make customary rights inapplicable. So this is also not a preferable route.

Customary law develops as a separate law; that is always going to be the case. The legislature and courts do have a choice as to whether to incorporate customary law.

• Third, amalgamation of customary law and the common law would mean that customary law principles and rules infuse the common law. This is what we see, in any event. There is a limitation, as it means that some aspects of customary law will be codified, but within the transformative vision, this is acceptable. Customary law is united with common law - this would be amalgamation rather than harmonisation. This is possible.

Sonwabile Mnwana

Collusion between mining capital, chiefs and the state. If one observes life in the platinum belt, it is an existence of precarity. Colonial officials perceived land rights to be communal in nature - and because natives were seen as being at a lower evolutionary level, and private property a mark of civilization. This was a process of disempowering Africans through indirect rule. We need to shift from defining communities - to understanding where the principle of community lies. The fact that rural residents are consistently defined as homogenous tribal groups whose interests are controlled by chiefs is problematic.

PANEL 1A DISPOSSESSION AND MINING THE SACRED

Dineo Skosana

In a presentation titled ‘No last place to rest’, Dineo argued that we do not have a concept that a person is being laid at their last place to rest. 2 key areas: white agri farmland and dispossession on tribal land. Presentation will speak specifically to KZN. Coal mining takes place in different provinces across South Africa. Limpopo: particularly in Waterberg. Also in Mpumalanga province and in parts of KZN. Case study specifically looks at Somkhele (near Richard’s Bay). Standard contracts: offer small cash payments, as if it is a choice, as if is bears any relation to the loss. Main point is that “Dispossession continues to take place today: dispossession nis not merely a colonial or apartheid phenomenon.” Loss of land - a place to live, resources for livelihoods. But dispossession doesn’t end with death. Loss of graves. And intangible loss is that which we do not see. Which are peoples connections to the land.

Mbuso Nkosi

Mbuso encouraged archaeology and historical study to understand the political and socail context of unmarked graves, citing case studies. Sol Plaatjie’s story about how, just after the 1913 Natives Land Act, the Gobadi family of sharecroppers were evicted from their land, carried their children and possessions through the night, and how a sick baby died on the road - and there was nowhere to bury it. White farmers using prison labour led to the potato boycott in 1959. Land dispossession leads to the criminalisation of people, and how criminalisation and

Even in black people’s death they could not find peace. Dispossession today is also a spiritual question. To use different eyes to free ourselves, the past and our land. What kind of freedom do the dead demand?

Simon Gush

Three short films were presented, about land claims in Salem in the Eastern Cape, outside Makhanda, which showed how land dispossession happened but also how land restitution asks people to live and hold land together - often in ways that are inconsistent with how people actually live, and social relations now.

 

PANEL 1B DISPOSSESSION DISGUISED AS REGULATION

Kholosa Ntombini

On the Trust Property Control Act, one of the important cases of partnership between rural communities and a mining company is the Richtersveld case which found that customary rights to land are actually ownership. Kholosa Ntombini’s work show that the history of trusts is complex - and historically they were used in dispossession. Problematic notion that African property rights must be supervised. Has the nature of trusts changed? No it has not; even though now people can control their own trusts, arrangements are so complex, there is so much dysfunction among trusts and the inability of the Master to intervene means that powerful partners like Alexkor can overpower community trusts. Where there are problems are so far-reaching the ‘exclusion is by design’.

Philile Mbatha

Like other papers onthis panel, Philile focused on how the operation of seemingly neutral laws have the effect of dispossessing people living under forms of customary tenure. Environmental regulations, and the creation of the iSimangaliso wetland park at Kosi Bay, have actually dispossessed people of rights - even if they remain on the land, the range of their uses of the land, the forest, the sea, are constrained, which amounts to dispossession even without expulsion. While theoretically there need not be a conflict between protecting the environment and defending land rights, regulation has done precisely this.

Colin Louw and David Mayson

In one of the first successful land claims, the Khomani San got 8 farms back from the government, and owns this as a Communal Property Association (CPA), under a democratically elected committee. Now a more recent law, the Traditional and KhoiSan Leadership Act (TKLA) indicates that traditional leaders that are recognised will hold and administer land. So there’s a tension between the CPA and the leader which is now conceived in the TKLA as taking over . Effectively, “we are now under two acts”. The CPA Act doesn’t make provision for any traditional leader. The land was given to the community - not to a traditional leader. But now, if the government scraps the CPA Act, then we will have a problem because there are 8 bloodline leaders. In short: the TKLA is superimposed in a context where people already hold land as CPAs.

 

PLENARY 2 THE COMMUNAL LAND TENURE BILL (CLTB)

Sithe Gumbi and Janet Bellamy

This presentation focussed on examples of communities who have been adversely impacted by traditional leaders. It outlined the history of the amaThuli community – and how they continually are unable to access security of tenure in land that was historically belonging to them. This is due to the complete failure of land administration and the failure of Cogta to hold the traditional leadership structure to account. The crux of the matter is that although it is clear that the dispossession can be tracked - through proclamations and statutory vesting - the communities’ tenure rights in the land remains insecure.

Aninka Claassens

The Richtersveld case said customary land rights are property rights - they are ownership - held by a community. The Maledu (maGrace) judgment upholds customary rights - against the assertion that mining takes precedence over land rights, even over the Constitution. The Ingonyama Trust judgment talks about individuals and families within communities - and who has decision-making authority. The ITB judgment proves that there are pre-existing property rights on land, customary rights. If you are not in a position to exercise decision-making authority, then your property rights are not being respected. Taking the decision-making powers of owners and giving these powers to an institution is a dispossession of property. Consent to stop deprivation is the most basic of property rights. Yet the CLTB debate has been presented as being about the status of chiefs and amakhosi - rather than being actually about the nature of property and the ability of people to protect their property from arbitrary deprivation. It is ironic that those who claim to be defending custom are actually promoting titling and privatisation of land in the name of custom - so they are trying to use the constructs of western property law to usurp and dispossess customary land rights. The Ingonyama Trust judgment is a refreshing judgment, saying “custom cannot be a blanket to obscure ongoing processes of dispossession”. The arbitrary deprivation of property is a violation of theTrust Act, IPILRA and the Constitution.

Tembeka Ngcukaitobi

The Draft bill in its current form will be unconstitutional. We must look at the theory underpinning section 25(6) of the constitution. The first is that it is an equalising right. The second is that it is located in s25(5) – which is intended to transform property relations. The Bill believes that the land in communal areas is actually state land, and that it can be controlled through traditional institutions. Historically, the state has entrusted chiefs to ‘control’ land. The true political power is inseparable to control over land. Instead of transforming existing colonial relations, the risk is that this bill will entrench them. It is a regressive law. The Bill further uses a vague notion of ‘community’. This renders the individual and the family invisible. Decisions could be made by a large group on behalf of individuals - this is a colonial construct toward native land. It never regarded it as being capable of having individual control. The power relations have calcified over time - in favour of men and traditional leaders. The third problem is the actual day - to - day operation of the Bill. The community may make a choice on how to administer the land - either through a traditional council, CPA or other entity as approved by the minister. There is thus ongoing control of traditional institutions. The Bill is neither equalising nor transformational. The ITB judgment gives effect to living customary law - it is modern. We must be explicit in rejecting the Bill. Community views must be reflected in it. We must also build robust institutions that support community structures. Resources should be made available to strengthen community associations. IPILRA sets out basic protections, and its starting point is the individual - IPILRA needs to be built up/made permanent.

Tembeka’s 5 steps:

• Step 1: The Bill needs to be scrapped and re-written. Communities don’t want a Bill drafted for them by the government. They want a Bill in which their views are reflected.
• Step 2: A new Bill that is not going to be drafted from the top-down but will be drafted from the bottom-up. The law’s duty is to reflect what the people say - not what the politicians say.
• Step 3 is building robust institutions of customary law, that support community structures.
• Step 4: We do have an alternative piece of legislation. It’s called IPILRA. It was done on an interim basis. But it sets out very basic provisions. Its starting point is the individual. Building IPILRA up, making amendments to it and making it permanent. But it is not up to us, the elites, to decide.
• Step 5 is winning our case at the Supreme Court of Appeal.

 

Day Two: Summary

Opening plenary

Wilmien Wicomb of the Legal Resources Centre welcomed everyone back and presented a short summary of Day One by way of a ‘recap’. She introduced Prof Mahmood Mamndani as a special guest.

 

Mahmood Mamdani

Mahmood Mamdani, a Ugandan professor and specialist on understanding colonialism, anticolonialism and decolonisation, wrote the book ‘Citizen and Subject: Contemporary Africa and the Legacy of Late Coloniaism’ which places South Africa’s experience with indirect rule via chiefs in a comparative light - and shows that our experience under colonialism and apartheid was in many ways what was done elsewhere. Africa’s pre-colonial past was characterised by integration not separation, in the sense that identity was fluid and claims to membership of political entities could shift. It was a colonial practice to categorise people and to segregate them into fixed ethnic groups, where rights did not change and ethinc identity also remained the same even with the movement of people. Ethnic identity became fixed through colonialism in a way that it was not before - and this is the basis for much conflict, especially land conflict. It was a colonial creation. In reality, though, most places are multi-ethnic which means that in practice, even when defending custom, you will have some people who will have rights and others who will not. There are two big issues. First, how do we define the community? Based on the experience in Uganda, and the realisation that decolonisation meant removing these fixed identities, the only way to support custom to serve people’s needs is to say: do not group people based on ancestry, but based on where people decide to live. Community must be based on residential proximity. Community must mean residential - otherwise there will be a contradiction between citizens of different statuses. Second, how do we define powers and accountability? Officials must be elected and not appointed. The people must be mobilised as a group who can hold their elected persons accountable. “When I came to SA in 1991 I realised that it was not different from what had been done in Uganda and elsewhere. Here, too, custom was ethnic. The whole thing that the rural areas had been under customary law was a lie because “custom and customary law are not the same…. Custom was not law; it was a social resource.” There were customary leaders, sometimes it was clan heads or chiefs. There were different customary authorities. Custom changed. But customary law is the separation of custom from society and making it law and using it as a weapon against the people. 

Plenary 3: Organising against Bantustan mentality: Emancipation from below

Constance Mogale

As the national coordinator of the Alliance for Rural Democracy, Constance convened a plenary in which activists and organisers from rural communities presented the stories of struggle from communities - struggles to defend land rights, to re-assert land rights, to demand accountability from chiefs, protection from the state, and participation in decision-making affecting them. These are struggles waged against traditional, corporate and state institutions and the individuals that represent them. 

Margaret Molomo

Mining was a central theme. “It is painful if we can tell our struggles with the mine”, said Margaret Molomo from Mokopane in Limpopo, who recounted how one day she was sitting “at home, where I built my home on land that belongs to me” when she heard from a neighbour that the mine is now destroying our land. The chief responded that he did not know anything about mining and that mining is not his business. “We confronted the chief to say we have documents that prove you have signed the mining  deals and even received some compensation.” Organised as Kopano Foundation, the community told government officials that they want public participation before a surface lease agreement was concluded, and refused to consent to mining but the mining began operations, irrespective of objections and protests. Struggles also related to graves, and attempts to get SAHRA to assist, and disputes over payments of R4,000 to households for prospecting on their land. “The same government that oppressed us is back. Our government is our skeleton diggers.”

Christinah Mdau

The Mmaditlhokwa community in the North West commemorated the Marikana massacre this week - and the violence and suffering from mining continues. Although people have been living in the area for more than 70 years, they were relocated by the company Tharisa and they continue to be threatened by mining expansion, causing environmental, infrastructure and health problems, and they call for respect for their identity and integrity - “We are called Bakgatla ba Kgafela in order to be controlled”, she said. “The situation that we are facing in reality is bad. Our land is our life. The dispossession of our land still happens today. We are confident, valuable, determined, qualified, dignified. We work hard with everyone affected, this is not a friendly summit, we are here to fight for our families.” 

Zibuyisile Zulu

Zibuyisile Zulu, an ARD member from Matshansundu in KwaZulu-Natal recounted how a mining company Jindal (based in India) arrived in their village in Melmoth to speak to the traditional leader and not with the residents “the only person the mine communicates with is the chiefs. The mines only communicate using guns and violence.”Attempts to get the chief to intervene to stop the mining failed - having promised to support the community against the mine, the chief was then seen in a mine-owned vehicle and claimed not to know about people’s objections to the mine. Violence ensued, people were shot at. “If we are to die, let us die for our land”, she said, and even as people were being attacked, and the chief watched from the car, SAPS vehicles would come to silence and intimidate community members. Some people are now not able to stay in their homes, because hitmen have been sent to assassinate them. There is an urgent appeal for help from lawyers as the community’s case is still going forward. Meanwhile, people are very unsafe. 

Fani Ncapayi

The Cala Reserve case is a powerful example of contestation over the institution of traditional authority. Dr Fani Ncapayi set out this case, concerning the Cala area in Sakhisizwe municipality demonstrates in clear terms that the democratization of governance in SA remains unfinished. This is evident in rural areas; the system is still undemocratic because the community members do not elect their leaders. They are still experiencing the imposition of traditional leaders. In 2012, the headman retired and informed the community it was time to elect a new headman - because it is customary practice in most of the communities in the area to elect the headmen - but the traditional council rejected their proposed headman and imposed a headman instead. We were told: ‘You as rural people have no right to elect your leaders’. Through the struggles of TCOE, CALUSA and Inyanda, and attempt to engage the Premier and the Provincial House of Traditional Leaders, without success, after which with support from LRC, the community took the case to court, and won; and won again on appeal;  and when the authorities did not apply the instructions, the community returned to court for a further instruction to the traditional council to follow the decision of the community to appoint the elected headman. Fani left us with a question to reflect on: if we were to have elected leaders who are accountable to the community, what would happen to the councillors who are imposed on the community? Will people want their local leaders also to be councillors - and not to have councillors, as candidates, imposed by political parties? Either way, we need to look at democratising rural governance.

Session 2A Comparative African experiences with formalisation

Judith Atukunda

Civil society organisations from Uganda, Malawi and Mozambique collaborate on a study to look at the outcomes of titling or formalisation measures and their impacts on tenure security in customary land settings. Judith Atukunda of LANDnet Uganda presented. Secure land rights are considered key for economic development and therefore it is often argued that African Indigenous land tenure systems should be registered to facilitate development. They have examined the experience in three countries that took steps to formalise customary land rights. Our study shows that it is possible to document customary arrangements in particular as countries are making strides when it comes to build land info systems and are tech advancements that move away from non-digital ways of producing land information. Successes of these initiatives include a reduction in the cost of land registration, a reduction in conflict and an increase in economic returns and reduction. However, these initiatives have been ineffective in addressing discriminator cultural norms, in particular with regards to women, and beneficiaries often don’t receive the documentation they are entitled to. She concludes that land titling and certification is not an end but a means to an end.   All parties must be involved in the process with a particular emphasis on women's land rights. She recommends that titling systems have to be well grounded in legal and policy frameworks that govern customary and statutory systems. Finally, these projects need to be sufficiently resourced to make them work.

Phillan Zamchiya and Chilombo Musa

A dramatic development is underway with forms of landholding evolving closer to western models of private ownership - in part due to formalisation initiatives imposed ‘from above’ - but there are also more incremental forms of change emerging on the ground. From 1990-2017, 32 new land laws were introduced across Sub Saharan Africa, many of them focused on formalising customary land rights. What are the implications for women? A PLAAS study was conducted with partners in Mozambique, Zambia, Zimbabwe and South Africa and 443 questionnaires were administered to look at land rights changes in customary contexts. Formalization takes different forms in different countries, and is promoted by the World Bank which has put $100 million into these processes. Meanwhile, there is also a change on the ground, for instance in SA, urban elites hold onto customary land to avoid paying rates and to seek cheap retirement homes, building mansions on communal land. Chilombo shared the results, explaining that politicians advance ‘flanking mechanisms’ to justify formalisation, by arguing that women will be able to own property in their own names. The reality is more worrying. In Mozambique there is a difference about which women can access these: married and widowed women can access, but divorced and single women have struggled to access. In Zim and SA, commodification of communal land is becoming common. Traditional land is being sold by chiefs. Women who are connected to local elites tend to benefit from the registration of customary land holding certificates. So we see exclusion of certain segments of women. Violence perpetrated against women and ‘sextortion’ against women is linked to access to land. 65% of our respondents were asked to pay exorbitant fees in order to be able to register land. Women said they cannot access registration. What women say they prefer is to live on communal land - but patriarchal practices are an excluding factor.There needs to be measures taken to combat these issues that stem from patriarchy within customary systems - rather than replacing customary systems with formalisation.[I was not in this session and struggled to make sense of the notes here]

Augustine Fosu

The Ghana case shows that the idea that land law reform and a strong legal framework for land titling registration and the formalisation of customary land rights can provide tenure security of poor households and women is simply not true. Historically, land law reforms are implemented to shield capitalist accumulators to perpetuate the exploitation of poor households through land titling registration. These reforms fortify the positions of traditional authorities in land administration to expropriate their subjects during land commoditization - without the state’s interference. Augustine’s research on land rights in peri-urban Ghana shows how the legacy of colonialism is present even in the present day: “Chiefs invoke the power of the state to dispossess their people.” Few people register their land in Ghana today. Traditional leaders sign for the allocation of land to residential areas, but the affected people do not know anything about this process because they are not included in these chiefly processes. Land laws ostensibly to secure tenure in fact provide a mechanism that people use to dispossess other people from their land. Augustine recommends that land law reform in Ghana and elsewhere must involve the whole country and be incremental rather than discontinuous. Clans and families should be able to allocate land - not chiefs. Power to allocate should thus be devolved. People themselves know how to protect their land. Research also shows that people also know their boundaries. 

Session 2B Understanding customary land rights in context: historical interpretations and current struggles

Derick Fay

‘Native assessors’ served to assist magistrates in the colonial period to administer the law, and played a significant role in the Cape, giving testimony in about 1 in 5 cases based on the records from 1905 to 1920. There were very few ‘land cases’ in the Eastern Cape - but land was a factor in many cases, for instance on inheritance, debts, payments, compensation and so on. Land was considered to be purely an administrative matter. Derrick observed that“when land is treated as purely administrative there is no need for the court to understand further; likewise, the claims of widows and other perspectives may be dismissed rather than being heard in detail.”  In the case of Bizana, customary law was recorded through case law and filtered by administrative legal systems. As with other attempts to integrate customary law into western legal systems, there was profound gender blindness (for instance, native assessors not interviewing any women). In all these cases, there was little enquiry into the content of customary law. Little is said about ‘Native Assessors’ in the archives, but case records provide insight into their role in specific domains of custom like customary debts and payments. While land cases are scarce in native appeals. The formalist approach to land matters, and has had profound impacts. Then, as now, the courts remained ignorant and did not look at how tenure relations were changing. 

Gaynor Paradza and James Chikwezira

This presentation addressed how customary land tenure is administered in SA, and specifically how municipalities and traditional authorities govern land, using data and interviews on Bushbuckridge in Mpumalanga and Mokopane in Limpopo. Key issues in customary land administration are that community rights are not registered and so there is a multiplicity of statutory, cultural and religious practices/laws, and ambiguity creates loopholes that some actors - especially male traditional leaders and state officials - exploit to their advantage. Traditional councils continue to issue PTOs (permission to occupy certificates) when large-scale commercial land deals are introduced like for shopping malls, and it generally happens without consulting the customary and traditional landowners as indicated by Speaker Mahlake. Developments are happening in areas under traditional leaders and the only ’stakeholders’ are the traditional leaders and investors, leaving out the community. There is pressure on customary land to convert to perceived more secure forms of land holding in SA, mostly because of individual elites and companies coming in. For this reason, there is a need to develop and improve ways of recording rights and tenure systems in rural areas to protect rights of the indigents. 

Tara Weinberg and Sithe Gumbi

Communal property associations and community land trusts have both been problematic in their implementation, and traditional leaders and government have used these institutions to enrich themselves. Collective forms of ownership in SA take various forms. CPAs began in 1996 through the CPA Act, intended as a means through which people could acquire, hold and manage their land jointly. They were meant to be a land reform program. They were developed so people could claim their land in groups - like at Mogopa and Dithakwaneng in the North West and the Native Farmers Association at Driefontein and Daggakraal in Mpumalanga - where the ANC leader Pixley ka Seme assisted in drafting articles of association in 1912. One of the anomalies about trusts versus CPAs is that they both receive land from the same department but are registered by two different institutions - the Master of the High Court and the Department (DALRRD), respectively. While both are problematic in their implementation, there is a further problem which is the accountability requirement - Trusts are not held to the same standard. CPAs remain the best vehicle to hold and manage land according to the people we engage with. 

Session 3A The problem of legislating customary law

Michael Bishop

Customary fishing rights are property rights - like land rights. Michael focused on the Gonqose case to illustrate the manner in which customary rights are asserted in respect of Section 211(3) of the Constitution. In Gongose it was shown that customary law can only be altered by legislation if the law makers have actually considered the content of customary law. It cannot be trumped by legislation which clearly uses automatic override clauses - for instance, where a law states that where there is a conflict between the Act and customary law position, then the Act is applicable. Michael also went through the 5 steps that must be considered by those who seek to defend customary rights - whether land or fishing or other: 

1. Is there a customary law right? 
2. Does it meet the definition of a Section 211(3) law ?
3. If it is a Sec 211(3) law, how does it affect the exercise of the customary law right? 
4. If this 211(3) law limits the exercise of rights, does it impact on a right in the Bill?
5. Is this limitation justified in terms of section 39? 

Thandabantu Nhlapo

Thandabantu Nhlapo was on the law reform commission and instrumental in the drafting of the Recognition of Customary Marriages Act. He expressed his unease with how custom has been treated in law reform processes - including those ostensibly set up to protect and defend custom. How should we assess customary law? It can be checked against nine considerations: 1. customary law is recognised in terms of section 211(3) of the Constitution; 2. it is also subject to the Constitution; 3. it is also subject to any legislation that deals with customary law; 4. customary law may be regulated by other legislation; 6. the version applied in SA is ‘living’ and not official customary law; 7. it is an independent source of law, separate from common law and legislation; 8. where it exists, there is no further need for regulation; and 9. it can and must be justified under section 36; 9. There is a misunderstanding of section 211(3) of the Constitution, and the biggest problem for me is in the Traditional Courts Bill: in the attempt to regulate customary law, parliament trumps customs. Our current parliament has a very bad consultation culture as seen in Tongoane and other cases. Section 7 of the Recognition of Customary Marriages Act is similarly problematic. 

Jackie Sunde and Wilmien Wicomb

Customary fishers in KZN and Eastern Cape won a victory in the courts in that the case forced the legislature to consider customary law. There was a parallel struggle of fishers who were excluded from the Marine and Living Resources Act - and sought to be recognised. In 2012, while engaging with the government, they insisted that customary fishing rights must be recognised in policy - but the government said the onus is on people to provide they have rights. But the demand for recognition quickly became like a trap of formalisation: “We very naively took the opportunity to assist the legislature with coming up with mechanisms to go to the ground, identify rights and legislate them.” The result was regulators in Pretoria coming up with impractical and inappropriate rules - in the name of customs they did not understand at all. International experience shows that many post-colonial states have struggled to come to terms with fishing rights or to develop hybrid systems of fishing rights. Like with land, you need to understand custom first. There are global guidelines for securing tenure: since 2007, the UNDRIP (UN Declaration on the Rights of Indigenous Peoples) has affirmed a right of free, prior and informed consent, while the 2012 Voluntary Guidelines on the Responsible Governance of Land, Fisheries and Forests in the Context of Food Security (VGGT) say that states must recognize the tenure holders, support them, establish safeguards, prevent forced evictions, and provide access to justice, among other things. In SA, the small-scale fisheries policy drew on the VGGT and said people’s decision-making must be recognised. A core lesson is to take a procedural approach and identify the principles underpinning custom - for instance the principle of subsidiarity which means decision-making at the most local possible level - rather than trying to codify customary law. Don’t codify customary law. 

Session 3B: Mobilisation and litigation nexus

Baby Makgeledisa and Alex Dyzenhaus

The case of Putfontein in the North West illustrates the deliberate nature of how land claims have been frustrated and even actively sabotaged by elites who have private interests. Baby described how the community who had bought land in the early 1900s were later dispossessed in the 1970s, and their claim in the 1990s was ostensibly settled. But “the land is back only by mouth - but physically it was never given back to the rightful owners”. This is because, first, the settlement and development funds were lodged with a company that they didn’t know and which they were told was liquidated - though it later turned out it still existed. Second, when the claimants wanted their land back, the land commission combined, or incorporated, all the claims lodged by other villages and farms surrounding Putfontein into Batloung CPA. But those claimants had their own CPAs registered. Up to today, those people’s land is still incorporated under Batloung CPA. When raising complaints to not have land under the traditional leader, the claimants were made to register family trusts. Alex outlined the evidence that restitution failures after claims settlement are not a new reality, instead he spoke of the challenges claimants face when they take action to protect and promote their rights. Non-claimants also face the same uphill battle in having their land rights recognized because the claims process only accounted for some of the dispossessed. “Those professional classes in government are colonising our land - more than ever before. The systemic continuation of imposed traditional leaders will never end in South Africa. We know our customs and traditions. We don’t need traditional leaders to tell us what our customs are. The government has made [check] the traditional leader the custodian of our land without our consent. That is why they have so much power to sell our land.” 

Kearabetswe Moopela and David Coplan 

Struggles to defend or gain restoration of land is linked with its spiritual meanings. Kearabetswe and David discussed struggles to defend sacred sites from mining, specifically a site in the Moletsi mountains in Limpopo, targeted for a huge opencast iron mine which would ‘decapitate’ a sacred mountain at Mmadimatle. The spiritual meaning of land is not just a basis for restitution, but about the ongoing meaning of land - from the past through the present to the future. While you can move the living, you cannot move the ‘living dead’ - even if you exhume graves, “ancestors cannot be removed” and people will remain using the site as a pilgrimage even when it is cordoned off. For people for whom sites have this meaning, mining and the destruction it causes constitutes a spiritual genocide in attempting to sever an umbicial link between the living and ancestors. The River Club Development in Observatory, Cape Town, opposed by Khoi Khoi activists and others against Amazon, is another case which illustrates these challenges. There’s a need to incorporate spiritual recognition into the recognition of customary land rights.

Nonhle Mbuthuma and Johan Lorenzen

Nonhle Mbuthuma of the Amadiba Crisis Committee in Xolobeni argued that defending land rights starts with organising as communities and building unity on what people want. The big corporations are like Goliath and if you are fighting Goliath, you need unity, she said. “We don’t want mining - but we do want development. We don’t want mining.” They are pushing an agenda of economic development at the expense of our natural resources. Why must our local economy always have to be suppressed for the national economy? It is bizarre that now we are told the ancestors are standing in the way of development. Our mothers lived off the land and water and if we go ahead with this, how long will those jobs last, how long will those minerals be there? Johan Lorenzen from Richard Spoor, supporting the Xolobeni residents, added being a lawyer is mostly about writing down what people say: “my job is to translate that in a way that is understandable to the courts. Organising is more important than lawyers”, he said. Mobilising isn't just about communities. Communities are not an island. Allies like lawyers, activists, academics, need to see ourselves as part of communities and stand in solidarity. 

 

Day Three: Summary

 

 

Dineo Skosana opened the final day of the conference by providing a re-cap of the presentations (see day two summary) and the responses from the venues.

 

 

Plenary: Potential challenges to the forthcoming Communal Land Tenure Bill

 

Zenande Booi

The Communal Land Tenure Bill released in 2017 has not realised the hopes of the people that their various challenges in respect of communal land rights be dealt with - this is in part due to the fact that there is no comprehensive legal framework in existence, as per the requirement in section 25(6) of the Constitution. Other than the procedural issues with CLRB, there were also many substantive problems identified. Zenande also shared the problems where although communities have protections from IPILRA and ULTRA - their rights also are eroded, in many cases without the community even being aware of these dispossessions. If the CLTB is adopted, it will repeal ULTRA sections 19 and 20, but will provide no remedies or recourse to communities. And we are not even talking here about the dispossession in terms of the MPRDA. Maledu and Baleni judgments have been very important, but do not create remedies for communities who were dispossessed. The legislature is not dealing with the reality that exists on the ground. Nothing in CLTB will provide any recourse to communities. What does this mean for strategy? The problem is not only about what exists in the law. “We can’t just rely on the state to give people what they are entitled to. People's rights aren’t protected. We need to think of new ways that don't rely on the state doing its job”.

 

Ben Cousins 

Our focus has been on tenure reform policy – this is unlikely to succeed if we don’t tackle the political context of elite capture and state dysfunction. Customary law is adaptable and flexible. The Bhe judgement refers to living customary law. It is clear that the ruling party are pro-chief in rural areas and pro-titling in urban areas. We have had some successes – but has policy really shifted? Legal challenges are costly and long-winded. We have to rethink our mindset. Consider law - all law - as politics by other means. The further removed the formal law and policy is from nuanced practice at local level the less relevance and legitimacy it will have in people's lives. People don’t see a contradiction with custom and democracy – both have requirements for accountability and participation. Our struggles should have a wider ambition to transform society more generally. It should be combined with other issues. We should not have to choose between law and policy on the one hand and local struggles on the other. We need to use law and policy to help people win local struggles. Emphasis now should be building from below. We need a broad social movement which should not only focus on land, but land for what? Our struggles must be transformative - and not only about land tenure - but “to transform society more generally, as we slide backwards into the rules of gangsters”. “How can solidarity be formed across communities? ARD is a model here; how can the ARD model of organising around local issues be scaled up? Self-emancipation from below captures the urgent need of the moment. Key questions:

• Can a democratic politics be combined with one focused on rights derived from custom?
• What laws provide protection of land rights and guarantee the right to engage in political activity
• What legal judgments and precedents can be brought to bear?
• Will struggles be defensive only or can they be transformative?
• Must struggles be focussed only on land, or combined with other issues?
• What forms of organisation are most effective at the local level?
• How can solidarity alliances be forged across different communities? ARD is a model, or other formations have potential to grow given the crisis in society?
• How are leaders to be kept honest and accountable? Important lessons from the trade unions.

 

Dimuna Phiri

As discussant, Dimuna emphasised that other countries are going through similar challenges – in Zambia a number of communities on customary land have suffered dispossession- due to mining, commercial agriculture and other ventures that aim to address economic development. In Australia – a number of indigenous people have faced dispossession. Recently a mining company destroyed a cultural heritage site. There is limited engagement with customary rights holders. A common mistake is seeing customary law through the lens of state law. 

 

 

Panel 4A Free, prior and informed consent in theory and practice: What’s the next frontier for struggle?

 

Rachael Knight

Namati is a land rights organisation, which worked with communities in Liberia, Uganda and Mozambique over an extended period to help map land rights and ensure the customary land rights holders were legally empowered and knowledgeable of their rights. Two years later we found that 68% of communities lost their land to government or elites. It is clear that community knowledge of rights, or documentation or certification, are not sufficient to protect communities against the onslaught of state power. Rights, and knowledge of rights, is no match for the threat of violence, and the reality of poverty in which people are faced. Recommendations for community consultations with investors:

1. FPIC guide: A radically explicit guide for how FPIC must be done is needed. What does ‘free mean’? What is consent? How do you prove it is a true yes?
2. Legal loopholes: Close eminent domain loopholes 
3. National hotlines: there should be phone and online services that allow communities to seek immediate legal advice.
4. Cadre of pro-bono lawyers, comms should have their phone numbers. 
5. Training for government officials
6. Sensitise investors, to understand negative financial impacts of failures to get FPIC. 
7. Empower youth, they have less fear speaking out. 
8. People working on the ground, researchers and activists, need to spend more time and energy working with communities to document their land rights and struggles, and empower them to resist dispossession and enact FIPC. 

 

Aubrey Langa 

Aubrey Langa highlights his struggles in fighting for his land rights and the ways he has been able to use different strategies to push back against the mines. HIs community is being threatened by Anglo. Their main concern is that Anglo is not complying with IPILRA, even as they prepare to relocate hundreds of households. SInce the Maledu judgement, they are able to insist that the MPRDA must be read with IPILRA. They have used direct action such as protest, but have also approached the Regional Manager, Public Protector, Water Tribunal and any mechanism we could use.

 

Dayo Ayoade

FPIC is based on people’s right to own their land, natural resources and the right to self-determination. In Nigeria, there is a struggle based on the oil industry which has resulted in degradation of community lands. Elements of FPIC are (a) Free: must be voluntary and free of intimidation, coercion, bribery or manipulation; (b) Prior: permission obtained before any authorisation or commencement activity; (c) Informed: community should have access to objective information and proper data and understand the implications of the decision; (d)   Consent: collective decision making by the customary processes of impacted communities. There is no single internationally agreed definition of FPIC which is problematic as governments have discretion on how to formulate the application of FPIC. FPIC may conflict with national sovereignty over natural resources. In Nigeria, the federal government owns all natural resources in the country. The government must carefully design and implement an appropriate FPIC/community engagement regime in order to give a robust voice to indigenous communities. This applies to every country. 

 

 

Panel 4B The interface between land tenure security and land administration

 

Nokwanda Sihlali

There can't be one system of land administration for all black people. Black people in South Africa are not one homogenous group. And there needs to be one land administration system for the whole country, which is flexible. Different groups have their unique customs and practices - this must not be forgotten. Land administration is not a new idea that we have been grappling with. What needs to happen is that different options must be explored in different contexts to find the system that works best for people on the ground at the time. “A title serves what purpose, when my existence on land is all the barcode you need?” 

 

Sipesihle & Thembakazi

Sipesihle and Thembakazi discussed the longstand problems experienced by the Gwatyu community. The Gwatyu people were farmworkers on white owned farms when thee were expropriated to be incorporated into the Transkei in the 1970s. They were never removed, but stayed on and started farming. Their problems were exacerbated during Matanzima’s reign when he placed lessees on the land. Today, despite the fact that the Gwatyu people have beneficial occupation rights in terms of IPILRA, the state is oppressing them. THey cannot be removed, but they are receiving no recognition, service, or support to stop land invasions and are in fact under constant threat of the state wanting to give the land to the neighbouring and well-connected traditional council, the Amatshatshu. Sipesihle explained that IPILRA is only serving to keep the people on the land, but that is not the realisation of the right to tenure security. IN this way, the State is failing in giving effect to s25(6) and 25(9) of the Constitution. This is the basis for a legal strategy to support the community.

 

Rosalie Kingwill

Tenure is not a single idea or event. Tenure is a set of associations and we must shift our focus to the multiplex of institutions required to secure tenure. For example, the Gwatyu example is one of overlapping claims and rights. Because we have no adjudication system to deal with such conflict - which would be one element of the multiplex required - we are unable to deal even with these conflicts which in turn exacerbates tenure security. In the absence of a system, it is simply the most powerful player that wins. The categories of land administration can be divided thus: (i) Juridical/Administrative/Technical = allocation of rights to land, delimitation of the parcel, adjudication and conflict resolution, registration; (ii) Regulatory = land use management (zoning etc); (iii) Fiscal = property values, property taxation, compensation; (d) Information Management = land info systems. None of this is functioning properly in South Africa. What we need to work towards is a universal infrastructure that incorporates local and national levels to ensure that community members can assert their rights not only at the local level but against the whole world.

 

 

Closing plenary

 

Sindiso Mnisi-Weeks

A theme which stood out is the failed impact of the transformative vision of the Constitution when it comes to land and rural spaces. Traditional leaders use their power and unaccountability to stand in the way of democratic / economic advancement. There is spiritual significance of the land and what is buried in the land. Bottom-up arrangements have legitimacy and should not depend on formal structures or law. When rights are not protected, this is tantamount to dispossession. We need to undo the effects of two colonial legal principles that remain with us today: terra nullius (no man’s land) and lex nullius (an absence of law), the colonial notions which rendered people without land or law. This requires us to pay attention to the ways in which these depend on one another. SA constitutionalism has not adequately addressed these concerns. The colonial authorities constructed this notion of the ‘natives’... But we still live with this. We need now to envisage an ‘ALTER-native’ form of social and political existence.” We must rely on the understanding of ‘personhood’ in ubuntu in the robust sense - from a pretense of ‘unknowing’ the humanity of people into re-humanisation or what Tshepo Madlingozi calls “Go mothofatsa”.

 

Constance Mogale

A key question which emerged from the conference is how should customary law and the community be defined? The answer lies with the people this affects. We need to start at the village level.The Expropriation Bill will be debated soon, and we must ensure that customary land rights of people are protected in this Bill. Any laws which deal with governance must be applicable to the whole country - not just to black people who live in homelands. We challenge you to mobilise across sectors, we must find a new way of organising in the era of technology - we must focus on capacity building of our activists.  Immediate actions we can take is to publicise content - produce fact sheets, resource guides and simple booklets. We need to capture the reaction to what is happening around us. Invite us to community meetings and record and document meetings which are being held.

 

Nomboniso Gasa 

We have failed to articulate what a post-Bantustan post-apartheid South Africa would look like. What would this look like for people in former homelands? All the debate at the summit government convened earlier this year, it appeared as if they were in 1994, referring only to the colonial past - as if the past 28 years of law, policy and politics had never happened. The ANC has never had a resolution as to how to have traditional leaders in a democratic South Africa; they have been silent about what happened in the mid-20th century. They have been silent about what happened since 1994.  The space is becoming more limited because the government does not respond to court rulings and they are overtly siding with these conglomerates. We have a situation where tax money is being used against taxpayers. It is becoming clear that the space of constitutionalism is shrinking globally. There are going to be more challenges to this as more right-wing politicians sprout here in SA, amidst our deep crisis - as is happening elsewhere around the world. We need to restate the problem, comparing how people lived under the Bantustans and how they live now; and put forward our vision of what a democratic society looks like with traditional leaders. The problem is essentially a political problem, and take it to the theatre that is the political space and make it to be an issue for upcoming elections. Three concrete things that can be done: 

1. The conference steering committee, in writing the report, set up a working group to take forward this process and clarify its action points. Pool together the proposals that came up, not only from here but also from public debate
2. A delegation or committee of people should move from this conference and meet key stakeholders in society, especially ones that we want to build bridges and alliances with, like in the trade union movement, the social cluster at NEDLAC, climate change organisations, poverty and land organisations such as Abahlali and the Landless People’s Movement. We also have to start building more awareness at a global level. I do think we need to build towards one massive campaign. Where we have a national shutdown that focuses on communal land. Include trainings to supplement activism. Look at ways that successful movements, how they are built. 
3. Finally, we need to talk to the Khoi and the San, as fellow travellers in solidarity. In the next 3 months we need to have planning for all these processes and engagement with those who we want to join with in campaigns. 

 

Nolundi Luwaya provided a vote of thanks to everyone.