By Monica de Souza Louw, Land and Accountability Research Centre (LARC), University of Cape Town
* This piece was originally published as part of the online discussion on customary law in Southern Africa
Does the South African Traditional and Khoi-San Leadership Act (TKLA) allow traditional leaders to sign away people’s land rights? This concern was raised by civil society while the TKLA – in force since 1 April 2021 – was being processed by Parliament. They pointed to section 24 of the TKLA, which enables traditional councils to conclude agreements with other traditional councils, municipalities, government departments and “any other person, body or institution”, including private developers and mining corporations. Agreements about land or affecting land rights are not excluded from the process set out in section 24. Agreements to sell land or to compensate losses due to mining activities on land could therefore fall within section 24’s scope.
This raised alarm bells for people with informal land rights who live within traditional community boundaries. Informal land rights are protected by the 1996 Interim Protection of Informal Land Rights Act (IPILRA), which sets out a process whereby rights holders must consent before being deprived of their land rights. During the parliamentary process, changes were made to section 24 of the TKLA to make it look more like the process in IPILRA. However, the process in section 24 is not equivalent to an IPILRA consent process.
Section 24 requires a single consultation with the entire traditional community where a majority of attendees will decide whether or not to support the agreement. A favourable decision of the traditional council must precede this consultation and the provincial Premier must ratify the resulting agreement. IPILRA speaks to different decision-makers. If an informal land right is held individually, only the person who holds the right can consent to its deprivation. Where land is held on a communal basis, the decision to dispose of someone’s informal land rights can only be taken by a majority of all the land right holders and is subject to local customary law. This is a more specific, directly affected, group than the traditional community at large and customary law could demand a more complex decision-making process than a vote at a single meeting. IPILRA also sets a minimum standard for how the rights holders’ meeting must be conducted, which is absent from the traditional community meeting referred to in section 24.
By not specifying that IPILRA’s requirements apply in addition to section 24’s process when informal land rights are concerned, there is a danger that people will assume that section 24 trumps IPILRA. This is not necessarily the correct legal interpretation, but could be a convenient interpretation for companies looking for the quickest approval process.
Much rests on how section 24 will be interpreted and applied in practice. Will it be seen as an additional process to the one contained in IPILRA – a process that cannot supplant obtaining the consent of land rights holders? Or will traditional authorities and developers proceed as though consent is no longer needed before finalising an agreement that affects informal land rights? This uncertainty places rights holders within traditional communities in an incredibly vulnerable position and potentially threatens their homes, crop fields and grazing lands. Based on the unlawful land deals that have already been happening in traditional communities like Xolobeni, Somkhele and Lesetlheng before the TKLA came into force, it is not a far-fetched concern that IPILRA will be ignored.
Parliament could easily have rectified this vulnerability by making it explicit in the provision that the rights protected by IPILRA continue to apply. Despite inputs from civil society, this was not done. Instead, Parliament has left it up to traditional councils and developers to implement an IPILRA process when informal land rights are at stake in a planned deal. When section 24 provides a much easier way out on its own and people are unlikely to have the resources to defend their land rights, how many traditional councils and developers are going to bother?