Indigenous Knowledge and the Environment in Africa and North America

Chapter 13: Dilemmas of “Indigenous Tenure” in South Africa: Traditional Authorities and the Constitutional Challenge to the 2004 Communal Land Rights Act

Chapter 13 Dilemmas of “Indigenous Tenure”in South Africa Traditional Authorities and the Constitutional Challenge to the 2004 Communal Land Rights Act Derick Fay The notion of “indigenous tenure” poses challenges in South Africa. Transformations under colonialism and white rule and questions about the compatibility of hereditary leadership and democracy make the identification and legal recognition of indigenous tenure a fraught political question. Successive colonial administrations in South Africa developed a system of property law and private property to apply to cities and “white” areas. In the 13 percent of the country designated for African occupation, though, the state empowered traditional authorities (chiefs and headmen) to allocate and administer land held under so-called “communal” tenure, often transforming local systems and creating new offices and officeholders in the process. The degree of (dis)continuity between this administrative model and precolonial or “indigenous” tenure has been a subject of considerable debate .1 This paper does not attempt to resolve these debates, but instead examines their intersection with current legislation and policy in South Africa, and the past and future status of colonial- and apartheid-era models of indigenous tenure that treated land as the domain of chiefs and headmen. After the country’s political transition in 1994, the status of traditional authorities was unclear and contested, even as the constitution required 288 | Derick Fay land tenure reform measures in the former “homelands.” A decade later, Parliament enacted the Communal Land Rights Act (CLARA), a measure that some observers claimed would entrench the powers over land that traditional authorities had held under colonialism and apartheid. In March 2006, however, four rural communities brought a court case challenging the constitutionality of the CLARA. In October 2009 the North Gauteng High Court ruled it unconstitutional, and the Constitutional Court confirmed this decision in May 2010, leaving the legal status of traditional authorities with respect to land uncertain sixteen years after South Africa’s political transition. Traditional Authorities and Land Prior to 1994 In the decades following conquest and annexation in the late nineteenth century, the state aimed to curtail the powers of chiefs, to prevent any revival of the military power of recently defeated African chiefdoms. Policy aimed “to bypass and weaken the chiefs” through a system of direct rule.2 Land was legally owned by the South African Native Trust, but administered by headmen, who were directly accountable to district magistrates, leaving chiefs with no official role. After 1948, the National Party government in South Africa launched its policies of apartheid, leading to the incorporation of chiefs in the state. Segregation was intellectually justified as “separate development,” a premise that led officials to grant Africans a measure of autonomy—real or illusory —within an overall system of political and economic domination. One of the first apartheid laws was the Bantu Authorities Act of 1951, which made chiefs central to administration, as heads of Tribal Authorities incorporated into a regional and territorial bureaucracy.3 The Tribal Authority systems would form the backbone of the ostensibly independent “homelands ” that were created from 1963 onward, and existed until the political transition. While some notable chiefs were active opponents of apartheid, “the implementation of apartheid [saw] the chieftaincy very largely caught up in the machinery of repression and control.”4 Activists critiqued such policies as unwanted “retribalization,” while scholars came to understand traditional authority through the lens of the “invention of tradition.” Such work typically characterized the roles of chiefs and headmen as manipulated , inflated, and invented by colonial- and apartheid-era officials, and generally argued that traditional authorities should not have a role in land administration.5 Dilemmas of “Indigenous Tenure” in South Africa | 289 The African National Congress (ANC) itself contained differences of opinion on the status and future of traditional authorities. Its founders in the early twentieth century had included chiefs, but after the radicalization of the organization from the 1940s, two schools of thought emerged.6 One favored pragmatic alliances with“progressive”chiefs and headmen,embodied in Chief Albert Luthuli, who was elected as national president of the ANC in 1952.7 Another rejected collaboration as traditional authorities came to be incorporated more fully into the apartheid regime; as Govan Mbeki wrote, in evolutionary language,“When a people have developed to a stage which discards chieftainship , when their social development contradicts the need for such an institution , then to force it on them is not liberation but enslavement.”8 Traditional Authorities...