(Attending the public hearings before the Portfolio Committee on Justice and Constitutional Development, from left to right: Henk Smith (LRC), Charlotte Mokgosi from Makgobistad, Thandiwe Zondi from the Rural Women's Movement in Kwa-Zulu Natal, Gibson Maluleke from Makuleke, Bongumusa Sibiya (LRC), Thomas Moshitoa from Mmotwaneng Rakgwadi, Aninka Claassens (LRC), Patrick Mashego from Rakgwadi and Stephen Tongoane, the first applicant in the case challenging the constitutionality of the Communal Land Rights Act.)

In March 2006, four communities in the North West, Mpumalanga and Limpopo provinces instituted legal proceedings challenging the constitutionality of the pending Communal Land Rights Act 11 of 2004 (CLRA). The LRC represented the Kalkfontein, Mayaeyane and Dixie communities and Webber Wentzel represented the Makuleke community. The matter will be heard in the Pretoria High Court on 14 October 2008.

As Henk Smith, attorney with the LRC explains, "The core of the Act deals with the transfer of land title from the state to traditional communities; the registration of individual land rights within ‘communally owned’ areas; and the use of traditional council or modified tribal authority structures to administer the land and represent the ‘community’ as owner...The Act applies to all communal land, including the former homelands and post-1994 land reform land."¹

Amongst its defects, according to the claimants, the bill had been rushed through Parliament before the 2004 election without following the provincial consultation process required by the Constitution. It contravenes section 25(6) of the Constitution, which requires that a "person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress". It gives unprecedented and undemocratic powers to traditional leaders without taking into account traditional methods of accountability.

It incorporates autonomous communities into the jurisdiction of unrelated tribal authorities created during apartheid and reconstituted as traditional councils. And it gives traditional councils the power to exercise property rights on behalf of communities with whom they have little or no historical connection without the permission of the community members themselves. The CLRA could undo the rights to land won through restitution claims and reincorporate the communities back into apartheid-era"tribal" units. It also fails to adequately address the insecure tenure and dispossession of African women due to racial as well as gender discrimination.  A fourth tier of government could be created by the CLRA, especially in conjunction with other acts (the pending Traditional Courts Bill and the Traditional Leadership and Governance Framework Act 41 of 2003), providing a greater sphere of executive influence for traditional leadership than that envisioned in the Constitution. This could create a separate system for the regulation of land affairs for nearly 50% of the South African population with decidedly insufficient provisions for financial accountability, constitutional guarantees, and democratic mechanisms.

The members of the applicant communities hold their land and exercise their land rights in accordance with customary law. Professor Thandabantu Nhlapo² , who filed a supporting affidavit in the matter, said: "One of the key features of living customary law is that land relations are created by and mirror the bonds and relations between people. Another is that access to land is a function of membership at different levels of rural society, for example, membership of the family, lineage, village or wider community."The CLRA, by vesting ownership at the level of the "community" and control at the level of the traditional council, undermines the strength of land rights at other levels of society as well as local control and accountability. By taking an individualised approach to tenure rights, and ignoring the layered rights which vest in members of the family other than the husband and wife, the CLRA weakens the already insecure tenure which some members of the family have. This is in breach of the obligation on the state under section 25(6) and (9) of the Constitution.

In the 1960s, the Makuleke community was forcibly removed from their land to the Nthlaveni area, and placed under the jurisdiction of the Minga Tribal Authority. There is documented evidence that the Minga Tribal Authority and Chief Adolf Minga had actively lobbied the Minister of Native Affairs for this. The Makuleke received their original land in restitution by order of a Land Claims Court on 14 December 1998, but as it had been incorporated into the Kruger National Park, the restitution settlement limited residency. In compensation, the Makuleke were granted rights to the Nthlaveni area.

The CLRA will remove the land from the control of the Makuleke community’s democratically constituted communal property association, and place it in the hands of a traditional council. The destruction of land-holding instruments of the local community, and placing control in the hands of a larger institution, would inevitably undermine the tenure security of members of the local community.

The Kalkfontein community comprises two separate sets of community buyers, whose claims of restitution to portions of the Kalkfontein farm were granted in 1994 by the Transvaal High Court. The farm had previously been held in trust for the community in the name of the Minister of Land Affairs, formerly the Minister of Native Affairs, due to a racially discriminatory policy which prevented black communities from owning communal land in their own names. However, it took another ten years for the title to be transferred to entities representing the communities.

When the former Kwa-Ndebele homeland was established in 1986, the Kalkfontein community was, against their will, incorporated into a tribal authority with an appointed chief, Daniel Mahlangu. Mahlangu allegedly abused his position of authority – he sold residential plots without community consent and levied illegal ‘tribal’ taxes. The communities petitioned for a government inquiry and the resulting Kruger Commission recommended that Mahlangu be removed and the disestablishment of the tribal authority be considered. Mahlangu was removed, but the unwanted tribal authority remained, and a relative, also a Mahlangu, was appointed to replace Daniel as ‘acting-chief.’ Over the years, the Kalkfontein communities have petitioned and litigated for protection of their rights to the land but their pleas have been ignored by various branches of government and opposed by the House of Traditional Leaders. Under the CLRA, the co-purchasers of Kalkfontein farm would, as communal land owners, fall under the jurisdiction of a traditional council comprised of the former tribal authority, with the unelected chief Christopher Mahlangu as member. The Kalkfontein community would once again be denied their right to hold full title, secure rights of use and administration to their land.

The Dixie community living on the Farm Dixie 240KU was placed under the jurisdiction of the Mnisi Tribal Authority under the terms of the Black Authorities Act 68 of 1951. They had no historical association with the Mnisi prior to that event. The farm borders on Kruger National Park, Manyeleti Game Reserve and Sabie Sands Reserve, and is a very valuable piece of real estate. The Mnisi Tribal Authority signed a contract with Curato Developments to build a lodge on the farm with no regard for, consultation with, or compensation to the Dixie community, and before their right to do so was properly established through the Land Claims Courts. The community sought an interdict in terms of section 2 of the Interim Protection of Informal Land Rights Act 31 of 1996 to prevent the development, and when confronted with the possibility of litigation, the investing parties withdrew. However, under the CLRA, the land rights of the Dixie community would be destabilized, with land use and development of the farm potentially coming under the jurisdiction of a traditional council. The Dixie community stands to lose the legitimate right to make their own land use determinations.

¹Henk Smith, An overview of the Communal Land Rights Act 11 of 2004, in Land, Power & Custom: Controversies generated by South Africa’s Communal Land Rights Act 39 (Aninka Claassens & Ben Cousins 2008).

²Professor Nhlapo is Deputy Vice-Chancellor and a Professor of Law at the University of Cape Town.  He has held a presidential appointment as a full-time member of the South African Law Commission, in which capacity he specialised in the field of customary law.