No Mr President, communal land rights cannot be ignored

This column is in response to a piece written by Aninka Claassens on July 17, 2018 (“The Ingonyama Trust: Land and Power in the former homelands”)

While the country is debating whether the Constitution should be changed to speed up land reform, people in communal areas are without secure tenure. The ANC currently blames all the problems of the land reform programme on Section 25 of the Constitution, but they seem to have forgotten the protections that this section provides for people who were deprived of land rights before the advent of democracy.

The ANC and EFF recently stated that communal land will not be touched in the process of expropriation without compensation. Both parties are purposefully dodging the issue of tenure security issues in communal areas. These areas should not be left out of the debate on land if we want to reach a sustainable solution. Roughly 18 million people in South Africa live in a legally insecure situation, where their familial and individual land rights are denied and not protected by government.

Section 25(6) is clear that their rights should be protected by stating:

“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”.

In addition to Section 25, Section 7 of the Constitution mandates the state to “respect, protect, promote and fulfil” the rights contained in the Bill of Rights. The obligation to “respect” places a duty on the state not to impair a person’s existing right to tenure security. Additionally, the obligation to “protect” requires the state to take measures to prevent others, including individuals, groups and corporations, from interfering with the right to tenure security of those living in communal areas.

In a reply to a parliamentary question by the DA, the minister of rural development and land reform said that the department owns or exclusively manages over 20.7 million hectares of land, predominantly made up of communal land or former homeland areas. Communal land is subject to the underlying ownership rights of the families who have occupied and used it for generations.

The high-level panel chaired by former President Kgalema Motlanthe held various public participation sessions in rural areas where communities spoke out against local traditional leaders that don’t consult them before allocating land for shopping centres and mining operations. One participant in KwaZulu-Natal noted:

“We live in great hardship in South Africa. We are dispossessed of our land by development, by the mines, and we get no compensation or benefits out of the so-called development on our ancestral land. We are not consulted. We have turned into nonentities with nothing, and yet we are the rightful owners of the land. We don’t have certainty as to what is going to happen to us and our land.”

As Thinyane Duda, a researcher from the Land and Accountability Research Centre in the Department of Public Law at the University of Cape Town puts it “communities get little more than polluted environments, respiratory-related health problems or destroyed homes.”

The high-level report shows that government and specifically successive ministers of rural development and land reform have failed to protect people’s land rights.

In lieu of any meaningful actions by government to protect underlying land rights of communal residence, the DA has written to the South African Human Rights Council to launch an investigation into the lack of protection for South Africans with insecure land rights with a focus on determining the extent to which the organs of the state and specifically the minister of rural development and land reform breached the duty to respect, protect, promote and fulfil the rights prescribed in Section 25(6).

In our third decade of democracy we should not have any second-class citizens in South Africa, where some people’s land rights are protected, and others are not. The ANC led government has failed to protect rural residents land rights and now they are using the prospect of expropriation without compensation to hide their failures.

The president should know that this is no time for false promises and we have a unique opportunity to solve the impasse that has plagued this country. It comes down to rights of people, and in a constitutional democracy everyone’s rights should be protected. We should not allow the current land debate to shift our focus from the real objective: to protect and extend ownership of land for black South Africans. DM

Thandeka Mbabama is DA Shadow Minister on Rural Development and Land Reform and Constitutional Review Committee Member.