What happens when government fails to listen to rural voices: Constitutional Court declares Traditional and Khoisan Leadership Act unconstitutional

The article argues that a court challenge would not have been necessary if the voices of rural communities, who observe and develop customary law, were heard and considered during the process to prepare and adopt this law. Parliament must take public participation in the legislative process seriously. In this case, Parliament had a duty to listen to rural communities, and not only traditional leaders, because the TKLA would directly impact the land rights and livelihoods of millions of rural residents.

Background

Traditional leaders and Khoisan leaders were excited when the TKLA came into force in 2019. They were elated because the Act empowered them as custodians (not owners) of the land to enter into partnerships and agreements on land management matters with municipalities, government departments and the private sector.

However, rural communities and community activists had in previous years raised concerns when the Act was still a Bill. In particular, they were concerned about the provision which empowered traditional and khoisan leaders to enter into partnerships and agreements with the private sector and the impact these partnerships and agreements would have on their land rights. Another concern was that the Bill empowered traditional leaders to allocate land without consulting communities. Rural communities and community activists argued that the Bill granted traditional and khoisan leaders the power to take decisions on communal land by entering into agreements with private and public institutions without consent from those whose land rights are directly affected. These two concerns were raised amongst others because of the failure of the original Bill to include a direct requirement for community consultation when traditional and khoisan leaders enter into partnership agreements. The Bill was eventually amended to include a requirement for community consultation. Despite this, community activists and rural communities knew that the already widespread practice by some unscrupulous traditional leaders of selling and leasing land which belongs to rural communities and families without consultation and their consent, was likely to intensify with this Act coming into operation.

It was thus no surprise that an alliance of land rights organisations, activists and rural communities approached the Constitutional Court in December 2020 to declare the Act unconstitutional. The applicants challenged the law on procedural grounds, arguing that the National Assembly, the National Council of Provinces and the provincial legislatures had failed to facilitate meaningful public participation in the legislative processes that led to the adoption of the TKLA. On the 31st of May 2023, the Constitutional Court in a unanimous decision ruled that the TKLA was unconstitutional because Parliament “overwhelmingly” failed in facilitating public participation. This was on the basis that the public participation process adopted by Parliament in many instances did not correctly describe the Bill, allow people to speak at hearings, advertise hearing dates timeously, accurately summarise submissions made at hearings and consider the completed public participation process when making decisions.

Commentary

This judgment re-affirms that the voices of rural communities must be heard and considered in order for government and Parliament to give effect to Chapter 12 of the Constitution properly. Chapter 12 deals with customary law and the institution of traditional leadership which ought to translate into effective governance of rural communities by traditional leadership and the protection of the rights they derive from customary law.

What has bedevilled legislation on traditional leadership and rural communities is the misconception that traditional leaders ‘own’ the land based on their role in land allocation. This misconception seems to dominate Parliamentary debates on the role of traditional leadership in democratic South Africa and more often than not finds expression in legislation. The initial exclusion of the requirement for communities to be consulted when traditional and khoisan leaders enter into agreements regarding communal land which is owned by rural families comes from this misconception. Instead of aligning themselves with this “flawed thinking”, parliamentarians must robustly question and debate Bills that aim to weaken the already insecure rights of rural communities in favour of strengthening the powers of the institution of traditional leadership over communal land.

Parliamentarians must be aware that, in practice, there are some traditional leaders who would use this Act to assert more authority over communal land. The colonial and apartheid regimes created the misconception that chiefs could exercise enormous powers without checks and balances. The TKLA was going to perpetuate this problem. The framing of this legislation suggested strong support by government for expanding the power of chiefs and traditional councils, and parliamentarians agreed with it. The question is why would Parliament agree to pass such legislation?

Parliamentarians are voted into Parliament to represent the voices of their constituencies, particularly those sections of their constituencies whose voices are not heard and whose land rights are violated. However, what has emerged in recent times is that Parliamentarians have endorsed legislation (i.e. Communal Land Rights Act 11 of 2004) that deepens the marginalisation of rural communities and violation of their land rights. It has now taken the courts which are normally conservative in their approach to matters relating to custom and traditional leadership, to take a more progressive approach in these matters in order to elevate the voice of rural communities, as well as protect their land rights and dignity. This is why this judgment is a resounding victory for rural communities and yet another call to the institution of traditional leadership to play its role in protecting the land rights of rural communities. Until Parliament passes legislation which respects the land rights of rural communities, dispels the notion that traditional leaders ‘own’ communal land, and carves out a role for traditional leadership as a governance institution which will contribute to the promotion of the rule of law and the protection of the land rights and dignity of rural communities, the courts will continue to strike down retrogressive laws, namely, the Communal Land Rights Act and now the TKLA. It is therefore high time that the government and Parliament pay attention to the voices of rural communities and not only traditional leaders when developing legislation on customary law and traditional leadership.

By Xavia Poswa, Doctoral Researcher