Civil society unhappy about Ramaphosa signing Khoi-San Bill

President Cyril Ramaphosa's decision to sign the highly contested Traditional and Khoi San Leadership Bill into law has been criticised by at least one civil society organisation — and may even be challenged in court.

The announcement that Ramaphosa had signed the bill was made during a meeting of the National Assembly's programme committee on Thursday, and a government gazette was published later on the same day.

But the decision was met with unhappiness.

“The Traditional and Khoi-San Leadership Bill seeks to provide a veneer of legality to partnerships of extraordinary greed and complicity that already exist between government and the mining sector. Instead of regulating mining to ensure that basic rights and the environment are protected, this bill signals that government is happy to jettison the most basic rights of the poorest South Africans in order to maintain the precarious status quo,” said Aninka Claassens of UCT-based Land and Accountability Research Centre.

Claassens said they had expected Ramaphosa to refer the bill back to parliament after two panel reports warned that provisions it contained were in breach of fundamental constitutional rights.

The first report, in 2017, was by a high level panel created by the Speakers' Forum and chaired by former president Kgalema Motlanthe. Claassens was a member of the Motlanthe-led panel. The second was by the president’s own Advisory Panel into Land Reform, which reported earlier this year.

“Numerous submissions warned that the bill undermines the customary and informal property rights protected by section 25(6) of the constitution, and abrogates the decision-making authority that is the hallmark of citizenship for the 18 million South Africans living in the former homelands.

“The president therefore had strong legal grounds on which to refer the bill back to parliament. He chose to ignore these,” said Claassens.

She said the bill provides for traditional leaders and councils to sign deals with investment companies without obtaining the consent of those whose land rights are directly affected.

“No prior law in SA history, even during colonialism and apartheid, has enabled traditional leaders to dispossess people of their land rights without either their consent, or expropriation,” she added.

Claassens said while civil society has repeatedly lauded the fact that the bill takes steps to recognise Khoi-San leaders and structures, there is a concern about the cost at which this recognition has come. Khoi-San communities, too, will be subject to the rights abrogations enabled by the bill, she said.

The ANC has previously said it views the bill as part of the mechanism and instrument geared at correcting SA's painful past and recognising the Khoi and San people by restoring their dignity, identity, language, leadership and their culture.

Among its contested clauses, is that it provides that “a (traditional) council may only enter into a partnership or agreement if the relevant community has been consulted and the majority of community members present at such a meeting have taken a decision in support of the partnership or agreement to foster transparent democracy and community participation on matters that affect them”.

But the ANC has defended the clause saying that, on the other hand, the bill makes it illegal for traditional leaders to act unilaterally and to enter into deals with the private sector such as mining companies without the consent of the community.

Claassens also questioned Ramaphosa's timing in signing the proposed law saying the bill attempts to remove the consequence of legal invalidity for councils that fail to “transform”.

“Because many existing investment deals, particularly for mining, are legally precarious as the traditional councils that signed them were not legally compliant with the requirement to include some women and elected members”.

She said because two landmark judgments in 2018 uphold the right to tenure security in the context of mining in the former homelands — they provide that deprivation of informal land rights requires either the consent of those affected, or expropriation through due process of law —  the bill was amended shortly after the Maledu Constitutional Court judgment of October 2018 to attempt to get around this crucial new precedent.

Lawyers representing several rural communities wrote to Ramaphosa in September requesting him to send the bill back to parliament, charging that it was passed through unconstitutional means, it is substantively unconstitutional and cannot be signed into law.

In its report published in 2017, the Motlanthe panel called for an urgent review of both the Traditional Leadership and Governance Framework Amendment Bill and the Traditional and Khoi-San Leadership Bill, saying that based on the public contributions it received, current and proposed legislation on traditional leadership denied people living in areas under traditional leaders several constitutional rights, distinguishing them from those living in the rest of the country who enjoy the full benefits of postapartheid citizenship.

The newly signed laws were still being processed in parliament at the time the panel made its call. It said “such legislation poses a threat to social cohesion by entrenching and promoting ethnic identities”.

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