The heat and dust of current debates on expropriation of land without compensation obscure a disturbing reality few commentators have remarked upon. The constitutionally guaranteed land rights of black South Africans in communal areas are being violated on a large scale. And the perpetrators are lying about it.
Two instances spring to mind - the Ingonyama Trust in KwaZulu-Natal, and deals between chiefs and mining companies in North West, Limpopo, the Eastern Cape and KwaZulu-Natal.
Powerful vested interests have been encouraged in their malfeasance by the pro-chief policies of the previous, little-loved minister of rural development and land reform, Gugile Nkwinti.
Both instances are highlighted in the recent report of parliament's High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change, chaired by Kgalema Motlanthe. The panel investigated social cohesion, inequality and land reform over two years. Many rural people made their views known.The report has been hailed for its clear recommendations on how to remedy land policy. But parliament appears to be ignoring its own work.
In relation to the Ingonyama Trust, the report's findings are being misrepresented by Zulu king Goodwill Zwelithini, the sole trustee. He is attempting to rouse Zulu speakers to "defend their land", and threatening war.
In fact, it is the trust that is undermining the land rights of rural families, by converting strong customary rights into rent-paying leaseholds. These rental payments escalate by 10% per annum, and by 2020 will bring in over R100-million a year. If rents are not paid, people can be evicted from their land.
The trust's justification for this conversion of ownership to leasehold is that it will allow for formal proof of address, in order for people to vote, open a bank account, buy a cellphone or receive a "rural allowance" if they are government employees. These justifications are, of course, spurious. Millions of communal area residents across South Africa already vote, have bank accounts, own cellphones, and can supply letters offering proof of address.
Trust income in the past was derived from businesses operating on land under its jurisdiction. Over the past three or four years, however, ordinary residents have been targeted, and annual income from leases had risen to R70-million by 2015.However, the trust rarely uses such income to invest in developments that benefit residents. Many residents and traditional leaders in the province are deeply unhappy about this.
A little history: the Ingonyama Trust Act of 1994 was adopted by the apartheid regime just before the first democratic elections. The act vests some 2.68 million hectares in the trusteeship of the Ingonyama, the Zulu king.
A subsequent commission established that the nature of such trusteeship is identical to that of the South African state in relation to communal land in general. Trusteeship is not ownership. Rather, the law enjoins the trust to administer the land under its jurisdiction for "the benefit, material welfare and social wellbeing" of community members. The trust "shall not infringe upon any existing rights or interests".
The trust, in converting rights akin to ownership into lesser rights, is in breach of its own founding legislation. Litigation is under way to challenge these actions. The High Level Panel recommends that the trust either be abolished, or its legislation be amended to strengthen land rights of residents.
Twenty-four years into democracy, the national government has yet to enact legislation to provide full legal protection for land rights in communal areas, as required by the Bill of Rights.
The Communal Land Rights Act of 2004 was struck down by the Constitutional Court. The Communal Land Tenure Bill recently introduced by Nkwinti would also fall foul of the constitution, should it be passed by parliament. It, too, fails to properly secure family- and community-based land rights, and makes them subject to the powers of private owners (traditional councils or communal property associations).In the short term, a viable measure to secure land tenure rights in both rural and urban areas is to make the Interim Protection of Informal Land Rights Act a permanent law. This is strongly recommended by the High Level Panel.
It also suggests that laws such as the Ingonyama Trust Act and the Mineral and Petroleum Resources and Development Act be made subject to the Interim Protection of Informal Land Rights Act. Why is parliament not acting on this?
The second instance of expropriation of black land rights without compensation is in the mining deals commonly struck between chiefs and their traditional councils, and mining companies. These see a similar pattern of elite pacts at the expense of ordinary black South Africans.
Such cases can involve hundreds of millions of rands in royalties or dividends going into the private bank accounts of leaders who claim to "represent" community members. Several cases have made their way into the courts and, belatedly, mining houses are beginning to realise that their connivance in corruption undermines their claim to be good corporate citizens.
Not only do ordinary community members fail to benefit from these deals, but in addition they often lose large areas of arable and grazing land, and see their water sources being polluted. Compensation for these losses is derisory.The ANC government has colluded with both chiefs and mining companies in these forms of expropriation without compensation. Nkwinti, as trustee of state land, failed to require elites to consult people, or to ensure that his department implemented the Interim Protection of Informal Land Rights Act, and sided with traditional councils against community members.
Surprisingly, Nkwinti escaped negative comments in assessments of the new cabinet, despite presiding for nine years over the disaster story that is land reform. In addition, there has been mounting evidence of corruption in relation to land, including the notorious Mala Mala land claim and many cases involving South African Fruit Exporters and Bono, their BEE partner.
Debates about expropriation are raising the temperature for the middle classes, capital and the urban elite. Sadly, few seem concerned about continuing processes of dispossession of ordinary black South Africans.
Professor Cousins specialises in poverty, land and agrarian studies at the University of the Western Cape..