Communal Land Rights Act has no place on our statute books

STEPHEN Tongoane isn't given to emotional out­bursts but today he can't contain his excitement. For seven years he has fought against a law that would have turned 21 million South Africans living in former home­lands - almost half the pop­ulation - into slaves of often corrupt tribal dictatorships. This week he won.

"The whole village is on cloud nine," says Tongoane, a 59-year-old teacher who lives in Kalkfontein, north of Pretoria, a typ­ical homeland settlement of more than 1000 homes scat­tered over subsistence farm­land. "We are overjoyed."

In a unanimous decision, the Constitutional Court ruled this week that the controversial Communal Land Rights Act passed in 2004 has no place on our statute books,

The case was brought by the Legal Resources Centre and law firm Webber Wentzel on behalf of four communities, including Tongoane's.

The decision to oppose the case - by two government de­partments, the speaker of the National Assembly, the national council of provinces and the house of traditional leaders - resulted in 11 senior counsel being appointed.

Taxpayers will now foot legal costs estimated to have bal­looned to a whopping R5-million.

This expense could easily have been avoided, according to correspondence seen by the Sunday Times.

It shows parliament and the Ministry of Land Reform and Rural Development (previously land and agriculture) were warned as early as 2004 of the risk of taking a short cut in parliamentary procedure by fail­ing to explain to the provinces the new powers being given to chiefs over communal land.

The law was intended to un­lock wealth in impoverished ru­ral areas by converting com­munal plots to freehold tenure.

But a clause inserted in 2003 gave unelected chiefs unprece­dented powers to make land use rules, even for communities like Tongoane's, who owned their properties.

"Our grandparents bought these farms in 1923," he ex­plains. "They established a democratic system of ruling through a committee that was elected every five years."

But in 1979 the apartheid government incorporated the Kalkfontein community into the KwaNdebele homeland and made them subjects of a no­toriously corrupt extortionist named Daniel Mahlangu.

A government commission uncovered how Mahlangu and his councillors charged their subjects a host of irregular fees and funnelled the money to the chief via secret bank accounts, People who refused to pay found their state pensions and welfare benefits cancelled.

The late Mahlangu was de­posed, but the community feared the act would lead to a repeat of the past.

"This law said any chief next to your land can rule you, even if you own your own land. We were very worried that we would get another corrupt chief," Tongoane says. "Why can't we be treated like ordinary land owners, like the white fanners living next to us?"

The Constitutional Court has urged the government not to waste any more time in making sure millions of South Africans living in former Bantustans get legally secure tenure denied them under apartheid.

"This is a huge opening for government to do the right thing," says LRC lawyer Henk Smit.

Mtobeli Mxotwa, a spokesman for the minister of land reform and rural development, Gugile Nkwinti, said a green paper to be submitted to cabinet this month would contain proposals for drafting an omnibus law cov­ering all land issues. "Then we will probably be able to avoid these court cases."

Stephan Hofstatter