“They want to sell us.”

Those are the haunting words of an elderly woman in the 48-minute narrative documentary, This Land (2017), about the struggle of rural people for protection of their rights and accountability on communal land in rural KwaZulu-Natal. Her words and expression, well-worn hands covering her face, capture the painful controversy of the democratic government’s undemocratic approach to land reform in rural South Africa.

Who are “they” who want to sell poor, rural people like this woman? In short, traditional leaders in cahoots with the government.

This woman was describing the reality that former President Kgalema Motlanthe later acknowledged after hearing hundreds of rural people across South Africa give testimony on their experiences of land confiscations, insecurity, and destitution, especially in mineral-rich areas such as the Platinum Belt in the northern provinces and land under the jurisdiction of the Ingonyama Trust Board in KwaZulu-Natal.  Motlanthe was a member of President Cyril Ramaphosa’s task team meant to “clear existing confusion” on the ruling African National Congress’s position on “the land question;” i.e. the imperative to embark on large scale land reform to right racial imbalances in land ownership and access.

As Motlanthe said of the Ingonyama Trust Board, which is appointed by the Minister of Rural Development and Land Reform to administer the public land held in trust for the Zulu people and controlled by the Zulu royal family who manage ordinary people’s access to that land through traditional leaders: “People who have lived there for generations must pay the Ingonyama Trust Board R1,000 rent which escalates yearly by 10%.”

Specifically, the Trust approaches and advertises to poor, rural people under its jurisdiction that they have insecure tenure in the form of PTO certificates (an apartheid-era certificate that is upgradeable to ownership in terms of the Upgrading of Land Tenure Rights Act of 1991) or no documented right to occupy the land they have inhabited, in many instances, for generations. It tells them that, they can “upgrade” their land rights by entering into long-term leases with the Trust so that they can have proof of residence to register to vote, open bank accounts, register cell phones, or obtain rural allowances from employers.

These are people who typically have either PTO certificates or informal land rights (established by long-term occupation that are likely to be considered customary ownership and thus entitling them to compensation under the Interim Protection of Informal Land Rights Act of 1996). The Trust, having gotten these people to unknowingly trade in their rights that are more akin to ownership for the status of tenants, then extorts these escalating annual rental fees from them.

The Trust continues to issue this solicitation via its Facebook and Twitter accounts and advertisements despite the fact that, in March, the parliamentary chair of the Portfolio Committee on Rural Development and Land Reform directed the trust to stop this practice, and a senior official of the responsible government department confirmed that the Trust’s income-generating scheme is unauthorized and violates both the Constitution and the Public Finance Management Act.

Motlanthe was quoted as concluding:

Some traditional leaders support the ANC, but the majority of them are acting like village tin-pot dictators to the people there. The people had high hopes the ANC would liberate them from these confines of the homeland systems, but clearly we are the ones who are saying the land must go to traditional leaders and not the people.

Unsurprisingly, the comment attracted a lot of criticism of the former president, particularly from traditional leaders and other insiders and allies such as Mangosuthu Buthelezi, who heads the Inkatha Freedom Party, a party close to the Zulu king and traditional leaders in KwaZulu-Natal.

But is what Motlanthe said really unwarranted?

The core debate is about who owns the land: whether the traditional leaders and/or kings or the people who have lived on the land, burying their ancestors, grazing their cattle, fetching grass, wood and water there. The essential challenge is one of reconciling a global and local political economy that centers on individual and exclusive forms of ownership with the customary system of nested, overlapping and relative rights coexisting at multiple levels of social organization from the strongest family level rights to the weakest community level rights.

The Ingonyana Trust has proceeded on the argument that the Zulu King owns the land and rents it to the people who live on the land. The King has therefore interpreted the High Level Panel report produced under Motlanthe’s chairmanship as an attack on Zulu land and sovereignty, and has mobilized amabutho (warriors) to do as necessary to protect them, including threatening secession.

In May 2018, Deputy President David Mabuza told the National Assembly that insecure land tenure sometimes emanates from the “false view” that “land under traditional leadership is owned by traditional leaders.” He continued, “In terms of custom it is the people who own the land; traditional leaders are only custodians of the people’s land.”

Unfortunately, this language of “custodianship” does not settle the issue. It is slippery language that the ANC has used for decades to justify allowing traditional leaders control of customary land on behalf of their “people” (read: subjects).

Faust, in the eponymous legend, “traded his soul to the devil in exchange for knowledge. To ‘strike a Faustian bargain’ is to be willing to sacrifice anything to satisfy a limitless desire for knowledge or power.” In short, a “Faustian bargain” is the proverbial deal with the devil.

Before any misunderstandings arise: I am NOT calling traditional leaders and institutions the devil. I am not at all equating traditional governance arrangements with evil. The deal with the devil that I described here is the compact that the ANC has made to perpetuate the fictitious structures that the oppressive regimes of our country’s dirty past created and branded “tribal” in the Native Administration Act of 1927 and Bantu Authorities Act of 1951.

If you do not believe that the structures that the ANC is perpetuating are indeed an apartheid construct, perhaps you will believe the founding fathers of the ANC. These were their strong responses to the creation of these structures by the Bantu Authorities Act.

Here’s Albert Luthuli, himself a Zulu chief in Natal and onetime ANC President, on this system in 1962:

The modes of government proposed are a caricature. They are neither democratic nor African. The Act makes our chiefs, quite straightforwardly and simply, into minor puppets and agents of the Big Dictator. They are answerable to him and to him only, never to their people. The whites have made a mockery of the type of rule we knew. Their attempts to substitute dictatorship for what they have efficiently destroyed do not deceive us.

And Nelson Mandela, then leader of the ANC in Transvaal, writing in 1959:

[I]n South Africa, we all know full well that no Chief can retain his post unless he submits to Verwoerd, and many Chiefs who sought the interest of their people before position and self-advancement have, like President Lutuli, been deposed…  Thus, the proposed Bantu Authorities will not be, in any sense of the term, representative or democratic.

In 1964, Govan Mbeki, who would be sentenced to life imprisonment along with Mandela that year, and who had done extensive research on and participated in peasant uprisings in the Eastern Cape:

Many Chiefs and headmen found that once they had committed themselves to supporting Bantu Authorities, an immense chasm developed between them and the people. Gone was the old give-and-take of tribal consultation, and in its place there was now the autocratic power bestowed on the more ambitious Chiefs, who became arrogant in the knowledge that government might was behind them.

In essence, they rejected what the ANC has embraced in the Traditional Leadership and Governance Franework Act of 2013 (TLGFA) when it says in section 28:

Any traditional leader who was appointed as such in terms of applicable provincial legislation and was still recognised as a traditional leader immediately before the commencement of this Act, is deemed to have been recognised as such in terms of section 9 or 11, subject to a decision of the Commission in terms of section 26.

Section 28(3):

…any ‘“tribe” that, immediately before the commencement of this Act, had been established and was still recognised as such is deemed to be a traditional community contemplated in section 2.

And Section 28(4):

…any tribal authority that, immediately before the commencement of this Act, had been established and was still recognised as such, is deemed to be a traditional council…

The technical change that the TLGFA Amendment makes then is to give these apartheid constructs of “tribal” governance an extended life in our democracy as “traditional” governance institutions. By this, the government would like us to believe that those institutions that are—to quote Nelson Mandela—not “in any sense of the term” so, have suddenly become traditional.

But they haven’t.

Firstly, not once does the TLGFA provide for recognition of “traditional” structures to be dependent upon consultation with the people who are to be governed by them. And, 15 years after the legislation was initially passed, the elections of 40% of traditional council members that it provides for, have yet to be seriously carried out in most of the country.  In case you are wondering: the other 60% is to be appointed by the traditional leader whose own recognition is not at all contingent upon acceptance and recognition by his/her people.

By the government’s own admission, elections have been held for few traditional councils and there are contests and disputes with respect to the overwhelming majority of traditional communities and the institutions of traditional leadership recognized over them.

In the meantime, the government is also processing the Traditional and Khoisan Leadership Bill (TKLB), under which the deal with the devil of apartheid will be fully realized. This Bill would fully revive separate territorial enclaves in which poor, black people are stripped of their citizenship rights (such as the right to speak for themselves) but are instead forced to be governed as subjects by imposed authorities that the government names “traditional” as it gives these authorities un-traditional and un-democratic “roles, functions and power” to wholly speak on “their people’s” behalf as so-called “custodians of our culture” and “custodians of our land.”

As summarized by then-Chief Justice Sandile Ngcobo, on behalf of the Constitutional Court, in a 2010 case implicating the TLGFA:

Under apartheid, these steps were a necessary prelude to the assignment of African people to ethnically-based homelands… According to this plan, there would be no African people in South Africa, as all would assume citizenship of one or other of the newly created homelands…

Amidst the sensational deliberations about “expropriation without compensation” of white-owned land, it is hard for the public to remain vigilant against all Faustian deals made by our government. But I would appeal to all to pay keen attention to that of the politics of reforming traditional land in South Africa, for it renews the very foundations on which apartheid was built.