Human and Social Dynamics (HSD) Research Seminar

Human and Social Dynamics (HSD) Research Seminar

The meaning of democracy in post-1994 rural South Africa: examples from research conducted in the Eastern Cape

Department of Science and Technology (DST)

Human Sciences Research Council (HSRC)

University of Cape Town (UCT)

Professor Lungisile Ntsebeza:Professor and the holder of the AC Jordan Chair in African Studies at the University of Cape Town. Holder of the National Research Foundation (NRF) Research Chair (SARChi) in Land Reform and Democracy in South Africa.

Introduction

This concept note lays out the rationale for and objectives of a proposed Department of Science and Technology (DST) Human and Social Dynamics (HSD) Research Seminar entitled: The meaning of democracy in post-1994 Rural South Africa: examplesfrom research conducted in the Eastern Cape organised by the Human Science Research Council (HSRC).

The DST-HSD Research Seminar Series

The DST-HSD Research Seminar Series are designed to:

• Showcase research and knowledge production in the Social Sciences and Humanities (SSH), which is generated by the National System of Innovation (NSI);
• Serve as vehicles for disseminating research evidence to wider and diverse audiences;
• Operate as platforms for the sharing of local and international expertise and experience; and
• Promote research and knowledge production in the SSH that benefits and enhances the NSI.

The HSD Research Seminar Series aim to:

• Disseminate scientific research findings and transmit a body of new knowledge (through an interactive process of critical dialogue and collegial critique) to the SSH research community and other interested actors in the NSI;
• Provide an avenue for rated and other researchers, including researchers from rural-based universities to engage in knowledge dialogues across faculties and with other interested actors in the NSI;
• Present and discuss new and ongoing research, identify research gaps, and suggest new research agendas in SSH with a view to forging closer links between the research communities in these fields;
• Reinforce the visibility of SSH research to the higher education and science council sector;
• Enhance wider public understanding of the SSH, including the value and status of both individual and team-based research; and
• Strategically promote, develop, and coordinate collaborative and interdisciplinary research within and between Higher Education Institutions and Science Councils.

Background

During Apartheid, rural local governance, especially in the former Bantustans, was controlled by Tribal Authorities. These governance structures, which were dominated by chiefs of various ranks, as well as headmen and their appointees, wielded significant power, especially insofar as it concerned the allocation of land. They were highly authoritarian, unaccountable, undemocratic, and despotic. They also lacked popular legitimacy, and had been discredited. Because they had been imposed on rural communities, they were further resisted, which often resulted in bloody conflicts between Apartheid state supporters and those in resistance. In 1994, the newly democratically elected government had committed itself to the establishment of an accountable, democratic and effective form of governance throughout the country, including rural areas controlled by the traditional authorities.

While the process of establishing a democratic, representative and accountable forms of governance in urban centres went unhindered, these rural areas proved to be much more challenging, essentially because the state had inherited a system of administration that was based on the concentration of power in the rural areas in the hands of traditional authorities. While the constitution of 1996 had advocated for a form of democracy that was based on liberal principles of representation at all levels of government, it also recognised the hereditary institution of traditional leadership for rural residents. This tension raises questions about the nature of democracy in post-1994 South Africa. These include whether rural residents should continue to be subjects under the rule of unelected traditional authorities; or whether they will enjoy the citizenship rights, including the right to elect leaders and representatives that the South African constitution confers on all South Africans or both.

The above-mentioned is further compounded by several issues. The one is that the post-1994 policy on rural governance did not provide a prominent role for traditional authorities. In addition to this, the ANC-led government had been ambivalent about the precise role of traditional authorities, in local government and land administration. In the post-1994 era, Tribal Authorities had opposed the introduction of new democratic structures and argued that they should play a central role in rural development. In an attempt to provide clarity on the position of traditional authorities in South Africa’s democracy, the South African Parliament eventually passed the Traditional Leadership and Governance Framework Act and the Communal Land Rights Bill (CLRB) in 2003 and 2004 respectively. The Framework Act established traditional councils, which are dominated by unelected traditional authorities and their appointees, while the CLRB gives these structures unprecedented powers over land administration and allocation. This has serious implications for the nature and meaning of democracy and citizenship in post-1994, in particular for rural people.

The Xhalanga District in the Eastern Cape, which previously formed part of the former Bantustan of the Transkei, epitomises the implications that The Framework Act and the CLRB have for the meaning of democracy and citizenship in rural South Africa after Apartheid. The district is a good illustration of the complexities and diversities concerning chieftainship, rural local governance, and land in the former Bantustans; and the wider role of traditional authorities in a democracy. It also highlights the dynamic and changeable nature of the relationship between traditional authorities and their subjects. Most importantly though is the fact that the issues that are the focus of the proposed seminar played themselves out in a recent court case in the district.

A certain Mr Jongilizwe Hamilton Fani who was the headman of Cala Reserve, which forms part of Xhalanga, had resigned in 2013. In order to fill the vacant position, and based on the assumption that it was their prerogative and that they did not have to involve or consult the community, members of the Royal Family of ama-Gcina subsequently identified and appointed one, Mr Ndodenkulu Jackson Yolelo as a suitable successor. Disenchanted by the process followed in appointing a successor, and convinced that the correct procedure should have been the customary practice of an electoral process involving both the Royal Family and members of the Cala Reserve community, representative of the community sought to engage relevant authorities, including the Eastern Cape Premier, the Eastern Cape MEC for Local Government and Traditional Affairs, The Gcina Traditional Council, The Qamata Regional Traditional Council, and the Eastern Cape House of Traditional Leaders. This engagement that took the form of correspondence and consultations between 02 April 2013 and March 2014, proved unsuccessful. As a result, the community representatives approached the court and was granted an order for a review and setting aside of the decision to appoint Mr Yolelo as headman of the Cala Reserve Administrative Area. The court declared that the customary law of the Cala Reserve requires its headmen to be elected by members of the community.

Objectives

The proposed seminar will bring together stakeholders in the rural local government and land sector, which include among others, academics and researchers, representatives from government departments such as the Department of Cooperative Governance and Traditional Affairs and the Department of Rural Development and Land Reform, non-governmental organisations, local government entities such as the Rural Democratisation Task Team in the Sakhisizwe Local Municipality, rural social movements such asZingisaEducation and Development Organisation (Amathole District Municipality), Masifunde Education and Development Organisation (Ndlambe municipal area), the Amadiba Crisis Committee (Mbizana area), as well as representatives from the Congress of Traditional Leadership of South Africa (CONTRALESA).It will provide a forum for the various stakeholders to engage constructively on pertinent questions related to the issues of traditional leadership, democracy, and land. Using the case of the Xhalanga District as an example, specific questions that could possibly be addressed include the following:

• What are the tensions between land tenure reform, traditional authorities, and rural local government?
• What are the implications of the constitutional recognition of traditional leadership for popular democracy?
• How do we address the implications of the link between traditional leadership and the land question?
• How should we define the role of traditional authorities?
• What role, if any, should traditional leadership play in political matters?
• Can traditional leadership and participatory and representative elements of democracy coexist in transitional societies?

SignificanceThe proposed seminar is important not only because of the implications that traditional leadership issues have for democracy in South Africa, but also because it is inextricably linked to the critical issue of land tenure and property regimes in rural areas, particularly in the former Bantustans where people bore the brunt of forced removals and the discriminatory Land Acts of 1913 and 1936. Since 1994, we have witnessed significant achievements in addressing the legacy of colonialism and Apartheid. In addition to an increase in South Africa’s growth rate, South Africa achieved a level of macro-economic stability that was unheard of prior to democratisation. It also has a sound market economy, with a well-developed private sector, and by many accounts, the most advanced industrial capacity on the continent. Significant improvements have been made in the provision of social services to ordinary citizens. Furthermore, in order to address the moral wrongs associated with land dispossession under colonialism and Apartheid, the government had also committed itself to the restoration of land and tenure rights as a critical component of economic transformation. Despite this, land redistribution has fallen woefully short of even the modest targets set in 1994 and has essentially failed to redress the moral harm done to those disposed of their land. The intersection between land tenure reform, traditional authorities, and rural local government therefore has important implication if one considers the important role that land restitution could potentially play in transforming an economy particularly in a context of endemic poverty and deepening inequality.

References

Claassens, A. (2014). Communal land’, property rights and traditional leadership. Retrieved from:

Meer, T., & Campbell, C. (2007).Traditional leadership in democratic South Africa. Retrieved from:

Ntsebeza, L. (2005). Democracy compromised: Chiefs and the politics of the land in South Africa. Leiden: Brill Academic Publishers.

Ntsebeza, L. (n.d.). Rural governance and citizenship in post-1994 South Africa: Democracy compromised? Retrieved from:

Ntsebeza, L., & Hall, R. (2007).The land question in South Africa: The challenge of transformation and redistribution. (Eds). Cape Town: HSRC Press.

Transcript – High Court of South Africa (Eastern Cape Local Division – Bhisho).Case No 169/2014.

PROGRAMME

Human and Social Dynamics (HSD) Research Seminar

The meaning of democracy in post-1994 rural South Africa: examples from research conducted in the Eastern Cape

Date: 26 August 2015

Venue: Premier Hotel King David, East London

Chair:Prof Modimowabarwa Kanyane, HSRC

Rapporteur:Dr Sean Morrow, Ngomso Research, Writing and Editing Service cc

08:00 – 09:00 Registration, Tea & Coffee

09:00 –09:10Introduction

09:00 – 09:10Welcome & Opening Remarks

Dr Temba Masilela, Deputy CEO: Research, HSRC

09:10 – 10:10Session 1

09:10 - 09:30 An overview of rural local government in South Africa with specific reference to the Transkei

Professor Lungisile Ntsebeza: Professor and the holder of the AC Jordan Chair in African Studies at the University of Cape Town. Holder of the National Research Foundation (NRF) Research Chair (SARChi) in Land Reform and Democracy in South Africa.

The presentation will focus on the development of rural local government in South Africa from the nineteenth century to the present. It will show that in the Cape, in the period before the establishment of the Union of South Africa in 1910, chiefs were marginalised and headmen were the agents of the colonial government, playing a central role in the colonial strategy of controlling and managing Africans. The presentation will show that headmen, unlike chiefs, were appointed, but there was a consultation process which involved “registered voters”. This was the case even after the introduction of Tribal Authorities after the introduction of apartheid in South Africa. Against this background, the presentation will expose an irony in which in a democratic South Africa that is based on leaders who have been democratically elected, the very same leaders are refusing to give rural residents in areas under the control of chiefs and headmen the democratic right of choosing their leaders, just as the leaders in government have been elected. The Transkei region of the Eastern Cape will be used as an illustration.

09:30 – 09:50Discussion

09:50 - 10:30Session 2

09:50 – 10:10Afflicted Ciskei headmanship and tribal authority system, amidst a democratising South African countryside

Professor Luvuyo Wotshela, UFH

Although headmanship in South Africa partially served as tool of control in the colonial government’s scheme of divide and rule, it only was in the early twentieth century that it functioned as vital cog of local authority for African residential areas. Ratified by 1927 legislation and buttressed by an ardent Native Affairs Department (NAD), elected, but at times state-appointed, headmen essentially became viaducts between district magistrates on the one hand, and respective communities on the other. In 1934 the NAD established a general council, officially known as the Ciskeian territories, with limited administrative powers for all Ciskei settlements – imitating a well-entrenched Transkei Bunga model. In the course of that growing segregation stage, headmen operated as government agents, facilitating local administration in discrete rural Ciskei African residential areas. Swamped in long-term official land rehabilitation or ‘betterment’ initiatives, combined with resettlement schemes, they virtually became community-based councils adhering to procedures of the NAD concurrently land-marking the hatchling Ciskei reserve. The National Party (NP) government’s takeover of power from 1948 fused headmen into ostentatious tribal authorities. The latter were created countrywide, by a 1951 Bantu Authorities Act, resurrecting the long conquered chieftaincy system or chiefly authority to co-opt the so called ‘traditional culture’ into the configurations of apartheid political life. As Ciskei trailed the Transkei experiment in entering to a status of a ‘bantu homeland’, its tribal authorities became fostered by government departmental services. They significantly constituted the bottom base of a hierarchical chain of a commanding service provision and resource control. From 1972 when this homeland attained ‘self-governance’ status, to subsequent years during which it founded the Ciskei National Independence Party (CNIP) as the only political organ, it became the political ownership of one man, Lennox Sebe. His tribal authorities, who at rural level were armed with agricultural resources such as land, irrigation schemes and infrastructure, manufactured and maintained patronage networks. CNIP membership, loyalty to local CNIP chiefs and tribal authorities, and payment of party dues were the only ways majority of rural Ciskeians could secure residential and agricultural plots, unemployment benefits, pension and other related grants, as well as, labour contracts. That benefaction base, however, melted as the tribal authority system faced immense challenge from popular formations in the late 1980s. Opposition in the shape of residents’ associations aligned with wider South African liberation movements,had by the early-to-mid-1990s practically collapsed the Ciskei tribal authority system. How do we grasp this historical epoch and its significance in the development of contemporary challenges related to structures of local authority in this part of the midlands Eastern Cape? This paper revisits that era of the foundation of the Ciskei tribal authority system and its subsequent collapse as emerging residents’ associations and other dissident groups appropriated authority positions en-route to South Africa’s democracy.

10:10 – 10:30Discussion

10:30 – 11:00Tea break

11:00 – 12:00Session 3

Chair: Dr Peter Jacobs, HSRC

11:00 – 11:20The Democratisation of Rural Governance in the former Xhalanga magisterial district

Dr FaniNcapayi, Director, Calusa and Honorary Research Associate in the Centre for African Studies (CAS), University of Cape Town

Since 2007, following the imposition of a headman in Tsengiwe, Dr FaniNcapayi developed an interest in the issues pf rural governance, but was never directly involved until 2013 when he observed in a community meeting in Cala Reserve the bullying of rural people by traditional leaders. He is deeply involved in the struggles for democratisation of rural governance since then. Dr Ncapayi is currently involved in research on the conditions of farm workers and dwellers both in white-owned commercial farms and land reform projects in the Chris Hani District Municipality.He is currently involved in two cases about the eviction of farm dwellers by black farmers and the Catholic Church.

11:20 – 12:00Discussion

12:00- 13:00LUNCH

13:00 – 13:50Session 4

Chair:Prof.Modimowabarwa Kanyane, HSRC

13:00 – 13:20The people of Transkei are worse off than under Matanzima: the implications of the constitutional recognition of customary law and traditional leadership for rural democracy in South Africa

Ms WilmienWicomb, Legal Resource Centre

The adoption of the Constitution in South Africa marked the first time that indigenous customary law was recognised as a source of law equal to its common law and even statutory law counterparts. While this recognition is implicit in a number of sections of chapters two and twelve of the Constitution, it was the Constitutional Court’s jurisprudence in the 2000s that placed such recognition beyond doubt.

Ironically, the same decade saw the executive and legislative spheres of the South African government entrench an understanding of the constitutional recognition of custom with a completely different emphasis, namely the recognition of traditional leaders. While this emphasis on one aspect of customary law – governance or the locus of power – may seem justified given the attention the Constitution itself affords traditional leadership, it is the complete disregard for the recognition of the customary law system that underlies traditional leadership that is problematic – and, I would argue, not constitutionally tenable. This is even more so given that the Constitutional Court’s jurisprudence emphasises the implications of customary law for the ordinary people who abide by it.