“How can we be poor when we have land?”
The Legal Resources Centre’s work to promote land rights and rural development in South Africa
For many years the Legal Resources Centre (LRC) has pioneered public interest litigation relating to community access to land and natural resources in South Africa. What it means to “access land” encompasses many challenges – the challenge of undemocratic traditional power, growing rural poverty, cultural norms which favour male primogeniture, lack of transformation in rural ownership, conflicts with business and mining developments and the slow pace of land reform.
These are the challenges our clients are attempting to overcome.
Every court case is a story. These are the stories of our clients and the communities they represent. They are stories about our struggle within the land struggle, where we seek to transform the rural space, to promote democracy, participation in decision-making and restitution. This is a struggle for land rights and rural development.
What is at stake in Xolobeni
The dunes of Xolobeni in the Eastern Cape, the traditional homeland of the Xhosa-speaking Amadiba Tribal Community, have become a site of conflict; and even murder. The dunes are rich in valuable minerals, which give them a unique red colour. But the value of the minerals has been noticed by outside mining interests.
Australian mining company, Transworld Energy & Minerals Resources (TEM), put in an application for a mining right many years ago. TEM claims to have the support of the local community for mining activities; however, the Amadiba community is strongly divided.
Those opposing the mining are prepared to protect the 22km coastline that would be the heart of a mining enterprise – and the very heart of their homeland.
“My tears won’t fall on the ground for nothing. You can bring your machine guns. I am prepared to die for my land; I am not going anywhere.” – community member from Amadiba
In 2008, following the establishment of the Amadiba Crisis Committee, the LRC lodged an extensive internal appeal against the application for a mining right.
It was only in 2011 that the Minister of Minerals and Energy responded. She stated her disagreement with some of the issues we had raised, but due to the non-compliance of TEM with certain environmental requirements, the mining right was not granted and finally lapsed.
However, a mining right application was again filed on 3 March 2015.
This time we were ready to respond with the support of the Umgungundlovu Inkosana’s Council and Amadiba Crisis Committee. Our partner, Richard Spoor Inc. Attorneys, assisted us in filing objections to the mining right in July 2015 and again in 2016. The community is currently preparing another application in which they will ask the court to recognise their aboriginal land rights to the area and, importantly, that those rights encapsulate their right to consent – or withhold consent – to development on their land.
We recognise the very serious impacts that the proposed mining could heap on the community and the surrounding landscape. We believe that there was no adequate consultation or meaningful public participation that took place prior to TEM’s submission of the mining right application.
Most importantly, members of the community reject the mining because they do not believe mining will benefit the community. Mining may force them to relocate, it will destroy existing farmland and it will utilise an excessive amount of water. There will be an effect on the estuary systems and extensive environmental degradation.
But it is the “sense of place”, their community connections, their historical position, their right to decide their own development path and their way of life which is most at stake. We believe that they have the right to protect their land and to decide their own future, and will support the community in speaking out against mining, while we navigate the bureaucratic legal processes together.
Not guilty under customary law
In September 2010, three traditional fishers from Hobeni in the Eastern Cape entered a “no-take zone” in the Dwesa-Cwebe Marine Protected Area (MPA) in order to fish to feed their families. Hobeni lies in the heart of the poorest district in South Africa. The fishers were arrested by rangers and criminally charged with “intention to fish in an MPA” in the Magistrate’s Court.
These three men are part of a community who successfully claimed back their dispossessed land; but in 2005 the authorities decided that fishing could no longer take place in that area, forcing local people to walk more than nine hours to access legal fishing areas.
This is devastating to a community whose history is rooted in fishing and whose main source of protein comes from fish. Fishing in not just a right, but has been a way of life since time immemorial.
“We didn’t have a right to fish. Fishing was simply a way of life. What you call rights, for us, was simply a part of life” – Older resident of Hobeni
And yet, they have systematically been prevented from accessing the resource as a result of decades of removals under apartheid and subsequent regulations, while this prohibition became absolute with the declaration of the Dwesa-Cwebe MPA as a ‘no-take’ zone in 2001.
The trial commenced in the Elliotdale Magistrate’s Court in March 2012 with the LRC representing the three men. We argued for the court to recognise their customary rights to marine resources. We submitted that this constitutionally protected customary right mitigates the unlawfulness of their actions. They should be found to be “not guilty”.
When judgment was handed down in the Magistrate’s Court in May 2012, our clients were acquitted on three charges under the Transkei Military Decree, but convicted of the criminal charge of fishing without permits. While the Magistrate found that there is indeed a customary right, as a lower court, he could not strike down the legislation that ignored those rights. We approached the Mthatha High Court on appeal.
The case was argued in the High Court in 2015 and judgment handed down in early 2016, with mixed results. The judge found that the Marine Living Resources Act and the declaration of MPAs did not extinguish the exercise of the customary rights of access of coastal communities to their marine resources.
This was significant, as it is the first time that a High Court had confirmed the existence and status of the customary rights of a fishing community in South Africa and that legislation cannot extinguish such rights without doing so specifically and in a constitutionally-sound manner. In doing so, the court has vindicated many similar communities, particularly in the Eastern Cape and KwaZulu-Natal, who have claimed the same recognition for years.
Unfortunately, the court also found that recognising their customary rights did not make their actions lawful and that they should have applied to the Minister for an exemption in terms of the Marine Living Resources Act, despite the fact that their customary rights continued to exist alongside the legislation.
Ironically, evidence presented showed that the community had asked for such permission before; that in October and December 2013, when the Legal Resources Centre had taken up the representation of the communities, the fishers requested an exemption from the Minister but never received any response.
The communities have noted their appeal against the judgment. In the meantime, the government has actually re-opened the MPA allowing limited fishing for the local communities.
Re-opening the land claims process
“We launched our land claim almost 20 years ago, in 1995. It’s more than 9 years since the judgment was handed down on 7 June 2007. But still today, the [Land Claims] Commission has not restored the land to us.” – Member of the Popela Communal Property Association
In 2014, the South African Parliament passed the Restitution of Land Rights Amendment Act. This Act amended the previous Restitution Act which facilitated the land claims process in South Africa. Prior to the amendment, the final date for lodging land claims had been 31 December 1998. The Amendment Act has reopened the restitution process for another five years. This has meant that those who missed the previous deadline now have more time to lodge their land claims.
However, a number of land and community associations have voiced concerns about its proclamation. In particular, they were concerned that the Land Claims Commission lacks the capacity, budget or systems to cope with such a re-opening, which would inevitably prejudice those initial claimants who have been waiting for the restoration of their land for decades. These are the Land Access Movement of South Africa (LAMOSA), Nkuzi Development Association (Nkuzi) and the Association for Rural Development (AFRA), as well as three communal property associations; Moddervlei, Makuleke and Popela.
Together with Webber Wentzel Attorneys, the LRC are representing them in challenging the constitutionality of the Amendment Act. We have tackled two aspects of the Amendment Act:
- The flawed public participation process, in particular the processes within the National Council of Provinces (NCOP) and the Provincial Legislatures (PLs). As a result of the time pressure put on the NCOP and the PLs, they failed to provide the general public and existing land claimants with a meaningful opportunity to make representations about the Restitution Bill.
- Section 6(1)(g) of the Amendment Act, which states that prior land claims must be “prioritised”. The section fails to provide the necessary guidance to government and land claimants about how old and new claims will be processed.
The slow pace of land reform in this country has played a central role in our argument concerning the prioritisation of land claims in South Africa. There are an estimated 8,257 land claims that require finalisation under the previous land claims period offered by the Restitution Act. These land claimants have been waiting for over 17 years to have their land rights restored to them. With the reopening of the land claims, there is the concern that old claims will be put on hold for the thousands of new claims to be processed, leading to further delays, opportunistic counterclaims and ultimately confusion about who has rights to the land.
This case occurs at the intersection between three fundamental constitutional values; the Constitution’s commitment to the restitution of land and to equality; the commitment to participatory democracy; and the rule of law which requires that laws must be written in a clear and accessible manner.
On 29 July 2016 the Constitutional Court struck down the Restitution of Land Rights Amendment Act because the court said that parliament had failed in its constitutional duty by not having adequate consultations. Justice Mbuyiseli Madlanga ruled that all land claims made from 2014 – estimated to be between 100 000 and 120 000 – be frozen until outstanding claims from before 1998 were dealt with or the Act was reworked properly by parliament.