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ConCourt will strike down traditional leadership Bill

Publish date: 02 December 2019
Issue Number: 852
Diary: IBA Legalbrief Africa
Category: South Africa

Last week, President Cyril Ramaphosa signed the Traditional and Khoi-San Leadership Bill into law. Social worker, human rights activist and theologian John Clarke believes this hands traditional leaders powers that have an ominous ‘state capture’ ring to them. ‘The President has given footholds to those with a state capture agenda in the former homeland areas, normally out of sight and mind of the media and public scrutiny,’ he says. Expressing his thoughts on the Daily Maverick site, Clarke says an ‘ominous legislative agenda’ is being pursued that undermines the property and citizenship rights of 18m rural South Africans, making them vulnerable to dispossession by traditional leaders acting in collaboration with foreign and local companies. Noting that the Bill undermines the customary and informal property rights protected by section 25(6) of the Constitution, Clarke says Ramaphosa ‘chose’ to ignore warnings that he had strong legal grounds on which to refer the Bill back to Parliament, as two panel reports warned that provisions of the Bill were in breach of fundamental Constitutional rights. Clarke adds: Despite a series of Constitutional Court judgments striking down previous such laws and upholding the right to tenure security, it appears that the ruling party remains in captivity to elite interests with the same extractive agenda that the Gupta brothers had – and whose actions dispossess and further impoverish the poorest and most vulnerable South Africans.’ He believes there is no doubt that the Constitutional Court will strike down the ‘contentious’ provisions of the Bill.

See ‘Traditional, Khoi-San Leadership Act gazetted’ in Legalbrief Today

Traditional and Khoi-San Leadership Act, 2019

Full analysis on the Daily Maverick site

While the Bill gives more autonomy to Khoisan peoples and their leadership structures, concerns have been raised about how this affects the traditional rule of law in these communities, notes a report on the IoL site. The concern is that it gives traditional leaders the right to enter into agreements on the use of land, without the consent of the people. The Bill provides that traditional leaders and councils can sign deals with investment companies without obtaining the consent of those whose land rights are affected. However, the new law has also been praised for recognising the independence and the culture of the Khoisan. Civil society had anticipated that the President would refer the Bill back to Parliament after two panel reports warned that provisions of the Bill were in breach of fundamental constitutional rights. The signing of the Bill is slammed in a Maverick Citizen report by its editor Mark Heywood. He says the Bill robs millions of people living in rural areas of fundamental rights and shores up the power of unelected and predominantly male traditional leaders against women in particular.

Full Maverick Citizen report

Full report on the IoL site