# Civil society unhappy about Ramaphosa signing Khoi-San Bill

- Link: https://dearsouthafrica.co.za/2019/12/02/civil-society-unhappy-about-ramaphosa-signing-khoi-san-bill/
- Published: 2019-12-02T17:48:19+02:00
- Author: dearSA

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President Cyril Ramaphosa’s decision to sign the highly contested Traditional and
Khoi San Leadership Bill into law has been criticised by at least one civil society
organisation — and may even be challenged in court.

The announcement that Ramaphosa had signed the bill was made during a meeting of
the National Assembly’s programme committee on Thursday, and a government gazette
was published later on the same day.

But the decision was met with unhappiness.

“The Traditional and Khoi-San Leadership Bill seeks to provide a veneer of legality
to partnerships of extraordinary greed and complicity that already exist between
government and the mining sector. Instead of regulating mining to ensure that basic
rights and the environment are protected, this bill signals that government is happy
to jettison the most basic rights of the poorest South Africans in order to maintain
the precarious status quo,” said Aninka Claassens of UCT-based Land and Accountability
Research Centre.

Claassens said they had expected Ramaphosa to refer the bill back to parliament 
after two panel reports warned that provisions it contained were in breach of fundamental
constitutional rights.

The first report, in 2017, was by a high level panel created by the Speakers’ Forum
and chaired by former president Kgalema Motlanthe. Claassens was a member of the
Motlanthe-led panel. The second was by the president’s own Advisory Panel into Land
Reform, which reported earlier this year.

“Numerous submissions warned that the bill undermines the customary and informal
property rights protected by section 25(6) of the constitution, and abrogates the
decision-making authority that is the hallmark of citizenship for the 18 million
South Africans living in the former homelands.

“The president therefore had strong legal grounds on which to refer the bill back
to parliament. He chose to ignore these,” said Claassens.

She said the bill provides for traditional leaders and councils to sign deals with
investment companies without obtaining the consent of those whose land rights are
directly affected.

“No prior law in SA history, even during colonialism and apartheid, has enabled 
traditional leaders to dispossess people of their land rights without either their
consent, or expropriation,” she added.

Claassens said while civil society has repeatedly lauded the fact that the bill 
takes steps to recognise Khoi-San leaders and structures, there is a concern about
the cost at which this recognition has come. Khoi-San communities, too, will be 
subject to the rights abrogations enabled by the bill, she said.

The ANC has previously said it views the bill as part of the mechanism and instrument
geared at correcting SA’s painful past and recognising the Khoi and San people by
restoring their dignity, identity, language, leadership and their culture.

Among its contested clauses, is that it provides that “a (traditional) council may
only enter into a partnership or agreement if the relevant community has been consulted
and the majority of community members present at such a meeting have taken a decision
in support of the partnership or agreement to foster transparent democracy and community
participation on matters that affect them”.

But the ANC has defended the clause saying that, on the other hand, the bill makes
it illegal for traditional leaders to act unilaterally and to enter into deals with
the private sector such as mining companies without the consent of the community.

Claassens also questioned Ramaphosa’s timing in signing the proposed law saying 
the bill attempts to remove the consequence of legal invalidity for councils that
fail to “transform”.

“Because many existing investment deals, particularly for mining, are legally precarious
as the traditional councils that signed them were not legally compliant with the
requirement to include some women and elected members”.

She said because two landmark judgments in 2018 uphold the right to tenure security
in the context of mining in the former homelands — they provide that deprivation
of informal land rights requires either the consent of those affected, or expropriation
through due process of law —  the bill was amended shortly after the Maledu Constitutional
Court judgment of October 2018 to attempt to get around this crucial new precedent.

Lawyers representing several rural communities wrote to Ramaphosa in September requesting
him to send the bill back to parliament, charging that it was passed through unconstitutional
means, it is substantively unconstitutional and cannot be signed into law.

In its report published in 2017, the Motlanthe panel called for an urgent review
of both the Traditional Leadership and Governance Framework Amendment Bill and the
Traditional and Khoi-San Leadership Bill, saying that based on the public contributions
it received, current and proposed legislation on traditional leadership denied people
living in areas under traditional leaders several constitutional rights, distinguishing
them from those living in the rest of the country who enjoy the full benefits of
postapartheid citizenship.

The newly signed laws were still being processed in parliament at the time the panel
made its call. It said “such legislation poses a threat to social cohesion by entrenching
and promoting ethnic identities”.

_[Article](https://www.timeslive.co.za/politics/2019-11-28-civil-society-unhappy-about-ramaphosa-signing-khoi-san-bill/)
by Sunday times_