The Implications of the Malendu Constitutional Court Judgement for the ‘Right to Say No’ to Mining.
The South African Constitutional Court delivered a ground-breaking judgment which will have wide-implications for mining affected communities and their ‘right to say no’. By reaffirming the importance of informal land rights, the court has set a precedent that will change power dynamics between communities, traditional leaders and trans-national mining corporations.
Post 1994, the South African system of land governance at the community level has largely been characterised by a complex institutional background which poses a challenge for the attainment of security of tenure. As a consequence of racially discriminatory laws and practices by the colonial and Apartheid Government, Black communities have legally insecure land tenure (Cousins 1997, pp.61). Tenure insecurity of the former homelands has further been exacerbated by the resurgence of traditional leaders who are known for being corrupt and accountable to politicians. They have become infamous for dispossessing communities of their land for mining without obtaining prior consent or consultation from the “community” and thus concentrating power in the hands of unelected traditional leaders (Ntsebenza 2005, p.58). This is what Mamdani (1996, p.22) refers to as decentralized despotism.
Decentralised despotism is a diluted version of the role of chiefs as dictated by colonialism and Apartheid. The chieftaincy was seen as key by colonialists to maintain power in the former homelands. Power was centralised in the chieftaincy, community representatives were appointed by the state and were never democratically elected; and no term of office was specified (Ntsebenza 2005, p.61). There was also a disregard for the separation of powers. In essence, the chieftaincy was seen as a pivotal institution for maintaining an autocratic and racially discriminatory system.
The current situation on communal land is best described by Mamdani as decentralised despotism (1996 in Ntsebenza 2005, p.60). Post-Apartheid, it perfectly describes the continued and inherited hierarchical and exclusionary manner by which traditional leaders govern their ‘subjects’ which is against what the constitution envisions (LiPuma & Koelble 2009, pp.210). The overall trend across traditional authorities indicates that community members are not consulted about decisions that affect their land.
Without romanticising pre-colonial traditional institutions the current land governance system is a distorted version of customary land law which has colonial remnants (Ntsebenza 2005, p.58). Before colonialism, customary law required chiefdoms to derive their authority from the community. They were accountable to the community and not to politicians. In addition, communal land ownership structures under customary law were deeply layered and included individual and family ‘ownership’ although distinguishable from ‘absolute’ land ownership under statutory law (Akuffo 2009, p.66). This distortion has contributed greatly to the land tenure insecurity experienced in the former homelands.
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- Sikho Luthango,Programme Manager Labour Relations and Economy, Rosa Luxemburg Stiftung.