The issue of “title” or “entitlement” takes a different tone during the month of June in South Africa with cries by media commentators, politicians, business leaders, social activist and others claiming that today’s (black) youth has an attitude of “entitlement” and they are not willing to work for a living. I think it is useful to remember that there is a difference between knowing what you are entitled to, claiming it and being lazy. But all too often these attitudes are either confused or used interchangeably and the word “entitlement” has become a synonym for laziness. The youth of 1976 would not have stood against the Apartheid regime on that fateful day if they did not believe that they were “entitled” to learn in a language of their choice. No one can say with a straight face that black youth took to the streets because they didn’t want to be educated or that they were lazy. I think it’s important that we are careful not to discourage citizens from claiming what is rightfully theirs when those claims threaten the status quo. In this week’s blog post constitutional court journalist Candice Nolan writes about the ongoing struggle for land title in South Africa with a test case being deliberated by the highest court in the land, the constitutional court. In this story she asks:
Who is “entitled” to this land?
An all too familiar narrative is playing out on South Africa’s rural landscape. People are being pitted against their traditional leaders in a battle over land ownership. Numbering some 350 thousand households, the Bakgatla-Ba-Kgafela people live in 32 sub villages in the Moses Kotane Municipal Area in the North West Province. The chief, Kgosi Nyalala Pilane successfully won a land claim on behalf of his people, approved by the Department of Rural Development and Land Reform. That was back in 2006 and some nine years later the people say they are yet to see the benefits of that land claim. The people unanimously chose a Community Property Association as the vehicle to manage that land, setting them on a collision course with their chief. This battle has reached South Africa’s highest court – in a case testing the validity and authority of Community Property Associations (CPA’s). The court is yet to make its decision but government officials and indeed the Bakgatla Chief had a tough time answering questions during the hearing. Bridgeman Sojane the Secretary General of the Community Property Association says the land sits on rich platinum deposits on which the Chief concluded mining deals with Anglo-American Platinum. Sojane complains that while the land is said to be owned by the Bakgatla community, they are yet to see any of the proceeds. “They are in the direct control of the Chief and his traditional council,” says Sojane, “they are the people who now, at the end of the day, decide what to do with the finances generated from this”.
Tara Weinberg, a specialist researcher on Community Property Associations at the Centre for Law and Society says this is one of the very few cases that gets to the heart of the land reform dilemma in South Africa. Weinberg says there seems to be a general shift within government policy away from democratically elected structures in which people have chosen to hold land (such as CPA’s) toward traditional council’s or traditional leaders. She reckons that this may be because it is far easier for investors to negotiate with a traditional council or a Chief, than to have mining deals considered by democratically elected structures which are beholden to the will of the people. The Bakgatla CPA was never made permanent due to admitted bungling by the Department of Rural Development and Land Reform. The argument now, is that the provisional CPA expired after 12 months and that it therefore cannot hold land. Tara Weinberg says the people are now looking to the Constitutional Court to give the final word on the matter. Kgosi Pilane asked the Constitutional Court to order that the matter be sent back to the vote by the community. This despite the fact that a previous vote was unanimously in favour of a community property association as the vehicle to manage the land. The Department of Rural Development and Land Reform backs the legitimacy of the Bakgatla CPA. But they insist that Kgosi Pilane must be part of any decision on who should manage the land. There was a spirited debate in the Constitutional Court on how to resolve the present impasse. Justice Bess Nkabinde pointed out an age-old African adage “Kgosi ke Kgosi ka morafe” or the King is king by the will of his people. Certainly, Kgosi Pilane would argue that this does not mean that his power is subject to popular vote. He maintains that he is the rightful administrator of the land on behalf of the people. The Constitutional Court has reserved Judgment – meaning its judges will deliberate the issue and announce their decision on a date yet to be determined. Candice Nolan is a senior constitutional court reporter with the South African Broadcasting Corporation (SABC). Her stories can be heard on SAfm 104-107. Follow her @Candice_Klein on Twitter.