The Northern Cape’s Khoisan communities will soon be formally recognised and remunerated if the Traditional and Khoisan Leadership Bill is signed into law by President Ramaphosa. The Bill was passed by the National Council of Provinces (NCOP) last week.
The Western Cape was the only province not in support of the Bill. The DA led province indicated that their opposition to the Bill was based on the grounds that the Bill used different criteria for the Khoisan in comparison with other traditional leaders and regarded it is as being discriminatory. They also disapproved of the public participation process that was followed.
The Bill is aimed at providing recognition to Khoisan communities, their leaders and structures. This will affect people living under customary rule in the former homelands. Some legal experts have warned that the Bill is likely to be challenged because it seeks to provide for traditional leaders to enter into agreements regarding the use of land, without the consent of the affected people. The Bill, according to the legal experts seeks to undermine the Gauteng North High Court’s judgement in the Xolobeni case that the community must be consulted and give consent prior to mining rights being awarded to any company.
Another aspect of the Bill that may be challenged is the lack of control by Khoisan traditional leaders over land. Some Khoisan leaders have lambasted the Bill for not providing the same powers as other traditional leaders over land. Aninka Claasens of the University of Cape Town’s Land and Accountability Research Centre (LARC) said the recommendation by former president Kgalema Mothlante’s panel to scrap the Bill has been ignored. The panel found that the Bill, if signed into law, will compromise one third of the country’s population’s property and citizenship rights. LARC insists that the affected parties are treated differently.
“For example Khoisan people must declare their affiliations, while other traditional communities are determined geographically. For the former, this has raised concerns that the process is laborious and potentially unjust; for the latter it has raised concerns that the rule infringes on the constitutional right to freedom of association. Add this to the fact that said geographical borders reinforce apartheid boundaries, and a more worrisome picture emerges” the LARC stated.
Chief Khoisan SA, who together with a few other members of the Khoisan community has been camping outside the Union Buildings for two months, has rejected the Bill. His rejection is based on the lack of acknowledgement of first nation status, outstanding land claims and the Khoisan identity. Khoisan SA also insisted that they want do not want to be classified as Coloured but as Khoisan, San or Bushmen. The lack of unity amongst the different Khoisan groups has often led to disputes of who the rightful traditional leaders are.
Practical implementation of the Bill after it becomes law will also be challenging considering the fragmentation of the Khoisan communities. Some historians believe that the Khoisan is a contemporary name and “an artificial catch-all name for the so-called ‘non-Bantu’ indigenous peoples of Southern Africa, combining the Khoekhoen (formerly Khoikhoi) and the San or Sakhoen would be better suited. The definition however, in the Bill, defines Khoisan as “any person who lives in accordance with the customs and customary law of the Cape-Khoi, Griqua, Koranna, Nama or San people, or any subgrouping thereof, and is consequentially a member of a particular Khoi-San.”