New realities challenge custom

2009-11-05 00:00

“A PERSON who gets land is a person who is ­married [oganiwe] and a woman who has a son.” This is a statement from a traditional council member in the Msinga area in the KwaZulu-Natal midlands, recorded in “Imithetho yomhlaba yaseMsinga — the land laws of Msinga and the potential impacts of the Communal Land Rights Act” by Ben Cousins and Donna Hornby, a working document presented at a stakeholder workshop looking at Msinga land laws and their implications for the Communal Land Rights Act (CLRA).

It is a statement that is consistent with traditional cultural practices (it’s probably safe to assume that “person” means “man”). However, it is a position ­increasingly challenged by the growing numbers of women — single and unmarried — who need land to grow food for themselves and their children.

Many South Africans occupying land do so under systems of land tenure — traditional, tribal, customary or communal — enjoying uncertain status in law, rendering them vulnerable to the actions of state ­officials and traditional leaders. The CLRA was passed in 2004 to remedy this situation. The act also interacts with the Traditional Leadership and Governance Framework Act (TLGFA) of 2003 which allows for the establishment of traditional councils and allows ­existing tribal authorities to be deemed traditional councils.

The CLRA applies to state land, either from the former homelands or land acquired through land ­reform. The Department of Land Affairs Minister transfers title of such land from the state to communities who will own the land and be governed by community rules that must be registered with the Department of Land Affairs. To do this, the communities must establish land ­administration committees to oversee and record allocation of land and, where they exist, traditional councils established under the TLGFA will become land administration committees.

Under the act, prior to a land transfer taking place, a land rights inquiry has to be undertaken to examine existing rights and interests, and to determine whether or not “old-order rights” derived from past laws and practices, including customary law, should be ­confirmed and converted into “new-order rights”.

The CRLA has yet to be implemented, largely due to a legal challenge mounted in 2005 by four rural communities. A hearing was held in October last year and a judgment is still awaited from the Supreme Court. There are also concerns over the practicality of its implementation due to the enormous demands it places on the capacity of the government to deliver.

“We are currently in limbo,” says Ben Cousins, director of the Institute for Poverty, Land and Agrarian Studies (Plaas) at the University of the Western Cape.

That limbo provides a window period for the gathering of information on land tenure to assist both residents and authorities to resolve problems and engage with the act should it be implemented in an area such as Msinga. This was the motivation for the Imithetho ­yomhlaba yaseMsinga project undertaken by the Church Agricultural Project (Cap) and the Learning and Action Project (Leap), which began in January 2007, and will be completed this December with a final report. The project looked at two izigodi (wards) of the Mchunu and two izigodi of the neighbouring Mthembu in Msinga.

“Our research is an attempt to try to understand from the inside out,” says Cousins, “by examining and explaining the meaning of local concepts. These are not the laws of the land but land laws at a local level. We need to understand what this variety is about and the implications for policy.”

Msinga “is still one of the most traditional areas in South Africa”, says the report presented at the workshop. Homes are round, thatched huts with mud walls, most women wear traditional leather skirts and robes, while men carry sticks. Polygamy is common and ­families can be large. “The area is notorious for its violence and lawlessness. The area has always been a migrant labour area with the men working in distant cities and coming back twice a year to see their wives and children.”

This traditional way of life is reflected in conservatism in politics with tribal chiefs trying to conserve the old order. Disputes are dealt with in tribal courthouses that overlap with the state legal system.

The current customary land laws of Msinga dictate, in principle at least, that only married people with children are allocated land in order to support themselves. “Land is allocated to a household, under the authority of a household head ... [who] is understood to be a senior male [umnumzane].” Single people must reside either with their parents or other family members. Within this customary system, women’s rights are subservient to men’s rights. Inheritance is through the male line and divorce adds another layer of complications. None of the outcomes are favourable to the women in terms of land ownership. Widows may be taken by brothers (ngena) or they can return to their father’s home. If they stay, their property may be used by others. If a widow inherits, it’s not in her own name but of heirs, in particular the male heir, the eldest son.

“Land tenure is deeply intertwined with how society is organised,” says Cousins. “However, the research indicates a degree of flexibility in the application of customary law in Msinga. But there is controversy over allocating land to single women.”

According to Hornby, the question of women’s rights came up constantly during the research phase of the project. “It is a question that is troubling both ordinary people and leaders, and is provoking anxiety and tension within families and kinship networks,” she says. “However, the land tenure system appears to be ­undergoing a profound shift towards acceptance of the idea that single women with children should be allocated land in their own right.”

This is one outcome as a patrilineal system shows signs of strain. There are increasing numbers of ­women living within their fathers’ or brothers’ homesteads who have children outside a stable co-residential relationship. There are also changes in traditional marital practice. A major reason appears to be the difficulty in fulfilling obligations of traditional ­marriage, particularly the cost of cattle required for payment of lobola. Also the financial independence provided by child grants offsets, even negates, the shame of having children outside marriage.

“If the CLRA is implemented in a simplistic and rigid manner,” says Hornby, “many women who currently enjoy security of residence and access to some arable land may find themselves the victims of exclusionary practices as families and members of families stamp their claims on the land that these women believe they are entitled to.”

Critics of the act believe its implementation will be a regressive step, entrenching “traditional” customary law and reinforcing the authority of chiefs, which was derived from former colonial powers and the apartheid state, something incompatible with a democratic society. There are also concerns that the act “will reinforce patriarchal power relations that contribute to the problems women face when trying to access land and being evicted from their homes at the end of their marriages”.

It was clear from discussion sessions at the workshop that it is feared that the CLRA could rubber- stamp conservative practices now at variance with changing values, values that see land as a resource that should be available to all those who have children to support. “To what extent are we supporting an old order that must be allowed to go?” asked one speaker.

It was a question also raised with regard to lobola. “Has the lobola so changed that it no longer works? Culture and custom evolve over time, should we now stop lobola?”

And if customary law changes over time, is it really a reliable guide to what is happening on the ground? “Practice never mirrors rules,” said one speaker, “and rules are always an imprecise guide to social reality.”

The research demonstrated that customary law was frequently ignored or changed to suit particular circumstances. Where is the individual safe in such a situation? Who ensures that the interests of a narrow interest group do not dominate?

And although it’s a rural area, the people of Msinga do not live in isolation. Varying levels of education ­(including university education) and access to both urban and rural cultures see differences in generational ­values. What then is customary when you have a ­community with such diverse values?

There are no simple answers to these complex questions but projects such as Imithetho yomhlaba yaseMsinga , reflecting and informing that complexity, help map a way forward.

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