Aninka Claassens

The Natives Land Act of 1913 delineated separate territories for black and white ownership and occupation of land, setting aside 7 percent of the 1936 Natives Trust and Land Act. After the National Party came to power in 1948 it used the rural reserves established by the Land Acts as the basis for establishing ten ethnically defined 'homelands" for speakers of the different African languages. Some of the 'homelands', such as Bobhuthatswana, discussed here, became 'independent states.'

Abstract The paper does not describe the current proposals of the South African government through its Department of Land Affairs, but describes the proposals and their status, as at February 1999. Issues discussed are: tenure problems in the black 13% of the South African population; the proposed Land Rights Bill and some challenges; a discussion of changes during the policy formulation process (issues of ownership; rethinking'up front'land transfer as the fundamental mechanism of tenure reform); capacity constraints; organizing ...

The legal framework for South Africa’s democracy is provided by the widely lauded Constitution of the Republic of South Africa, 1996 (‘the Constitution’), which was adopted in the context of deep racial inequality and injustice that were the legacy of half a century of apartheid and several centuries of colonialism. One of the core elements of that legacy was the racial dispossession of land. The process of colonial dispossession of land took much of the 19th century, giving rise to resistance and, at times, wars. It was followed by the establishment of small, overcrowded ‘native reserves’, to which defeated African groups were consigned in the 19th century. The boundaries of these ‘reserves’ were largely confirmed by the adoption of the Natives Land Act in 1913, which, together with the Native Land and Trust Act of 1936, preserved 87 per cent of South Africa’s land for ownership and occupation by white people. During the 1950s and 1960s, a central plank of grand apartheid policy wa...

... 5. LEGAL ISSUES The chapter contributed by Geoff Budlender and Johan Latsky is a concise depiction of the plethora of tenurial rights ensuing from the ... be exercised in the period of transition to ensure that 'ex-isting and deeply valued rights are not destroyed' (De Klerk, 1991). ...

Part I: Colin Bundy: Land, Law & Power: Forced removals in historical context Gilbert Marcus: Section 5 of the Black Administration Act: The case of the Bakwena Mogopa Aninka Claasens: Rural land struggles in the Transvaal in the Eighties Geoff Budlender: Urban land issues in the 1980s: The view from Weiler's farm Michael Sutcliffe, Alison Todes, & Norah Walker: Managing the cities: An examination of State urbanization policies since 1986 Nicholas Haysom: Rural land struggles: Practising law democratically Part II: Michael Robertson: Dividing the land: An introduction to apartheid land law Alan Dodson: The Group Areas Act: Changing patterns of enforcement Catherine O'Regan: The prevention of illegal squatting act Raylene Keightley: The trespass act Moray Hathorn, & Dale Hutchison: Labour tenants & the law Clive Pasket: Homeland incorporation: The new forced removals Dave Unterhalter: Legitimate expectation and the law of chiefs.

Aninka Claassens is an academic and practitioner who has worked since 1982 as a land activist and academic in the field of legal pluralism in South Africa. During the apartheid era she worked for the women’s anti-apartheid organization the Black Sash, supporting rural communities who resisted forced removals from their land and homes. In 1990 she moved to the Law Faculty at the University of the Witwatersrand where she became involved in land policy work alongside her ongoing role in supporting rural communities involved in anti-bantusan resistance and land re-occupations. She joined the ANC land desk and participated in the drafting of the early land reform laws that were introduced between 1994 and 1999. However, as the ANC policy direction began to shift in favour of supporting traditional leaders rather than the land rights of vulnerable groups, she became involved in litigation, challenging laws such as the 2003 Traditional Leadership and Governance Framework Act of 2003 and the Communal Land Rights Act (CLRA) of 2004. The CLRA was ultimately struck down by the Constitutional Court in 2010. She also supported litigation upholding participatory and inclusive versions of “living” customary law in the face of discrimination derived from distorted versions of “official” customary law. In 2009 she joined the University of Cape Town and later founded the Land and Accountability Research Centre (LARC), which she directed until 2019. LARC forms part of a collaborative network, constituted as the Alliance for Rural Democracy, which provides strategic support to struggles for the recognition and protection of rights and living customary law in the former homeland areas of South Africa. Aninka’s research is mainly focused on the nature and content of customary law in South Africa, particularly regarding the tensions between the jurisprudence of unwritten “living” customary law emanating from judgments of the Constitutional Court, and the autocratic versions of custom inherited from colonialism and apartheid that have been reinforced by traditional leadership laws enacted since 2003. These laws have sought to transfer freehold ownership of the “communal” land in the former homelands to traditional leaders at the expense of pre-existing customary law ownership rights that have vested in families over generations. The laws have also sought to centralize decision-making power and authority in the hands of

Women's rights and customary law are often understood as being in opposition to one another. This article challenges the usefulness of the prevailing custom/rights dichotomy, arguing that it obscures the way in which struggles to claim resources such as land combine 'human rights' equality claims with claims to customary entitlements. The article focuses on contestation over who has the power to define custom, rights and customary entitlements. It discusses the democratic potential inherent in Constitutional Court judgments that define customary law as 'living law' reflecting changing practice, and the dangers posed by national legislation that reinforces the power of traditional leaders to unilaterally define custom. It argues for legal strategies that engage with, and support, the struggles for change taking place at the interface between custom and rights in the former reserves. We draw on insights about the nature of rights and rights struggles in the work of Nedelsky, Nyamu Musembi and Merry to argue for an approach to rights that focuses on the relationships and power relations that rights mediate, rather than solely on rights as 'boundaries of autonomy'. Moreover, engaging with processes of women claiming, redefining and 'vernacularising' rights within their communities relates directly to the project of engendering socioeconomic rights, given the primacy of claims of need, and of access to material resources, within indigenous constructs of relative rights.

The legal framework for South Africa’s democracy is provided by the widely lauded Constitution of the Republic of South Africa, 1996 (‘the Constitution’), which was adopted in the context of deep racial inequality and injustice that were the legacy of half a century of apartheid and several centuries of colonialism. One of the core elements of that legacy was the racial dispossession of land.

Women's rights and customary law are often understood as being in opposition to one another. This article challenges the usefulness of the prevailing custom/rights dichotomy, arguing that it obscures the way in which struggles to claim resources such as land combine 'human rights' equality claims with claims to customary entitlements. The article focuses on contestation over who has the power to define custom, rights and customary entitlements. It discusses the democratic potential inherent in Constitutional Court judgments that define customary law as 'living law' reflecting changing practice, and the dangers posed by national legislation that reinforces the power of traditional leaders to unilaterally define custom. It argues for legal strategies that engage with, and support, the struggles for change taking place at the interface between custom and rights in the former reserves. We draw on insights about the nature of rights and rights struggles in the work of Nedelsky, Nyamu Musembi and Merry to argue for an approach to rights that focuses on the relationships and power relations that rights mediate, rather than solely on rights as 'boundaries of autonomy.' Moreover, engaging with processes of women claiming, redefining and 'vernacularising' rights within their communities relates directly to the project of engendering socio-economic rights, given the primacy of claims of need, and of access to material resources, within indigenous constructs of relative rights.

People in the former homelands waged a successful battle against the imposition of 'tribal levies' during the anti-apartheid struggle. Recently, however, there has been a resurgence of traditional authorities demanding annual levies. Those who refuse to pay cannot access government grants and identity books. This article argues that the laws undermine the citizenship rights of the poorest South Africans as well as their ability to hold traditional leaders to account. It suggests that the laws have been ambiguously worded in an attempt to disguise the fact that they are inconsistent with the Constitution. It rebuts the argument that annual tribal levies are consistent with and justified by customary law, describing their colonial and apartheid genesis.

In constitutionally entrenching existing propery rights there is an inherent danger of entrenching the results of past apartheid land policies and racial dispossession. Until 1991 black rights to lease or buy land were prohibited by law and those property rights which some black people had managed to acquire before 1913 were systematically destroyed under the policy of forced removals.

The imposition of 'tribal levies' was a flashpoint for the anti-Bantustan rebellions of the 1980s. Rural people objected to traditional leaders demanding excessive levies that were not adequately accounted for. The Constitution authorises only the three levels of government to tax, and circumscribes taxation power in various ways. Yet rural people report a resurgence of demands for tribal levies in all the former homelands, and in 2005, the Limpopo Traditional Leadership and Institutions Act provided for the imposition of 'traditional council rates'. This article describes the upsurge of tribal levies in the context of the ambiguity of recent laws and policy in respect of traditional leadership and tribal taxation. It argues that tribal levies are inconsistent with the Constitution and that they derive from colonial and apartheid laws and distortions, rather than from customary law per se. It focuses on Limpopo Province.

This article discusses traditional leadership laws that entrench the 'tribal' boundaries which make up the former homelands, and recent policies that foreclose landownership for the majority of rural people. I argue that these laws and policies reinforce, rather than address, the legacy of the 1913 and 1936 Land Acts. Distorted constructs of unilateral chiefly power are mobilised in attempts to create a separate legal zone of customary authority that undermines the citizenship rights of those living within the boundaries of the former bantustans. The article points to tensions between the new policies and the Constitution's promise of land rights to remedy past discrimination, discussing restitution as a case in point. The example of platinum mining on communal land in North West Province is used to illustrate the significant resources at stake.

The interface between customary law and the formal legal system in South Africa has been the subject of much recent litigation in the South African Constitutional Court. This contribution describes and reflects on the opportunities created by the emerging jurisprudence of 'living customary law' for asserting and protecting customary entitlements to land in the face of controversial new laws that bolster the authority of traditional leaders within fixed jurisdictional boundaries coinciding with the former 'homelands'. I examine the exclusionary effect of these boundaries (which determine both land and identity) on the more flexible and inclusive nature of the 'nested' boundaries typical of customary systems of law. I argue that the new laws attempt to outsource the governance of the poorest South Africans and, in so doing, undermine not only their citizenship rights but also indigenous accountability mechanisms which are inherent in living customary law. I contrast the contextual and purposive approach to issues of inequality and power adopted by the Court in pursuit of its stated transformative agenda with the bounded top-down view of customary law that informs the new traditional leadership laws. I argue that the 'living law' jurisprudence emerging from the Court is deeply embedded in its broader commitment to situate rights in the real-world context of unequal power relations. In addition I suggest that the Court's approach is fundamentally reshaping customary law, such that the new laws are bound to fall short of standards established in living customary law and the broader contextual and purposive approach advocated by the Court.

The Natives Land Act of 1913 delineated separate territories for black and white ownership and occupation of land, setting aside 7 percent of the 1936 Natives Trust and Land Act. After the National Party came to power in 1948 it used the rural reserves established by the Land Acts as the basis for establishing ten ethnically defined 'homelands" for speakers of the different African languages. Some of the 'homelands', such as Bobhuthatswana, discussed here, became 'independent states.'

The article discusses the Traditional Courts Bill of 2008 and its likely impact on the balance of power in rural areas. It describes improvements women have managed to win over the last 15 years, and argues that they are the outcome of vigorous processes of debate and contestation over the content of custom involving a wide cross-section of people in rural areas. These processes of debate and contestation are put at risk by the top-down construct of chiefly power embodied in the Traditional Courts Bill and other recent legislation reinforcing the powers of traditional leaders to unilaterally define the content of custom within ethnically delineated tribal boundaries. The Article discusses the laws as the outcome of the successful efforts of the traditional leader lobby to bolster their contested authority with statutory power. It argues that what is at stake is which voices are allowed to participate in the definition of custom, and on what terms. It discusses the impact of national law on contested power dynamics at the local level, and the privileging of chiefly voices in the legislative process. It begins with the views put forward by rural women in a series of consultation meetings about the Bill. Notwithstanding the problems associated with such courts they are often the only accessible source of justice in rural areas and many women argue that they should be reformed, rather than abolished. The Article argues that the Bill fails to address many of the problems raised by rural women, and would instead exacerbate them.

The C.A.P.E. Program is a large-scale, multi-stakeholder, multi-faceted 20-year Program that seeks to conserve biodiversity in the Cape Floral Region, while at the same time delivering economic benefits. The Cape Floristic Region (CFR) covers 90 000 square kilometres, comprises one of the six floral kingdoms worldwide and is exceptionally rich in species diversity, being listed as a centre of plant diversity and endemism. This rich biodiversity is under serious threat due to conversion of natural habitat to
permanent agriculture and rangelands, inappropriate fire management, rapid and insensitive infrastructural development, over-exploitation of marine resources and wild flowers and infestation by alien species. See Annex D. The basis for the C.A.P.E. Program intervention was laid by GEF support in September 2000 that resulted in the C.A.P.E. 2000 Strategy. It identified the key ecological patterns and processes which need to be conserved in the CFR, and the key threats and root causes of biodiversity losses that need to be addressed in order to conserve the biodiversity of the CFR. This resulted in a spatial plan identifying the areas that need to be conserved and a series of broad Program activities that need to be undertaken over a 20-year period.

The Traditional Courts Bill cannot be understood in isolation from the package of other laws dealing with the powers of traditional leaders. The fist of these laws is the Traditional Leadership and Governance Framework Act of 2003. The Framework Act has since been complemented by provincial laws dealing with traditional leadership enacted in the different provinces.

The South African Land Acts of 1913 and 1936 were used to cement the highly unequal and unstable outcome of prior black dispossession. Now a ruling elite has again reached for the law to bolster its contested authority and to monopolise land and other resources.

South Africans assumed on 27 April 1994 that their vote for freedom
would erase the ethnic enclaves known as ‘Bantustans’ or ‘homelands’
and guarantee a common citizenship with equal rights under one law.
Officially, the 10 homelands were dismantled under the interim constitution
that introduced democracy in 1994, paving the way for the reversal of the
dispossession that had been entrenched by the 1913 and 1936 land acts.
Instead, 20 years later, a series of laws, bills and policies proposes a separate
legal regime for people within the boundaries of those former Bantustans.
A version of ‘customary law’ that defaults to the tribal boundaries and
ascribed identities of the Bantu Authorities Act of 1951 is used to justify
continued segregation and unequal citizenship. The effect is to consolidate
the unilateral authority of chiefs in relation to land ownership and to deny
other rural South Africans the right to decide for themselves how to use and
share the newly discovered mineral wealth of the land they have owned and
occupied for centuries.

The interface between customary law and the formal legal system in South
Africa has been the subject of much recent litigation in the South African
Constitutional Court. This contribution describes and reflects on the opportunities
created by the emerging jurisprudence of ‘living customary law’ for
asserting and protecting customary entitlements to land in the face of controversial
new laws that bolster the authority of traditional leaders within fixed
jurisdictional boundaries coinciding with the former ‘homelands’. I examine
the exclusionary effect of these boundaries (which determine both land and
identity) on the more flexible and inclusive nature of the ‘nested’ boundaries
typical of customary systems of law. I argue that the new laws attempt to
outsource the governance of the poorest South Africans and, in so doing,
undermine not only their citizenship rights but also indigenous accountability
mechanisms which are inherent in living customary law. I contrast the
contextual and purposive approach to issues of inequality and power adopted
by the Court in pursuit of its stated transformative agenda with the bounded
top-down view of customary law that informs the new traditional leadership
laws. I argue that the ‘living law’ jurisprudence emerging from the Court is
deeply embedded in its broader commitment to situate rights in the real-world
context of unequal power relations. In addition I suggest that the Court’s
approach is fundamentally reshaping customary law, such that the new laws
are bound to fall short of standards established in living customary law and the
broader contextual and purposive approach advocated by the Court.

This article discusses the possible impact of the Communal Land Rights
Act1 (CLRA or the Act) on the land rights of rural women in South
Africa. It asks whether the Act is likely to enhance or undermine tenure
security, not only for women, but also for rural people in general. In the
context of declining rates of marriage it focuses particularly on the
problems facing single women. It examines two inter-related issues: The
first is the content and substance of land rights, including the question of
where rights vest. The second relates to power over land, in particular
control over the allocation and management of land rights.
It begins with an account of the parliamentary process and the last
minute changes to the CLRA. The Communal Land Rights Bill
(CLRB) was opposed by all sectors of civil society apart from traditional
leaders. The most vehement opposition came from rural women and
women’s organisations, who argued that the Bill undermined the
principle of equality in favour of an alliance with traditional leaders.
Traditional leaders on the other hand welcomed the Act as a triumph of
tradition and African custom.
The Constitution guarantees the right to equality and also recognises
customary law and the institution of traditional leadership. During the
constitutional negotiations there was a battle between women’s representatives
and traditional leaders about which should take precedence –
equality or custom. Traditional leaders argued that the constitution
would not be successful if it relied on ‘foreign concepts and institutions’.2
Equality won: but the inherent tension between the different provisions
has meant that a clash has long been anticipated. Some have seen the Act
as manifesting that anticipated clash.

This paper discusses the phenomenon of single women claiming, and acquiring, residential sites in the former homelands since the end of apartheid in 1994, against the backdrop of steadily declining marriage rates. It argues that the transition to democracy changed the balance of power within which 'living customary law' is negotiated at the local level, and emboldened women.The changes are put at risk by controversial traditional leadership laws enacted since 2003.These restore the power of definition to chiefs, and reassert constructs of customary law that obscure the dynamics of the changes under way. I suggest that the 'changes' may, in part, reflect the re-emergence of pre-existing repertoires that were suppressed by official customary law. The paper contrasts the Constitutional Court's inclusive approach to 'living customary law' and the legislative process, with the autocratic approach of the new laws, one of which has already been struck down by the Court.

Page 1. Land reform and agrarion change in southern Africa An occasional paper series School of Goverment University of Western Cape The Communal Land Rights Act and women: Does the Act remedy or entrench discrimination and the distortion of the customary? Aninka Claassens Page 2. The Communal Land Rights Act and women: Does the Act remedy or entrench discrimination and the distortion of the customary? Aninka Claassens No. 28 Page 3. ...

This chapter discusses struggles over land rights, authority, and livelihoods in communal tenure systems in South Africa from the colonial era through to the present, with a particular focus on the changing character of state policies in relation to these systems. This sets the scene for a discussion of current debates on tenure reform policy in the communal areas of the ex-Bantustans, and on the Communal Land Rights Bill in particular. A political economy approach, that locates questions of land tenure in a wider social context of unequal class ...

Land is a burning issue in South Africa, as in Africa more widely. Land, power & custom: Controversies generated by South Africa’s Communal Land Rights Act deals with tenure reform in the former homelands, and the implications for power and gender relations.

It aims to contribute to public debate about land reform and controversial new legislation. The book is relevant to those concerned with customary law, human rights, anthropology, sociology and political science, as well as people working on land and development issues.

This chapter details how the law has been used to entrench structural inequality in post-apartheid South Africa. I argue that laws analysed here advance the interests of a small elite at the expense of the property and citizenship rights of 17 million South AFricans living in the former homelands. A key and enduring driver of inequality is the legacy of the colonial "reserves" that became apartheid "homelands: and which remain zones of desperate poverty and exclusion.

Chapter 13: Stealing restitution and selling land allocations: Dixie, Mayaeyane and Makuleke, by Aninka Claassens and Moray Hathorn

This chapter tells the stories of three of the four rural communities challenging the constitutionality of the Communal Land Rights Act 11 of 2004 and the Traditional Leadership and Governance Framework Act 41 of 2003. The three communities under discussion are those living in Dixie village in Limpopo Province, in the farming area of Mayaeyane which falls within the broader Makgobistad area in North West Province, and in Makuleke in the far north-east of South Africa near the Kruger National Park. Kalkfontein, the first applicant in the litigation, is discussed in the previous chapter. Aspects of the Makuleke and Mayaeyane stories have been included in chapter 11 but are dealt with in more detail here.

Chapter 7: Women, land and power: the impact of the communal Land Rights Act, by Aninka Claassens and Sizani Ngubane.

This chapter examines the likely impact of the Communal Land Rights Act 11 of 2004 on rural women in South Africa. It is based on research undertaken by the authors in the context of the legal challenge to the Act. The Act deals with the content and vesting of land rights as well as the powers and functions of the structures that will administer "communal" land. The chapter looks at the interplay between land rights and power over land.