Indigenous World 2019: South Africa

Written on 24 April 2019. Posted in South Africa

South Africa’s total population is around 50 million, of which indigenous groups are estimated to make up approximately 1%. Collectively, the various African indigenous communities in South Africa are known as the Khoe-San/Khoisan, comprising of the San and the Khoekhoe/ Khoi-Khoi.

The main San groups include: the Khomani San who mainly reside in the Kalahari region, and the Khwe and Xun mainly in Platfontein, Kimberley. The Khoi-Khoi consist of the Nama who live mainly in the Northern Cape Province; the Koranna who live mainly in the Kimberley Free State province and some parts of Western Cape; the Griqua in the Western Cape, Eastern Cape, Northern Cape, Free State and KwaZulu-Natal provinces; and the Cape Khoekhoe in the Western Cape and Eastern Cape, with growing pockets in the Gauteng and Free State provinces. In contemporary South Africa, Khoi & San communities are engaged in a range of socio-economic and cultural lifestyles and practices.

The socio-political changes brought about by the current South African regime have created space for deconstruction of the racially-determined Apartheid social categories, such as “Coloureds”. Many previously “Coloured” people are now exercising their right to self-identification and identify themselves as San and Khoi-Khoi or Khoe-San. African indigenous San and Khoi-Khoi peoples are not formally recognised in terms of national legislation as a customary/indigenous community; however, this is shifting with the pending Traditional and Khoisan Leadership Bill of 2015. It is however unclear when this Bill will be signed into law. At the time of publication, this law was adopted by the provincial National Council of Provinces. South Africa has voted in favour of adopting the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) but has yet to ratify the ILO Convention No. 169.

Human rights defenders: West coast fishermen

The South Africa-based organisation Natural Justice during 2018 set up a Human Rights Defenders and Strategic Litigation Fund to support activists from indigenous and local communities who are at  the  frontline  in  their  struggles  for  recognition,  land  and fundamental human  rights.  There  is  an  increasing  practice  of intimidation, violence and killings of human rights defenders (HRDs) resulting from a quest by companies to exploit natural resources. In many ways indigenous communities are the last line of defence to protect the world’s biodiversity and people, as evidence points to the imminence of a new, largely man-created phase of mass species extinction. The Fund aims to ensure that activists and communities are supported with high priority and that Natural Justice can proceed with strategic litigation without having to depend on funding cycles.

During 2018 Natural Justice’s Human Rights Defenders and Strategic Litigation Fund supported one such HRD, namely the indigenous fisherman Nicolaas Booysen from the West Coast. He and his community work to address the unfair fishing permitting allocation system whereby commercial companies benefit off marine resources at the cost of small-scale fishermen facing unfair criminalization for wanting to access their customary resources for livelihood purposes. He also advocates on behalf of his community’s struggle to live their cultural way of live by accessing their customary food sources and material resources located on municipal land and private commercial farms which were historically lands they occupied.

Nicolaas Booysen and his Guriqua community have to cross both municipal and private farmland to gain access to resources such as wood, which they collect for household purposes. Booysen was arrested on several criminal charges for addressing these injustices. After becoming historically dispossessed of their lands, Booysen’s community took up fishing as an alternative livelihood. During the Apartheid era, Booysen experienced land loss in addition to loss of livestock and he presently faces continued conflict with the law on charges of trespassing and illegal use of resources belonging to private owners. During 2017, Nicolaas and his community developed a Biocultural Community Protocol (BCP) documenting their customary resources through a community mapping process. Natural Justice supported them by building ties with the police to ultimately help the police understand the community’s customary resources and lifestyles that they are now reaffirming and rebuilding through the development of their biocultural community protocol. It became clear that the customary laws, protecting the way this community lives and sustains itself, should equally be considered in monitoring criminal law. Meaning, both criminal law and customary law should find harmonisation and equal status in enforcement by the police.

Nicolaas was held in custody since 11 February 2017 and released from prison in August 2017. Natural Justice’s Fund was able to support him while in custody to ensure he would be released from prison and able to return to his family and community.^{1 2}

Land reform: Section 25 of the Constitution

South Africa continues to go through vigorous land reform debates and parliamentary processes around how best to ensure that the majority of historically disadvantaged South Africans have access to lands. South Africa has a relatively comprehensive land reform policy, however progress in land reform remains slow with President Cyril Ramophosa reporting that “most of the country’s land remains in the hands of the few”. “The high-level panel of [former] President Kgalema Motlanthe has spoken candidly about the challenges of land reform and basically attributed it to weak policy, corruption in the state, to a lack of will and capacity.”³

During late 2018, the South African parliament approved a report endorsing a constitutional amendment of Section 25 of the Constitution that would allow expropriation of land without compensation. Parliament’s constitutional review committee indicated that amending Section 25 of the Constitution in this way would make it explicitly clear that such expropriation could be carried out to accelerate land reform. The South African national assembly endorsing this report recommending its constitution be amended allowing expropriation of land without compensation came about as a result of country-wide public consultations and written submissions before parliament and across different provinces. The president also appointed an expert panel to advise him on land reform.⁴ However, some sectors of the Khoi-Khoi and San do not feel represented by or included in the composition of this advisory structure of the president.⁵ While it is crucial that South Africa reflects and plans how best to deal with the legacies of colonialism and Apartheid especially in relation to land, the Khoi-Khoi and San peoples find themselves either excluded from or at the margins of development initiatives that are meant to help redress land dispossession. Other than ceremonial references to the Khoi-Khoi and San’s role in South Africa’s history, no process is outlined as to how their land concerns will be included and accommodated in South Africa. How to move forward with meaningful land reform for the Khoi-Khoi and the San in compliance with the UN Special Rapporteur on Indigenous Peoples recommendation of 2005 on land remains especially concerning.⁶

South African human rights report 2018

The South African Human Rights Commission (SAHRC) released its report ⁷ on the human rights situation of the Khoi-Khoi and San communities in South Africa during March 2018.⁸ The SAHRC forms part of Chapter 9 of the South African Constitutional Dispensation created to monitor and report on human rights in South Africa. It undertook a process of national hearings on the human rights situation of the Khoi-Khoi and San in the different provinces during 2015–2017.

According to the SAHRC website, the hearings were hosted against a background of “ongoing allegations of rights violations, including inadequate recognition of the Khoi and San peoples as a distinct group as well as multiple forms of discrimination and marginalization, lack of land redistribution, access to basic services, equitable employment opportunities and inadequate measures to protect and promote language and cultural rights”. The SAHRC inquiry found that more than a decade after the visit of the UN Special Rapporteur on Indigenous Peoples, the Rapporteur’s recommendations remain largely unfulfilled.⁹ Some of the recommendations include the recognition of the Khoi-Khoi and San, their land rights and their right to be educated in their indigenous languages. None of those recommendations were implemented within the appointed period.

A renewed spirit of hope initially emerged with the release of the SAHRC report during March 2018 and the inclusion of deadlines which the ministry will be held to for implementation of the SAHRC recommendations. Most, if not all, of the recommendations were to be completed within 12-24 months from the date of publication.¹⁰ The report has become an important advocacy tool for the Khoi-Khoi and San activists.¹¹

Thus far, the Ministry of Cooperative Governance and Local Government has been the only ministry which has worked towards the implementation of the SAHRC’s recommendations. However, much remains to be done.¹² Nearly 12 months since the release of the report, confusion remains around how the SAHRC intends to move forward with implementation and monitoring of its recommendations given its time for implementation lapsed already.

Bethany indigenous land and water

The acuteness of the plight of indigenous peoples in relation to the ownership of lands and sacred sites is clear from the experiences of the Griqua indigenous community. The Griqua community is located in the Bethany mission station in the Free State some 50 kilometres outside of Bloemfontein. The land which currently forms part of their ancestral territory consists of different territories they consider sacred. In 1833, some of their land within their current Bethany Farm (Bandewysfontein) was granted by Mr. Adam Kok II (regarded as one of the Griqua’s legendary leaders) to Mr. Jan Kraalshoek. This granting of land currently forms the basis for their indigenous lands and sacred sites struggle. The communities’ rights were gradually and systematically eroded over time through colonialism and Apartheid, fronted by the Berlin Missionary Church.

The Griqua community successfully claimed back a portion of their ancestral land through the South African land restitution process. However, the Griqua community’s struggle for their ancestral lands as per their 1881 treaty with Adam Kok continues. Post-Apartheid legislation and policies have still not ensured the return of the lands or water groves to the Griqua community. They currently find themselves embroiled in a host of expensive legal processes to fight for the protection of their land rights as well as the recognition of the rest of their ancestral territories. Access to justice remains an elusive option for this community.

Xolobeni mining judgement: Consent

The sands of the Wild coast in the Eastern Cape province where the Umgungundlovu community (also known as the ‘“Xolobeni community”) have lived for centuries, is rich in titanium. For years, an Australian mining company, Transworld Energy and Mineral Resources (TEM), has attempted to get a mining right to conduct open-cast mining on an estimated 900 hectares.¹³ Their attempts have not yet been successful, because of the resistance of the community members who would lose their land because of TEM’s plans. Tensions within this community escalated to such an extent that an anti-mining community leader, Bazooka Radebe, was assassinated in March 2016. As a result, the then Minister of Mineral Resources, Mosebenzi Joseph Zwane, instituted an 18-month moratorium on the granting of a mining right in the area in the course of August 2017.

In April 2018 the North Gauteng High Court decided on the dispute since the Umgungundlovu community had approached the Court asking for an order declaring that the Minister of Mineral Resources must seek their consent before granting a mining right to their land. In deciding the issue, the Judge emphasised the special place that customary law has under the Constitution, in particular because of the historic discrimination against indigenous forms of law in South Africa. The rights that South Africans have under customary law, including the rights to land, require special protection precisely because for so long, these rights have gone unrecognized and deliberately ignored. The court confirmed that no mining can take place on their lands without the community’s consent.¹⁴

Notes and references

1. See Natural Justice, “World Fisheries Day: For traditional fishers, it shouldn’t be a matter of sink or swim” at: http://bit.ly/2EjONEx
2. Nicolaas faced 7 criminal charges in the pursuit of accessing customary resources belonging to his community including theft, resisting arrest and damage to The historic land dispossession in the case of the Guriqua community was so disruptive as to necessitate violations of law, such as theft and trespassing, in order to access his community’s resources located on a natural reserve. In this instance, the BCP complimented the criminal law in highlighting his community’s particular customary rights to access and use their wildlife and biodiversity resources for their fishery practices.
3. See The Mercury, “Government slammed for ‘slow’ land reform pace” at: http://bit.ly/2EkFLHq
4. See Fin24, “Meet Ramaphosa’s new 10-person land reform advisory panel” at http://bit.ly/2EhdS35
5. Taken from interview with Chairperson of the National Khoi & San Council, Cecil le Fleur, dated 15 February 2019.
6. See Reuters, “South African parliament endorses report on disputed land reform” at https://reut.rs/2EiQW3o
7. See the South African Government, “Parliament adopts report on expropriation of land without compensation” at http://bit.ly/2El0ACL
8. See SAHRC at http://bit.ly/2N4SwtK
9. See SAHRC Media Statement, “SAHRC releases its National Hearing Report on the Human Rights Situation of the Khoi & San Peoples in South Africa” at http://bit.ly/2EbZglm
10. See SAHRC at http://bit.ly/2N4SwtK
11. They use it in their advocacy initiatives such as referencing it in their engagements with parliament, governmental ministries and the media. They also use it to address particular concerns around issues raised in the report
12. See SAnews, “Cogta continues to engage Khoisan Council” at http://bit.ly/2T3WR6B
13. See Wild Coast, ”Wild Coast plans show preference for mining” at http://bit.ly/2J83W1D
14. See Baleni and Others v Minister of Mineral Resources and Others (73768/2016) [2018] ZAGPPHC 829; [2019] 1 All SA 358 (GP) (22 November 2018) at http://bit.ly/2T2ywyg

Lesle Jansen (LLM, LLM) is an African indigenous lawyer from South Africa. She is an indigenous expert member of the Working Group on Indigenous Populations/Communities in Africa of the African Commission on Human and Peoples’ Rights and is currently working with a team of environmental lawyers called Natural Justice. Lesle is based in Cape Town. Email: This email address is being protected from spambots. You need JavaScript enabled to view it.