Indigenous World 2020: South Africa

Written on 11 May 2020. Posted in South Africa

South Africa’s total population is estimated at around 50 million people, and Indigenous groups make up approximately 1% of this figure. Collectively, the various African Indigenous communities in South Africa are known as the Khoe-San/Khoisan, comprised 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 main Khoi-Khoi groups consist of the following: the Nama who live primarily 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, Khoikhoi and San communities are engaged in a range of unique socio-economic and cultural lifestyles and practices.

The socio-political changes brought about by the current South African regime have begun deconstructing the racial categories of the Apartheid system. Previously, many members of the Khoikhoi and San communities were classified as “Coloured”, a misnomer that grouped together multiracial ethnic groups. Many “Coloured” people are now exercising their right to self-identification by identifying themselves as San and Khoi-Khoi or Khoe-San. Self-identification amongst Indigenous groups is a right entrenched in Article 33 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which South Africa is in favour of adopting. However, the country has yet to ratify the Indigenous and Tribal Peoples Convention, 1989 (ILO Convention No. 169), which is the major binding international convention concerning Indigenous and tribal peoples and was a precursor to the UNDRIP. 

This article is part of the 34^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is from the Peruvian Amazon inside the Wampis territory, taken by Pablo Lasansky, and is the cover of The Indigenous World 2020 where this article is featured. Find The Indigenous World 2020 in full here

Climate change

Indigenous and vulnerable communities are and will continue to be most affected by the climatic and ecological crises that await South Africa and the world. South Africa’s Second National Climate Change Report of 2016 reported that the country is especially vulnerable to the impacts of climate change. Water is the primary medium through which the impacts of climate change are felt in South Africa according to the National Water Resource Strategy (Department of Water Affairs, 2013). Increases in climate variability and climatic extremes are impacting both water quality and water availability through changes in rainfall patterns, with more intense storms, floods and droughts; changes in soil moisture and runoff; and the effects of increasing evaporation and changing temperatures on aquatic systems. South Africa has been experiencing a serious drought since 2015, with associated crop losses, water restrictions and impacts on food and water security. Curbing climate change while simultaneously responding to the unavoidable impacts of greenhouse gas emissions, requires substantial and sustained reductions in emissions which, together with climate adaptation, is the only way to limit climate change risks.¹

The Kalahari Desert: Crying for water

One South African Indigenous community feeling the effects of climate change, is the San from the Southern Kalahari in the Northern Cape. It is currently the home of members of the Khomani Communal Property Association, a group of Saa (or San) people that received back a small portion of land during 1999. It was land that their ancestors were dispossessed of during colonial times. Only three years after the land was awarded back to the people, however, it was placed under government administration. This process involved them registering their communal land under the Communal Land Association with very complicated and technical governance systems. These administrative systems were out of sync with how these communities’ priorities were. This process resulted in their communal land being under court administrative status and in the San community not being able to exercise true self-governance of their ancestral land. Rather, the court appointed an administrator to make those self-governance decisions, and these foreign governance processes imposed on the people did not work. Today they live on a small portion of land due to land demarcation disputes not being resolved and they continue to face daily exploitation and harassment by police forces.

Not only do they face issues like police brutality, but they are also subject to huge environmental changes. Their livestock is their only form of income and their main source of food, and this is being depleted by droughts and desertification. While there is an outcry to support commercial farmers in South Africa, who are struggling because of the droughts, the small-scale subsistence farmers are forgotten. Water is a constitutional right for all in South Africa but is a resource that is withheld from the community. A water pipe providing fresh water all the way from the Orange River runs right through the land of the Khomani Communal Property Association but does not provide water to the people who are in desperate need of the resource. – Reflection from San Youth from Kalahari, Ivan Vaalbooi.²

Khoikhoi and San conclude historic benefit-sharing agreement with the South African rooibos industry

On 1 November 2019, following nine years of negotiations and advocacy, the world’s first industry-wide benefit-sharing agreement was launched in South Africa between the Khoikhoi and San, and the South African Rooibos industry.

This agreement legally originates from the Nagoya Protocol, an international supplementary agreement to the UN Convention on Biological Diversity (CBD). Article 1 sets out that one of the fundamental objectives of ABS is the fair and equitable sharing of the benefits arising out of the use of Indigenous biological resources as well as the use of communities’ traditional knowledge. A central feature of this agreement incorporates free, prior, and informed consent for access to their traditional knowledge.

Throughout 2014, in the course of negotiations, the South African government commissioned an independent study that concluded there was no evidence to dispute the claim by these communities since the Khoikhoi and the San are the traditional knowledge holders to the uses of Rooibos. As a result, the Khoikhoi and San people were able to get recognition as traditional knowledge holders to the uses of Rooibos. The report based its conclusion on the fact that the areas where Rooibos is found are the areas in which the Khoikhoi and San historically lived.³ The National Khoi & San Council represented the interests of some

30 Indigenous communities, inclusive of the Rooibos Indigenous farming communities. The South African San Council represented the four San communities from South Africa.

The agreement recognises the Khoikhoi and San peoples as the traditional knowledge holders to the uses of Rooibos, an Indigenous plant species found only in the Cederberg region of South Africa. The agreement is the basis from which the Khoikhoi and San communities of South Africa will have access to benefits as a percentage contribution from the commercialisation of Rooibos by the South African Rooibos industry.

After an extensive process of negotiations, the agreement was finally concluded on 25 May 2019 and launched in November 2019.⁴

Our dignity is being restored in the land of our forefathers by recognising our Khoikhoi ancient traditional knowledge on rooibos. Our people are happy and our land healed. – Stanley Peterson, National Khoi & San Counci, negotiator in the Rooibos case.⁵

Traditional and Khoi-San Leadership Act 3 of 2019

On 28 November 2019, President Cyril Ramaphosa signed into law the Traditional and Khoi-San Leadership Act 3 of 2019 (TKLA). This legislation recognises both traditional and Khoi-San communities; their leadership positions and any withdrawal of such recognition; regulatory powers of the Minister and Premiers; provisions for transitional arrangements; powers to amend certain acts; provisions for the repeal of legislation; and any other matters connected therewith.⁶

The TKLA is a key beginning for most of the Khoikhoi and San communities, offering a first form of legislative recognition and inclusion by the state. This law is a long-awaited piece of legislation for the majority of Khoikhoi and San communities as it is a first form of recognition bringing them on par with other cultural communities in South Africa. The Khoikhoi and San communities view it is an opportunity for their communities to also be formally recorded and recognised as existing in South Africa. Practically, it means they now also enjoy some form  of access to justice by being able to participate formally in different spheres of government. They also see it as a key entry point for starting the discussion around their land and language struggles. It has been    a long-awaited piece of legislation for the Khoikhoi and San who have been in negotiations with the South African government for the last 20plus years for constitutional recognition as Indigenous communities living in South Africa with historical connections to language, culture and environment.⁷

Whilst the Khoikhoi and San Indigenous communities hold these ideals through the proclamation of the TKLA, there is a movement of activists within the non-governmental community opposing the commencement of this law because of its potential impact on previously recognised communal land communities.

Conclusion

The Khoikhoi and San communities have important challenges to contend with as they are not formally included as an Indigenous cultural community in South Africa, and their Indigenous languages are not recognised as official languages in South Africa. A moratorium was placed on all land claims post-1998 until the first land claims (pre-1998) are resolved, a process that will take over three generations to finalise before the Khoikhoi and San can claim land back. There is now an organised civil society movement planning to challenge the TKLA before the court, even though this law was potentially the Khoikhoi’s and San’s key opportunity for some form of inclusion as part of the state apparatus and them having access to justice. It was accepted by the National Khoisan Council that the law was not perfect, but it was a start for the only communities left outside of South Africa’s constitutional system. What complicates matters even more is that the world is facing its biggest climate and ecological crises unfolding soon. How are they and other marginalised communities in South Africa going to adapt and enforce their rights under these circumstances?

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.

This article is part of the 34^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is from the Peruvian Amazon inside the Wampis territory, taken by Pablo Lasansky, and is the cover of The Indigenous World 2020 where this article is featured. Find The Indigenous World 2020 in full here

Notes and references

1. Department of Environmental Affairs: Climate Change and Air Quality Branch: South Africa’s 2nd Annual Climate Change Report (2016)
2. Interview with Ivan Vaalbooi from the Kalahari
3. Ibid
4. Department of Environmental Affairs: Rooibos benefit sharing agreement rights a wrong for the Khoi and San communities of South Africa, says Creecy. https://www.environment.gov.za/mediarelease/creecy_ rooibosindustrywidebenefitsharing2019 (2019)

5. Natural Justice: The Rooibos Access and Benefit Sharing Agreement. https://naturaljustice.org/the-rooibos-access-and-benefit-sharing-agreement/ (November 2019)

6. Traditional and Khoisan Leadership Act 2019 (http://pmg-assets.s3-website-eu-west-1.amazonaws.com/act-no-2-of-2019-traditional-lead-ership-and- governance-framework-amendment-act-2019_20191128-GGN-42867-01552. pdf) 28 November 2019

7. Cape Argus: ‘Shock at the Khoi-San bill’ https://www.pressreader.com/southafrica/cape-argus/20191203/281603832330262

Tags: Land rights, Business and Human Rights , Climate, Human rights