The Indigenous World 2021: South Africa
South Africa’s total population is around 59 million, of which Indigenous groups are estimated to comprise approximately 1%. Collectively, the various African Indigenous communities in South Africa are known as Khoe-San, comprising the San and the Khoikhoi. The main San groups include the ‡Khomani San who reside mainly in the Kalahari region, and the Khwe and!Xun who reside mainly in Platfontein, Kimberley. The Khoikhoi include the Nama who reside mainly in the Northern Cape Province; the Koranna mainly in Kimberley and the Free State province; 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 exhibit a range of socio-economic and cultural lifestyles and practices.
The socio-political changes brought about by the current South African regime have created the space for a deconstruction of the racially-determined apartheid social categories such as “Coloureds”. Many previously “Coloured” people are now exercising their right to self-identification and are identifying as San and Khoikhoi. African Indigenous San and Khoikhoi peoples are not formally recognized in terms of national legislation; however, this is shifting with the pending Traditional and Khoisan Leadership Act, which will come into force on 1 April 2021. South Africa voted in favour of adopting the UN Declaration on the Rights of Indigenous Peoples but has yet to ratify ILO Convention No. 169.
As of 13 December 2020, 860,964 COVID-19 cases and 23,276 deaths had been reported in South Africa.[1]
The country has since emerged from a devastating second wave of COVID-19 infections. During December 2020, a new COVID variant was found in South Africa. Similar to the variant found in the UK, it was found to be more transmissible than the previous. According to the World Bank, South Africa is one of the most economically unequal countries in the world.[2] The difference between wealthy and poor in South Africa has been increasing steadily since the end of apartheid in 1994, and this inequality is closely linked to racial divisions in society.[3] South African communities continue to struggle with food insecurity, rights to resources, employment, landlessness and corruption, greatly impacting on their quality of life.
Amidst these realities, both the UN Special Rapporteur on the rights of indigenous peoples’ Mission Report to South Africa (2005) and the South African Human Rights Commission (2018) confirmed that the Khoikhoi and San communities are disproportionately affected by these struggles. Like other fellow disadvantaged communities in South Africa, they continue to bear the double marginalization of being unable to access their human rights. Access to COVID relief measures similarly remains a structural barrier that these communities continue to face as a result of not being formally recognized. The particular nature of their concerns amidst the COVID crisis was exacerbated due to the tourism industry closing down, food insecurity, joblessness, criminal prosecutions for hunting their wildlife, amongst other things. [4]
COVID-19 and criminal charges against Kalahari San elders
Some of the San community members of the Southern Kalahari who form part of the ‡Khomani San Communal Property Association are currently facing criminal charges for allegedly hunting their wildlife to address hunger challenges.[5] Given the ‡Khomani San’s relative distance to economic centres, the community was severely impacted by the hard COVID-19 lockdown in South Africa (Level 5) whereby access to food and other essential supplies became increasingly difficult. Only small retail outlets are within reasonable proximity of the community and, with the outlets’ price inflation due to the market stress of the lockdown, basic food items became unaffordable for the community. The community’s struggle to access basic needs during this time was further exacerbated by precarious work circumstances and loss of income. Much of the ‡Khomani San community depend on tourism for livelihood purposes, an industry that has been severely and negatively impacted since the onset of COVID-19.[6]
The Khomani San community successfully claimed their land back as part of South Africa’s land restitution process. They comprise some 1,500 San community members managing 38,000 hectares of land.
The ‡Khomani San’s elder and traditional leader is Petrus Vaalbooi, whose family holds a proud history and lineage of fighting for their community’s Indigenous rights. He is currently one of the defendants facing these criminal charges.[7]
As the San youth Ivan Vaalbooi reported, the current situation in the Southern Kalahari is continuing to deteriorate, with members increasingly struggling to access clean drinking water, proper nutrition, better health services and access to legal representation. The community members believe they are the lawful owners of their customary resources and thus well within their rights to hunt for their subsistence needs. The criminal case is ongoing.
Traditional & Khoisan Leadership Act: President signs commencement date for Act
On 2 December 2020, the South African Parliament announced that President Cyril Ramaphosa had signed the Traditional and Khoi-San Leadership Bill (TKLA) into law. Among other things, the Act grants already recognized traditional leaders the power to make decisions on communal land such as signing deals with investment companies - in some cases without the consent of those whose land rights are directly affected. This Act amalgamates these communal land communities’ rights frameworks with the recognition of the Khoikhoi and San into this legislation called the Traditional and Khoisan Leadership Act. This heralds a new moment for the Khoikhoi and San as self-identifying African Indigenous communities. The President signing this legislation into law is ending a more than 20-year-long journey for the Khoikhoi and San communities to be included in the formal traditional leadership and governance system in South Africa. This recognition will, for the first time, ensure that their collective and cultural existence is formally recognized. It will also aid their access to justice as communities who have so far been formally left outside of the South African rule of law as it pertains to their cultural recognition, customary communities, Indigenous languages and ancestral lands. The commencement date for this Act will be from 01 April 2021. The commencement of this law will, for the first time, give these communities formal representation at the different levels of government and some form of access to justice.[8]
Rooibos benefit-sharing and COVID-19
Following nine years of negotiations, a landmark benefit-sharing agreement was launched in South Africa between the Khoikhoi and San, and the South African Rooibos industry in 2019.[9]
The agreement recognizes the Khoikhoi and San peoples as the traditional knowledge holders of the uses of the indigenous Rooibos plant. The agreement forms the basis on which the Khoikhoi and San communities of South Africa will have access to a percentage of the profits from the marketing of Rooibos by the South African Rooibos industry.
The first levy payment by the Rooibos industry was due and payable to the Khoikhoi and San communities during June 2020. However, aside from governmental administrative delays, the Rooibos industry reported that COVID-19 had also affected their farming. This resulted in the first ever Rooibos levy not being paid out to the South African Biodiversity Fund. The Biodiversity Fund should, in turn, pay the levy over to the two groups. The Khoikhoi and San communities in the meantime have formed their respective community trusts in order to distribute the projected benefits to the communities once the levy is received.[10]
Land reform – Khoikhoi & San’s redress?
South Africa continues to grapple with land reform, a process which aims to bring justice, restore dignity and foster equity after systemic land dispossession under apartheid formalized unequal land distribution based on racial discrimination. The three components of this broad effort include: (i) land restitution to return land to victims of dispossession; (ii) redistribution, which redresses inequality of land holdings to fulfil societal land needs; and, finally, (iii) land tenure reform to better secure and protect contemporary land rights. Given both the importance as well as delayed implementation of land reform, in 2018 the South African government approved a report endorsing a constitutional amendment to Section 25 of the Constitution that would allow the expropriation of land without compensation and accelerate the land reform process. The Presidential Advisory Panel appointed to guide and give recommendations on this process, however, is not representative of Khoikhoi and San communities. In the Advisory Panel’s 2019 output report, there was therefore little and unclear reference with regard to guiding the implementation of a plan that would meaningfully include and accommodate the needs of the Khoikhoi and San in the process of land reform. In this way, once again, the Khoikhoi and San are being disregarded in contemporary development initiatives to redress land dispossession and historical violence.
Despite the multitudinous layers of the Khoikhoi and San’s connection to their ancestral lands as the first peoples, they are limited in land restitution claims. As per Land Restitution Act 22 of 1994, only claims of land lost due to racially discriminatory apartheid legislation post-1913 is permissible. However, the Khoikhoi and San lost the vast majority of their land during the colonial era beginning in 1652. In this way, the Advisory Panel concurred that, as it stands, the Act “will not and has not delivered substantive justice for those persons that lost land long before 19 June 1913.”[11]
The report produced by the Presidential Advisory Panel on Land Reform in South Africa is a very important report for the country. Questions do, however, remain on the inclusion of the Khoikhoi and San Indigenous representation on this panel. The unique historical and structural particularities of the Khoikhoi and San communities’ land concerns were not properly represented in the report. It is also unclear what will be the direction and measures to help address their land concerns practically going forward. The communities are yet to understand the process following the production of this report, as was stated by one of the National Khoisan council members, Prof. Stanley Petersen.
Lesle Jansen is an African Indigenous lawyer from South Africa. She completed her undergraduate law degree at University of Western Cape (SA). She holds a Master’s degree in Indigenous Peoples in International Law from the University of Arizona (USA). She also completed a second Master’s degree in the Rule of Law for Development from Loyola University (Chicago) in Rome, Italy. She was appointed as an Indigenous expert member to the ACHPR’s Working Group on Indigenous Populations/Communities in Africa and is currently working as the CEO of an Africa-based organization, Resource Africa (https://resourceafrica.net), which holds a track record of working with communities in Africa around their relationship with natural resources and the environment. Lesle is based in Cape Town. Her email is: This email address is being protected from spambots. You need JavaScript enabled to view it.
This article is part of the 35th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. Find The Indigenous World 2021 in full here
Notes and references
[1] COVID-19 South African Online Portal. “Update on Covid-19 (13th December 2020).” 13 December 2020. https://sacoronavirus.co.za/2020/12/13/update-on-covid-19-13th-december-2020/
[2] The World Bank. “South Africa Economic Update.” 2018. http://pubdocs.worldbank.org/en/798731523331698204/South-Africa-Economic-Update-April-2018.pdf
[3] International Monetary Fund (IMF). “Six Charts Explain South Africa's Inequality.” 30 January 2020. https://www.imf.org/en/News/Articles/2020/01/29/na012820six-charts-on-south-africas-persistent-and-multi-faceted-inequality
[4] Stavenhagen, Rodolfo. “Human rights and indigenous issues: report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People” 15 December 2005. https://digitallibrary.un.org/record/564557?ln=en ; South African Human Rights Commission (SAHRC). “Annual Report 2018.” 2018. https://www.sahrc.org.za/index.php/sahrc-publications/annual-reports
[5] Interview with Petrus Vaalbooi. January 2021.
[6] Cupido, Delme. “Largely on their own – again.” Good Governance Africa, 29 January 2021. https://gga.org/largely-on-their-own-again/
[7] Khomani San. “New Traditional Leader.” 2021. http://www.khomanisan.com/‡khomani-sans-new-traditional-leader/
[8] Parliamentary Monitoring Group. “Traditional and Khoi-San Leadership Bill (B23-2015).” 2020. https://pmg.org.za/bill/593/
[9] See Jansen, Lesle. “South Africa.” In The Indigenous World 2020, edited by Dwayne Mamo, 160-166. IWGIA, 2020. http://iwgia.org/images/yearbook/2020/IWGIA_The_Indigenous_World_2020.pdf
[10] National Khoisan Council. “Khoikhoi Peoples Rooibos biocultural community protocol.” Natural Justice, 2019. https://naturaljustice.org/wp-content/uploads/2020/04/NJ-Rooibos-BCP-Web.pdf
[11] Advisory Panel on Land Reform and Agriculture. “Final Report of the Presidential Advisory Panel on Land Reform and Agriculture.” 4 May, 2019. https://www.gov.za/sites/default/files/gcis_document/201907/panelreportlandreform_0.pdf
