For immediate release
Afesis-corplan congratulates the various grassroots organisations, activists and communities on the favourable Constitutional Court judgement against the controversial Traditional and Khoisan Leadership Act (TKLA). The judgement, which challenges and calls into question the consultation mechanisms employed by parliarment and provincial legislatures, is a victory for rural communities as it affirms the obligation on lawmakers to facilitate meaningful citizen inclusion, and not just token public participation.
The case, which was brought to court by the Alliance for Rural Democracy, Land Access Movement of South Africa (LAMOSA), Mr Mashona Wetu Dlamini, Mr Victor Modimakwane, and the Legal Resources Centre, amongst others, questions the constitutionality of the TKLA and pokes holes at the unjust ways in which rural communities are made to accept decisions taken by those in power on their behalf. The case forces us to question who holds the power in rural communities and to whose benefits are laws and decisions made.
Not only were public participation mechanisms of government questionable in this process, but the TKLA’s content is also problematic in many ways, including how it empowers traditional councils to enter into partnerships with government entities and private companies, but ignores the rights protected by the Interim Protection of Informal Land Rights Act (IPILRA) which encourages free prior and informed consent before any deals that threaten to deprive people of the land can be negotiated. Afesis-corplan notes how the IPILRA has remained a temprorary piece of legislation subject to renewal every year. We call on parliament to respect informal land rights and enact IPILRA on a permanent basis.
Secondly, the TKLA is also silent on Customary Law when it comes to the recognition of traditional leadership, whilst communities like Cala Reserve have won landmark judgments that have established an important principle that whenever a traditional leader is being recognised, the customary law of the relevant community must be followed.
We welcome the Constitutional Court’s decision and applaud our colleagues for their tireless efforts in ensuring that rural people get to be heard when decisions are made about them. The decision will have serious consequences for how the Act has been implemented thus far, and we say the real work begins now to shape the TKLA for the benefit of the people.
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