Research Report Imithetho yomhlaba yaseMsinga: The living law of land in Msinga, KwaZulu-Natal Ben Cousins (with Rauri Alcock, Ngididi Dladla, Donna Hornby, Mphethethi Masondo, Gugu Mbatha, Makhosi Mweli and Creina Alcock) PLAAS Institute for Poverty, Land and Agrarian Studies School of Government • EMS Faculty 1 Research Report Research Report Imithetho yomhlaba yaseMsinga: The living law of land in Msinga, KwaZulu-Natal Ben Cousins (with Rauri Alcock, Ngididi Dladla, Donna Hornby, Mphethethi Masondo, Gugu Mbatha, Makhosi Mweli and Creina Alcock) June 2011 Mdukutshani Rural Development Programme, LEAP and the Institute for Poverty, Land and Agrarian Studies at the University of the Western Cape PLAAS Institute for Poverty, Land and Agrarian Studies School of Government • EMS Faculty i Imithetho yomhlaba yaseMsinga: The living law of land in Msinga, KwaZulu-Natal Imithetho yomhlaba yaseMsinga: The living law of land in Msinga District, KwaZulu-Natal Published by the Institute for Poverty, Land and Agrarian Studies, School of Government, Faculty of Economic and Management Sciences, University of the Western Cape, Private Bag X17, Bellville 7535, Cape Town, South Africa. Tel: +27 21 959 3733. Fax: +27 21 959 3732. E-mail: [email protected] Website: www.plaas.org.za Institute for Poverty, Land and Agrarian Studies Research Report no. 43 ISBN: 978-1-86808-717-4 June 2011 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means without prior permission from the publisher or the authors. Author: Ben Cousins (with Rauri Alcock, Ngididi Dladla, Donna Hornby, Mphethethi Masondo, Gugu Mbatha, Makhosi Mweli and Creina Alcock) Copy editor: Prem Egert Series editor: Rebecca Pointer All photographs: Rauri Alcock Map on page 8: John Hall Layout: Design for development, www.d4d.co.za Typeset in Frutiger Printing: RNK Graphics ii Research Report Contents Tables and figures iv Acknowledgments v Introduction 1 Foreword: If the hills moved, the boundaries would change 3 Chapter 1: The Imithetho project and its contexts 6 Chapter 2: The wider legal and policy context: Tenure reform in communal areas 14 Chapter 3: A brief history of the Mchunu and Mthembu tribes 22 Chapter 4: Land tenure in Msinga: The normative ideal 30 Chapter 5: The living law of land in the Mchunu tribe 40 Chapter 6: The living law of land in the Mthembu tribe 48 Chapter 7: Women’s land rights and social change 58 Chapter 8: Traditional councils and land administration in Msinga 70 Chapter 9: Key research findings and their wider implications 78 References 88 iii Imithetho yomhlaba yaseMsinga: The living law of land in Msinga, KwaZulu-Natal Tables and figures Tables Table 1: Research sites for the Imithetho project 10 Table 2: Percentage of people with access to basic services in Umzinyathi District, 2008 11 Table 3: Differences and contrasts between Mathintha and Ncunjane in relation to land and related issues 41 Table 4: Differences and contrasts between Ngubo and Nkaseni in relation to land and other issues 49 Table 5: Common perceptions of changes in marriage practice in the Mthembu and Mchunu areas of Msinga 60 Table 6: Marriage status of women with children in Msinga, 2009 62 Table 7: Customary fees and fines paid at the Mchunu tribal office 75 Figures Figure 1: Location of research sites 8 iv Research Report Acknowledgments Many thanks to the Joseph Rowntree Charitable Trust for funding this project, and for being so patient in waiting for the final report to be compiled. Grateful thanks are offered to Inkosi Simakade Mchunu and his son, Gangandlovu Elijah Mchunu, chief and acting chief of the Mchunu tribe, for their co-operation and support. Simi- larly we are grateful to Inkosi Ngoza Mvelase and his son, S’phamandla Wiseman Mvelase, chief and acting chief of the Mthembu tribe, for their openness and willingness to support the project. The project could not have succeeded without the enthusiastic participation of leaders and local residents from Mathintha, Ncunjane, Ngubo and Nkaseni who participated in focus group discussions and acted as key informants. Many thanks are due to them. Officials of the KwaZulu-Natal Department of Traditional Affairs provided useful information and showed interest in the project. We hope they will find this report useful. This report is dedicated to Tessa Cousins (1955-2011), co-ordinator of LEAP, who played a key role in initiating the Imithetho yomhlaba yaseMsinga project. v Imithetho yomhlaba yaseMsinga: The living law of land in Msinga, KwaZulu-Natal vi Research Report Introduction This report describes the ‘living law’ of land rights. But are tradition and customary law in one part of Msinga, a deep rural area of compatible with the principles of democrat- KwaZulu-Natal. It presents research findings ic citizenship enshrined in the constitution, from the Mchunu and Mthembu tribal areas, or are they fundamentally at odds? This is a where a three-year action-research project controversial issue, and no consensus exists was carried out by staff of the Mdukutshani amongst scholars, policy analysts, land activ- Rural Development Programme1. Launched in ists and South Africans at large. Recent Con- 2007, at a time when implementation of the stitutional Court judgements suggest that the Communal Land Rights Act of 2004 (CLRA) notion of ‘living customary law’, as distinct appeared imminent, the project aimed to from the codified versions set out in statutes, gain a detailed understanding of land ten- legal precedents or academic texts, creates ure in Msinga, facilitate local-level discussion opportunities for custom and democracy to of potential solutions to emerging problems converge (Claassens and Mnisi 2010). Or is around land rights, provide information on this a chimera, bedeviled by the difficulties of the CLRA to residents and authority structures ascertaining the content of ‘living custom’ at and help generate ideas on how local people any one moment in time (Bennett 2008)? could engage with the new law. This report hopes to contribute to the debate Implementation of the CLRA was never initi- on these important questions. It attempts to ated, in part because of a legal challenge to move beyond the static descriptions of land its constitutionality launched in 2005 by four tenure found in much of the South African rural communities. In May 2010 the CLRA literature by analysing the changing real- was declared unconstitutional in its entirety ity of land relations in Msinga at present. It by the Constitutional Court, on procedural describes a normative ideal of land tenure rather than substantive grounds. Substantive that residents of Msinga readily articulate, arguments for and against the CLRA were compares this with the practices that peo- not considered. In part, this was because the ple actually engage in and shows that there Minister of Rural Development and Land Re- are subtle but significant differences in land form, Gugile Nkwinti, conveyed to the court holding, land use and administrative practice his intention to repeal the law, whatever the in different wards (izigodi) within these very outcome of the court hearing, because it was large ‘tribal2’ areas. Our research shows that no longer consistent with government pol- ‘customary’ land tenure in this area is far from icy. Legislation to secure the land tenure of static, and that the terms on which land is people living in communal areas is required claimed, held and used tend to shift over time in section 25(6) of the Constitution, so a key — but also that change processes are uneven 1 Formerly known as Church question is what law will replace the CLRA. To and sometimes contested. Agricultural Projects (CAP). date, neither the Minister nor senior officials 2 The term ‘tribe’ has fallen To illustrate and to help set the scene for the out of favour with scholars in have provided any indications of how they in- recent decades in part because detailed findings that follow, Box 1 provides of the use of the term by co- tend to answer this question. lonial and apartheid regimes, details of two decisions taken by the Mchunu along with notions of race and ethnicity, to help construct and Securing the rights of people living within traditional council in 2009 and 2010 in relation justify a range of oppressive land tenure systems informed by customary to the land rights of women and the registra- policies, but also because of doubts over its usefulness as norms and values (so-called ‘communal ten- tion of customary marriages. Single women an analytical category (Skalnik ure’) is a key issue within South African land can now be allocated land and establish their 1988). The term isizwe, or na- tion, sometimes used in transla- reform policy. To be consistent with the Bill own homesteads, and co-habitation with tion, is contentious because democratic South Africa is a of Rights, decision-making around land must male partners will be viewed as ‘marriage’ unified nation state. The term allow for democratic participation, and de- for purposes of registration. Here, changing ‘tribe’ continues to be used by many people, in Msinga as cision-makers must be accountable to ordi- social realities are being accommodated by elsewhere in South Africa, to denote groups or ‘communities’ nary people. In addition, given strong com- fundamental shifts in (local) rules on land al- under the authority of tradi- mitments to equality, the law must provide location and in how customary marriages are tional leaders, with the implica- tion that it refers to a political for gender inequality in the holding of land viewed by traditional authorities. rather than a cultural entity. 1 Imithetho yomhlaba yaseMsinga: The living law of land in Msinga, KwaZulu-Natal In contrast, the nearby Mthembu traditional ily life, and express their unease with notions council is resisting pressures for local land of gender equality.