lAWYERS' COMMinEE FOR OVIL RIGHTS UNDER lAW

SUITE 400 • 1400 EYE STREET. NORTHWEST • WASHINGTON, D.C. 20005 • PHONE (202) 371-1212

CABLE ADDRESS: LAWCIV, WASHINGTON, D.C.

S&HIHAR OR TBB LEGAL ASPECTS OP APARTIIBID

July 6-7, 1985

******************

Panel VI: Influx Control and Forced Removals

Forced Removals and The Law: An Overview of the Legislative System Providing for Population Relocation With Special Attention to Recent Cases

by

Attorney Nicholas Haysom

******************

Co-Sponsors:

Southern Africa Project of the Lawyers' Committee for Civil Rights under Law

The Section of Individual Rights and Responsibilities of the American Bar Association

The Seanding Committee on World Order Under Law of the American Bar Association

Papers presented at the Seminar on the Legal Aspects of Apartheid, co-sponsored by the Lawyers'

Committee for Civil Rights Onder Law and the Individual Rights and Responsibilities Section and the

Standing Committee on World Order Onder Law of the American Bar Association, W~shington, D.C., July 6-7, 1985.

Copyright 1985 by Southern Africa Project Lawyers' Committee for Civil Rights Under Law

EQB~iU-Bi~Q~Bbe_a~U-I~E-bB~

B~-Q~iB~li~_QE_!~E-~ielabB!l~E-eYe!i~

fBQ~lUl~§-EQB_egey~e!lQ~_Bs~Q~B!lQ~

~l!H_ees~la~_a!Ii~IlQ~_IQ_Bi~i~I-~B§Ee~

'Awaking on Frid~y morning, 20~h June 1913, the South African

Native found himself, ~ot actually a slave, but a pariah in the

land of his birth.' - Sol Plaatjie in. ~-U~@:_!.!.f.t_!,a._§gyt,tl_

Sol Plaatjie, the first President of the South African Native

National Congress and gifted writer, made the above comment

when referring to the enactment of the Land Act of 1913. This

Act was to pro~ide the ~egal .foundation for the development of

geographical separation and later permanent political division • .

in South Africa. In essence this Act set aside approximately

71. of the total land mass of South Africa for occupation by

Bla~ks. It is upon this foundation stone that legislation

facilitating Sta~e control of the movement, place of residence,

and place of work of Black people in South Africa is based •.

It was this Act that first drafted the che$s board which is

contsmporary South Africa, and the laws that I will examine are

the laws that enable the State to shuffle Blacks into the

appropriate square designating either a reserve Bantustan,

homeland, National State, township or Group Area according to

the changing lexicon of apartheid terminology. An indication

Page 2

of the extent of social engineering that has taken place in the

last twerrty-five -years can be gain-ed Tr"om the most

comprehensive document on population relocation, namely, the

• • number of Blacks moved between 1960 and 1982 in the following

categories was:

Farm Removals

<surplus Blacks moved from White rural .areas> 1,129,000

Black spot removals ·and consolidation of homelands 614,000

Urban relocation 730,000

•

Group Areas Act

The same report estimates that approximat~ly a million persons

will be affected by further black spot removals and homeland

consolidation. These statistics and the precise legal language

of the statutes do not capture the nature or the extent of the

emotional or material suffering consequent upon removal. I

know of no case where a resettled community was matarially

advantaged by their removal. I know only of communitias who

have· lost buildings, possessions, land and access to Jobs.

Where then is the rationality in a policy that cost3 the

t;a;.,payer, tiiat causes such bitterness, .and that in the lang

Page 3

term leaves self-suffi'cient communities dependent and

access to land by Blacks, it is necessary to si ·tuate the pol icy

of forced removals within the grand design of separate

development <apartheid>.

~he earlier policy of separate development represents the

marriage of two legislative developments in South Africa. On

the one hand, from the beginnin9 of South Africa's

constitutional history, Blacks nave been disenfranchised and

debarred from participating in central and local go~ernment.

The creation of the Union of South Africa in 1910 was achieved

en the basis of a constitution that excluded from the franchi$e

all but White .nen and a very small percentage of Coloured and

African men in the Cape Province. By 1956 White women had been

included on the voters roll but African and Coloured men had

been removed.

In a different legislative development, whose cornerstone is ~ .

the Land Act of 1913 4 , Blacks were deprived of their right to

lease, own, or farm land·on their own account or even to $quat

on land if such land was outside of the 'reserves·.

Page 4

These reserves were the remnants of South Africa which had not

-been assumed by conquest ·mr t.reaty by White settlers and which

had been set aside for Blacks during the nineteenth century at

a time when White settlers had appropriated most of the

remaining land in South Africa. When White settlers arrived in

South Afri~a they had found that the indigenous population was

scattered throughout the country, owning the land in the

limited sense of ownership accorded in African custom. The

best representation of such ownership in Western concepts of

law would be to regard land occupied by a tribe as belonging to

that tribe, the chief exercising a form of trusteeship.

The major instrument by which White settlers acquired new land

was by means of a treaty in terms of which the chief, who

claimed control over the land, would make over large tracts in

return for goods or services rendered. The notion of the land

treaty is not unproblematic, as has been. pointed out3 •. What

was actually given and received? How well did the contracting

parties understand each other·s meaning? Did the chief who

gave. the land or territory have the authority to do so? Be

that as it may, by the end of the nineteenth century the

various provincial authorities had seen fit to protect at least

a $mall portion of the land from the possibility of further

alienation to White settlers. These lands so protected were to

~e called reserves, or reserved lands. Reservations of these

l~nds however did not prevent Blacks from acquiring some right

to farm or to acquire land outside the reserves. Indeed, ir.

. .

Page s

various parts c+ the country, Blacks returning from the mines

managed to purchase land of their own and in many cases

commenced profitable agricultural enterprises4. There was in

existence a rich variety of contractual·arrangements whereby

Blacks farming en their own account would render to landlords

either a share of their crops, labour or cash in return for the

right of occupation.

The 1913 Land Act changed all this. In brief, the 1913 Act

altered the status of the reserves from areas which gnl~_§l~S~~

could lawfully occupy an their own account to the 9Ql~-~C~~~

they could occupy. As mentioned above the initial area of the

land set aside for Slack occupation was same 7% of the total

land mass of South Africa. This was supplemented in 1936 by

th~ Trust and Development Act3 which expanded the areas

designated for Black occupation to approximately 13% of the

land mass~ The 1936 Act developed and refined the division

ini~ially established in the Land Act. The 1936 Act was to

provide the basis for prohibiting squatting, ana, of particular

importance, labour tenancy. Labour tenancy contracts were

prevalent in South Africa until the late 1960's6. These were

contracts whereby Blacks would render rent in the ~orm o~

seasonal labour in ~eturn for the right to occupy and ~arm

portior.s of the White landlords' land. The outlawing of these

Forms of occupying land in the White areas meant that well over

a million Blacks would be forced to return to the reserves in

order to find land which they could occupy or put to

agricultural use.

•

Page 6

. The effect of these two Acts read together was to prohibit the

--pre9enee o-f ·Bl-acks mu~tside the r-e-serve areas unless they were

qualified <i.e. they belonged to a tribe far which the land was

held in trust; or they were the registered owner of the land;

or they were farm workers or registered labour tenants or

registered squatters, or were dependents of the above>7. Those

that qualified to be i~ the White rural areas by virtue of the

fact that they owned their own land are precisely those who

have been subjected to 'black spot• removals. The remainder

however by and large only qualify to be in the White rural

areas ·if they enter into contracts of service with White

persons •

' These Acts were justified as ~ protection for Blacks. Their

impact on Blacks has been movingly described by Sol Plaaitjiea,

who was then president o-tt the South African Native Congress and

who campaigned vigorously against the 1913 Act. He pointed out

that it was not possible to purchase land in the reserve areas

as such land was already occupied communally and was

inalienable by virtue of the fact that it was held in trust by

the Crown. He described the plight of many Blacks who had

lived on the land prior ·ta the arrival of settlers and were now

compelled to trek with their cattle in a futile search for

alternative land of which there was none, her could there be in

l~w. The alternative was to become a servant for the White

with whom the Black had pr~viously considered himself a partner.

Page 7

Prior to 1948 the e~onamic Tunction OT the reserves was the

rural end of the migrant labour equation. Reserves provided,

however inadequately, a subsistence economy TOr the individual

migrant's Tamily, while also maintaining traditional tribal

structures which provided a crude +arm o+ social welTare.

Central government was therefore absolved from rsponsibility

for the latter while employers needed only to pay migrant

employees an amount which was suTficient to sustain. the single

worker, not his household. In ~ime the.pass law system came to

be superimposed on this geographical division so as to

structure and supervise migrant labour and access to the Whi ·te

urban areas.

After 1948 racial categories in South Africa were given a new

prominence in the legislation and were complemented with .an

ethnic idiom. The Nationalist Party informed South Africa that

Blacks did nat constitute a single racial category. They were

composed of eight discrete ethnic nations <subsequently two

more nations were discovered>. Through the poli~y of se~arate

development· the reserves were elevated 'to the political

solution to South Africa's problems. For each ethni·= "r.atio.:"

there would be accorded a political homeland <which were nona

other than the impoverished reserves> whera Bl~~ks could freel~

and Tully exercise their political rignts. The corollary wa5

"i:.hat the·y could never expec·t a • .,d wOLtl•:l never be entitled to

eHerc~se such political rights in "White" South ,;fr.ica. Thus.

already eight million people arbitrarily assigned to the

Page 8

Transkei, Ciskei, Bophutatswana'and Venda have become

+oreigners in their own larrd by• tl'te simple e:<pedient of making

the homelands to which they ar~ said to belong or in which they

are compelled to live nominally independent. The policy of

separate deve~opm•nt thus came to assimilate and utilise legal

developments which had provided a temporary basis for, firstly,

political, and secondly, geographical division of South

Africa's population.

Besides the fact that this policy is an ineffective substitute

for full political rights in the areas where Blacks live and·

work, and that it has b••n proposed and conceived by Whites

without the consent of Black-South Africans, there are a number

of geographical and other factors which have necessitated State

intervention. In the first place, separate development di~ ~ct

take account of certain economic and historical realities.

Blacks do not live in discrete homelands. Homelands have had

to be actively shaped and the physical separation of Blacks and

Whites enforced. Secondly, the impoverished state of the

reserves means that Blacks have to seek employment in the rest

of South Africa to sustain themselves. Accordingly, forced

population removals and the application of influx control are

two central pillars of separate deveiopment/apau··theio. The

direction in which Africans have been removed Mas been out c~

the White urban and rural areas and into t~e homelands which

have become the repositories for the elderly, the sick 1 the

unemployed, the women, the youth, and those who ~re poiit1callv

Page 9

undesirable. Between the years 1960 and 1980 the percentage of

·~-"t:ct-a-1-A+,...i·ean-petpul-&t·i-·on li'ving in the homelands ·rose -from

39.5% to 54%9. It is in this policy, separate development,

that the rationale for forced removals lies. The policy may be

cruel and costly, but there is a certain ingenuity in its

conception. It is at base a policy to protect and preserve

politic~l control and privilege.

What I have described above constitutes merely a cursory

overview. Before dealing in greater depth with some of the

recent examples of forced removal it is necessary to provide a ..

little more detail on South Africa's legal geography.

As explained above, the basic division in South Africa, the

division between Black and White land, is that division

initially set in motion by the reservation of land for Black

occupation in the nineteenth century. This division was given

greater precision by the 1913 and 1936 Land·Acts. In effect

these Acts schedule certain lands outside of which no African

could purchase or occupy land. It is important to note th~t

these areas referred to as scheduled or released 1 and·:s

consisted primarily of the reserves but not exclusively so.

Page 10

Extensive areas oc:c:upied and owned by Afr-icans wer-e not

incl-1.:1ded in t-he ~e:neow.J.-es.. The.se ·Acts did not however- tamper

with the actual for-m of owner-ship of the land in the r-eser-ves.

Dating back to the original r-eser-vation of the lands in the

nineteenth c:entury, suc:h land was deemed to be annexed and

owned in trust for Blac:ks by <fir-stly> the Crown in consequence

of the latter Ac:t, the South Afr-ic:an Development Tr-ust. The

har-sh consequence of this par-ticular aspec:t is that wher-e

·tribes have been moved fr-om r-eserved lands in c:onsequenc:e of

the r-edrafting of homeland borders or- for any ot.her r-eason they

have been treated in law aneraly as gratuitous tenants. ·rhey

have na right to compensation for- the land or- its miner-al

riches. The terms of the 1936 Act in terms of which the South

African Devalopm•nt Tr-ust owns the land are such that the Tr-u:t

<to all intents and pur-poses the Depar-tment of Co-oper-ation and

Development> has a wide discretion as to how to use this land, ·

whether- to s•ll it or to exchange it.

The above categories of land <scheduled/r-eleased and White

land> have been supplemented by categories drawn from the

legisl~tion gover-ning influx control. Other- speakers will

discuss the operation of influx contr-ol legislation in gr~ater

detail. Suffice it to say her-e that the Urban Areas Act10

draws a distinction between urban (prescribed) and rural

<non-pr-escr-ibed) areas within White South Africa. The Act, as

amended, makes provision for c~ntrolling the entry of Africans

Page 11

into the urban areas and the residence of Africans in these

areas. ·Read .t;oget.mer ·With the Blacks <Abolition of Passes> Act

in terms of which Blacks are required to carry reference books,

a Black may not be in a prescribed area unless he qualifies to

be there. A Black may qualif~ to be in an urban area by having

the required endorsement in his reference book, which

endorsement he will obtain if he has a work seeker's permit, or

is lawfully employed in the urban area, or has acquired the

right to live in the urban area because he was bern there, or

has lived in the urban area and worked continuously there.for

ten years.

The Group Areas Act provides for the proclamation· of segreg~ted

urban areas in which only members of a particular race group

are allowed to live and conduct business11. The Act is

directed primarily against Indian and Coloured people. Thi~

Ac:t supplements the provisions of the Urban Areas Act which

sets·aside <proclaims> townships in which only Blac:~s may live

and outside of which they may not reside without permission.

Over these various divisions which categorise lana for racial

occupatio~ and make residence in other areas·conditional, the

Government has superimposed a homeland system.

Page 12

Promotion of Slack Self-Government Act12 powers were given to

·tr-aditron·al ·autl"forithts 'Wi.thin ~tne ctefin-ed reserves. This was

followed by legislative development embodied in the National

States Citizenship Act and the Natfonal States Constitution

Act13 which granted these ~uthorities one or other of three

constitutional statuses: legislative assembly, self-governing,

and independent. For the purposes of this paper it sho\.\l d be

noted that while in the main the sc~eduled areas have been

grafted into the homelands there are still a number of black

spots and what is termed in official jargon 'badly situated

land' which are outside the designated boundaries of homelands

and national states. Thus for example kwaZulu, which was

originally comprised of over sixty discrete islands of Black

land in a White sea, will after consolidation proposals have

been given effect be constituted by approximately thirteen such

pieces of land.

It is not surprising that this complex map of ~acially distinct

categories of land should be governed by an equally comple:·: ,;,-~d

diverse set of laws which empower officials to move Blacks from

one area to another or to prevent them from moving from ere

area to another. In this paper I propose to deal specificAlly

with the resettlement of black spots and persons situated on

'badly situated land'. However, for the record, I would like

to enumerate the formidable arsenal of legislative weapons

,

Page 13

available to White officials and landowners who may wish to

remove Slacks from one area to another. Let us take ~or

eHample the position of Blacks who are living in White rur~l

areas and who are not qu.ali-fied to do so; By residing on such .

land they lay themselves open to one or more o-f the following:

1. Conviction under the 1936 Act for unlawfully being on

White-owned land and removal by the authorities once they

have been so eonvicted14.

2.. Conviction under the Trespass Ac:t for entering or being

upon property without the permission of the owner or lawo4:ul

occupier. This Act has been recently amended to give

ef~ect to a drastically inc:~eased penalty of a fine not

exceeding R2000 or imprisonment not exceeding 2 years15.

3. Civil ejectment proceedings.

4. Summary ejectment proceedings in terms o-f the Trust and

Development Ac:t.16

5. Conviction under the Prevention o-f Illegal Squatting Act

for entering upon or remaining on any land or bt.lilding

without the permission of the o~ner, and summary ejectment

after conviction17.

Page 14

Furthermore, if the authorities or the owner have issued any

corder., -war.,.ant, dir-ecti·on or notice requiring an A-Frican to

vacate or leave a place, in terms o-F the Blacks Prohibition of

Interdicts Act18 no-one may stay or suspend the execution oi

that order or removal of the African even if that order is

invalid or bad in law. The only remedy an unlawfully evicted

African m&y have in such a situation is a claim for

compensation. Similar provisions exclude the powers of the

courts to stay an execution in the case of a 'illegal squatter'.

These provisions supplement or complement the provisions of the

Urban Areas Act19 and the Admission of Persons to the Republic

Act20 which deal, respectively, with the removal and

d~portation of Blacks in urban areas or Blacks alleged to be

foreigners. A part of the central role influ:< control ol.ays is

in maintaining the global· schema of separat~ development (b'l

si~ply keeping or attempting to keep Black persons on th~

correct black square on the South African chequerboard - in

1982 approximately 206,000 people were arrested for influx

control contraventions21 - influx control can and does play a

direct part in forced removals. In the case of Bethal, where

the Government wishes to remove the Black residents of the

township of this rural town to an area within a homeland there

have been numerous attempts to cancel summarily the Section

10(1) (~) status of the township residents. The eff~cts of such

canc~llation is to prohibit the continwed residence bv the

Blacks in the township <considered part of the urban area).

Page 1~

One o~ the ~arms o~ 'removal' does not involve the physical

removal o~ the persons concerned. By the simple expedient o.f

redra~ting a boundary, an area o~ badly situated land or a

black spot may be incorporated within the boundari.es o~ a

homeland. A particular deproclamation o.f a township border-ing

a White town and the allocation o~ this township within a

homeland boundar-y e.f~ectively tr-ans~er-s township r-esidents with

the precious r-ights to be in an ur-ban ar-ea into 'commuters' or-

~or-eigners .from a neighbour-ing homeland. All this is done by a

~ew str-okes of the pen. By assigning such townships to the . . homelands A~ricans are in eff.ect removed out o~ White Sot..lth

A~r-ica with all the attendant consequences. In other cases,

however, the policy of ur-ban r-elocation has involved the

........ de-pr-oclamation of the township .. and ther-ea~ter the physical

r-emoval of the township inhabitants into a new dor-mitor-y

township established within the border-s o.f the neighbour-ing

homeland. These people become comtnuter-s in a ver-y r-eal sense

of the word, tr-avelling extensive distances daily to wor-k in

the White urban i:entres. An estima·ted 184,(H)C) persons ar-e

under- threat of removal in ter-ms o.f this r-elocation of urban

areas but may have been reprieved i11 terms o~ the recently

stated policy shift. I do not propose to deal with the nuts

and bolts o~ the legislation which provides for this kind of

~emoval23 save to say that under domestic and internatio~al law

it appears that the State has the power to perform such

·-"..~

Page 16

removal~ even if the consequences are that its citizens will be

-~4\'dmi-A-i·st•el""ed ·by a · ~~i--FKteft'EH'Mtent' aoari nistrati on of a 'foreign'

national state. There is basicaly no bill of rights or

overriding constitutional protection against the exercise of

these powers.

'Black spots' is a Government-created term that is generally

used to refer to African-owned land purchased by Africans,

which land often lies outside the scheduled and released areas.

For the purposes of this talk I shall also refer to communally

occupied trust land which is 'badly situated' either because it

has been removed from the schedule or falls outside the

redrafted boundaries of a homeland. Fundamentally the

difference between the two categories lies in the relationship

between occupants and the land. In brief, Africans living on

'badly situated' trust l~nd have no right to compensation.for

the land if resettled, nor do they have a right to claim land

of an equal size and area in the place to which they are

removed. The right to compensation lies exclusively for

Mousing and improvements to the land which they have lost as a

result of the removal. Procedurally, the removal can be

~ccomplished admini$tratively. I should mention here the

Page 17

position of the inhabitants of Reserve 4, Richards Bay, who

··have l·i:ved··cn ·thei·r ··l·an·d, ·~-1ht·ch is rich in minerals, from time

immemorial, but whose intended destination is a land of vastly

inferior quality and who can expect to receive no compensation

for the land or the minerals that they will leave behind if

removed.

Resettlement of black spots normally takes the form of a

typical expropriation subject to the modifications allowed for

in the Development Tt·ust and Land Act24. E>:ercising these

powers, the Sovernment exercises the powers most governments

reserve for themsalves, to expropriate land in the public

interest. In this case, however, the removal is entirely the

consequence of the political" policy of separate development in

respect of which the community/society can expect no direct or

indirect benefit. In gE!neral, the rate of compei!sation is, it

is considered, low, and seldom likely to place the inhabitants.

being expropriated in the position they were prior to their

removal. There are no regulations governing the conditions of

the place to which they are to be retnoved although it is ·

understood that there are departmental guidelines. The most

distressing aspect of the expropriation is that overwhelmingly

communities whose l&nd was expropriated are removed further and

further away from the White urban areas a~d hence access to

jobs, shops, medical and other services. The members of

KwaPitela community, Natal, received an average of R500 per

household for their houses and lost goods. One member of the

community said on his removal

Page 18

'Wood was abundant at kwaPitela. Now we buy wood instead of

food and so we go hungry. · Much of the compensation money is

used up by ~he increased cost of purchasing food and goods.

As a result of increasing.political opposition to the policy of

forced removals and increasing resistance from those who are

victims to it, the Government has of 'late pursued a more

sinister and as destructive method of achieving the same end.

There are two components ~o this method. The first is

ma11ipulation, the second is removal by force if the former

fails25• Let me illustrate this policy with reference to two

communities in the Transvaal.

'

The Bakwena ba Magopa tribe had bought two farms in the

Ventersdorp district at the beginning of this century.

Subsequently, ownership of the land was transferred from the

paramount chief of the B•kw~na to the Minister of Native

Affairs to hold in trust for this trice. The land wa~

agri~ulturally suitable, well watered and over the years the

community had made man~ improvements which included the

building of school~ and clinics.

In 1981 dissatisfaction arose in the community over their

headman, bu·t attempts to depose him were obstructed by the

Government, which had taken the exclusive power to appoint

Page 19

chiefs and headmen in terms of the Black Administration Act of

'1"927. !t is mdre ·than coincidence that immediately afterwards

the tribe was informed that the headman had agreed that the

tribe be removed from Magopa to Pachsdraai. From mid-1992 to •

mid-1993 the .Government harassed the community, and removed

communi·tY_-.. :~acil i ties in an attempt to force the people to move

to Pa~hsdraai without the Government having to resort to the

use of brute force. Amongst the pressures used was the

.daiuol i ti on of the churches in tl:\.e ·C:Ommun i t y, the demo 1 it ion of

the two schools built by the community, the· removal of teachers

from the schools by thw Bophutatswana authorities, the

demolition of the medical clinic:, the removal of public:·

transport to the area, the threatened refusal to pay pensions,

the refusal to endorse contracts and reference books so that

community members c:ould obtain employment in the urban areas,

the removal of water pumps pro~iding fresh water, the r'fusal

to impound cattle belonging to White farmers grazing on the

·tribal land, and various forms of disinformation. However more

than half the tribe resisted removal and therefore in November

1993 the local magistrate announced that the tribe had been

ordered by the State President to move to F·ac:hsdraai and never

to return to their farms in terms of Sec:tion 5 of the Black

Administration Act26.

Page 20

Sect·ion S of the Black Administration Act empowers the State

President by simp.le. .decr..ee to order that any tribe, portion of

a tribe, Black community, or Black, move from any place to any

other place or to any district or·province within the Republic

and th•t they shall nat at any time therea-Fter return to the

· place from which withdrawal has been made. A~y African who

neglects or refuses to comply with such an order shall be

guilty of an offence. However, in the case of a t.~i..tlt on

scheduled land, there is some protection in that if the tribe

refuses to leave their land, the Minister's order is of no

force and effect 'unless or until Parliament has approved of

the tribe's removal' •

•

This provision grants the Government an extraordinary power and

the provision has been made progressively more drastic over the

years. Various amendments to the Act giving the right to make

representation or the right to stay the execution by way of

court proceedings have been specifically removed. This

provision makes no allowance for the payment of compensation or

for the determination of such compensation. In effect it .does

not expropriate the land from the people, rather i ·t leaves

their rights of ownership intact but denies the people ordered

to remove the right to occupy the land they own. The use of

this Act to effect r9movals is new, for it was previously used

to banish troublesome individuals and tribes for politi~al

reasons.

•

Page 21

The tribe was determined to set this order aside and brought <in

application to the Supreme Court. The issue they raised was

whether the Parliamentary authorisation could be secured before

the tribe .h&d refused to move. In order that effect <:Ol.\ld be

given to the safeguard, the tribe contended, Parliament would.

have to consider the reasons for the _removal, or at least the

refusal itself, and certainly would have to consider on a

proper construction of the wording of the statute the place to

which the trtbe is to be moved. The authorising resolution

which the Department of Co-operation and Development claimed

authorised the Presidential decree was,. in fact, passed eight

years previously. Parliament did not specify, or indeed did

not even know, where the tribe w.s to be moved to or whether it

would refuse to move. The resolution was in fact an omnibus

resolution authorising the removal of appro:<ima·tt:ly a 1"1Lmdred

communities listed in the resolution.

This appeal failed and the situation reached deadlock when the

1'1agopa people refused to be moved to Pachsdraai. We launched

an application for leave to appeal, but the very judge who had

refused to grant the original order refused us leave to appeal

to the Appellate Division. We then commenced proceedings to

petition the Chief Justice for leave to appeal. Before th~

tribe had exhausted this further appeal procedure, the ar~~ was

cordoned o~f by units of the South African Police. The area

was declared an 'operational zone' and journalists were

forbidden to enter. Inhabitants were confined to their hou~e5

Page 22

while Government officials and police removed the families one

by·one. The villagers and their belongings were loaded into

·trucks and buses and moved to their intended area of

resettlement, Pachsdraai. Pachsdraai is considered unsuitable

agriculturally, although the Government has erected schools

there at considerable expense. ·It is land which is Trust-owned

and which is to be incorporate~ into ·eophutatswana. However

the Magopa people have refused· to settle in Pachsdraai and have . . it1dependently moved again with the help of various

organisations to their original tribal lands at Bethanie in

Bophutatswana. Although within Bdphutatswana, it is the only . area to which they have access by virtue of traditional law,

and they may live outside the control of their unpopular

headman whom they blame for having ·sold' their tribal land.

Some of the Magopa tribe.who have moved to Bethanie have built

new houses and begun to invest in the new area. However, manv

of them were allocated dry land on the fringes of the Bethanie

area 2 and are living there without access to water and in

desperate conditions. Meanwhile the appeal to the Appellate

Di vision has been set down for the 29th Augt.tst 1985, well over

a year since their. original removal. In an extraordinary

development, a draft bill presented to Parliament in May of

this year included a bi=arre provision which sought to

r~trospectively cure the defect in the State Presidential

order27. The section provided that Parliament need not~ when

authorising a removal, specify the place to which the tribe is

.. Page 23

to be moved. The bill was to have effect 'notwithstanding any

~ .. pencttrrg ·-li-trc;ati'On · -and wa-s to be back-dated to 1973. The Act

was to have no prospective effect. It appeared designed

exclusively to remove the central pillar of the Magopa tribe's

argument before the Appellate Division. Fortunately, when the

Bill was presented for the third reading, and probably as a

result of the publicity this amendment received, the clause wa~

dropped from the final form of the bill.

If the arguments raised by the tribe succeed, it will

effectively mean that every or.der the State President wishes to

issue in terms of Section S will require fresh Parliamentary

authorisation, a particularly difficult manoeuvre to accomplish

in the current tri-cameral sat-up. It will also throw into

doubt the lawfulness of previous removal orders. The

importance of the litigation on behalf of the Magopa tribe

should not be under-estimated. In a way, the court case

allowed the tribe a public voice and focussed the attention of

the media on the tribe'·s plight. It was this particular

' . removal, I believe, which revitalised the world opposition to

resettlement which Premier P W Botha was to be confronted wit~

on his European tour. It was this pressure which, I believe,

led to the moratorium on removals announced by the Government

earlier this year. Tragically the Magopa may hav~ paid tha

price for the suspension of this policy.

. Page 24

The Ma.gopa comm'-lnity was nat the only community subject to

attempts to .manipulate communities into what is euphemistically

known as a 'voluntary' removal. The Government and in some

cases the Press have drawn a misleading distinction between

voluntary and forced removals. In fact what is referred to is

the distinction between the active use of police, guns,

bulldozers and muscle, as apposed to intimidation, rumour,

co-option of community leaders, removal of community facilities

and similar indirect forms of pressure. In the words of the

Surplus People's Project, such a distinction is a cynical

misrepresentation as an act of positive choice of what is i~

fact the submission of rightless people to the dictates of a

repressive minority government. In both the Oriefontein and

kwaNgema communities a protracted struggle has ari'sen over

attempts to impose chiefs or headmen on the communiti~s. It is

widely suspected and believed that the Government chooses

persons for these posts who will be compliant towards the

authorities and· who would actively support a removal. The

issue in both the Driefontein and kwaNgema communities is the

fact that neither of the communities regards themselves as a

tribal unit. At Driefontein, a well-known leader cf the

community, Saul Mkize, was shot dead by policemen during a

meeting he had organised to discuss and oppose the intended

removal of the community after the authorities had banned all

meeting$ at Dri~fontein. Last month the widows of Saul Mkize

received out-of-court settlements from the State ari$ing out of

Page 25

claims brought by the Legal Resources Centre against the

Mi:r:\li-&t.er. of t-aw ·and Order •. Menawhile the Government persisted

with attempts to install a chief in charge of what is in

reality an ethnically disparate unit of landowners.

In addition to the various manoeuvrings to establish a

committee or person with whom the Department of Co-operation

and Development could deal, certain other pressures.were

applied. Thus members of the Driefontein community experienced

enormous problems in obtaining pensions and other social

services. Driefontein, like ether rural communities, is

composed overwhelmingly of the very old, the very young, and

women. The depri vat.i on of pensions or the delay in processing

pension applications constitutes a serious threat to the

ability of the community to survive. Furthermore, men from the

area were finding it difficult to obtain the necessary

endorsements in their reference books which would enabla them

to obtain employment in the urban areas. At the in·:stance of

members of the community, we established a legal clinic at the

community~ The legal ~linic was largely administered by

members of the community and a number of these minor claims

were taken up. The legal clinic served an important fun•=tion

in mobilising community organisation after Mkize's death,

educating memb~rs of the community with reg~rd to their rights,

and in dealing with a bureaucracy not noted for its

responsiveness to Blacks' needs. Fdllowing threatened Supreme

Court injunctions, all of the pensioners received pensions.

Page 26

The immediate victory provided a much-needed boost in morale

·"Sm:t·-wa'S·-"Seen~y ttre ·c:ommunity "ot as a legal victory so much as

some·thing they themselves had participated in and won. In

December 1984, the community issued a strongly-worded statement

in which they declared absolute opposition to any removal and

their intention to die rather than move.

the community may be reprieved.

It appears now that

In the kwaNgema community the e~Torts o~ the Department of

Co-operation and Development had largely centred around

attempts to appoint one Cuthbert Ngema as chie~ of the

community. The community, on tAe other hand, contended that

they were not a tribe. Relyinq on documents going back over a

hundred years they were able·to show that their land was

originally granted by the Transvaal Volksraad to one Stuurman

Ngema who i1ad acted as a go-between between the Boers and

Oingaan, the Zulu king. Ngemas, they claimed, were not a tribe

but a family. However the provisions of the Black

Administration Act allow for the appointment OT such officials

<and in terms of the Act a chief is as much a government

official clothed with substantial statutory powers as a

traditional. The tribe was accordingly unable to have the

actions of the Department of Co-operation and Oevelop;,lent in

attempting to appoint Cuthbert Ngema a chief set ~side. They

did however manage to prevent ~iecemeal expropriation28.

Page 27

As it stand~, it appears that this community,too, will bene~it

-·+rom --the-··,-,ec:entl y· cec~l--ai'""E!d-·,1nor-atori um. The -moratorium

announced in April this year by Dr Gerrit Viljoen has been

received ambiguously. In the first place, Viljoen's

predecessor, Dr Koornhof, had made'a similar pronouncement in

1992. Secondly, Dr Viljoen le~t the door open for 'voluntary'

removals. He listed Magopa as a 'voluntary' removal. The door

is still open t~ effect manipulated removals.

Providing legal assistance to persons facing resettlement is

particularly difficult; · In the first place, the issues are

inevitably extremely complex •. Any one c•se may involve issues

of African customary law, laws governing the administration of

Blacks, laws governing ownership of land, constitutional law,

laws governing expropriation, as well as criminal law.

Secondly, this is not an area fertile in human rights. The

most basic rights to make representations, to seek relief from

a court and to negotiate have been deliberately excised and

replaced with provisions which grant sweeping discr~tionary

powers to the executive. Many lawyers feel impotent to

challenge thes~ powers. T11irdly, some of the legal aoproaches

to these problems may divide and undercut the cohesion 1n the

1.:ommun it y. Thus, in relation to compensation, there ts a clear

division of interest between tenants and landowners cf freehold

property. In an urban settlement a distinction can be drawn

Page 28

. between those persons who have legal rights to be there and

··tnose-·--who '"are illeqal .-esidents. Exactly such a division has

arisen in the Crossroads community. Fourthly, legal action can

have damaging consequences for the organisation of a community •

unless the lawyers are sensitive to the need for democratic

participation by th~_~hole community in the decisions,

including the decisions relating to whether or not legal suits

should be pursued. A lawyer insensitive to these needs may not

see that his own lack of accountability and the requirement

that he purst.le strategies good in law may mean that he acts

without the backing and the strength of a coherent

organisation. Communities facing resettlement are often too

willing to believe that a court of law will rule in their

favour. There is the possibility of eventual despondency when

legal action fails. The community may cease to function as a

community, organising themselves, cam~aigning against the

removal, if they leave their salvation to the lawyers.

Despite these limitations to legal action, a lawyer can and

should play a most important supportive role. At the very

least he can provide an understanding of the law and assist the

community against unscrupulous manipulation. He can assist the

commu~ity in dealing with government officials and boost their

confidence. In the majority of c:a~~$' the people being moved

are uneducated, poor and have limited access to lawyers. They

ar~ extremely vulnerable to manipulation by both·officials and

lswyers <even those acting with the best of intentions>. L~gal

action can a11d has been central in negotiating ti.ne, publi·=ity,

·page 29

and compensation for the victims of relocation. A lawyer who

role by allowing the community to participate in its own

victories. Such participation has a long-term beneTit in

holding the community together, assisting it to Torge its own

destiny. Lawyers, as with other proTessionals assisting a

community, should be able to say that their work is best

achieved when the communities claim whatever victories are wo~ . as their own. If .there has been any concession by the

Government in regard to holding off forced removals, it is, I

believe, a concession won through the resistance of the victi•n

communities. In my own experience, there is more than enough

reward for the lawyer in the· privilege of working with these

proud, selfless, and always grateful, communities.

Nicholas Haysom Centre for Applied Leqal Johannesburq

Studies

1. Surplus People project <1983> 'Eorbid RemQ~ala_tQ_§g~tn_

8icis~·, Durban Vol 1 p 6

2. The Black Land Act No 27 of 1913

3. Robertson M, ·~sD9-~s~-in_§gysn_B£ciss_Yn~il_l2~9· '

unpublished paper; Davenport T R A and Hunt K S

<1974> <eds), 'The Right to the Land'

5. Oevelopmen~ Trust and Land Act No 18 of 1936

Page 30

6. Ibid. Sec 27 bis together with Proclamation 2089

Government Notice 6663 of 21.9.1979

7. ibid Sec 26

a. Plaatjie s T <1982> ·~eti~t-~lic_la_§gy~n-8i~l~e· reprinted

in Mutloase <ed> Reconstruction p 118, Johannesburg, Ravan

Press

9. Simkins c E w <1981> '!ht_Ql~~~l~Y~lQQ_Qi-~nt_Bicl~~n­

e9RYl~tl2n-2i-i2Yi0-8i~l£~-Q~-~gc~-~t~-•ag_ctllglga_i~Q@~­

l.!a2 ... -1~Q.. .... J •• 2.iQ ·., ,cape .. :taNC\., .. SAL..ORU

10. The Blacks <Urban Areas> Consolidation Act No 25 of 1945

11. Act No 36 of 1966·

• 12. Act No 46 of 19~9

13. Acts No 26 of 197c) and NO 21 of 1971

14. Act No 18 of 1936 ss 26<3> and 26bis<b> <ii>

15. Act No 6 of 1959 s 2

16. Act No 18 of 1936 s 26 bis<a>

17. Act No 52 of 1951 s 3<a>

18. Act No 64 of 1956 s 2

19. The Black <Urban Areas> Consolidation Act No 25 of 1945 ss

10 bis and 12

' .

Page 31

20. Act 59 of 1972 s 35

21. Rand Daily Mail s 3 1984

22. Laws on Co-operation and Development Amendment Act No 83 of

1984; Kate O'Regan <198~> 'fgcs~2-B~m2~sl~~-Ib~_aee!iss5!2o_

ef_~_!Q_gf_~og_ilss~~-lYc2sa_ac•s~l-~eo~e!i22~!2o_as~-~2-~~­

gf_!~!~·, unpublished paper

23. Vide Haysom ~ Armstrong <1984> ·e22Yla~lea_B@l2~a~l2a-sag_

~b§-~s~· Carnegie paper No 86, SALORU

24. Expropriation Act No 63 of 1975 read with s 13 of Act No 18

of 1936

26. Act 38 of 1927 s 5; Gilbert Marcus 'E2C~@g_B@m2~5l-2f_ ·

Ici2@~·, unpublished paper

27. Laws on Co-operation and Development Amendment Bill of

1975; See also 3bsgCsS~-~2C·-~-~!Oi~S·C-2f-~g=ge•cs5i2D_sQQ_

2§~§!2em§0~-202-~-2•-~i!!i§c~, TPD unreported, 25 September

1983

za. ~2~@~-~g@ma-~~2~~-C~-~-!~@-ttlai§~@~_gf_~e=eQ@~a~iea_~ag_

Q@~@i22m@Q~, TPO, unreported, 13 March 1985