The Indigenous World 2024: 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 (also spelled Khoi-San, Khoesan, Khoisan), 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 primarily 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 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. South Africa voted in favour of adopting the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) but has yet to ratify ILO Convention No. 169.
Overview
Land continues to be one of the key areas South Africa is grappling with in its post-apartheid era. Three decades on from the dismantling of apartheid, the legacy of the “Coloured” designation means the Khoikhoi and San remain invisible communities within South African land struggles, with the historical and structural legacy of their land rights, culture, language, and resources not being recognized.[1] In 2013 the South African Parliament introduced an amendment to their 1994 Land Restitution Act in order to re-open land claims and enable claims for land taken before 1913. This removed what had been a barrier to lodging land claims for the Khoikhoi and San, many of whom were dispossessed of their ancestral lands during the first waves of European colonization. However, this amendment was overturned in 2019[2] as the Constitutional Court ruled that applicants could only claim under the amended Restitution Act once the first batch of restitution claimants’ cases has been resolved. According to the Parliamentary discussion, at the current rate it will take 30 years at a cost of 172 billion rands (approx. EUR 8.4 billion)[3] for the first batch of restitution claimants’ claims to be settled and only then will the Khoikhoi and San be able to institute their restitution cases. As a result, the Khoikhoi’s and San’s many historical land claims and needs remain unaddressed and structurally neglected.
Knoflockskraal
In April 2023, the Department of Forestry, Fisheries and the Environment (DEFFE) published a notice degazetting, among others, Knoflockskraal from the National Forests Act 1996, for non-forestry purposes.[4]
The case started in 2020 when seven people occupied an 1,800-hectare area in Western Cape Province in order to establish a self-sustaining sovereign Khoi-San community. Since then, the number of occupants has grown to around 4,000 people living without access to basic services, such as water and sanitation.[5]
DEFFE, who was in charge of managing this land, has employed different strategies to evict the communities as trespassers, including referring the case to Western Cape High Court in 2022,[6] and the case has been discussed by the Parliament’s Portfolio Committee on Forestry, Fisheries, and the Environment.[7] None of the strategies have worked, however.
One of the consequences of the new move by DEFFE is that the land that was previously reserved for agro-forestry projects can now be used for housing purposes. Khoi-San activists occupying Knoflockskraal will now need to make written submissions stating who they are in relation to that area. It remains unclear what this would mean for the Indigenous communities’ secure land rights.
Traditional and Khoisan Leadership Act declared unconstitutional
Rural communities, activists and land rights organizations approached the South African Constitutional Court in December 2021 arguing that Parliament did not comply with its constitutional duty to facilitate meaningful public participation when passing the Traditional and Khoisan Leadership Act 2019. The Act, they said, would have a devastating impact upon the lives of rural people as it gave new and extended powers over land to traditional authorities while clawing back the few democratic principles previously captured in traditional leadership legislation. Most of all, they argued, the Act does not provide for a single mechanism that would allow a community to hold a traditional authority to account. In May 2023, the Constitutional Court subsequently found the Act unconstitutional by stating that: “Parliament overwhelmingly failed in facilitating public participation”.[8] The Court has suspended the Act for 24 months to afford Parliament the time to facilitate a constitutionally compliant process.
This Constitutional Court judgement resulted in the old framework of the 2003 law coming back into force to accommodate the communal lands communities, as their recognition as part of the Traditional Leadership system will be affected. Yet no such provision was made for the Khoikhoi and San communities. Furthermore, there is no guarantee that, after the 24-month suspension ruling, the Court’s requirements will be met, leaving the Khoikhoi and San communities uncertain of their future.
The 2019 Act built upon and was meant to replace the 2003 Traditional Leadership and Governance Framework, which recognized communal land communities but excluded the Khoikhoi or San. However, members of communal land communities told the Court that, for nearly two decades since the passing of this Act, they had been trying unsuccessfully to raise the alarm regrading corrupt and unlawful practices by their leaders which, in some cases, have led to communities losing land and other assets. They told the Court that the 2019 Act entrenches and exaggerates the problems of the 2003 framework and, had the legislature facilitated the meaningful participation of the people who would be directly affected, it would not have passed in its current form.[9]
While the 2019 Act finally gave statutory recognition to the Khoikhoi and San leadership and its communities, it also received criticism during the public hearings from traditional (non Khoi-San) and Khoi-San communities alike. The overwhelming majority of Khoikhoi and San communities did nonetheless support the enactment as recognition was a key first step to accessing justice and the beginning of South African institutional dispensations documenting and including their communities into post-apartheid developmental aspirations.
The immediate and practical impacts of the Court’s decision are many:
- Unlike the communal land leadership and their communities, who have enjoyed recognition for the last three decades (post-apartheid era), the Indigenous communities remain outside of the formal traditional leadership system. This means they do not have access to justice or to the crucial participation their extremely vulnerable communities need as a collective.
- There continues to be no record of the cultural existence of the Khoikhoi and San communities in South Africa.
- The suspension of the Act further complicates and delays their struggle for recognition of their Indigenous languages.
- Similar to the recent amendment of the Restitution Act, this opportunity has been taken away from them without their free, prior and informed consent.
- Most of all, to suspend the recognition of the Khoikhoi and San as cultural communities existing in South Africa further complicates and burdens their struggle for land rights.
By delaying the implementation of this Act, it further perpetuates the unlawful stigma of the forced assimilation of being labelled “Coloured” during apartheid.
Fish Hoek coastal area
Peers’ Cave, close to Fish Hoek at Table Mountain range, South Africa, is a definitive location for prehistoric discoveries dating back 12,000 years. It was declared a National Monument in 1941 and is in close proximity to the Fish Hoek coastal area, which is deeply embedded in Khoikhoi ancestral territories and livelihoods. The Indigenous-run Fish Hoek Galley restaurant, museum, and community space is an important cultural touchpoint for the local Indigenous communities, and a small but essential component in the community’s recovery from a deeply traumatic history. This cultural hub is now under threat from a pattern of commercial development along the coastal areas that is depriving the Indigenous communities of access to their traditional cultural spaces.
Such was the case on 23 November 2023 when Mathea Eichel, a Khoikhoi Indigenous woman was forced to bid at an auction to maintain control of the Galley. Her bid was unsuccessful, and she was given six months to continue operating before vacating the premises. Mathea appealed on 14 December, assisted by the Khoi Cultural Heritage Development Council, which represents 22 Indigenous communities. As of early January 2024, Mathea and the Council are awaiting a decision by the City of Cape Town municipality.
Sutherland Nine – going home
On 26 November, the remains of nine Khoi and San people, known as the Sutherland Nine, were reburied in Sutherland, Northern Cape Province.
The burial concluded a more than five-year-long process that started with the discovery in 2017 of 11 skeletons during an archiving audit of the University of Cape town’s (UCT) Human Skeletal Collection. The nine buried remains were part of this discovery. They were donated to the university between 1926 and 1931 by a UCT medical student, Carel Gert Coetzee, who lived on the farm where eight of the nine were buried. The university concluded that these remains were unethically obtained by the institution and the discovery set in motion a complex process of identification and repatriation of the remains to their descendants.
The importance of this event lies in correcting past injustices and returning dignity to both the ancestors and their descendants. As one participant of the reburial ceremony concluded: “These nine individuals came into the university as specimens but, when they left on Friday, they left as people.”[10]
Lesle Jansen is an Indigenous attorney from the Cape Flats in Cape Town. She is currently working at Jamma International as its Head of Indigenous Peoples and Local Communities Resource Rights.
Theo Horton is a conservationist from Surrey, England. He is currently working at Jamma International in the Conservation and Communities team.
This article is part of the 38th 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 of an Indigenous man harvesting quinoa in Sunimarka, Peru. This photo was taken by Pablo Lasansky, and is the cover of The Indigenous World 2024 where this article is featured. Find The Indigenous World 2024 in full here
Notes and references
[1] United Nations Library: “Human rights and indigenous issues: report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Rodolfo Stavenhagen: addendum (2005). https://digitallibrary.un.org/record/564557
[2] Speaker of National Assembly vs Land Access Movement & Others, Case CCT 40/15. Constitutional Court of South Africa, 19 March 2019. https://www.saflii.org/za/cases/ZACC/2019/10.pdf
[3] “CRL Briefing: Progress towards Settlement and Finalisation of Old Order Claims, including Reports Submitted to the Land Claims Court; Implementation of Project Kuyasa; with Deputy Minister”, Committees, Parliamentary Monitoring Group, 23 May 2023. https://pmg.org.za/committee-meeting/37020/
[4] Ministry of Forestry, Fisheries and the Environment: Release of Land for Non-Forestry Purposes (Government Gazette 345), 28 April 2023.
[5] Plan to create “Khoisan Orania” in Grabouw: Western Cape High Court to decide fate of Knoflokskraal. Ground Up, 3 June 2022. https://groundup.org.za/article/grabouw-occupiers-want-to-create-soverign-khoisan-community/
[6] Ibid.
[7] Follow-up engagement on land invasions at “Knoflokskraal” site in the Grabouw plantation; with Ministry. Parliamentary Monitoring Group, 7 March 2023.
[8] Theron, J. Mogale and Others v Speaker of the National Assembly and Others ZACC 14. Constitutional Court of South Africa. Constitutional Court of South Africa. 2023. https://www.saflii.org/za/cases/ZACC/2023/14.pdf
[9] Ibid.
[10]Swingler, H: “The Spirits are rejoicing. They are home again.” University of Cape Town. Sutherland Reburial. 1 December 2023. https://www.news.uct.ac.za/features/sutherland/2023/-article/2023-12-01-the-spirits-are-rejoicing-they-are-home-again
Tags: Land rights, Biodiversity, Cultural Integrity , Conservation
