Shaping legal and institutional pluralism: land rights, access to justice and citizenship in South Africa

Abstract

In November 2019, South African President Cyril Ramaphosa signed the Traditional and Khoi-San Leadership Bill into law. The Act forms part of a broader package of recent laws and proposed legislation regulating traditional leadership, which have been strongly critiqued for undermining the property and citizenship rights of South Africans residing in the former homelands. The Act is most strongly contested for providing traditional councils with the power to conclude agreements with companies on behalf of their communities. Mining deals are at the forefront of this debate, and the site of this study. Combining literature study and legal analysis with unique data obtained through interviews and participant observation, this article analyses how the new shape of legal and institutional pluralism affects the rights, strategies and access to justice of rural people in mining areas. It shows how laws regulating traditional authority and mining together paint a veneer of legality over mining deals that in fact infringe on the land rights of rural citizens who, both according to customary law and the Interim Protection of Informal Land Rights Act, have a say regarding their own land. Their residence in so-called traditional communities impedes their enjoyment of the same effective political and property rights as the rest of South Africa’s population.