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2. Constitution and Ownership

Constitutions are taken as the guiding principle for countries around the world. The constitution provides the legal basis for the existence of a country, and defines the principles each country wants its citizens to abide by. Constitution is, effectively, about power. As a supreme law, it defines the boundaries of this power - who has it, how it is to be used and who is subject to it (Ebrahim 1998). Each country is judged by its constitution, particularly on the issue of human rights and the extent to which the religious beliefs of its citizens are respected. At the adoption of South Africa's new constitution on 10 December 1996, the then Deputy President, Mr Thabo Mbeki, presented it as constituting 'an unequivocal statement that we refuse to accept that our Africanness shall be defined by our race, colour, gender, historical origins. It is a firm assertion made by us that South Africa belongs to all who live in it, black and white'. The inception of the new constitution represented victory not only for South Africans, but also for citizens of the world who had actively fought the apartheid government that did not consider the majority as full citizens.

The principles enshrined in the Constitution of South Africa, considered one of the best and most ambitious in the world (Kgosimore 2000; Monyae 2006), aim to create an environment of tolerance and mutual respect among the citizens. This constitution protects the rights of all citizens with regard to their cultural interests. Sections 30 and 31 stipulate that everyone has the right to participate in the cultural life of their choice and should not be denied an opportunity to practise their culture provided that such a right does not conflict with the provisions enshrined in the Bill of Rights. The constitution does not prescribe what provisions in the Bill of Rights could potentially conflict with Sections 30 and 31 of the constitution. However, I take this to mean that in the event that, for instance, two cultural groups both practise the cultural life of their choice and these conflict with each other, a common ground must be identified and a compromise made. The reality is that it is not that easy to address areas of such conflict. In such instances, those with financial power emerge victorious and their cultural lifeways become a yard-stick for the other cultural group. By way of an example, the slaughter of a bull by Tony Yengeni caused uproar within the country. The fact that he is one of the leaders within the ruling African National Congress (ANC) complicated the situation because of the political climate within the country. Mr Yengeni and family had slaughtered the bull as part of a cultural cleansing ceremony following his release from prison. To some, this is seen as immoral (Behrens 2008). His right to perform the ritual, which is part of his cultural life, is enshrined in Section 30. However, it was seen to be in conflict with those of his neighbours who believe our cultural practices are outdated and cruel to the animals. We might have an African-led government, but the constitution and heritage legislation still falls short of giving space for African societies to practice their cultural beliefs. This is because the majority have only the political power and no economic power legally to take their fights to the court room when they feel that justice has not been done as per the spirit enshrined in the constitution and heritage legislation.

Besides the challenge presented above with regards to Sections 30 and 31 of the constitution, the constitutional provisions may still be considered as significant, and an improvement from the legal equivalent of what was there before 1996. Significantly, the current constitution provides support to the heritage authorities tasked with the responsibility to protect and conserve cultural heritage resources for the current and future generations. One of the strategies enshrined in the National Heritage Resources Act (NHRA), which assist heritage authorities in meeting the spirit of the Constitution, concerns the provisions regarding the consultation of interested and affected communities (Section 38, 3e). I argue that the process of consultation is biased towards ownership, whether it is by the state or private individuals. As a result, the consultation process of the NHRA is flawed. There are two reasons for this assertion. First, heritage resources might be found in privately owned properties. Such a form of ownership means that the interest of particular communities must respect the fact that such heritage resources lie within a property they have no ownership rights over. Considering that people had been forcibly removed from their original living areas, this presents a great challenge when it comes to providing access. Second, because heritage resources are generally owned by the State, their conservation, and access to them, can only be approved based on the provisions of the NHRA. As I shall illustrate, this legislation is still not as post-colonial as it should be. (Post-colonial here refers to a chronological period defined by the end of colonialism. In the post-colonial era, governments are democratically elected and it is expected that these new governments incorporate African principles in the legislation they pass.) When ownership is not controlled by those affected, any form of consultation merely satisfies the legislative process. This asseertion is based on two factors. Firstly, in most cases local communities are consulted much later in the development process, when major decisions have already been made and developmental projects approved. In these instances, mitigation is the best way to move forward and this often happens within the confines of the decisions already taken. Secondly, the owner of the land always has an upper hand regarding the decisions taken. The rights of land owners are enshrined under Section 25 of the constitution. As a result, even though the constitution provides communities with certain rights related to cultural heritage, I argue that any form of consultation under NHRA is undertaken merely to inform members of local communities under the guise of gathering and considering their views on proposed developments. This is particularly so in South Africa when considering the challenges relating to land ownership (Ntsebeza 2003). There is, therefore, a contradiction between the constitution and the NHRA, and this is made an even greater challenge considering the political history of South Africa.

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