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3. South African Heritage Legislation

It is standard policy that the ownership of heritage resources in most countries is administered by relevant government authorities. Different governments take it as their responsibility to ensure the long-term survival of heritage resources, not only for the benefit of current populations, but also for the subsequent generations. They recognise that besides providing detailed evidence into human origins, heritage resources offer valuable insights into a rich cultural heritage, which is still continuous in some cases. In the current South African heritage legislation, heritage resources are defined as any place or object of cultural significance. It is generally agreed that heritage resources are valuable, non-renewable, and therefore cannot be replaced. Coordinated efforts, organised at national level, are therefore significant in order to achieve the main goal of their long-term protection. South Africa is no different from many countries in terms of having an interest in protecting and conserving her heritage resources. Such efforts are undertaken on behalf of the citizens and the future inhabitants, and heritage legislation is a tool to drive those coordinated efforts.

South African heritage legislation dates back to 1911 when the Bushmen Relics Act was passed. This legislation was specifically biased towards the Bushmen heritage. I have previously argued that this was because it was not politically problematic to highlight the significance of the Bushmen heritage because they were considered to be a dying nation, and their culture was going 'extinct' (Ndlovu 2011). Heritage legislation could not protect the heritage of the majority of people who were living under colonial governments over time, especially in view of the fact they were also challenging this form of authority. Even though the main emphasis of heritage legislation shifted over the years, it still did not cater for the heritage of the majority of African people. Heritage legislation moved away from focusing solely on the Bushmen heritage, and began to include a lot more of colonial heritage, particularly built heritage. This did not mean that African people were not affected directly by heritage legislation enacted in the country, if one considers that land ownership was not in the hands of the majority.

The significant amendments to heritage legislation that have taken place over the years have had an impact in various spheres of heritage management and, in particular, on the issue relating to the ownership of heritage resources. As mentioned earlier, the general principle in all the legislation is their bias towards certain categories of heritage resources, mainly the colonial heritage. What all legislation failed to realise was that indigenous means of management had been in existence for a long time, and traditional custodians had been responsible for the general management of heritage resources (Ndoro 2005).

The management of heritage resources is currently governed under the National Heritage Resources Act (no. 25 of 1999). This post-colonial heritage legislation has brought significant improvements. The NHRA is post-colonial simply because of the period in which it was enacted, and not necessarily because of the values enshrined in the legislation. It is stated under Section 5 (4) of the NHRA that 'Heritage resources form an important part of the history and beliefs of communities and must be managed in a way that acknowledges the right of affected communities to be consulted and to participate in their management'. While I still find the heritage framework lacking as regards African values, and signified by a top-down approach, one of the major advancements in the NHRA is the consideration of living heritage and social consultation. This has provided a voice for the African people whose interest in the management of heritage resources had previously been relegated to the periphery.

In common with the previous legislation, the NHRA stipulated that heritage resources are owned by the State. Under Section 3 of the NHRA, all heritage resources that have cultural significance or special spiritual value either for the present community or future generations, must be considered part of the national estate. The national estate includes a wide variety of heritage resources, ranging from buildings, historical settlements, places with oral history, archaeological and palaeontological sites, graves, and movable objects. The significance of heritage resources is further graded into three categories: Grade I, Grade II, and Grade III. The level of significance serves to indicate the government level at which such heritage resources are to be managed. South Africa has a three-tier system for the management of heritage resources (Scheermeyer 2005). National level functions are the responsibility of the South African Heritage Resources Agency (SAHRA). The provincial level functions are the mandate of the Provincial Heritage Resources Authorities (PHRAs) throughout the country's nine provinces. Local level functions are under the authority of local government (municipalities). In practice, very few local governments are able to manage heritage resources found within their jurisdiction (Ndlovu 2011). Their functions tend to be undertaken by PHRAs, who are able to perform the functions enshrined in the heritage legislation. Among other functions, these three levels of heritage resources authorities can establish protected areas (Section 28), provisionally/formally protect heritage resources (Sections 29/27), issue a permit (Sections 34/35/36), or enter into heritage agreements (Section 42).

It is the legislated function of the three levels of government to ensure that appropriate decisions are made about the future of heritage resources. Nowhere does this three-tier system make allowance for certain categories of heritage resources to be owned by traditional authorities, under whose responsibility certain rituals take place. I will therefore argue that the current form of ownership and the management of heritage resources are problematic. Even though people are allowed to make requests regarding their interests in accessing particular sites of spiritual significance to them, these must happen under the leadership of those acting on behalf of the 'owners' of such heritage. It is the decision of various government heritage agencies who decide, guided by the Eurocentric legislation, what form of access is granted and the conditions attached to such approvals. These conditions tend to go against the principles of those ritual ceremonies in the first place, and this is never adequately considered in the heritage legislation (Ndlovu 2009; 2011).

Having briefly reviewed heritage legislation in the context of the constitution, and briefly discussed the NHRA in terms of ownership of heritage resources, I now turn to selected sections of the NHRA. The main aim of the review of the three sections (34, 35, and 36) is to highlight the issues of ownership further and present the management of heritage resources protected under those sections of the legislation.

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