TILBURG LAW SCHOOL
MASTERS THESIS
COUNTERING THE EXTINCTION OF THE KHOISAN PEOPLE IN SOUTH AFRICA: THE
ROLE AND RELEVANCE OF NATIONAL, REGIONAL, AND INTERNATIONAL
INSTRUMENTS
MILAZI SINDILE WINNIE
U1275579
2016
Supervisor
Dr. A.K.Meijknecht
TABLE OF CONTENTS
Chapter 1.
General Introduction.
1.1 Introduction.
: 01
1.2 Research-question and sub-questions
: 02
1.3 Introduction of Fundamental Terms.
: 02
1.3.1 Indigenous people.
: 02
1.3.2 Bantu.
: 03
1.3.3 Khoisan.
: 03
1.3.4 Coloureds
: 03
1.3.5 Afrikaners
: 04
1.4 Methodology
: 04
1.5 Structure of the thesis
: 04
1.6 List of Abbreviations.
: 05
Chapter 2.
Khoisan in South Africa: history and identity
2.1 Introduction.
: 06
2.2 Identity of the Khoisan.
: 06
2.2.1 Lifestyle.
: 06
2.2.2 Nature and Religion.
: 07
2.2.3 Culture and political participation.
: 08
2.3 Historical developments in South Africa and the Khoisan
: 08
2.3.1 Before the Bantu era (country under ownership of Khoisan).
: 08
2.3.2 The Bantu era (after the immigration of Bantu).
: 09
2.3.3 The Dutch era (colonisation era).
: 10
2.4 Challenges currently faced by the Khoisan people.
: 13
2.4.1. Recognition (Identity).
: 14
2.4.2. Recognition Khoisan Languages.
: 15
2.4.3. Lack of legal recognition and political presentation
: 16
2.4.4. Difficulty of maintaining their way of living.
: 17
2.4.5. Assimilation and intermarriages.
: 18
2.4.6 The loss of Land
: 18
2.5 Conclusion
: 19
Chapter 3.
South African legal instruments and other national developments regarding the protection
of indigenous peoples
3.1 Introduction
: 21
3.2. Recognition and Identity.
: 21
3.2.1 The importance of the right to recognition.
: 21
3.2.2 Definition of Indigenous Peoples in South Africa
: 22
3.2.2 Provisions and other developments concerning the preservation of Cultural Identity and
language?
: 22
3.2.3. Developments legal recognition and political presentation
: 23
3.3 Land Rights
: 25
3.3.1 The importance of Land rights.
: 25
3.3.2 Provisions and other developments concerning indigenous land rights.
: 25
3.3 Conclusion.
: 26
Chapter 4.
Standard setting regarding indigenous peoples in Regional and International instruments.
4.1 Introduction.
: 28
4.2 The indigenous and tribal peoples convention number 169
: 28
4.3. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
: 28
4.3.1 The UNDRIP and Recognition
: 29
4.3.2 UNDRIP and Land rights.
: 29
4.3.3 Relevance of UNDRIP for the Khoisan.
: 30
4.4 Regional instruments: The African Union
: 30
4.4.1 Land Rights and Recognition.
: 30
4.4.2 Relevance of UNDRIP for the Khoisan
: 32
4.5. Inter-American Court of Human rights.
: 32
4.5.2 The ’evolutionary’ interpretation of the right to property (Article 21 ACHR)
: 32
4.6 Conclusion
: 32
Chapter 5.
Conclusion and Recommendations
5.1 Conclusion
: 35
5.2 Recommendations.
: 37
Bibliography
: 39
Chapter 1.
General Introduction.
1.1
Introduction.
This study seeks to discuss the extinction of the ‘Khoisan’ in South Africa whilst demarcating the
role and relevance of national, regional, and international instruments. This study further seeks to
lay down the legal historical background of the protection of the indigenous peoples in South
Africa. Noting that South Africa consists of 472 281 square miles in total, however presently, only
one percent of these miles are in possession of the indigenous peoples of South Africa i.e. the
Khoisan.1 Khoisan are referred to as the first people since they inhabited South Africa prior to the
arrival of Europeans and other black Africans today referred to as Bantu.2 Khoisan people used to
be the sole owners of the country hence full ownership of the land, with so much power and
authority over everything, they were wealthy in terms of natural resources, livestock and land for
farming, they maintained a rich and vibrant culture which could never be shaken by any
circumstances, but today, they are facing the threat of extinction, marginalisation, and regarded as
the most poorest population in South Africa, with their culture being pushed to the periphery of
the South African society.3
With thus stated, it is almost unbelievable that 22 000 years ago, Khoisan were the largest group
of humans on earth, however at this age only about 100 000 Khoisan remain.4 It is an undoubted
fact that they have left an indelible mark on South African land and society. One may wonder how
this drastic change could have transpired, “The San peoples of South Africa have over the past
century been declined to the point of virtual extinction”5 whilst those that survived, were driven
off their traditional lands and forced to live on lands dominated and owned by pastoralists and
1
Roger B. Beck, The History of South Africa (second edition, ABC-CLIO,LLC 2014) 14
Andrew Le Fleur, and Lesle Jansen, ‘The Khoisan in contemporary South Africa Challenges of recognition as an indigenous people’
(Konrad-Adenauer-Stiftung e.V, August 2013) 60
<http://www.kas.de/suedafrika/en/publications/35255/> Accessed 09 March 2016
3 South African Tourism, ‘Ancient people of the land the Khoisan people of the Northern Cape’
< http://www.southafrica.net/za/en/articles/entry/article-southafrica.net-the-khoisan-people > Accessed 11 March 2016
4 Ibid.
5 John Nelson and Lindsay Hossack, indigenous peoples and protected areas in Africa (Forest peoples programme, 2003) 56
2
1
colonials, hence lost a touch with the Kalahari wilderness, therefore the practice of their ancient
cultures.6
1.2
Research-question and sub-questions
The transformation of the Khoisan from real owners to facing extinction is rather intriguing. That,
is the reality of the sad story of the Khoisan people in South Africa. With thus said, these questions
are inevitable: How come, the first people to arrive and occupy vast tracks of land in South Africa
end up facing extinction and occupying only 1% of the vast tracks of lands, losing their identity
and recognition thereof in their own ancestral land? Furthermore, which legal instruments need to
be implemented so as to reverse the inequalities and violations of the rights of the Khoisan?
This study seeks to address this main research question: To what extent can National, Regional,
and International legal instruments counter the nearing extinction of the Khoisan people in South
Africa?
1.3 Introduction of Fundamental Terms.
1.3.1 Indigenous people.
This paper refers to Khoisan as the indigenous people of South Africa. Therefore marking the
importance of the definition of indigenous people. Bearing in mind the diversity of indigenous
people in the whole world up to date, it has made it practically impossible to find an accurate
definition of the indigenous people. Therefore, there exists no legally binding definition of this
term. However, there are working guidelines used which were adopted by the United Nations
System in order to identify the indigenous people.
They came up with the 7 guidelines namely:
First, Self- identification as indigenous peoples at the individual level and accepted by the
community as their member; 2 Historical continuity with pre-colonial and/or pre-settler
societies; 3 Strong link to territories and surrounding natural resources; 4 Distinct social,
economic or political systems; 5 Distinct language, culture and beliefs; 6 Form non-
6
SABC News, ‘Khoisan laments marginalisation’ SABC News (South Africa, 20 January 2016)
<http://www.sabc.co.za/news/a/b44d26004b60efe9aae8ee43e5868fd4/Khoisanundefinedfightundefinedforundefinedrecognit
ionundefinedandundefinedland-20162001 > Accessed 18-03-2016.
2
dominant groups of society; 7Resolve to maintain and reproduce their ancestral
environments and systems as distinctive peoples and communities.7
The ILO further came up with guidelines on which to define the indigenous people. Which states
that: A people are considered indigenous either: Because they are descendants of those who lived
in the area before colonization; or because they have maintained their own social, economic,
cultural and political institutions since colonization and the establishment of new states.8
1.3.2 Bantu.
The South African history online defines Bantu as “A linguistic group in Africa, and more locally,
to identify the sizeable group of Nguni languages spoken by many Africans in sub-Saharan Africa,
and it identifies those Bantu-speakers who spoke that group of closely related languages which
linguists divide into four categories: Nguni, Sotho-Tswana, Venda and Tsonga-speakers.”9 Whilst
Chiwengo defines Bantu as “an African word which in its literal sense simply means people mainly
the natives of South Africa” 10 This paper specifically refers to Black South African citizens;
further categorised into four groups namely: Nguni, Sotho-Tswana, Venda and Tsonga-speakers.
1.3.3 Khoisan.
This term will be used as a unifying name for two groups of peoples of Southern Africa, who share
physical and putative linguistic characteristics distinct from the Bantu majority of the region, i.e.
Khoikhoi and San. In actual essence, the term Khoisan generally refers to the two groups, the
Khoikhoi and the San. It was invented during 1928 by an academic, Leonard Schultz. He used the
term to represent both the Khoi and the San. The Khoisan hold the oldest known human DNA,
which succeeds them as indigenous people.11
1.3.4 Coloureds
Oxford dictionary defines coloured as “a South African term used as an ethnic label for people of
mixed ethnic origin, including Khoisan, African, Malay, Chinese, and white or a person of mixed
7
United Nations Permanent forum on Indigenous Issues, ‘who are indigenous people’ (indigenous people, indigenous voices)
< http://www.un.org/esa/socdev/unpfii/documents/5session_factsheet1.pdf> Accessed 04-02-2016.
8 The ILO Convention no. 169
9‘Bantu’ South African History Online (South Africa, 15 June 2011)
< http://www.sahistory.org.za/article/bantu#sthash.Dta7DfEt.dpuf > Accessed 18-03-2016.
10 Ngwarsungu Chiwengo, cry the beloved country (1st edition, library of congress cataloging in publication 2007)
11 See < http://www.kas.de/wf/doc/kas_35255-1522-2-30.pdf?130828123610 > Accessed 29-03-216
3
descent usually speaking Afrikaans or English as their mother tongue.”12 However, in this paper
coloureds will mainly refer to the Khoisan who were forced to register as ‘coloured’ denying them
their rightful identity.
1.3.5 Afrikaners
In this context, the term Dutch refers to an Afrikaans-speaking person in South Africa, descending
from the Dutch population who colonised South Africa.
1.4 Methodology
During the course of the examination and analyses of the research, the methodology will be a black
letter/ desk study, concentrating on the primary sources of law i.e. authorities on the Khoisan
people in South Africa; Regional court cases (African Court of Human Rights); and national,
regional, and international legal instruments relevant to the protection of indigenous peoples rights.
Moreover, periodical reports and newspaper articles will be employed to a certain extend to get in
terms with the most recent information.
1.5 Structure of the thesis
This study is divided into five (5) general parts i.e. chapters. Each chapter, in its own angle strives
to tackle and unpack the events of the transformation of the Khoisan from real owners to facing
extinction; in thus outlining the role and relevance of national, regional, and international
instruments in this legal problem. Chapter 1 gives the purpose and general overview of the whole
study, and lay a ground for the analyses and discussion of the succeeding chapters; Chapter 2 gives
a detailed background of the history and identity of the Khoisan, together with the discussion and
historical overview of the discovery of the country itself, described in three stages, firstly, Before
the Bantu era (when the country was still under ownership of the Khoisan); secondly, The Bantu
era (this is after the immigration of Bantu from the central Africa to South Africa); thirdly, The
Dutch era (colonisation era). In thus it further enumerates and analyse the challenges and Struggles
of the Khoisan in the aforementioned stages. This chapter constitutes to the core of this study as it
attempts to answer the research question of: How did the first people to arrive and possess full
ownership of the entire country in South Africa, end up occupying only 1% of the 472,281 square
12
William C, Oxford English Dictionary (Oxford University Press, 2010)
See < http://www.oxforddictionaries.com/definition/english/coloured > Accessed 28-05-2016
4
miles of land, and acquired the absence of the right to identity, on top of that, managed to not be
officially recognized as indigenous peoples of South Africa?; Chapter 3 discusses the South
African legal instruments and other national developments on the protection of indigenous peoples;
Chapter 4 outlines international and regional instruments relevant for countering the extinction of
Khoisan people ; Finally, the last chapter provides conclusion of the whole study and providing
answers to the research questions.
1.6 List of Abbreviations.
CTLSA
Congress of Traditional Leaders of South Africa
VOC
Vereenigde Oostindische Compagnie
UNDRIP
United Nations Declaration on the Rights of Indigenous Peoples
UN
United Nations
ILO
International Labour Organisation
NKC
National Khoi-San Council
PanSALB
Pan South African Language Board
NHRI
National Human Rights Institutions
5
Chapter 2.
Khoisan in South Africa: history and identity
2.1
Introduction.
This chapter gives a broad outline of the history and identity of the Khoisan in South Africa, in an
attempt to answer the question: How did the first people to arrive and possess full ownership of
the entire country in South Africa, end up occupying only 1% of the 472,281 square miles of land,
and furthermore lost their right to identity and not be officially recognized as indigenous peoples
of South Africa? It further outlines the challenges faced by the Khoisan in three stages: firstly,
Before the Bantu era i.e. when the country was still under ownership of the Khoisan; secondly,
The Bantu era i.e. that is after the immigration of Bantu from the central Africa to South Africa;
thirdly, The Dutch era i.e. the colonisation era.
2.2
Identity of the Khoisan.
Like most indigenous group, Khoisan people had a unique lifestyle and characteristics which
defined them and made them distinctive from other populations in South Africa. They had rich
and distinctive culture; although known to be nomadic, they had historical ties to every territory
they moved to seasonally; their strong religion played a special significance in their lives.13 This
chapter strives to outline the lives of Khoisan in a more comprehensive manner.
2.2.1 Lifestyle.
The village settlement of the Khoikhoi was comparatively large, each village camp consisted of
members of the same patrilineal clan - a group of male descendants of a common specific ancestor,
with their wives and children. Villages also comprised of some members of other clans, and
dependants or their servants.14 Each village had a headman, which was a hereditary position passed
on to the eldest son of the founding ancestor from generation to generation. The headman
possessed the authority to make decisions such as when and where to move from time to time.
13
14
Mohamed A, Burdened by Race: Colored Identities in Southern Africa (University of Cape Town press, 2009) 121.
Finex N, The Politics of Language and Nation Building in Zimbabwe (Oxford press, 2009) 65.
6
They also operated as mediators or judges in criminal or civil disputes which would arise in their
villages.15
They wore clothes made of leather, they had unique round hut (matjioeshuis) as houses made of a
frame of green branches planted into the ground and twisted over and knotted together, covered
with reed mats. They could easily be undone and re-erected in a new location when they moved to
a new village. The mats could simply be removed and rolled up. In most cases they would leave
the frames behind if they knew they would return to the same village for grazing in the next season.
The huts were flexible too, they can be transformed to weather-friendly huts, during the warm
weather, it would be cool inside with the gaps between the reeds allowing the air to circulate and
flow all over the hut, whilst in winter, the inside would be lined with skins so as to offer extra
insulation against the elements.16 The Khoisan also obtained food by hunting and gathering. The
sharing of food was a significant characteristic of their lifestyle in the village. Any substantial kill
was to be shared amongst all village members, and sheep or cattle killed during ceremonial feasts
were shared and eaten by all present.
They had a Nomadic heritage, meaning they moved from one place to another guided by the
weather or by the change of seasons, following where suitable for grazing of their livestock, they
only stayed in one village for a few weeks, as they kept herds of animals such as goat, cattle and
sheep. This meant that they had to be able to carry all their possessions themselves, or load them
onto the backs of their livestock Ownership of cattle was a sign of wealth, therefore, they hardly
killed their cattle. They would only kill their own animals upon important occasions like funerals
or weddings, otherwise, they would only eat cattle that had died or had been stolen from their
enemies.17
2.2.2 Nature and Religion.
Nature plays a vital role in the daily lives of the Khoisan. They attached special meaning to the
moon. They regard the new and full moons as the important times for rainmaking rites and dancing,
also, according to them, the moon has the physical expression of a supreme creature associated
15
Alan, ‘Religion and Nature’ (future perfect)
< http://www.khoisan.org/social.htm > Accessed 28-03-2016
16 Alan, ‘Religion and Nature’ (future perfect)
< http://www.khoisan.org/social.htm > Accessed 28-03-2016
17 See < http://www.sahistory.org.za/people-south-africa/khoikhoi > Accessed 29-03-2016
7
with the heaven, earth and especially rain.18 Khoisan’s strong religion is vehemently proven in the
number of ceremonies they held, with which each holds a specific significance to them. The key
elements of all Khoikhoi ceremonies involved a period of isolation associated with vulnerability
and danger. During these periods, they ought to avoid certain things like water, whilst using others
such as fire and buchu which are supposedly associated with protection.19
2.2.3 Culture and political participation.
Like most indigenous groups, the Khoisan had strong beliefs in their culture and customs hence
have little confidence in the hands of justice or political participation. However, the South African
government officially recognises the Congress of Traditional Leaders of South Africa (CTLSA)
as a body of traditional and or ‘tribal’ leaders, as representatives of the indigenous people inclusive
of Khoisan peoples. Currently, there exists a controversy regarding Khoisan membership of this,
as some chiefs refuse to be part of this organisation, as they consider themselves as indigenous,
rather than traditional leaders.20
2.3
Historical developments in South Africa and the Khoisan
2.3.1 Before the Bantu era (country under ownership of Khoisan).
Science has now demonstrated that the Khoisan are the relatives of the first Homo sapiens (cutting
edge man) who possessed Southern Africa for no less than 150,000 years. Geneticists say that the
most established quality example amongst present day people is that of the Khoisan. It goes back
to around 80,000 years prior.21
The origin of the Khoisan remains a debatable issue which many scholars have partaken in. some
scholars have suggested that they originated from Asia, others from North Africa.22 Linguistic
specialists are of the believe that they might have originated from the following places before they
18
Alan, ‘Religion and Nature’ (future perfect)
< http://www.khoisan.org/religion.htm > Accessed 28-03-2016
19 Alan, ‘Religion and Nature’ (future perfect)
< http://www.khoisan.org/ritual.htm > Accessed 28-03-2016
20 See < http://www.sahistory.org.za/topic/khoisan-identity#sthash.HtxZZQjO.dpuf > Accessed 2-3-216
21 Jay Naidoo, ‘A journey with the San’ Daily Maverick (South Africa, 29 Jun 2015)
< http://www.dailymaverick.co.za/opinionista/2015-06-29-a-journey-with-the-san/#.VvlMZofouUk > Accessed 28-03-2016
22 See < http://www.sahistory.org.za/topic/khoisan-identity#sthash.HtxZZQjO.dpuf > Accessed 2-3-216
8
arrived in South Africa: Tshu-tshu; Mirabib; Nama; Apollo; Korana; Hungorob Ravine; Elands
Bay Cave; Kasteelberg; De Kelders; Nelson Bay; Cape Khoi; and Wilton.23 This conclusion was
derived from the fact that the people who spoke the Khoikhoi language once existed in these areas,
furthermore, this has been backed up by archaeological excavations that have revealed pottery and
remains of livestock in the designated places.24
2.3.2 The Bantu era (after the immigration of Bantu).
As a result of populations growing faster than before hence people trespassing on each other's
lands, the growth of territory became a necessity, which headed to the migration of African black
tribes from the Great Lakes in central Africa, to the South of Africa making it the largest human
migrations in history.25 After the arrival of the Bantu from the central Africa to South Africa, a lot
changed. The Khoisan’s hunter-gathering lifestyle got challenged by the Bantu-speakers as they
brought with them new sets of ideology, belief, agriculture, and iron-making skills. 26 They
populated most of the land and almost took over the country from the Khoisan. The Bantu, with
cutting edge horticulture and metalworking innovation created in West Africa from no less than
2000 BC, outcompeted and intermarried with the Khoisan in the years after contact and turned into
the predominant populace of South-eastern Africa afore the entry of the Dutch in 1652.27
Presently, the Bantu-speaking South Africans make up the overpowering majority of the presentday population of South Africa. However, the increase of large herds and cultivation of widespread
fields created greater numbers of population among Bantu speakers than the Khoisan.28 By around
1600 a new settlement had been formed i.e. the Khoisan peoples in the west and the southwest, by
Sotho-Tswana in the Highveld, and by Nguni along the coastal plains.29
23
Alan, ‘Religion and Nature’ (future perfect)
< http://www.khoisan.org/reconstructing.htm > Accessed 28-03-2016
24 Jay Naidoo, ‘A journey with the San’ Daily Maverick (South Africa, 29 Jun 2015)
< http://www.dailymaverick.co.za/opinionista/2015-06-29-a-journey-with-the-san/#.VvlMZofouUk > Accessed 28-03-2016
25 See http://www.south-africa-tours-and-travel.com/bantu.html Accessed 20-05-2016
26Pippa Abbot, Field Guide to the Cradle of Humankind (1st edition, struik publishers 2002)6
27 Jay Naidoo, ‘A journey with the San’ Daily Maverick (South Africa, 29 Jun 2015)
< http://www.dailymaverick.co.za/opinionista/2015-06-29-a-journey-with-the-san/#.VvlMZofouUk > Accessed 28-03-2016
28 See U.S. Library of Congress at,
<http://countrystudies.us/south-africa/3.htm> Accessed 22-04-2016
29 Jay Naidoo, ‘A journey with the San’ Daily Maverick (South Africa, 29 Jun 2015)
< http://www.dailymaverick.co.za/opinionista/2015-06-29-a-journey-with-the-san/#.VvlMZofouUk > Accessed 28-03-2016
9
2.3.3 The Dutch era (colonisation era).
In 1652, the Dutch became the first European trading power to have ever set up a permanent
settlement in South Africa. The capable Dutch East India Company assembled a fortification and
built up a supply station under the leadership of Jan Van Riebeeck on the land which later got to
be Cape Town. The Vereenigde Oostindische Compagnie (VOC) brought their slaves, soldiers,
and immigrants to the city of Cape from the Netherlands and the East and eventually the station
became a colony of the Europeans.30
Hope Jan van Riebeeck demanded slaves to help with the gathering of food and water during the
passing of VOC ships, he had been commanded to create a small fort, to protect sources of drinking
water and make a garden in which vegetables could be cultivated, as a result, first settlement was
composed of servants of the VOC therefore located on the small peninsula whereby Table
Mountain is located. After the relations with the local Khoikhoi started to break down the
settlement had to be secured by hedges with a chain of outlook poles.31
The expansion of Dutch in South Africa created an impact both to the Khoisan and to the Bantu.
In general, the Khoisan required a lot of area keeping in mind the end goal to chase and eat their
cows. The Dutch declined to perceive their conventional touching and chasing rights; the main
Europeans in southern Africa limited themselves at first toward the western part of the area,
centring their exercises on the Cape of Good Hope. Here the Dutch East India Company was built
up in 1652. Steadily the Dutch settlement extended north and east, uprooting, in the primary
occasion, the most established known tenants of this district, the Khoikhoi (alluded to by the Dutch
as 'Hottentots').32
Initially, the Khoisan attitude towards the Dutch were friendly, as they saw the Europeans as a
source for trade therefore exchanged with them on a regular basis. After Khoisan realised that the
30
John H, Dutch South Africa: Early Settlers at the Cape, 1652-1708 (Troubador Publishing, 2005) 191.
See also <http://www.sahistory.org.za/article/dutch-and-khoikhoi#sthash.hZ94jhdr.dpuf> Accessed 23-042016
31 Nancy L, South Africa: The Rise and Fall of Apartheid (Pearson education limited, 2011) 4.
See also < http://www.sahistory.org.za/article/dutch-and-khoikhoi#sthash.hZ94jhdr.dpuf> Accessed 23-04-2016
32 Rinelle E, Complex Classroom Encounters: A South African Perspective (Sense publishers, 2012) 78.
See also < http://www.bbc.co.uk/worldservice/africa/features/storyofafrica/12chapter2.shtml> Accessed 05-04-2016
10
Europeans desires were for their land, they opted to change their attitude towards them and started
refusing to exchange goods with them and avoided any form of contact with the Europeans.33
In 1657 Dutch brought in settlers in South Africa to produce vegetables and meat, this act resulted
to competition over land for grazing between the Dutch and Khoisan. Consequential to that, a war
transpired in 1659 and lasted up to the year 1660. This war resulted to the Dutch erecting a series
of fences and hedges between themselves and the Khoisan thereby pushing off Khoisan from their
land.34
In 1673 a second war transpired between the Khoisan and Dutch which lasted up to 1677. The war
comprised of a series of cattle raids by Dutch settlers. After this war, European settlers expanded
and many Khoisan had their cattle taken away from them. After the war, the Khoisan, alongside
with other African slaves, were forced to work for the Dutch.35
The Dutch both stole and purchased dairy cattle of the Khoikhoi. In 1659, the Khoikhoi battled the
Dutch over touching land south of capable Bay and lost. Before long the Khoikhoi lifestyle
deteriorated. The Dutch, who came to be known as Afrikaners (and in addition Boers, which
implies ranchers) began to grow their exercises. They developed land and chased crosswise over
extensive separations. In this manner, they obtained the title of Trekboers, when they set out on
long voyages or treks to make tracks in an opposite direction from British officialdom in the Cape
Colony. They later got subjected to oppression; the Khoikhoi frequently wound up as slaves, either
working in the Cape Colony or as homestead workers for the Dutch.36
Towards the end of the 1600’s the maximum part of the Western Cape was colonised by the
Europeans, therefore under Dutch control; greater parts of the land had been allocated to white
farmers as freehold. Finally the disadvantaged Khoisan were forced out of the lands i.e. the north
and had to move into less fertile and uninhabited parts of the area.37
To the Khoikhoi, dairy cattle were not seen as an item to be purchased and sold, they had custom
and social essentialness long ways past financial worth. At the point when the Khoikhoi began to
33
John H, Dutch South Africa: Early Settlers at the Cape, 1652-1708 (Troubador Publishing, 2005) 192. See also
<http://www.sahistory.org.za/article/dutch-and-khoikhoi#sthash.hZ94jhdr.dpuf> Accessed 23-04-2016
34 Timothy J. Stapleton, A Military History of Africa (1st edition, library of cataloging publication 2013) 200
35 Timothy J. Stapleton, A Military History of Africa (1st edition, library of cataloging publication 2013) 201
36 See < http://www.bbc.co.uk/worldservice/africa/features/storyofafrica/12chapter2.shtml > Accessed 29-03-2016
37 See <http://www.sahistory.org.za/article/dutch-and-khoikhoi#sthash.hZ94jhdr.dpuf> Accessed 23-04-2016
11
exchange some of their stock, an inconsistency inside of the exchanging association with the Dutch
started. Robbery, pressure and non-profitable trade (domesticated animals for liquor, copper,
globules and so on) loss of stock delivered a descending winding that the Khoikhoi couldn't break.
The breakdown of the social and financial estimations of the Khoikhoi ran as an inseparable unit
with more noteworthy reliance and expanding dependence by the Khoikhoi on the Dutch as middle
people in question, and in developing Dutch obstruction in the striking examples between
gatherings of Khoikhoi.38
In the 1700s the Dutch settlers were joined by other immigrants from France and Germany,
gradually, the descendants of these settlers began to think of themselves as permanent residents
therefore natives of the cape. Coming with their own customs and a new language i.e. English. 39
Notwithstanding this, Khoisan groups additionally experienced a sharp decrease in the populace
with the entry of European pioneers, to a great extent because of fighting and sicknesses, for
example, smallpox which touched base with the colonialists. The Khoisan had no characteristic
insusceptibility to these transported in infections and were hit hard by pestilences. In 1713, for
instance, an expected 90 percent of the Khoisan populace is thought to have been wiped out by
smallpox.40 It spread to both the Europeans and Khoisan, because they had never been exposed to
it hence had no natural resistance or protection from the disease. Again, in between 1755 and 1767
two new smallpox epidemics nearly destroyed all the Khoisan, the survivors became westernised
by the Europeans, some were Christianised, whilst the rest learnt to speak Dutch (today regarded
as Afrikaans) and dress in European style.41
Later, under the rule of the apartheid government, all Khoisan were forced to register as Coloureds
hence grouping them amongst another tribe totally losing their own identity, as a result of this
groupings, the ‘coloured’ label later came to be extensively hated, especially from the 1980s,
because for the Khoisan it was seen as a neglect of their distinct identity. The ‘Coloured’ category
was composed of various sub-groups which included: Griqua, Cape Malay, Nama, Cape Coloured
38
Alan, ‘Religion and Nature’ (future perfect)
< http://www.khoisan.org/retual.htm > Accessed 28-03-2016
39 E.D. Hirsch, Jr, What Your Sixth Grader Needs to Know (2013)
<See https://books.google.com/books?isbn=0804180415> Accessed 23-04-2016
40 Mohamed A, Not White Enough, Not Black Enough: Racial Identity in the South African colored community (Ohio university
Pres, 2005) 186 See also < http://www.sahistory.org.za/topic/khoisan-identity#sthash.HtxZZQjO.dpuf > Accessed 29-03-2016
41 See < http://www.sahistory.org.za/article/dutch-and-khoikhoi#sthash.hZ94jhdr.dpuf> Accessed 23-04-2016
12
and ‘other’ Coloured. However, the Khoisan population was not accordingly categorised within
any of these sub-groups as they never belonged to any of them. Indirectly, they were given a new
identity, hence the Khoisan identity being further fractured as a result of its lack of official
recognition from the South African government. In as much as the category of coloureds in South
Africa came with privileges, like the socio-political and economic privileges denied to the black
population, for example, not being mandated to carry a pass book wherever they went, nonetheless,
they also remained subject to severe discrimination, which included the apartheid in amenities
such as restaurants, schools, and being subjected to the forcible relocation of over 500 000
Coloureds after the Group Areas Act of 1950. During this process, the Khoisan had to leave their
lands again, although this time they were compensated, long-standing communities were broken
up hence contributing to a further fracturing of their identities. Moreover, as coloureds, the
Khoisan were removed from the common voters roll in 1956.42
2.4 Challenges currently faced by the Khoisan people.
This chapter aims to set out and prove the fact that Khoisan individuals up to date continue in postapartheid South Africa, with the battle for the assurance of their key group and human rights as
particular ethnic groups as stipulated by benchmarks set out by the United Nations about
indigenous people groups. This chapter, moreover, hopes to describe the Khoisan peoples’ context
as it relates to their modern day challenges.
South Africa is still living with the legacy of apartheid, leaving many Khoisan people without their
ancestral land, proving that, South Africa has endorsed the UNDRIP however not yet the
Convention No. 169 of the International Labour Organization concerning Indigenous and Tribal
Peoples in Independent Countries (1989). Nonetheless, despite everything they can't give the
Khoisan their full character and land rights in South Africa since that would mean a radical change
in South Africa, that would mean all the area would need to fit in with the Khoisan like in the
antiquated days; all the characteristic assets and minerals being removed from the area should be
subjected to the legitimate proprietors of the area, all the multinational organizations will need to
begin new contracts and with the Khoisan that incorporates making up for all the business
exchanges as of now in advancement. Every one of these elements being considered make it
42
John H, Dutch South Africa: Early Settlers at the Cape, 1652-1708 (Troubador Publishing, 2005) 195.
See also <http://www.sahistory.org.za/topic/khoisan-identity#sthash.La2wQ1hh.dpuf> Accessed 29-04-2016
13
troublesome for the new government to consider the rights if the Khoisan rights to land possession
and personality to consider. The new government fears to lose power and control to the Khoisan.
This thus makes the cycle of Khoisan infringement of rights to proceed with no trust of steadily
being restored.
Furthermore, this part sets out a few striking challenges faced by Khoisan in South Africa, with
main focus to recognition.
2.4.1. Recognition (Identity).
Khoisan individuals have no identity in South Africa; instead, they are being forced to register
themselves as “Coloured”. It was recorded that 90% of the South African coloureds were initially
Khoisan clans, because of apartheid; they were forced to assimilate and change their race and
language, causing them to lose their roots as Khoisan.43 Under the apartheid regime, the Khoisan
population were forced to register as Coloureds. 44 Failure to register as such was regarded as
illegal and inevitable. This occasioned to the Khoisan difficulty to maintain their identity and
originality as an indigenous community therefore failure to maintain their distinct ethnic
composition.
This resulted to the accumulation of legal proceedings instituted by the Khoisan against the South
African government. For example, the instance of 'social genocide and oppression the Khoisan
country' that was conveyed to the Equality Court in 2010. For this situation, pioneers had a specific
restriction to the utilization of the expression "Shaded" in with reference to the Khoisan people
groups, declaring the utilization of the order to keep the Khoisan populace in subjugation. Their
requests included government acknowledgment of their authority, as well as of eighteen factions,
including Namaqua, Griqua and Hassequa. Besides, requests have been made to the administration
in Pretoria this year both for acknowledgment as South Africa's first and unique occupants and for
area rights verifiably denied to them. These requests were given to Phumzile Simelela, Chief
Director in the Office of the Director General, and focus ashore change talks going for the
legitimisation of area cases preceding the 1913 Native Land Act.
43
Andrew Le Fleur, and Lesle Jansen, ‘The Khoisan in contemporary South Africa Challenges of recognition as an indigenous
people’ (Konrad-Adenauer-Stiftung e.V, August 2013)
< http://www.kas.de/wf/doc/kas_35255-1522-2-30.pdf?130828123610 > Accessed 28-03-2016
44 See < http://www.sahistory.org.za/topic/khoisan-identity#sthash.HtxZZQjO.dpuf > Accessed 29-03-2016
14
On the 2nd of April in 2001the Khoisan took a step to fight for their rights to preserve their culture
and identity, or what is left of it; they held a conference whereby the put forward all their
complaints and fears in which the Deputy president at that time Mr Jacob Zuma was seated, as the
indigenous protested for their identity in South Africa and put forward all the difficulties they were
facing, most of all, being marginalised in South Africa.45
2.4.2. Recognition Khoisan Languages.
The government fails to provide education to the Khoisan in their native languages, as assured in
Article 14 of the Declaration on the Rights of Indigenous Peoples, Article 30 of the Convention
on the Rights of the Child, and Article 27 of the International Covenant on Civil and Political
Rights. Furthermore, it has to be noted that Education and language development are of material
importance to the cultural survival of the Khoisan, but they are being deprived of that right.
None of their indigenous languages (Khoekhoegowab; Khwedam; !Xu or N/u) are recognised as
official languages in South Africa. Nelson, one of the chiefs of Khoisan, puts forward, “the ancient
languages which were spoken by the san people has fallen into disuse, hence, prematurely declared
officially dead and useless in 1970.”46
The populaces who talk these indigenous dialects are for the most part fairly little, because of the
'dialect passing' resultant of the Khoisan individuals' uprooting from conventional grounds and
related monetary practices through the span of the pilgrim and politically-sanctioned racial
segregation periods. In fact, numerous Khoisan embraced Afrikaans amid these periods,
particularly in the Western Cape, where Afrikaans is a prevailing dialect. Subsequently, large
portions of their indigenous dialects are presently either imperilled or terminated, most with no
composed record. Numerous Khoisan today, speak Afrikaans and English, however, have just
restricted learning of the indigenous dialects of their kin. This propensity stretches out even to the
names of numerous Khoisan people, who have Dutch or Afrikaner names going back to the pilgrim
period. Numerous individuals from Khoisan groups were either given names by frontier chairmen
45
BBC News, ‘Bushmen marginalized in South Africa’ BBC News (Africa, 2 April 2001)
< http://news.bbc.co.uk/2/hi/africa/1256210.stm > Accessed 18-03-2016.
46 John Nelson and Lindsay Hossack, indigenous peoples and protected areas in Africa (Forest peoples programme, 2003)
15
why should not able declare their names in Khoi or San dialects, or embraced these names after
some time because of the effect of pilgrim tenet and religious transformation.47
The Chairperson of the Gauteng Khoisan Council John Van Rooyen said, the Khoisan in South
Africa want to be recognised as the indigenous people in the constitution; they also want the land
that was stolen from them to be restored; furthermore, their language and culture to be recognised.
In his words “our languages need to be recognised, there is only one part of the Constitution, that
is in the preamble I think it is section 6, that speaks about languages, and it says there that the
languages of the San, Khoi, and Nama need to be promoted as well, 21 years down the line not
much has happened.”48
Furthermore, Khoisan hardly find themselves in a better position to get education in any form
because none of the schools in South Africa use any of the Khoisan languages as a language of
instruction. The language issue in schools has resulted to Khoisan children losing their own
indigenous languages and culture to the modern ways or Bantu system because they hardly get the
opportunity to speak and practice their customs in schools.
2.4.3. Lack of legal recognition and political presentation
Up to date, indigenous peoples are still not constitutionally recognised as such, moreover official
statistics do not reveal their presence and existence in South Africa. The most disappointing factor
is, the current legal institutions continues to classify them as “Coloureds” without shame, just like
the apartheid regime did, making their existence invisible and unrecognised as a population from
within the current constitutional dispensation.
Unlike other civilians of South Africa, Khoisan traditional leadership are always entirely excluded
in the formation of what can safely be regarded essentials of the country; such as the constitution,
national anthem, the flag of the country, statutes or laws, naming of provinces, streets etc. this has
amicably contributed to their total absence of the enjoyment of all these. Their leaders are hardly
recognised in anything.
47
48
See < http://www.sahistory.org.za/topic/khoisan-identity > Accessed 29-03-2016
Ibid.
16
2.4.4. Difficulty of maintaining their way of living.
They find it difficult to maintain their way of living in the current state of living or society. One
may ask how they how do the Khoisan maintain their way of living today? The answer is they
don't. We are seeing the end of their culture / their way of life and their hunter-gatherer lifestyle,
being replaced by herding and agriculture.
They are being prosecuted for hunting hence experiencing all the drastic changes in their lives.
Borders, fences, passports, nationalities and notion of private property do not exist in San culture.
Yet the new system has imposed laws and norms of modern civilisation on them which clearly go
against their norms in the process taking their freedom of movement away, this has caused division
amongst them and their families because their clans and villages overlap to Botswana.49
Advocating for this fact, in Botswana, there is a law that the hunter-gatherers cannot hunt any
longer. There are land disputes regarding their custom of hunting and in many cases, they end up
being pushed off the land they used to hunt or consider sacred. They are considered scoundrels in
the public eye and have almost no political representation. From numerous points of view, this
recreates what happened to the indigenous individuals of North America, who by the way were
likewise hunter-gatherers.
San lifestyle is by and large quickly dissolved, pushed back for the sake of advancement and
civilisation. Privately owned businesses and governments needing to industrially misuse the space
for cows farming and mining, infringe their genealogical chasing lands they unreservedly crossed.
Pushed more into the parched meadows of the Kalahari into reservations they impart to the more
overwhelming tribes of Herero and the Tswana, blocked from chasing and cut off from their
wellsprings of sustenance, they end up in frantic circumstances.50
49
Jay Naidoo, ‘A journey with the San’ Daily Maverick (South Africa, 29 Jun 2015)
< http://www.dailymaverick.co.za/opinionista/2015-06-29-a-journey-with-the-san/#.VvlMZofouUk > Accessed 28-03-2016
50 Jay Naidoo, ‘A journey with the San’ Daily Maverick (South Africa, 29 Jun 2015)
< http://www.dailymaverick.co.za/opinionista/2015-06-29-a-journey-with-the-san/#.VvlMZofouUk > Accessed 28-03-2016
17
2.4.5. Assimilation and intermarriages.
It is believed that approximately one million South Africans have Khoisan origins. But many have
assimilated whilst only a few speak any of the indigenous languages or maintain a traditional
lifestyle.51
Intermarriages between the Bantu-speaking people and the Khoisan also played a major role in the
marginalisation of Khoisan people. Mwakikagile argues that, many Khoisan speaking people were
absorbed by the dominant Bantu groups through the years and became an integral part of those
groups; their physical features are clearly evident among the Xhosas, one of the best examples can
be nelson Mandela who has undoubtedly proved to carry facial physical features of the Khoisan
found in the Eastern Cape.52 Xhosa is a dominating group which has absorbed the Khoisan in great
numbers. Hence, the legacy of the rich culture of Khoisan is visible in them. They have the same
facial, physical features; their language contains a lot of click-click sounds adapted from the
Khoisan language; and their lifestyle has proven to behave changed to the lifestyle of the Khoisan
people i.e. farmers, cattle powers, rich in culture, marriages arranged by their families, and ancestor
worship.
2.4.6 The loss of Land
The UN Special Rapporteur best describes the current problem of Khoisan community
development and land in his 2005 report: The root cause hindering economic development and
intergenerational cultural survival has been the forced dispossession of traditional land that once
formed the basis of hunter-gatherer and pastoralist economies and identities. This historic
dispossession of land and natural resources has caused indigenous people to plunge from a
situation of self-reliance into poverty and a dependency on external resources. The most pressing
concern of all the Khoi-San communities is securing their land base, and where possible, reestablishing access to natural resources necessary for pastoralism, hunting-gathering or new
land-based ventures such as farming.53
51
BBC News, ‘Bushmen marginalized in South Africa’ BBC News (Africa, 2 April 2001)
< http://news.bbc.co.uk/2/hi/africa/1256210.stm > Accessed 18-03-2016.
52 Godfrey Mwakikagile, south Africa and its people (first edition, new Africa press 2008)
53 UN: Report of the Special Rapporteur on the situation of the human rights and fundamental freedoms of indigenous people,
2005, p. 10.
< http://www.kas.de/wf/doc/kas_35255-1522-2-30.pdf?130828123610 > Accessed 29-03-2016
18
2.5
Conclusion
This chapter’s aim was to outline how the Khoisan came to the point of facing extinction in South
Africa, in thus it has been observed that the Khoisan underwent 3 stages which resulted to them
nearing extinction. Before analysing the three stages, it is important to note that this chapter
discussed the identity and historical development of the Khoisan broadly, putting emphases on the
fact that Khoisan were the most distinct and indigenous people on the land of South Africa,
however difficulties arose hence they could not maintain their identity and status as such. This
chapter described three stages which were seen to have played a big role in the evolution of the
lives and status of the Khoisan. First, the era before the arrival of the Khoisan: this era is basically
the start of the history of south Africa, as noted before, Khoisan were the sole owners of the land
hence occupied it for thousands of years before the arrival of the Bantu and Dutch people. It is
during this era where the Khoisan had all the freedom they needed to move from one land to
another, seasonally without any restrictions or borders. It can safely be concluded that this was the
only era they were able to maintain their identity and status. Secondly, the Bantu era: the migration
of the Bantu-speaking people from central Africa to South Africa in large populations resulted to
the domination and displacement of the original inhabitants of the region i.e. Khoisan. The Bantuspeaking people challenged the lifestyle of the Khoisan in thus they introduced their own sets of
ideology, beliefs, and ways of survival. They further took over most of the South African lands as
they made up overpowering majority of the present day population in South Africa. This era
marked drastic changes in the lives of Khoisan as they lost ownership of their lands, this was all
lost to the Bantu-speaking people as they were and continue to be the dominating majority in South
Africa. Lastly, the Dutch era: this era marked the disappearance of the recognition and identity of
the Khoisan. Again, like during the Bantu era, Khoisan further lost their lands and livestock to the
Dutch immigrants, resulting to them getting poorer and poorer. During this era, drastic changes
transpired in South Africa because it was within this era that the Dutch colonised the country. This
made a negative impact also to the Bantu-speaking populations as they were also enslaved by the
Dutch. However to the Khoisan, this era marked the disappearance of their recognition as
indigenous peoples in South Africa. They were forced to get registered as coloureds and not as
Khoisan; practically, they faced dissimilation during this era. In conclusion, the question of how
the Khoisan came to the point of facing extinction in South Africa can be answered in these three
stages (above mentioned) with specific inference to the Bantu era and the Dutch era. These two
19
stages presented challenges which specifically challenged the recognition, identity, and
preservation of the indigenous peoples in South Africa. Furthermore, this chapter elaborated on
the challenges currently facing the Khoisan which have been observed to also play a big role in
paving a way to their extinction. With thus mentioned, an interest leads to the question: To what
extent can South African legal instruments and African regional organisations counter the nearing
extinction of the Khoisan people in South Africa? Thus shall be unpacked and further discussed in
the next chapter.
20
Chapter 3.
South African legal instruments and other national developments regarding the protection
of indigenous peoples
3.1 Introduction
As observed and confessed in the previous chapter, it is clear that the extinction of the Khoisan
people resulted from a series of difficulties which transpired in the three stages /era discussed in
chapter two. These challenges further led to the continuous practice of the abuse of the Khoisan
people’s rights. Amongst all the violations and abuse of the Khoisan people’s rights, this paper
specifically concentrates on the two measure aspects represented by Bantu era and the Dutch era
which are according to this paper the leading aspects to the extinction of the Khoisan, namely: the
recognition of the Khoisan as indigenous peoples in South Africa and the loss of land. This chapter
seeks to answer the question: To what extent can South African legal instruments help to counter
the extinction of the Khoisan? In an attempt to answer this question, this chapter outlines relevant
South African instruments put in place to help combat these two major aspects.
3.2. Recognition and Identity.
3.2.1 The importance of the right to recognition.
It was declared in the National seminar on ILO convention 169 that “True democracy demands
self-identity and equal rights ensured to everyone. This is inclusive democracy.”54 Therefore the
acceptance of identity as an indigenous individual group is an essential component of indigenous
peoples’ sense of identity. “Their continued existence as peoples is closely connected to their
possibility to influence their own fate and to live in accordance with their own cultural patterns,
social institutions and legal systems.”55
54
National seminar on ILO convention 169 and human rights of indigenous peoples in Bangladesh, Dhaka, Bangladesh, 8 June
2011.
55
Ibid.
21
3.2.2 Definition of Indigenous Peoples in South Africa
Steven L. Robins, an associate professor in the Department of Sociology and Social Anthropology
at the University of Stellenbosch, conducted a research on the meaning of the indigenous in South
Africa. In his findings, he concluded that the meaning of indigenous peoples in has come to have
a different meaning as compared to the international meaning, therefore giving it a new context
altogether. This term appears twice in the South African constitution, i.e. section 6 and 26, both in
these sections the term appears to have a different meaning than that used by the international
donors, the UN, and several international indigenous peoples forums. In South Africa it is
interpreted as “languages and legal customs of the African majority of Bantu-language speakers”56
this general meaning of the indigenous people’s term is also used in other parts of Africa which is
to distinguish between the black African majority and the European settlers and Asian minorities.
In essence the term does not basically refer to the Khoisan as the international community would
do, however it does partially accommodates them as part of the black majority. In actual sense, it
means the definition does not necessarily do justice to the Khoisan as the first peoples in South
Africa.57
3.2.2
Provisions and other developments concerning the preservation of Cultural Identity and
language?
Constitution of South Africa, 1996 makes reference to the preservation of the Khoisan languages
in section 6: A Pan South African Language Board established by national legislation must (a)
promote, and create conditions for, the development and use of (i) all official languages; (ii) the
Khoi, Nama and San languages;…
Out of South Africa’s eleven official languages i.e. English, Afrikaans, Ndebele, Northern Sotho,
Sotho, Swazi, Tsonga, Tswana, Venda, Xhosa and Zulu; not one of this languages are Khoisan
languages. However, the coat of arms does feature a phrase in Xam which is one of the frozen
Khoisan languages, the motto ‘ǃke e: ǀxarra ǁke’ translates to "diverse people unite".58
Up to date, none of the Khoisan languages are officially recognised in South Africa; however, they
are mentioned in the constitution therefore constitutionally recognised. Moreover, none of the
56
Steven L. Robins, From Revolution to Rights in South Africa (1st edition, university of Stellenbosch 2008) 68
Steven L. Robins, From Revolution to Rights in South Africa (1st edition, university of Stellenbosch 2008) 69
58 See <http://www.sahistory.org.za/topic/khoisan-identity#sthash.La2wQ1hh.dpuf> Accessed 29-04-2016
57
22
languages have previously been taught in any South African schools; but recently, developments
have been made in which several schools are beginning to revive the use of Khoisan language,
they also introduced new books in these vernaculars. In addition, radio stations are being executed,
for example in Schmidsdrift there is a Khoisan radio station called XK-FM which has an estimated
amount of 5000 listeners situated in Northern Cape. On this radio station, programmes are
broadcast in the !Xhu and Khwe languages, broadcasting news, story-telling, drama, current affairs,
education, and music. Likewise, Pan South African Language Board also currently instituted
development in the use of Khoi, Nama and San languages. Yet, there exists no binding legal
obligation on the state to provide facilities in these languages; this potentially undermines the
government’s aim which is to advance the use and status of the Khoisan.59
3.2.3. Developments legal recognition and political presentation.
The case of ‘cultural genocide and discrimination against the Khoisan nation’ which was brought
to the Equality Court in 2010. This case was about the recognition of the Khoisan people; the
leaders took to this court the case with a precise opposition to the utilisation of the expression
‘Coloured’ in with reference to the Khoisan peoples, proclaiming the utilisation of the
classification to keep the Khoisan population in suppression of their own identity. Their request
was for the government to recognise their leadership inclusive of Namaqua, Griqua and Hassequa.
Moreover, their demands were submitted to the Pretoria government in 2015 claiming both for
recognition as South Africa’s first and original inhabitants and for land rights historically denied
to them.60
Customary Law together with traditional leaders are catered for in Chapter 12 of the South Africa
Constitution, it further recognises the authority of traditional leaders and the role of customary law
in communities. It gives way and permits traditional authorities to play a designated role in the
South African legal systems framework, further urging courts to apply customary law whenever
applicable or necessary, however it must be subject to the Constitution and within the scope of
South African customary law.61
59
See <http://www.sahistory.org.za/topic/khoisan-identity#sthash.La2wQ1hh.dpuf> Accessed 29-04-2016
See <http://www.sahistory.org.za/topic/khoisan-identity#sthash.La2wQ1hh.dpuf> Accessed 29-04-2016
61 UN: Report of the Special Rapporteur on the situation of the human rights and fundamental freedoms of indigenous people,
2005, p. 10.
< http://www.kas.de/wf/doc/kas_35255-1522-2-30.pdf?130828123610 > Accessed 29-03-2016
60
23
Chapter 12 of South African Constitution of 1996,
Recognition
(1) The institution, status and role of traditional leadership, according to customary law, are
recognised, subject to the Constitution; (2) A traditional authority that observes a system of
customary law may function subject to any applicable legislation and customs, which includes
amendments to, or repeal of, that legislation or those customs; (3) The courts must apply
customary law when that law is applicable, subject to the Constitution and any legislation that
specifically deals with customary law.
Role of traditional leaders:
(1) National legislation may provide for a role for traditional leadership as an institution at local
level on matters affecting local communities; (2) To deal with matters relating to traditional
leadership, the role of traditional leaders, customary law and the customs of communities
observing a system of customary law.
In 1999 Nelson Mandela who was a president at that time, created a negotiating forum called the
National Khoi-San Council (NKC). Which was set up address the established settlement of the
Khoisan's historic authority inside the traditional leadership constitutional framework.
62
Furthermore, the Pan South African Language Board (PanSALB) was also established for the
protection and promotion of the language rights of the different Khoisan-language speakers. This
is catered for in article 6 of the Constitution for 1999.63
The Pan South African Language Board (PanSALB) is mindful under article 6 of the Constitution
for the security and advancement of the dialect privileges of the diverse Khoisan-dialect speakers.
In 1999 it set up the Khoisan National Language Board (KSNLB), the principal lawfully
constituted assemblage of indigenous people groups to speak to themselves on this is-sue, which
62
UN: Report of the Special Rapporteur on the situation of the human rights and fundamental freedoms of indigenous people,
2005, p. 10.
< http://www.kas.de/wf/doc/kas_35255-1522-2-30.pdf?130828123610 > Accessed 29-03-2016
63 UN: Report of the Special Rapporteur on the situation of the human rights and fundamental freedoms of indigenous people,
2005, p. 10.
< http://www.kas.de/wf/doc/kas_35255-1522-2-30.pdf?130828123610 > Accessed 29-03-2016
24
has raised the issue of imperilled dialects and the nonappearance of indigenous dialects and
information frameworks in the state funded educational system and in administration.
3.3 Land Rights
3.3.1 The importance of Land rights.
According to General Comments 23 of the United Nations Human Rights Committee, “… To
enjoy a particular culture may consist in a way of life which is closely associated with territory
and use of its resources. This may be particularly true of members of indigenous communities …”64
this comment specifically links the right to culture and the right to lands, therefore highlighting
the challenge of enjoying the right to culture in the absence of the right to land. Khoisan people
specifically find it difficult to practice their right to culture and to fully appreciate their identity in
the absence of territory. Their ancestral lands were taken away, leaving them with only one percent
of the South African land. Furthermore Kymlicka adds, “The survival of indigenous cultures
throughout the world is heavily dependent on protection of their lands.”65 Moreover, the working
group on indigenous populations forwarded that the existing relationship between indigenous
peoples and land possess “various social, cultural, spiritual, economic, and political dimensions
and responsibilities”66 like all other indigenous peoples across the world, Khoisan people had a
distinct relationship with their lands before it was taken away from them; It was their ancestral
land which was central to their collective identity and well-being as indigenous peoples.
3.3.2 Provisions and other developments concerning indigenous land rights.
The South African Land Restitution Act of 1994 basically deals with land restitution in South
Africa, however does not provide any provision for land which people lost before the assigned cutoff date which is 1913; as a result of the assertion of the ‘Native Land Act’, the implementation of
land restitution in the post-apartheid years has held little or no benefit at all for the Khoisan
communities. The 1913 Native Land Act did not make mention of the Khoisan people, due to the
fact that Khoisan people’s lands got dispossessed of most of their land during the period of the
64
Article 27 of the United Nations Human Rights Committee General Comment number 23, Fiftieth session, 1994a.
Kymlicka W, Multicultural Citizenship, (Oxford Clarendon Press, 1995) 43.
66 Erica-Irene A, final report on the relationship between indigenous peoples and their lands, U.N. Working Group on Indigenous
Populations.
65
25
earlier colonial era i.e. in the early 19th century. 67 As a result of this defect, the government
introduced the Restitution of land rights Act 22 of 1994; and the Draft Restitution of Land Rights
Amendment Bill, 2013 which also accommodated the Khoisan. Up to this date, Khoisan are still
successfully claiming their dispossessed lands. Moreover, section 25(7) of the South African
Constitution make available a right for the restitution of rights in land to individuals and or
communities whose lands and property got dispossessed after the 19th of June in 1913 as a result
of the Natives Land Act mentioned earlier.68
Amendment to the Restitution of Land Rights Act 2014. This Amendment extends the opportunity
to make land claims for another five years. The right to restitution was officially reopened on 1
July 2014. Claimants who were dispossessed of land after 1913 will have the opportunity to claim
it back until June 2019. An explanatory note to the Amendment Act indicates that the government
will conduct research into the historical land claims of the Khoi and San communities since their
land dispossession occurred well before 1913. The Khomani San successfully claimed back 65,000
hectares of land through the post-apartheid South African restitution process in 1999. This land
was part of their ancestral lands lost during the apartheid era in 1931 with the formation of the
Kalahari Gemsbok Park.
3.3 Conclusion.
As aforementioned, the fundamental need of the Khoisan is to be afforded the right to be legally
recognised as the indigenous peoples of South Africa and the right to claim back their stolen lands.
Indigenous peoples want to be recognised for who they really are i.e. as distinct people with their
unique cultures. They want to be able to pass on their histories, traditions, languages and
indigenous knowledge to their upcoming generations so as to conserve their identity; passing on
their ancestral lands from one generation to another.
This chapter looked at South African legal instruments and other relevant national developments
regarding the protection of indigenous peoples, with specific reference to recognition and land
67
See <http://www.sahistory.org.za/topic/khoisan-identity#sthash.La2wQ1hh.dpuf> Accessed 29-04-2016.
UN: Report of the Special Rapporteur on the situation of the human rights and fundamental freedoms of indigenous people,
2005, p. 10.
< http://www.kas.de/wf/doc/kas_35255-1522-2-30.pdf?130828123610 > Accessed 29-03-2016
68
26
rights. Firstly on the basis of recognition, it has been observed that none of the South African legal
instruments recognise Khoisan people as the indigenous peoples of South Africa.
As noted in the beginning of this chapter, the scope of the definition of indigenous people in South
Africa does not include the Khoisan. Therefore marking the lack of interest South Africa has on
the recognition of the Khoisan. Moreover, the existing national instruments do not cater for and
protect Khoisan people on the subject of their identity or recognition; up to date, they are still
getting registered as coloureds and not as Khoisan hence they have completely lost their identity.
Although in practice they are fully known as the Khoisan people, they are never referred to as the
indigenous peoples of South Africa. Therefore the many complexities attached to the issue of
recognition allow me to draw the conclusion that there are no South African legal instruments nor
any other national developments enforced to legally recognise the Khoisan as the indigenous
peoples of South Africa; furthermore, their identity is further denied.
Secondly, on the subject of land rights, it has been observed that the current South African legal
system has implemented relevant national instruments which have proved to be successful in most
cases, guided by the fact that most of the Khoisan lands which were forcefully taken away during
the Dutch era have been successfully claimed back. However, there are lands which are still in
possession of the Afrikaner farmers and have not yet been claimed. Such cases and disputes are
still under investigation in the South African Human Rights Commission.
These deductions further suggest the possibility of the implementation of international instruments
so as to protect and avoid the nearing extinction of the Khoisan in South Africa; the subsequent
chapter explores all possible relevant international instruments on the issue of land rights and
recognition of indigenous peoples.
27
Chapter 4.
Standard setting regarding indigenous peoples in Regional and International instruments.
4.1 Introduction.
This chapter attempts to answer the question: to what extent can International instruments
regarding indigenous peoples and regional organisations contribute to countering the extinction of
the Khoisan? In thus, it outlines relevant international and regional instruments which can be
implemented so as to protect the Khoisan people’s right to recognition and to land, by outlining
the standard set by international law instruments.
4.2 The indigenous and tribal peoples convention number 169
This convention, also known as the ILO convention 169 is the main binding international
instrument on the rights of indigenous peoples. It is the only convention which asserts rights with
specific focus to the indigenous peoples, however it is only binding to ratified states. Unfortunately,
South Africa has not ratified this convention. Therefore it cannot be held liable for not conforming
and implementing the rules and regulations asserted on this convention, thereby marking the
irrelevance of this convention in South Africa.
4.3. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
This declaration was adopted by the general assembly; although it is not legally binding, its main
focus is to set a “standard for the treatment of indigenous peoples that will undoubtedly be a
significant tool towards eliminating human rights violations against the planet's 370 million
indigenous people and assisting them in combating discrimination and marginalisation.” 69 It
moreover reflects the pledge of members of states to move in a certain direction, i.e. elimination
of the abuse of indigenous people’s rights.
69
Preamble of the United Nations Declaration on the Rights of Indigenous Peoples, 2007.
28
4.3.1 The UNDRIP and Recognition
According to Article 9 of the UNDRIP, “Indigenous peoples and individuals have the right to
belong to an indigenous community or nation, in accordance with the traditions and customs of
the community or nation concerned.” This article asserts the right of the Khoisan to belong to the
Khoisan group and not to the coloured’s and furthermore be recognised as such; the denial of the
state to recognise the Khoisan as Khoisan, robs them the prospect of rightfully belonging to an
indigenous group. Moreover Article 13 of the same declaration further ascertains the right “to
revitalize, use, develop and transmit to future generations their histories, languages, oral
traditions, philosophies, writing systems and literatures, and to designate and retain their own
names for communities, places and persons.” The Khoisan are denied that opportunity to revitalise
and officially use their languages and traditions in South Africa; as in chapter 2, that South Africa
has 11 official languages, amongst all those languages, none of the Khoisan’s were officiated as
South African languages; likewise their cultures and customs are never celebrated as much as the
Bantu-speaking peoples cultures. Furthermore, Article 14 of the UNDRIP clearly states,
“Indigenous peoples have the right to establish and control their educational systems and
institutions providing education in their own languages, in a manner appropriate to their cultural
methods of teaching and learning.” However, Khoisan people are mostly illiterate or forced to
learn in other languages as their own languages are not recognised in schools. Lastly, Article 31
of the UNDRIP officiates the right to “maintain, control, protect and develop their cultural
heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations
of their sciences, technologies and cultures, including human and genetic resources, seeds,
medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs,
sports and traditional games and visual and performing arts. They also have the right to maintain,
control, protect and develop their intellectual property over such cultural heritage, traditional
knowledge, and traditional cultural expressions.”
4.3.2 UNDRIP and Land rights.
The UNDRIP also asserts land rights of indigenous peoples. Article 28 states, “Indigenous peoples
have the right to redress, by means that can include restitution or, when this is not possible, just,
fair and equitable compensation, for the lands, territories and resources which they have
29
traditionally owned or otherwise occupied or used, and which have been confiscated, taken,
occupied, used or damaged without their free, prior and informed consent.” This right allows the
Khoisan to claim the lands which were forcefully taken away from them during the Dutch era
elaborated in chapter 2. It further entitles them to compensation for the lands which due to
exceptional circumstances cannot be given back to them. Moreover, Article 29 further denotes,
“Indigenous peoples have the right to the conservation and protection of the environment and the
productive capacity of their lands or territories and resources. States shall establish and
implement assistance programmes for indigenous peoples for such conservation and protection,
without discrimination.” The states bears the liability to assist the Khoisan to get their lands back
through implementing laws for such and further effecting programmes which will allow the
Khoisan to conserve and protect their lands without any form of discrimination.
4.3.3 Relevance of UNDRIP for the Khoisan.
The implementation and enforcement of UNDRIP provisions in South African law is relevant and
ought to be effected accordingly. However it has to be noted that the UNDRIP is just a declaration
and not a legally binding instrument of international law; it contains a set of aspirations and
expectations from the international community which can be used as guidelines and referred to
from time to time, however they cannot be referred to as binding obligations. This drives to the
notion that upon failure to effect such changes, the South African state cannot therefore be legally
held liable for the omission of the implementation of the UNDRIP.
4.4 Regional instruments: The African Union
4.4.1 Land Rights and Recognition.
According to Barume, “land and recognition are very closely interlinked, and other rights more
or less derive from these two main pillars because, if you have to design measures for indigenous
access to health, to education, to employment, you can only make an appropriate design of any
measures within the context of their land rights and the framework of their recognition.” 70
Therefore marking the importance of the right to recognition and the right to land. He clearly states
70
Barume AK, Member of the African Commission on Human and Peoples Rights Working Group on Indigenous Populations or
Communities.
30
that these two rights are the main pillars of indigenous people’s rights hence in their absence, it is
almost impossible to protect and satisfy indigenous peoples. Victoria adds, “There is a need for a
human development model that provides indigenous peoples with the possibility to continue to live
on their lands.”71
Article 21 of the African Charter on Human and Peoples' Rights is the main regional instrument
which sets out land rights herein outlined:
“All peoples shall freely dispose of their wealth and natural resources. This right shall be
exercised in the exclusive interest of the people. In no case shall a people be deprived of it. 2. In
case of spoliation the dispossessed people shall have the right to the lawful recovery of its property
as well as to an adequate compensation… 5. States parties to the present Charter shall undertake
to eliminate all forms of foreign economic exploitation particularly that practiced by international
monopolies so as to enable their peoples to fully benefit from the advantages derived from their
national resources.”72
In the case between the Kenyan government and the Ogiek People about the latter's claim over
land, held on the 27th and 28th of November 2014, the African Court on Human and Peoples
Rights reserved judgment after listening to both parties. The hearing was held in Addis Ababa,
Ethiopia. The claim was about the Kenyan government consistent violation and subsequent denial
of the Ogiek peoples land rights. A judgment on the merits or demerits of the case was expected
in 2015. The African Court on Human and Peoples Rights held that government kenya does not
have the right to evict the indigenous peoples from their lands, it further stated, “there exists a
situation of extreme gravity and urgency, as well as a risk of irreparable harm to the Ogiek
Community with regard to violation of their rights guaranteed under the charter…”73
In a separate case, still involving the government of Kenya, the African Commission gave a
recommendation that the government of Kenya should recognize and restitute the Endorois
peoples and give the people unrestricted access to Lake Bogoria and its environs as well as paying
them compensation for the loss they suffered including royalties accrued from the existing
economic activities. The Endorios case has been hailed as the landmark case with regard to the
71
72
African Charter on Human and Peoples' Rights, 1986.
73
Ogiek v.v Khenya, African Court on Human and Peoples’ Rights, 2014.
31
recognition and protection of land rights of the indigenous peoples in Africa and the world as a
whole. The case is indeed a victory for the indigenous peoples in Kenya in particular and the world
in general. The ruling took place on the 4th of November 2010 after the Kenyan government
unilaterally evicted the Endorois people from their ancestral lands in favour of a nature reserve for
tourism and thus violating the Endorois rights to land. This case marked a break-through for the
indigenous peoples it offered a new way forward, affording indigenous people an adequate share
in the development process, thereby right to get involved and receive a share in benefits of
developments in their territories as active stakeholders and not as passive beneficiaries.
4.4.2 Relevance of UNDRIP for the Khoisan
The standards of the African Union together with the African Court of Human Rights judgements
are relevant for implementation and enforcement in South Africa. The state of the union coalition
group was set to monitor and hold government accountable for the ratification and implementation
of the decisions of the African Union. However this can only apply in cases whereby states have
ratified the statutes but do not comply with the standards of the respective conventions. Khoisan
have the jurisdiction to take the South African state to the African Court of Human Rights on
grounds of violation of the right to recognition and violations of land rights of indigenous peoples.,
however it cannot be the court of first instance. They first have to report their claims to the
commission of human rights in South Africa; currently the referred commission is set to investigate
these two issues of which the report is scheduled to be published later this year (September 2016).
4.5. Inter-American Court of Human rights.
4.5.2 The ’evolutionary’ interpretation of the right to property (Article 21 ACHR)
Although Khoisan people do not have the jurisdiction to the inter-American Court of Human rights,
it has provided an evolution on the interpretation of Article 21 of which states “Right to Property:
1. everyone has the right to the use and enjoyment of his property. The law may subordinate such
use and enjoyment to the interest of society. 2. No one shall be deprived of his property except
upon payment of just compensation, for reasons of public utility or social interest, and in the cases
and according to the forms established by law. 3. Usury and any other form of exploitation of man
by man shall be prohibited by law.” This article is similar to Article 21 of the African Charter on
32
Human and Peoples' Rights of the African (Banjul) charter on human and peoples' rights
mentioned in 4.4.1. Therefore the interpretation ought to be the same for both circumstances. The
following are a set of cases which provide the new meaning to this Article. However, the
implementation and enforcement of IACHR judgments cannot be regarded as an obligation to
carry out in South Africa, but they can be used as guidelines and can therefore be referred to from
time to time upon the application of this article.
The first evolution was in the first affirmation of indigenous people’s land rights which was
presented in the case of Tingni v. Nicaragua, whereby a new step in international law of indigenous
peoples was taken. The court held that the right to the enjoyment and benefit of property
contemplated in Article 21 includes the rights of indigenous peoples to the protection of their lands.
This decision marked a new step in international law as it became the first legally binding decision
provided by a regional tribunal to uphold indigenous peoples land rights.74
The second evolution appeared in the case of Sawhoyamaxa indigenous community v. Paraguay,75
which is similar to the case of Yakye Axa, 76 in both these judgements, a new framework for
addressing historical land claims was created. On which it was held that the right to property does
not only include the land which is in possession of the indigenous peoples or they have lost, but
also lands which they have been deprived of a long time ago without their concern. However such
should be proven by a continuation of material or spiritual connection to the land.
Again, in these two cases, the court has put emphasis and affirmation on the state duty to delimit,
demarcate and title indigenous peoples lands a fundamental element of their protection, “while
taking into account relevant indigenous customary laws in relation to the procedures of
identification of their traditional lands”77
The fourth evolution transpired in the case of Saramaka People v. Suriname, 78 on which
indigenous people were provided with full property rights on the surface and sub-soil resources
within their territories. However they are limited to the amount necessary for the community’s
survival. This right entitles indigenous peoples to free and informed consent to any industrial
74
Tingni v. Nicaragua, Inter-American court of human rights, 2001.
Sawhoyamaxa indigenous community v. Paraguay, Inter-American court of human rights, 2006
76 Yakye Axa v. indigenous community v. Paraguay, Inter-American court of human rights, 2005.
77 Sawhoyamaxa indigenous community v. Paraguay, Inter-American court of human rights, 2006.
78 Saramaka People v. Suriname, Inter-American Court of Human Rights, 2007.
75
33
development activities on their lands. It was the first time that natural resources were declared to
belong to the owners of the territories i.e. indigenous people, “they have a right to use and enjoy
their territory in accordance with their traditions and customs is the issue of the right to the use
and enjoyment of the natural resources that lie on and within the land, including subsoil natural
resources”79
Lastly, in the case of Sarayaku v. Ecuador,80 the right to obtain free prior and informed consultation
was sought. The court highlighted the right to consultation as closely related to indigenous rights
to communal property and cultural identity.
4.6 Conclusion
The aim of this chapter was to answer the question: to what extent can International instruments
regarding indigenous peoples and regional organisations contribute to countering the extinction of
the Khoisan people? It has explored both regional and international instruments thereby finding
that, these international standards are very relevant to the Khoisan situation in South Africa;
however they cannot be directly applicable. South Africa is has a dualist system, therefore solely
looking at international standards cannot be an answer to the Khoisan. The next chapter elaborates
more on what can be the solution for the Khoisan to protect their own kind.
79
80
ibid
Sarayaku v. Ecuador, Inter-American Court of Human Rights, 2012.
34
Chapter 5.
Conclusion and Recommendations
5.1 Conclusion
This paper was focused on the nearing extinction of the Khoisan people in South Africa. With the
central research question: How did the first people to arrive and occupy vast tracks of land in South
Africa end up facing extinction and occupying only 1% of the vast tracks of lands, and lack
recognition in their own country? And, to what extent can National, Regional, and International
legal instruments counter the nearing extinction of the Khoisan people in South Africa?
During the research and analyses, this study found that Khoisan people underwent 3 stages of
which each presented a set of specific challenges which can be regarding as the dominating factors
to the nearing of the extinction. The first stage, the era before the arrival of the Khoisan: this stage
presented the perfect settlement of the Khoisan people which is basically the start of the history of
South Africa, whereby the Khoisan were the sole owners of the land and had all the freedom they
needed to move from one land to another seasonally without any restrictions or borders. This era
presented no major challenges or threats to the Khoisan; they were able to maintain their identity
and status. The second stage, the Bantu era: the migration of the Bantu-speaking people from
central Africa to South Africa in large populations resulted to the domination and displacement of
the Khoisan. The Bantu-speaking people challenged the lifestyle of the Khoisan in thus they
introduced their own sets of ideology, beliefs, and ways of survival. They further took over most
of the South African lands as they made up overpowering majority of the present day population
in South Africa. This era marked drastic changes in the lives of Khoisan as they lost ownership of
their lands. And finally, the Dutch era: this era marked the disappearance of the recognition and
identity of the Khoisan as they were forced to get registered as coloureds and not as Khoisan and
were forced to speak Afrikaans and not their customary languages; practically, they faced forced
dissimilation during this era. Again, like during the Bantu era, Khoisan further lost their lands and
livestock to the Dutch immigrants who forcefully took the lands from them, this resulted to the
Khoisan getting poorer and poorer. During this era, drastic changes transpired in South Africa.
Therefore, to answer the question of how the Khoisan got to the stage of extinction, firstly the
35
Bantu era took away their land rights and made them a minority as a result of the domination of
the vast populations of the Bantu-speaking people; secondly during the Dutch era, they lost their
right to recognition and identity as indigenous peoples in south Africa. Moreover vast tracks of
their lands were further forcefully taken away from them. These factors contributed greatly to the
nearing extinction of the Khoisan people in South Africa.
Moreover, in answering the second question, this study found that South African legal instruments
are not enough to tackle both the issues outlined to be the leading factor of the Khoisan people’s
extinction i.e. Recognition and Land Rights. Firstly, on the basis of recognition, it has been
observed that none of the South African legal instruments recognise Khoisan people as the
indigenous peoples of South Africa. Also in practice, they are never appreciated for who they
really are, but rather they are made to conform to the identity and lifestyle of coloureds and not of
the Khoisan. Secondly, on the subject of land rights, it has been observed that the current South
African legal system has implemented relevant national instruments which have proved to be
successful in most cases, as most of the Khoisan lands which were forcefully taken away during
the Dutch era have been successfully claimed back. However, there are lands which are still in
possession of the Afrikaner farmers and have not yet been claimed. Therefore much still needs to
be done. These founding therefore drive to the possibility of the implementation of regional and
international legal instruments. Unfortunately, South Africa has not ratified the ILO convention
169. Therefore it cannot be held liable for not conforming and implementing the rules and
regulations asserted on this convention, thereby marking the irrelevance of this convention in
South Africa. The UNDRIP is very relevant and applicable to the Khoisan as stated in chapter four,
however it has to be noted that the UNDRIP a declaration and not a legally binding instrument of
international law hence the standards conferred in this instrument can merely be treated as
guidelines and not as binding obligations. Lastly, the standards of the African Union together with
the African Court of Human Rights judgements are relevant for the implementation and
enforcement in South Africa.
36
5.2 Recommendations.
1. Implementation of international treaties.
It is clear that the South African legal system is not enough to protect and counter the extinction
of the Khoisan therefore this study proposes that international human rights instruments be
employed so as to protect the rights of indigenous peoples in South Africa. However, the South
African legal system is a dualist system, therefore making the implementation and application of
the international human rights treaties not directly applicable, treaties are not directly incorporated
into domestic law of the country therefore the passage of implementing legislations is a
requirement so as to incorporate international treaty obligations into domestic law. The National
Human Rights Institution (NHRI) i.e. South African Human Rights Commission ought to advocate
for the incorporation of international obligations domestically inclusive of the use of declarations
as a common standard of reference. If necessary, they could get involved in the drafting, reviewing
and amending of such legislations by giving technical advice to the National Assembly. The
following mechanisms could be employed: First, a Constitutional Recognition and protection of
Khoisan people as indigenous people of South Africa; Secondly, Human Rights act affirming
indigenous people’s rights; And Thirdly, National Human Rights Action Plans to preserve Khoisan
people in South Africa.
2. The involvement of NHRIs.
According to article 40 of the United Nations Declaration on the Rights of Indigenous Peoples,
“Indigenous peoples have the right to have access to and prompt decision through just and fair
procedures for the resolution of conflicts and disputes with States or other parties, as well as to
effective remedies for all infringements of their individual and collective rights. Such a decision
shall give due consideration to the customs, traditions, rules and legal systems of the indigenous
peoples concerned and international human rights.”81 Article 42 of the same declaration further
states, “… States, shall promote respect for and full application of the provisions of this
Declaration and follow up the effectiveness of this Declaration” this declaration affirms the right
of the Khoisan to take the South African state to the South African Human Rights Commission
and lodge claims against the violations of their rights in the respective commission, failure of the
81
Article 40 of the United Nations Declaration on the Rights of Indigenous Peoples, 2007.
37
commission to resolve the dispute, they can institute court proceedings in the African Court of
Human Rights against the state. The Paris principles provides sways in which the commission can
assist the Khoisan on these respective claims: “Investigating and resolving allegations of human
rights violations is a pivotal function of NHRIs. The ways in which they undertake their complaint
handling function will differ according to their particular mandate. NHRIs may be empowered to:
Consider individual complaints and make recommendations for redress and remedies to
appropriate authorities; Consider complaints by groups or communities, in recognition of the
collective rights held by indigenous peoples; Refer cases to relevant authorities, including
government agencies, parliament, the judiciary and prosecuting authorities; Seek redress or
remedies on behalf of complainants through courts and tribunals; Advise courts and tribunals as
amicus curiae; Issue legally enforceable orders and binding decisions; Order that violating
authorities pay compensation to victims; For NHRIs outside the Asia Pacific region, appear before
regional bodies such as human rights courts.”82
82
Paris principles, 1991.
38
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