REVIEW OF NATIONAL LAWS AND POLICIES THAT SUPPORT OR UNDERMINE INDIGENOUS PEOPLES AND LOCAL COMMUNITIES SOUTH AFRICA

The report examines the legal landscape for indigenous peoples and local communities in South Africa, highlighting a tension between constitutional human rights and state-led developmental interests. While frameworks like the National Environmental Management: Biodiversity Act (NEMBA) provide for benefit-sharing in bioprospecting, other sectors—particularly mining and large-scale infrastructure—often prioritize national interests over community rights. The document notes that the lack of a permanent communal land tenure regime and the 1913 cut-off date for land restitution significantly hinder the self-determination of groups like the Khoi-San. It concludes that while co-management models in protected areas exist, they often fail to decentralize power effectively.

• The South African government does not generally employ the term 'indigenous peoples' in the sense understood in international human rights law, instead using it in the Constitution to refer to the languages and legal customs of the majority black African population.
• The 1913 cut-off date for land restitution under the Restitution of Land Rights Act 22 of 1994 discriminates against Khoi-San communities whose dispossession largely predated that period.
• The Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) effectively nationalizes mineral resources by making the State the 'custodian', which undercuts customary community claims to minerals on their lands.
• The National Environmental Management: Biodiversity Act (NEMBA) and BABS Regulations provide a framework for bioprospecting that requires prior informed consent and fair benefit-sharing with indigenous communities.
• Large-scale infrastructure projects under the National Infrastructure Plan (NIP) are coordinated by the Presidential Infrastructure Coordinating Commission (PICC), which excludes traditional leaders and civil society from its governance structures.
• The co-management model for protected areas, such as the one used in the Kgalagadi Transfrontier Park, often fails to achieve genuine devolution of power and can be undermined by a state unwillingness to decentralize control.
• The Communal Land Rights Act 11 of 2004 (CLARA) was declared unconstitutional, leaving a regulatory vacuum for communal land rights that are currently only protected by the interim IPILRA.
• The Protection of Traditional Knowledge Bill seeks to create a sui generis system for protecting traditional knowledge as a new category of intellectual property, though it notably omits traditional medicines.

APA

Humby, T.-L., Jegede, A. O., Manuel, L., & Halm, N. (2014). REVIEW OF NATIONAL LAWS AND POLICIES THAT SUPPORT OR UNDERMINE INDIGENOUS PEOPLES AND LOCAL COMMUNITIES SOUTH AFRICA. Natural Justice. https://naturaljustice.org/wp-content/uploads/2015/09/SA-Legal-Review.pdf

Chicago

Humby, Tracy-Lynn, Ademola Oluborode Jegede, Laureen Manuel, and Naana Halm. REVIEW OF NATIONAL LAWS AND POLICIES THAT SUPPORT OR UNDERMINE INDIGENOUS PEOPLES AND LOCAL COMMUNITIES SOUTH AFRICA. Natural Justice, 2014. https://naturaljustice.org/wp-content/uploads/2015/09/SA-Legal-Review.pdf.

Wikipedia

{{cite report |last1=Humby |first1=Tracy-Lynn |last2=Jegede |first2=Ademola Oluborode |last3=Manuel |first3=Laureen |last4=Halm |first4=Naana |title=REVIEW OF NATIONAL LAWS AND POLICIES THAT SUPPORT OR UNDERMINE INDIGENOUS PEOPLES AND LOCAL COMMUNITIES SOUTH AFRICA |publisher=Natural Justice |date=December 2014 |url=https://naturaljustice.org/wp-content/uploads/2015/09/SA-Legal-Review.pdf |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{humby2014review, author = {Humby, Tracy-Lynn and Jegede, Ademola Oluborode and Manuel, Laureen and Halm, Naana}, title = {{REVIEW OF NATIONAL LAWS AND POLICIES THAT SUPPORT OR UNDERMINE INDIGENOUS PEOPLES AND LOCAL COMMUNITIES SOUTH AFRICA}}, institution = {Natural Justice}, year = {2014}, month = dec, url = {https://naturaljustice.org/wp-content/uploads/2015/09/SA-Legal-Review.pdf}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }