The ‘Right to Say No’: Black Land and Labour Rights in Early South Africa
Thuto Thipe (University of Cape Town)
In 2018, activists from mining-affected communities around the country marched outside the North Gauteng High Court holding placards reading, “the right to say no” as the court heard Baleni and Others v. Minister of Mineral Resources. The court ruled in this case that without the free, prior, and informed consent from people who lived on, used, and owned particular land under customary law, traditional leadership structures could not unilaterally enter into agreements with mining companies and evict people from their land. While this landmark judgment made possible the transformation of a landscape in which people have been unilaterally forced off their land, losing with it their livelihoods, community, homes and ancestral land, it stopped short of defining the meaning of consent. This paper will approach meanings of consent in the context of land, labour, and mining in South Africa through an examination of the state’s legislating of black people’s rights to land rights, movement, and labour during the years leading up to South Africa’s formation and the first decades of the new state. The erosion through law and policy of black people’s ability to consent to the state’s seizure of their land, and to industry’s control over their lives and bodies through labour, became embedded in the state’s racial logics. The foundations of coercion and land theft in the early imagining and constitution of the South African state became embedded in how the state understood black people’s “right to say no” to what could happen on their land, and to them as people dependent on that land to live, to the extent that a quarter century after the end of minority rule the courts were forced to affirm this right.