1. 438 IWGIA – THE INDIGENOUS WORLD – 2013
SOUTH AFRICA
South Africa’s total population is around 50 million, with the indigenous
groups arguably comprising just over 1%. The various First Indigenous
Peoples groups in South Africa are collectively known as Khoe-San com-prising
the San people and the Khoekhoe. The San groups include the
‡Khomani San residing mainly in the Kalahari region, and the Khwe and
!Xun residing mainly in Platfontein, Kimberley. The Khoekhoe include the
Nama residing mainly in the Northern Cape Province, the Koranna main-ly
in Kimberley and Free State Province, the Griqua residing in the West-ern
Cape, Eastern Cape, Northern Cape, Free State and Kwa-Zulu-Natal
provinces and the Cape Khoekhoe residing in the Western Cape and
Eastern Cape, with growing pockets in Gauteng and Free State Provinc-es.
In contemporary South Africa, Khoe-San communities exhibit a range
of socio-economic and cultural lifestyles and practices.
The socio-political changes brought about by the current South Afri-can
regime have created the space for a deconstruction of the racially
determined apartheid social categories such as the Coloureds. Many pre-viously
so-called Coloured people are now exercising their right to self-identification
and identify as San and Khoekhoe or Khoe-San. First Na-tions
indigenous San and Khoekhoe peoples are not recognized in the
1996 Constitution but they are being accommodated in the National Tra-ditional
Affairs Bill of 2011.
South Africa voted in favour of adopting the UN Declaration on the
Rights of Indigenous Peoples, but has still not ratified ILO Convention 169.
National Khoi-San Council
The National Khoi-San Council (NKC) is an ad hoc negotiating forum repre-senting
the Khoe khoe and San indigenous peoples in South Africa. The
South African government formed the NKC in 1999 to ensure the liaison between

2. SOUTHERN AFRICA 439
the Khoe and San peoples and the government whilst negotiating their constitu-tional
accommodation and Khoe-San identity.1 To qualify for representation on the
NKC, Status Quo reports2 were compiled which made recommendations to the
government on the historical legitimacy of the claimant tribes. Based on the rec-ommendations
of these reports, the following peoples were qualified for repre-sentation
on the NKC: the San, Griqua, Koranna, Cape Khoi and Nama.
In July 2012, the Indigenous Peoples of Africa Coordinating Committee (IP-ACC)
hosted a workshop on the effectiveness of the NKC over the last 17 years.
During the workshop, the NKC chairperson, Mr. Cecil Le Fleur, extended an invi-tation
to external partners to assist the NKC in addressing their key human rights
matters. Since its inception, the NKC has been implementing its activities largely
without any form of independent support or technical assistance. The main out-comes
of the workshop were the following:

3. 440 IWGIA – THE INDIGENOUS WORLD – 2013
External partners offered support: NKC entered into a Memorandum of Un-derstanding
with a team of environmental lawyers called Natural Justice based in
Cape Town. They have since started to offer their legal support services to the
NKC. This process will include developing a Community Protocol 3 setting out the
vision and aspirations of the Khoe khoe and San in South Africa. The Community
Protocol will address thematic areas such as land, heritage, intellectual property
rights, education, identity, culture and education. The Community Protocol has
been developed in a participatory manner that articulates the specific aspirations
of the Khoe khoe and San. This will be used to assist national and international
advocacy. The NKC also identified an endogenous advisory team to act as advi-sors
to them. Key international academic institutions also offered their assistance
in this regard.
During November 2012, the San Council (the body representing the San
communities located in the Northern Cape) entered into a Memorandum of Un-derstanding
with the NKC on the issue of intellectual property rights, with specific
reference to the plant ‘rooibos’ and ‘ buchu’. The NKC and the San Council agreed
to form a negotiating team comprising representatives of the Khoe khoe and San
in relation to all intellectual property rights matters. Their legal representatives,
Roger Chennels and Natural Justice, will work collectively on these matters. The
San Council and NKC also initiated Access and Benefit Sharing (ABS) processes
as set out in the Nagoya Protocol4 on indigenous plants such as rooibos and bu-chu.
The expectation is that these ABS processes will take off during 2013 with
due consultation of all affected Khoe khoe and San farming communities.
The government, in cooperation with the NKC, ran country-wide consultations
with groupings outside the NKC structure. This was after a long call from these
groupings, who did not feel represented on the government-recognized structure.
Elections took place within the different groupings and the NKC expanded its mem-bership
from 21 to 30 representatives within the structure. This was the first time in
approximately 15 years that the membership of the NKC had been opened up to
new members.
The South African President, Jacob Zuma, announced at an official ceremony
in Beaufort West that the South African government was in the ‘process of finalizing
its position with respect to the signing and ratification of the ILO 169 Convention on
Traditional and Indigenous peoples.’ 5 The South African government had planned
to hold a national dialogue with international partners such as ILO around this mat-ter
in Bloemfontein in November 2012.The meeting was, however, postponed.

4. SOUTHERN AFRICA 441
Legislation
National Traditional Affairs Bill (NTAB)
The forthcoming NTAB on South African traditional communities, which includes
the Khoe khoe and San, is an amalgamation of Traditional Leadership Govern-ance
Framework No. 41 of 2003 and the National House of Traditional Leader-ship
Act 2009.6 The NTBA will recognize the Khoe khoe and San as traditional
communities on a par with other already recognized dominant South African tra-ditional
groupings. This Bill unfortunately does not address issues of restoration
and reparations for the Khoe khoe and San indigenous communities. The expec-tation
was that the Bill would pass before Parliament during 2012. At this stage,
however, there is no certainty when this Bill will be enacted.
Small-Scale Fisheries Policy
During June 2012, the South African Parliament passed a Small-Scale Fisheries
Policy. The aim of this policy is to recognize the rights of small-scale fishing com-munities
in South Africa, as well as redress previously marginalized and discrimi-nated
groups that were harmed by racially exclusionary laws and policies, the
individualized permit system of resource allocation and the insensitive imposition
of conservation-regulation. The policy recognizes that marine living resources
were historically harvested for economic, cultural and spiritual purposes. It recog-nizes
an ecosystem approach to marine living resources and traditional fishing
communities’ rights to these resources. The policy refers to indigenous people but
does not specify who this refers to. The policy refers to people that are ‘black’ and
‘coloured’ as the historically disadvantaged groupings affected by the colonial/
apartheid laws around fisheries in South Africa.
Hout Bay – Hangberg residents
The land dispute continues in Hout Bay between the Khoe-San community, which
is mainly an inter-generational fishing community, and the City of Cape Town. The
Khoe-San community also has a special attachment to Sentinel Mountain. The
Provincial government, along with the City of Cape Town, has issued several
residents with eviction orders for housing structures erected in fire break areas on

5. 442 IWGIA – THE INDIGENOUS WORLD – 2013
Sentinel Mountain. In December 2012, the Hout Bay residents wrote an official
letter to the City of Cape Town/local municipality requesting a dialogue process in
order to prevent a recurrence of the 2010 violence that broke out.7 There has
been no response as yet from the City of Cape Town to this request for a meeting
on the part of the affected residents. The socio-economic situation of this mainly
traditional fishing community remains unaddressed. 
Notes and references
1 http://www.iwgia.org/human-rights/un-mechanisms-and-processes/un-special-rapporteur/coun-try-
visits/visit-to-south-africa-2005
2 Ibid.
3 http://www.community-protocols.org/
4 The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of
Benefits Arising from their Utilization (ABS) to the Convention on Biological Diversity is a sup-plementary
agreement to the Convention on Biological Diversity that was adopted in October
2010. It provides a transparent legal framework for the effective implementation of one of the
three objectives of the CBD: the fair and equitable sharing of benefits arising out of the utilization
of genetic resources.
5 The Presidency, South Africa ( http://www.thepresidency.gov.za/pebble.asp?relid=4612&t=79)
6 http://www.info.gov.za/aboutgovt/tradlead.htm
7 During September 2010, clashes erupted between the police and Hangberg residents in Hout Bay.
This was at the initiative of the City of Cape Town. The Hangberg residents put up a fight as police
moved into their area to demolish shacks built on the fire break area on Sentinel mountain. The
police were criticised for the extreme violence used. Several of the residents had to have glass eyes
fitted after this incident. It was also extremely traumatic for the residents affected. A Peace Accord
was thereafter signed by community representatives from Hangberg and the City of Cape Town and
the Western Cape Premier. Under the terms of this Peace Accord, the parties agree to address the
issues of the community, in partnership with all the players from government side.
(http://www.iol.co.za/capetimes/violence-flares-as-police-raid-hangberg-1.1261510) (http://www.
youtube.com/watch?v=bRjMB3znA2E)
Lesle Jansen is a First Nations Indigenous lawyer in South Africa. She holds a
Master’s degree in Indigenous Peoples in International Law from the University of
Arizona (USA). She also completed a second Master’s in the Rule of Law for
Development from Loyola University (Chicago). She is currently working with a
team of environmental lawyers called Natural Justice (naturaljustice.org). They
work with indigenous and local communities on their relationship with natural re-sources.
She is based in Cape Town.