To meaningfully serve the needs of the communities they represent, the functions of traditional councils must be aligned with the Constitution and living customary law in South Africa. File photo
In South Africa, the institutions of traditional leadership play a significant role in governance, cultural preservation, customary practices and land administration. But their powers and responsibilities have always been under scrutiny because of the influences of the apartheid regime and the embedded historical socio-economic inequalities.
It has been well established that during colonialism and apartheid, many traditional leaders were co-opted, against their traditional communities. The implications of this historical reality have survived to this day, leading to many being watchdogs of traditional leadership and the role, power and responsibility they have in our constitutional democracy.
The powers and responsibilities of traditional leaders are sourced from Chapter 12 of the Constitution. Section 211(1) recognises the institution, status and role of traditional leadership, according to customary law and subject to the Constitution. Section 212(1) vests powers to the legislative branch of government to enact national legislation that may provide for a role for traditional leadership as an institution at the local level on matters affecting local communities. Section 212(2)(b) also provides that the national legislation may establish a council of traditional leaders 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.
The democratic government has, with ordeal challenges, enacted legislative frameworks, where the role and responsibilities of traditional leadership institutions, including those of traditional councils are embedded. First, the repealed the Traditional Leadership and Governance Framework Act (TLGFA), then the unconstitutional (as declared by the constitutional court in Mogale v Speaker of the National Assembly) Traditional and Khoi-San Leadership Act (TKLA), and recently the draft Traditional and Khoi-San Leadership Bill 2024 (TKLB) that the department of cooperative governance and traditional affairs has published the for public comment.
These laws have been critiqued for being the democratic government’s model of perpetuating the colonial and apartheid narratives of traditional leadership and customary law. Traditional leadership is still being used to promote and prejudice the political landscapes of South Africa. These political manipulations have and continue to disproportionately affect the living customary law and rights of many traditional communities, particularly informal land rights. Traditional councils have emerged as key structures of traditional leadership; the government has given powers and responsibilities that taint the security of tenure for informal and communal land rights holders. Furthermore, these powers and responsibilities may empower traditional councils to centralise decision-making and disregard living customary law.
This piece examines key legislative frameworks granting powers and responsibilities to traditional councils that pose threats to the security of tenure for informal and communal land rights holders. Additionally, it examines legislative frameworks that have empowered traditional councils to centralise decision-making and disregard living customary law in the context of traditional governance. Drawing from the scholarship and jurisprudence, this essay argues that the legislative framework must establish a clear mechanism of implementation and accountability for such principles. Furthermore, the legislative framework must clearly define the role of traditional councils, within the ambit of the living customary law, subject to the Constitution.
It is commendable that the department has finally acknowledged the significant influence of politics in traditional leadership institutions, as well as the often-political manipulation of these structures. Specifically, section 2(2) of the TKLB stipulates that the resources of any community, leader, council, house, commission or committee recognised or established under the Bill must not be used to promote or undermine the interests of any political party or any candidate in any election, whether internal to a party or external. Resources may only be used for the functions, duties and responsibilities designated by the Bill for these entities.
But these principles risk becoming mere aspirations if not backed by effective implementation frameworks and accountability mechanisms. A clear illustration of this issue can be found in the context of gender equality, where the TLGFA and the TKLA mandate that a third of traditional council members be women. The lack of enforcement mechanisms and accountability strategies for this requirement has rendered it little more than an unattainable goal in more than three decades of democracy.
The TKLB contains provisions that contradict its stated objectives, particularly in section 24. This section grants traditional councils the authority to form land partnerships and enter agreements with external entities, bypassing the need for explicit consent from land rights holders. Specifically, section 24(2) allows traditional councils to create partnerships with municipalities, government departments and other organisations, raising significant concerns about the potential undermining of informal land rights and community interests.
While Christa Rautenbach and Gerrit Ferreira have rightly recognised the role of traditional councils as key stakeholders in rural development, serious issues in section 24 of the TKLB persist. This provision perpetuates a cycle of past discriminatory laws, thus jeopardising the security of tenure guaranteed under section 25(6) of the Constitution. Section 25(6) entitles individuals or communities whose land tenure is insecure because of historical injustices to enjoy secure tenure or comparable redress.
Furthermore, section 24 overlooks the Interim Protection of Informal Land Rights Act (Ipilra), which is crucial for safeguarding the rights of customary landholders, especially in former homelands. Ipilra emphasises the protection of informal land rights, stipulating that no one may be deprived of these rights without consent. But the temporary nature of Ipilra’s protections leads various stakeholders, including government officials, to overlook its importance.
Judicial rulings, such as the constitutional court’s decision in Maledu v Itereleng Bakgatla Mineral Resources and the high court’s ruling in Baleni v Minister of Mineral Resources, have reaffirmed Ipilra’s vital role. These cases underline the necessity for secure tenure for historically disadvantaged communities, particularly regarding mining rights that may infringe upon landowners’ rights. The courts concluded that the Mineral and Petroleum Resources Development Act (MPRDA) should be interpreted in conjunction with Ipilra. Upholding Ipilra’s intent to protect informal rights means that customary communities have the authority to decide the fate of their land.
Consequently, it is not unprecedented to demand that section 24 of the TKLB align with the consent requirement established by Ipilra. For example, regulation 19(1) of the Spatial Planning and Land Use Management Regulations: Land Use Management And General Matters, 2015 allows traditional councils to enter into service-level agreements with municipalities, contingent upon adherence to relevant national or provincial laws. Notably, this regulation explicitly prohibits traditional councils from making land development or land use decisions.
But this restriction under regulation 19(1) applies solely to agreements between traditional councils and municipalities, excluding other stakeholders mentioned in section 24 of the TKLB. Consequently, mining-affected communities remain vulnerable to threats of land dispossession and exploitation. By excessively centralising decision-making within traditional councils, section 24 fosters superficial consultations, creating significant imminent conflicts with Ipilra and threaten the security of land tenure of informal land rights holders and the essence of rural democracy. As Yolandi Meyer has compellingly argued, this scenario could lead to abuse of power where community members could be pressured to vote for a project by other community members or traditional leaders.
In recent times, section 25 of the Limpopo Traditional Leaders and Institutions Act has come under scrutiny within the realm of traditional governance. In December 2024, the constitutional court delivered a pivotal judgment in the case of Mohlaba v Minister of Cooperative Governance and Traditional Affairs. The court upheld the high court’s order of invalidity of section 25 of the Act, specifically because it permits traditional councils to impose involuntary levies on community members living under traditional authorities in Limpopo. This ruling reinforces a vital principle: that the authority to levy taxes rests solely with democratically elected legislative bodies reflecting the tenets of democracy.
The court determined that traditional councils lack legitimate democratic election and therefore do not possess the authority to impose taxes, levies, duties or surcharges. Though such levies are typically intended to assist the institutions of traditional leadership in managing their affairs, the court found that these imposed levies are inconsistent with customary law because they lack voluntariness and consent. Instead, they are compulsory and imposed without consulting community members. The court highlighted that in many cases, these levies have become a means for traditional leaders to cover personal expenses, often demanded under the guise of financing state-provided services that are constitutionally guaranteed.
Furthermore, the imposition of these levies does not arise from community consensus; rather, they are imposed unilaterally by traditional authorities, leaving community members with minimal recourse. Failure to pay these levies frequently leads to denied access to essential services and resources, exacerbating the vulnerabilities of already marginalised people. This decision underscores the critical need for consultation in accordance with customary law and advocates for a form of traditional governance that is participatory.
Through the lens of customary law, the court enriches the body of jurisprudence relating to public participation in South Africa’s constitutional democracy. Although the implementation of this judgment poses challenges — particularly given the complex dynamics between traditional councils and community members — the significance of this ruling cannot be understated.
In conclusion, while traditional councils play a crucial role in local governance, it is vital that their power structures are reformed to meaningfully serve the needs of the communities they represent. This transformation should align traditional councils with the living customary law and be subject to the Constitution.
Wandile Brian Zondo is a researcher at Natural Justice (Southern Africa Hub) and a PhD candidate in public law (University of Cape Town). He is an Oppenheimer Memorial Trust Scholarship recipient and holds an LLM in environmental law (UCT) and an LLB (University of KwaZulu-Natal).