A critical analysis of the Traditional and Khoi-San Leadership Bill, 2015: II – The current regulation of traditional leadership

In the first of this series of briefs, Matthew Kruger analysed the democratic foundations of the Constitution and explained that the nature of the source and formation of customary law is essentially democratic. This second brief is a short summary of some of the existing legal regulations of traditional rule, as well as the ANC’s attitude towards this form of rule. The third and final brief will offer some insight into the constitutionality of aspects of the Bill’s structure and content.

Introduction

Imagine the following:

[A] tyrannical and despotic king who set fire to the houses, crops and livestock of subsistence farmers living within his jurisdiction, in full view of their families, because they resisted his attempts to have them evicted, or otherwise did not immediately comply with his orders. Imagine the king physically assaulting three young men so severely that even his henchmen could not bear to watch. Imagine the same king kidnapping the wife and children of a subject he considered to be a dissident in order to bend the latter to his will. Consider that the king in question delivered the body of a subject, killed by his supporters, to a bereaved father, ordering the latter not to even consider reporting the truth concerning the circumstances of his death to any authority and then fining the father of the deceased ten head of cattle because, so the King alleged, the son had brought shame to the Kingdom.

The above horrifying tale is not the work of fiction. It is a word-for-word description by the Supreme Court of Appeal of allegations against King Buyelekhaya Dalindyebo. [1] The case illustrates in stark detail the potential consequences of authoritarian, undemocratic and hierarchical forms of rule. This brief places in context the theory in the first brief and it sets the scene for the analysis of the Bill in the third brief.

Before analysing the Bill, however, in this brief we consider in very few words the existing legal framework regulating traditional leadership, as well as the expressed aims of the ANC regarding these forms of rule. At the outset, however, it is important to set out how crucial leadership structures can be in guiding societies.

The regulation of traditional leadership – the Feudal Model

During darker days, a large area of Europe was subject to feudalism. The most common aspects of this state of affairs are viewed as being a hierarchical structure that discouraged central government as well as trade and economic growth. [2] This model of rule relied on a hierarchy, with a King at the top and serfs at the bottom, to ensure ‘stability’.

The King owned everything of value or use, which included the skin on the backs of the serfs. The King would give land to Barons, to do with as they sought and to retain as much of as they sought, in return for rent and military support. The Barons would then provide land to Knights, to do with as they sought fit and to retain as much as they sought fit, in return for military support. The Knights would then give land to serfs, to work and maintain and to do with as they were told, in return for their manual efforts. The structure relied on a continued cycle of master and indentured. Thus every person owed fealty, to the person above them and demanded it from those below them. The higher up the hierarchy, the more authority one had to influence the lower rungs through legal and societal regulation.

As a result of the structure of the feudalism, there was little room for development of the lower orders and almost no chance of escape. It is these structures that maintained a society that is in stark contrast to a constitutional democracy.

The regulation of traditional leadership – the South African Model

Over the past 20 years, the government has endeavoured to ensure that the constitutional recognition of traditional leadership is realised in practice. Further, at least in fora of policy debate, it has expressed a desire to facilitate the return of traditional forms of leadership to their pre-colonial forms. This expressed desire has been paired with various legislative and policy-driven initiatives.

The Traditional Leadership and Governance Framework Act, 2003 (‘the Framework Act’), recognises the existence of traditional communities. It allows for the establishment and recognition of traditional councils and it provides the framework within which traditional leadership must operate. Provision is also made for the enactment of laws that empower traditional councils in the areas of, inter alia, land administration and the management of natural resources.

The Framework Act creates the hierarchy for traditional rule. The community must first be recognised as a traditional community [3]. Implicit in this recognition is the recognition of all that is of value and use. The Framework Act provides for the recognition of kings and queens as well as senior traditional leadership and headmen and headwomen. [4] Arguably, each layer of leadership owes fealty to the layer above and ultimately to the appointing powers. The hierarchy finds form in a traditional council, [5] of which sixty percent of the council is appointed by the senior traditional leader concerned.

The Framework Act also ‘deems’ all communities that were created during the apartheid era as being ‘traditional communities’. It also recognises all tribal authorities created under the Bantu Authorities Act, 1951, as valid, so long as they adhere to certain composition requirements—that is, 40% of the members of the traditional council must be elected and 60% can be appointed by senior traditional leaders.

Given the conditions under which these communities were formed and the manner on which their authorities were recognised, there is the potential that these structures serve to entrench colonial and apartheid systems of rule.

The Traditional Courts Bill, 2013, was widely criticised for the ‘unforeseen’ adverse impact that it would have on women within traditional communities. The provisions of this Bill also entrenched a system that requires persons to bring certain disputes before a prescribed official for adjudication. The Bill would create the situation that, should a party not be happy with an outcome by the traditional court, the matter maybe referred to a Magistrates’ Court. Thus the process of creating a traditional court would have allowed traditional officials to adjudicate on matters that fell within the ambit of common law courts and, as such, add little value to the process and simply delayed potential outcomes or frustrated the process.

The Traditional Affairs Bill, 2013, aimed to consolidate, expand upon, and replace the Framework Act and the National House of Traditional Leaders Act. It also included and recognised Khoi-San traditional structures.

This Bill acknowledged the institution of traditional leadership; it would have established a cooperative and integrated relationship between the institution of traditional leadership and the state; it purported to align custom and customary law with various constitutional ideals and principles; it would have established a hierarchical relationship between the state and traditional leadership, with the purported aim of ensuring a clear line of communication and consultation so that governance functions could be coordinated; and it would have made traditional leaders accountable to the state and Constitution.

Whilst these aims appear to be innocuous, possible effects of this Bill would have been the absorption of traditional structures into the structures of the state; the subordination of traditional leaders to government commands; the imposition of sanctions on leaders and communities in the event of non-compliance with these commands; and the empowerment of government in a way that would allow it to coerce traditional leaders.

The Traditional Courts Bill and the Traditional Affairs Bill have now lapsed. The Traditional and Khoi-San Leadership Bill—aspects of which are discussed in the third and final brief—is the latest effort to regulate the recognition of traditional communities and leadership.

The attitude of the ANC

At its National General Council, the ANC debates policy issues of concern to it. In advance of the meetings, delegates are provided with a document detailing some of these issues, so that delegates can apply their minds to these issues before the meeting. The 2015 Discussion Documents notes the following:

75. Given the South African historical background, there is still a mammoth task ahead to continue building a united, caring, progressive and patriotic South African society. It is argued that traditional leaders’ role in representing and preserving the culture and identity of community members may be a key driver of development in rural communities. Traditional Leaders may fulfil this function not just through the specific cultural and ceremonial roles that they play, but through their very existence as an institutional symbol of an enduring community, and the norms and values that have shaped it.

76. Traditional leaders’ ‘closeness to the people’ is typically regarded as one of the key advantages of the institution. Traditional leaders usually reside in close physical proximity to the communities they serve. But even more importantly, these institutions tend to function according to norms and rules – both formal and often informal – with which people are deeply familiar.

In the ‘Progress’ section of the Discussion Document, [6] it is claimed that the government has made ‘significant progress in recognising the system of Traditional Leadership’ and that the ANC will continue to support these systems with the required resources.

The Discussion Document says that in order to serve communities better, local government must rely on the role of traditional leaders. [7] Given various pieces of legislation that have the effect of entrenching apartheid boundaries and leadership structures, and that may also foster practices that erode democratic government, this goal is seriously endangered.

Conclusion

The consequences of political structures of this type were made clear in the Dalinyebo case, details of which were discussed above.

Following its description of the allegations against the King, the Supreme Court of Appeal said that this was ‘not a description of what occurred during medieval times but it is how the appellant . . . treated his subjects at a time after South Africa became a Constitutional State subject to the rule of law.’ [8] This case makes clear that the Constitution is not enough. Supporting legislation—the laws that actually divide, allocate and structure power—must respect, protect, facilitate and promote democratic forms of government. When they do not, the Dalinyebo case illustrates the potential consequences.

It is with these points in mind that the structure and content of certain aspects of the Bill are considered in the next and final brief.

Chris Pieter is Legal Researcher at the Helen Suzman Foundation.

This article first appeared as an HSF Brief.

Footnotes:

[1] Dalindyebo v S [2015] ZASCA 144 at para. [1] (accessed here).

[2] Origin and Development of Feudalism and Feudalism 

[3] Section 2.

[4] Chapter 3.

[5] Section 3.

[6] See paras. [77] - [83], on pg.126.

[7] See para. [82], on pg. 126.

[8] Supra note 1 at para. [1].