CONSTITUTIONAL AND LEGISLATIVE FRAMEWORK FOR TRADITIONAL
LEADERSHIP IN SOUTH AFRICA
Adv Seth Nthai
(PAPER
DELIVERED
CONFERENCE
DEMOCRATIC
ON
ON
THE
OCCASION
TRADITIONALISM,
GOVERNANCE
IN
OF
POLITICAL
AFRICA,
THE
SEVENTH
PARTIES
ORGANISED
BY
AND
THE
DEPARTMENT OF POLITICAL SCIENCES AND THE CENTRE FOR
AFRICAN RENAISSANCE STUDIES ON 2 JUNE 2005) (UNISA: PRETORIA)
Introduction
1.
The institution of traditional leadership has been in existence in the
whole continent of Africa from time immemorial. The African people
knew no other form of government, except through the institution of
traditional leadership itself. Contrary to popular belief, the African
ruler’s power was never in the past absolute. A traditional ruler who
attempted to impose dictorial rule on his people would face revolt or
secession.1
2.
However, in the South African context the institution of traditional
leadership was undermined and seriously eroded by the forces of
imperialism and colonialism. The successive apartheid governments
passed various laws to control the institution of traditional leadership. 2
1
I Schapera: Government and Politics in Tribal Society A C Watts & Company (1956)
211
2
The most known legislation being the Black Administration Act 38 of 1927
-2Indeed when the homeland system was introduced, the institution was
undermined further by a number of legislative enactments.3
3
For example, the following legislation was enacted and provided for some sort of
powers and functions of the traditional leaders:
KwaZulu-Natal
KwaZulu-Natal Act on the Code of Zulu Law;
KwaZulu Amakhosi and Iziphakanyiswa Act, 1990 [Act 9 of 1990];
KwaZulu Ingonyama Trust, 1994 [Act 3 of 1994];
Black Authorities Act of 1951 [Act No. 68 of 151] and a host of other legislation
passed in the 1990’s.
North West
Bophuthatswana Traditional Authorities Act, 1978 [Act No. 23 of 1978];
Proclamation 110 of April 18, 1957 [Applicable to traditional leaders who were
resident outside the former Bophuthatswana and were appointed in terms of the
Black Administration Act, 1927;
Black Authorities Act;
Bophuthatswana Registration of Customary Unions Act, 1977[Act 8 of 1977];
Bophuthatswana Wheel Tax Act, 1979 [Act No. 23 of 1979].
Mpumalanga
KwaNdebele Taditional Authorities Act, 1984 [Act No. 8 of 1984];
KwaNdebele Ingoma Act of 1984.
Free State
Black Authorities Act;
Government Notice No. 11 of February 25, 1985
Regulation 7 of Proclamation 110 of 1957;
Qwaqwa Administration of Authorities, 1983 [Act No. 6 of 1983];
Qwaqwa Levying of Tribal Taxes Act, 1983 [Act No. 5 of 1983].
Eastern Cape
Transkei Authorities Act;
Transkei Constitution Act, 1976 [Act No. 15 of 1976];
Ciskei Administrative Authorities Act, 1984 [Act No. 37 of 1984];
Black Authorities Act;
Regional Authority Courts Act, 1982 [Act No. 13 of 1982].
Northern Province
Black Administration Act;
Proclamation 110 of 1957;
Black Authorities Act of 1951;
Lebowa Royal Allowance Act;
Venda District and Territorial Courts Act [Act No. 15 of 1986];
Venda Traditional Leaders Administration Proclamation, 1991.
-33. When the South African Native Congress (ANC) was formed in 1912,
there was a realization then that the colonial government was making
concerted efforts to try to mobilise traditional leaders on its side. At the
founding congress of the ANC, it was decided that two houses should
be established, i.e. the upper house and the lower house of the South
African Native Congress. Seven paramount chiefs were made honorary
presidents.4 A Zulu traditional leader who was deposed and exiled to
the Transvaal by the British was later also included. Their inclusion as
honorary presidents of the national executive committee of the ANC,
was in line with the African tradition of honouring traditional leaders.5
ANC Constitutional Guidelines (1986)
4.
In 1986 the legal and constitutional committee of the ANC produced
an important document containing constitutional guidelines. The
document was intended to expand on the Freedom Charter and also to
respond to the growing demands for the ANC to provide its definitive
vision of a new democratic South Africa.
5.
What is important is that the constitutional guidelines called for the
transformation of the institution of the hereditary rule in “conformity with
the democratic principles embodied in the Constitution.” This in
practical terms meant that hereditary rulers were to observe the
principles
contained
in
the
Constitution
(Bill
of
Rights)
and
consequently, inequalities between men and women inherent in the
institution had to be abolished.
4
The honorary presidents were as follows: Dalindyebo of the Thembu’s, Montsioa of
the Barolong, Lewanika of Barotseland (part of Zambia), Litsie II of Basotholand,
Khama of the Bechuanaland; Marclane of Pondoland, Moepi of the Bakgatla and
Dinizulu of the Zulus
5
Francis Meli The History of the ANC: South Africa Belongs to Us, Zimbabwe
Publishing House (Harare) (1988) 38 - 39
-46.
At the time a fierce debate ensued as to how best to transform the
institution to be in line with the democratic principles, in particular the
customary practises of undermining the role of women in the
institution.6
Interim Constitution
7.
During the negotiations at Kempton Park, the issue of the institution of
traditional leadership nearly derailed the negotiations process. A
solution had to be found hence the institution was accommodated in
the interim Constitution. The interim Constitution7 provided for limited
recognition of the institution.8 Houses of Traditional Leaders at both
national and provincial level were established.9 The constitutional
recognition of the institution was a remarkable achievement in the new
democratic system of governance. This laid the basis for further
development and transformation of the institution.
Final Constitution
8.
The final Constitution deals with the matter in Chapter 12. Sections 211
and 212 read:
“Recognition
211. (1)
The institution, status and role of traditional leadership,
according to customary law, are recognised, subject to the
Constitution.
6
7
8
9
See Nthai SA “African National Congress Perspectives on the Institution of
Traditional Rule in a Future South Africa” (Paper presented for discussion at the
Conference on the Institution of Hereditary Rule in a Future South Africa, Pretoria 12
– 13 October (1991).
Constitution of the Republic of South Africa 1993 (Act 200 of 1993)
Chapter 11 of the interim Constitution
See WA Joubert (Eds) The Law of South Africa, Volume 32, First Reissue,
LexisNexis Butterworths, Durban (2004) 46 – 48, paras 36, 37 and 38
-5(2)
A traditional authority that observes a system of customary law
may function subject to any applicable legislation and customs,
which includes amendments to, or repeal of, that legislation or
those customs.
(3)
The courts must apply customary law when that law is
applicable, subject to the Constitution and any legislation that
specifically deals with customary law.
Role of traditional leaders
212. (1)
National legislation may provide for a role for traditional
leadership as an institution at local level on matters affecting
local communities.
(2)
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
a. national or provincial legislation may provide for the
establishment of houses of traditional leaders; and
b. national legislation may establish a council of traditional
leaders.”
White Paper process
9.
During the year 1998, the Department of Provincial and Local
Government initiated a policy formulation process which was divided
into three phases:
-6-
9.1
during the first phase, a national audit on the institution of
traditional leadership was conducted. This audit focused on,
among others, the identification of all laws in terms of which
traditional leadership institutions were established or carried out
their responsibilities, roles and functions, the relationship
between the institution and other structures of government and
the relevant statistical information on traditional leadership.
9.2
the second phase saw the launch of the discussion document:
Towards a White Paper on Traditional Leadership in April 2000.
The views of traditional leaders, organised local government,
government departments, statutory bodies, the general public
and other relevant stakeholders were obtained on the policy
issues.
9.3
during November 2001, the Cabinet appointed a sub-committee
comprising the Deputy President, Minister Maduna, Minister
Mufamadi, Minister Ben Ngubane and Deputy Minister Joe
Matthews to lead the process leading to the finalisation of the
draft white paper.
9.4
the third and final phase resulted in the production of the draft
white paper. The draft white paper outlines various policy issues
that paved a way for the drafting of national framework
-7legislation relating to the institution of traditional leadership,
which will be followed by complementary provincial legislation.
10.
This culminated in the Minister for Provincial and Local Government
appointing the Task Team on the Draft White Paper on Traditional
Leadership and Governance. I was privileged to chair the Task Team.
Its terms of reference were, inter alia, to evaluate the written
submissions received from the general public and interested parties on
the draft white paper and to oversee the redrafting of the white paper in
line with the decisions of the Minister and also to call for further
submissions. The team consulted widely with all the stakeholders,
including traditional leaders both individually and collectively, religious
groups, academics, government departments and organs of civil
society.
11.
I was later privileged to also participate in the drafting of the Traditional
Leadership and Governance Framework Act of 2003 (“the Act”). 10 The
preamble states that the institution of traditional leadership must be
transformed to be in harmony with the Constitution and the Bill of
Rights and also that gender equality within the institution of traditional
leadership may progressively be advanced. The institution of traditional
leadership must promote freedom, human dignity, achievement of
equality and non-sexism. Further, the Act, inter alia, seeks to restore
the integrity and legitimacy of the institution in line with customary law
10
Act 41 of 2003
-8and practices. These are the most important principles and values
contained in the legislation aimed at transforming the institution.
Traditional Councils
12.
One of the tragedies of the interference by the successive apartheid
governments in the institution of traditional leadership is that
undemocratic structures of governance were established, commonly
known as traditional authorities. These structures composed council
members appointed by a traditional leader, who in most cases would
appoint his or her close and distant relatives as members.
13.
For the first time in the history of the institution of traditional leadership,
the Act establishes traditional councils and fuses democratic principles
and traditional practices in their composition. More important, 40% of
such members will be democratically elected and at least a third of
members of a traditional council must be women.11 It has not been
easy to reconcile the two opposing views on this matter. On the one
hand, organs of civil society argued strongly that the majority members
of a traditional council must be democratically elected, and on the
other, traditionalists argued that that they would not like to see the
image and the traditional values totally obliterated. During the
legislative making-process, we derived authority and guidance from the
example set by the Bafokeng community, who had managed to fuse
11
Section 3 of the Act
-9perfectly traditional practices and democratic principles. The functions
of a traditional council are wide-ranging and geared towards supporting
municipalities and traditional communities will directly be involved in
rural integrated development plans of municipalities.12
14.
One difficulty encountered during the legislative formulation stage was
that traditional leaders were insisting that there should be a fourth-tier
of government and they should be given the powers presently
exercised by municipalities. The Act brings an innovative way of
involving traditional councils in the activities of municipalities.
Furthermore, a partnership between municipalities and traditional
councils is promoted. This must be in line with the principles of cooperative
governance.13
In
addition,
national
and
provincial
governments are enjoined to adopt such legislative and other
measures to strengthen and support the capacity of traditional
councils.14
Recognition of kings and queens
15.
One of the most important achievements of the legislative process is
that, for the first time in the history of this country, kings and queens
will be recognised. The colonial and successive apartheid regimes
avoided recognising African kings and queens. They introduced a
12
13
14
Section 4 of the Act
Section 5 of the Act
Section 6 of the Act
-10position of a paramount chief because for them the only king or queen
they could think of was in England.
16.
Furthermore, there were other demeaning categories introduced by
legislation in the homelands. For instance, the following categories
were introduced: paramount chief, chief, petty chief, headman and in
other instances a sub-headman. These categories were totally
unknown to the institution of traditional leadership. This colonial and
apartheid legacy has now been done away with. The only traditional
leadership positions recognised by the Act are kingship and queenship,
senior traditional leadership and headmanship.15 There was a lot of
debate as to whether we should do away with the nomenclature “chief”.
We studied most legislation in other African countries. Despite the fact
that the word “chief’ was regarded as demeaning and insulting, it was
retained after independence in legislation dealing with traditional
leaders in many African countries. The Act has done away with it and
created a position of senior traditional leadership instead.
17.
The legislation retains both the provincial and the national house of
traditional leaders.16 However, the Local Government: Municipal
Structures Act had created a situation in which traditional leaders had
to participate in the activities of municipal councils.17 Party politics
made their participation untenable. The Act brings in an innovative
arrangement and that of introducing a local house of traditional leaders
15
16
17
Section 8 of the Act
Section 16 of the Act
Section 81 of the Local Government: Municipal Structures Act
-11to be established in accordance with the area of jurisdiction of a district
municipality or metropolitan municipality. The idea is that a local house
of traditional leaders will work hand in hand with a district municipality
or metropolitan municipality in question on matters pertaining to
customary law, customs, traditional communities and also take part in
the development of by-laws that impact on traditional communities.18
Role of national and provincial departments
18.
One of the issues that arose sharply during the legislative-making
process was that in essence, the role of traditional leaders cuts across
all government departments. It was upon this basis that section 20 was
introduced. National and provincial governments are expected through
legislation and other means to provide for a role for traditional councils
or traditional leaders in respect of matters mentioned in section 20 of
the Act.
Commission on Traditional Leadership Disputes and Claims
19.
The colonial and successive apartheid governments embarked on a
systemic purging of most of legitimate traditional leaders from their
positions and appointed illegitimate traditional leaders. Traditional
leaders who differed with the government of the day were either
18
Section 17 of the Act
-12deposed or fled into exile.19 With the advent of the new democracy,
persistent calls were made to restore traditional leaders into their
rightful positions. Various provincial governments attempted to appoint
commissions of enquiry to deal with the issue but to no avail.
20.
In terms of section 2(7) of the Black Administration Act, the GovernorGeneral had the power to recognise and appoint any person as “a chief
of a black tribe”. The Governor-General had the power to “depose” a
chief so recognised or appointed.
21.
At present, the powers of the Governor-General had been assigned to
Premiers of provinces.20
22.
The Governor-General powers to appoint or depose a traditional leader
had been a subject of litigation in the past.21
Decisions of the Commission on Traditional Leadership Disputes and Claims
23.
Normally a commission of enquiry recommends to the executive. In this
case, the Act empowers the Commission to take a final decision on any
matter entertained by it. This was as a result of the past experience
that once the Commission makes its recommendations, the executive
19
20
21
Nephawe v Premier, Limpopo Province and Another 2003(5) AS 245 (T)
at 248, paras 4, 5, 6 and 7
Mkhatshwa v Mkhatshwa and Another 2002(3) SA 441 (T) at 449
Siqcau v Siqcau 1944 AD 67; Buthelezi v Minister of Bantu Administration and
Development and Another 1961(4) SA 835(A); Ratshilingwa v Sibasa 1948(3) SA
781(A) and many others
-13is then left with a difficult decision to either accept or reject the
recommendations. Then the aggrieved party would then be in conflict
with the government. Once the Commission takes a final decision, it
must be conveyed to the President. Then the relevant provincial
government or any other relevant state functionary must immediately
implement the decision. 22
24.
The President has already in terms of section 23 appointed members
of the Commission in November 2004 and as far as I know, the
Commission will be starting with its hearings in Mpumalanga in the next
few weeks. The functions of the Commission are set out in section 25
of the Act.
25.
It is clear that the Act has not only recognised the institution but has
given it a new face. The door is now opened for women to succeed as
traditional leaders, elements of democracy have been introduced, kings
and queens are now recognised, rightful positions of the institution of
traditional leadership are recognised and many other innovative
elements have been introduced. Contrary to the claims by some
dissatisfied traditional leaders, the Act has introduced far-reaching
changes and indeed the institution has been given space to flourish
and develop in accordance with the demands of the new democratic
society.
22
Sections 22 and 26 of the Act
-14-
CONCLUSION
26.
In conclusion, may I take this opportunity to thank the organisers of this
conference. It is time that all those traditional values jettisoned during
the colonial and apartheid era should now be reclaimed and be given
due recognition. The present legislative framework seeks to do exactly
that. Unfortunately, issues around traditionalism, constitutionalism, the
relationship between traditional and modern governance, according
respect to the traditional values and many others, are currently
receiving less attention from academics, organs of civil society,
churches and the media. This dangerous trend must be stopped
immediately.
ADVOCATE SETH NTHAI
MEMBER OF THE PRETORIA BAR
31 MAY 2005