ACL SECOND SEMESTER1 November exam: what to expect Sindisos section (based on sections 1, 2 and 6 of Course Outline) = 2/3 of the paper (40/60 marks) It will most likely comprise of both theory and practical/applied Qs: 25% pure theory (probably from first term); (10 marks) 25% legal analysis (probably legislative/policy analysis from second term, in light of Constitution and case law); (10 marks) 50% theory, law and policy (Constitution, legislation and case law, living customary law and policy debates), and legal reasoning/application of law and theory to a fact pattern. (20 marks)

For the latter question in the May Test (i.e. Q.2), we were provided with a framework of what to make sure to include in our answers follow it! Sindiso has no problem with you structuring your answer according to that frame, especially not if it helps you answer the question more fully than you would otherwise do. The frame is there to help you; she wants you to do well!

Chumas response to a question about her section in the November exam (20 marks): Anythings possible. Problem question? Essay question? Anythings possible.

6. TENSIONS BETWEEN LEGAL REGULATION AND GROUNDED REALITIES Introduction and Overview In this section well be looking, on one hand, at official legal regulation, and on the other, at regulation in terms of living customary law. Well try to see to what extent they are in tension. Well look both at the top-down, statutory and policy framework, and at the living customary law position. What combines the two, other than the fact that they are in fact interlinked in reality, is also the historical background of legal regulation and living law. We will look at the legal framework and the politics of power, as well as customary law principles, negotiations and practices in the context of three subsections: 1) Traditional Authority, Institutions and Boundaries. 2) Land and Resource-Management 3) Customary Dispute Resolution Mechanisms

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This set of notes only contains Sindisos second semester section (section 6 on the course outline). Chumas second semester section has been included in the amended first semester notes.

Recently legislated African Customary law 1) Traditional Leadership and Governance Framework Act 41 of 2003, and its provincial subordinates (and their regulations): - North West Traditional Leadership And Governance Act 2 of 2005 - Traditional Leadership and Governance Act 4 of 2005 (Eastern Cape) - KwaZulu-Natal Traditional Leadership and Governance Act 5 of 2005 - Limpopo Traditional Leadership and Institutions Act 6 of 2005 - Free State Leadership and Governance Act 8 of 2005 - Mpumalanga Traditional Leadership And Governance Act 3 of 2006, - Northern Cape Traditional Leadership and Governance and Houses of Traditional Leaders Act 2 of 2007 2) Communal Land Rights Act 11 of 2004 (important not only in terms of its content, but also in that it was found unconstitutional) 3) Interim Protection of Informal Land Rights Act 31 of 1996 4) Mineral and Petroleum Resources Development Act 28 of 2002 (this is a hot topic in the context of the South African economy) 5) Traditional Courts Bill B15-2008

Other relevant legislation (which we wont focus on much): National House of Traditional Leaders Act 10 of 1997 Remuneration of Public Office-bearers Act 20 of 1998 Municipal Systems Act 32 of 2000 Intergovernmental Relations Framework Act 13 of 2005

The Legal Framework There is no easy way of reconciling the legal framework, which demands certainty and clarity, with traditional institutions that are somewhat amorphous or nebulous. Also, in the context of trying to balance peoples interests (say, between the traditional authorities and the community), we must ask whether the government is striking the right balance. So if were talking about the democratic right to participation (as was the case in Tongoane) then we need to ask whether the right balance is being struck. We must also ask whether or not the approach taken is too top-down, when in fact customary law should be a bottom-up system. Are these institutions not aimed at centralising a system which is by nature more decentralised? So if we consider the fact that living customary law is actually made and negotiated by the community through practice, then we must ask how authority can be centralised in that context. Are these institutions uncustomary in the way in which they are envisaged or articulated in the legislation?

The piece of legislation which we are going to lack at first is the Traditional Leadership and Governance Framework Act (TLGFA) 41 of 2003. For context, we will look at the Black Authorities Act 68 of 1951, and by manner of example, provincial legislation subordinate to the TLGFA.

Constitutional Framework We should keep the constitutional provisions relevant to customary law in the backs of our minds, which deal with the extent to which traditional authorities are to be accommodated and provided for through national legislation, and the extent to which rights and freedoms recognised by customary law are legitimate provided that they are consistent with the Bill of Rights. Section 39(3): The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill. Section 211(1): recognises the institution, status and role of traditional authorities observing customary law; Section 211(2): provides that they function subject to any applicable legislation and customs; Section 212(1) and (2): foresee national legislation providing for role at local level, establishment of provincial houses of traditional leaders, and national council of traditional leaders dealing with matters affecting traditional leadership, role of traditional leaders, customary law and customs of communities observing a system of customary law. Section 211(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.

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1. Traditional Authority, Institutions and Boundaries2 a) Introduction Our focus here is the Traditional Leadership and Governance Framework Act 41 of 2003, and by manner of example, provincial subordinates (and their regulations). Other relevant legislation includes: National House of Traditional Leaders Act 10 of 1997 Remuneration of Public Office-bearers Act 20 of 1998 Municipal Systems Act 32 of 2000 Intergovernmental Relations Framework Act 13 of 2005

Here is a summary of the live issues relevant in this section: Do we retain tribal boundaries and traditional authorities? When you look at the Traditional Leadership and Governance Framework Act, you see that this was a question they had to confront.

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6B in the course outline, but was done first.

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If not, how do we do them over or rectify their assignment? If so, what should be their relationship with local and other government? Key terms: Status and Role; Decentralisation/Cooperation/Partnership Governance the idea that traditional authorities collaborate with government; institutionalisation/ support/promote; appointment/election; authority/control; self-determination.

Well deal with the substance and implications of the legislation, but thats not to suggest that just because the legislation is completely fucked, there is some sort of easy answer. But yes, its true that the government has adopted a model which is top-down, centralised and errs on the side of traditional leadership. Government has perpetuated a model which was imagined and sustained under colonial and apartheid times, of a single individual holding communities together through that individual being the primary authority. We start by looking at the background to the TLGFA, namely, the Black Authorities Act of 1951 and its varied effects on traditional society.

b) Black Authorities Act 1951 i) Imposed authorities and boundaries Sections 2 and 3 permitted the State President to establish tribal authorities to govern over tribes. Sindiso argues that because tribes were invented entities, this legislation had the effect of establishing and entrenching false borders. In fact, already under the Black Administration Act of 1927, the government had provided for the mixing and matching of tribes, and for the establishment of new tribes which in some cases comprised of a bunch of people thrown together who had nothing to do with each other. It allowed the Governor-General (as the supreme chief) to mix and match tribes and put them under one authority, elevating some and demoting others, under section 3(5). As it happened, this meant that some legitimate traditional leaders were not recognized, while other illegitimate leaders were recognized, because they were complicit with the state. Section 4 describes what the tribal authorities established to oversee these tribes were supposed to do. Section 4(1)(a) said that a tribal authority was to generally administer the affairs of the tribes and communities in respect of which it has been established; section 4(1)(b) said that a tribal authority was to assist a traditional leader in performance of powers, functions or duties conferred or imposed upon the traditional leader under any law. So basically, this turned traditional leaders into state instruments. Sections 8 and 9 provided for treasuries to be established into which customary and statutory tribal levies, fees, fines, property gains and profits from all these had to be collected. Well return to this later. So the Black Authorities Act was the piece of legislation which basically founded the fictitious structure of homelands language-based, independent countries within South Africa. As the Constitutional Court said in Tongoane:

Under apartheid, these steps were a necessary prelude to the assignment of African people to ethnically-based homelands. According to this plan, there would be no African people in South Africa, as all would assume citizenship of one or other of the newly created homelands .

Of course, what this meant was that by assuming this citizenship, Africans were losing their citizenship in South Africa.

ii) Authorising forced removals

In terms of s 4(1)(c), tribal authorities were to advise and assist the Government and any territorial or regional authority . . . in connection with matters relating to . . . [among other things] the development and improvement of any land within [their areas of jurisdiction] Another term for this improvement is bettermentor forced removals, described by the Court in Tongoane as follows:The forced removals of African people from the land which they occupied to the limited amount of land reserved for them by the apartheid state resulted in the majority of African people being dispossessed of their land. It also left a majority of them without legally secure tenure in land. The government came up with the idea to forcibly remove people and put them in townships, ensuring that the agricultural land was some distance away from dense population. This contributed significantly to the slowing down of agrarian activity.

iii) Invented and imposed tradition Were these powers, functions or duties customary? Clearly not, they were largely invented and imposed. As section 4(1)(d) provided: A tribal authority shall, subject to the provisions of this Act generally exercise such powers and perform such functions and duties as within the opinion of the Governor-General fall within the sphere of tribal administration and as he may assign to that tribal authority. This is a succinct way of saying that the important question was not what customary law required, but rather what the government felt should be happening. There is some precedent regarding the fact that the powers provided by the law were all that the traditional authorities were meant to observe. They undercut the give-and-take nature of customary society, as chiefs no longer had to be accountable to their people, but merely to the government, on whom their power and authority depended. In Rex v Kumalo and Others [1952] 2 All SA 9 (A): It was held that because the chief received a written appointment under Section 2 (7) of the Black Administration Act he had a responsibility to recognise and follow the rights and responsibilities that come with the position. Testimony was given by the chief headman of the Clau Clau Native Reserve that they must obey law of White man. Mosii v Motseoakhumo 1954 (3) SA 919 (A): the Chief owes allegiance to the Crown only.

Monakgotla v Minister of Native Affairs 1959 (1) SA 686 (T): *the chief+ is responsible for maintaining law and order and for carrying out the instructions and requirements of the Government.

iv) Objections

we all know full well that no Chief can retain his post unless he submits to Verwoerd, and many Chiefs who sought the interest of their people before position and self -advancement have been deposed ... . Thus, the proposed Bantu Authorities will not be, in any sense of the term, representative or democratic. (Nelson Mandela, Verwoerds Grim Plot, No.36, May 1959) The modes of government proposed are a caricature. They are neither democratic nor African. The Act makes our chiefs, quite straightforwardly , into minor puppets and agents of the Big Dictator. They are answerable to him and to him only, never to their people. The whites have made a mockery of the type of rule we knew. Their attempts to substitute dictatorship for what they have efficiently destroyed do not deceive us. (Albert Luthuli, Let My People Go,1962) Gone was the old give-and-take of tribal consultation, and in its place there was now the autocratic power bestowed on the more ambitious Chiefs, who became arrogant in the knowledge that government might was behind them. (Govan Mbeki, The Peasants Revolt, 1964)

v) Repeal3

The Black Authorities Act was repealed in 2010 and in the Memorandum to the repeal, it was recognised that the Black Authorities Act, No. 68 of 1951 ... established statutory tribal, regional and territorial authorities to (amongst other things) generally administer the affairs of Blacks and that The Act was a legislative cornerstone of apartheid by means of which Black people were controlled and dehumanized, and is reminiscent of past divisions and discrimination. It is both obsolete and repugnant to the values and human rights enshrined in our Constitution.

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See Sindisos parliamentary submission on the Repeal Bill at the end of this section, which addresses not only the Bill, but the whole legislative framework governing customary law.

As the Constitutional Court held in Tongoane: the Black Authorities Act established a tribal structure for the administration of African people in African areas. One thing to note in the repeal is that even in the Memorandum it observes that the old community, regional and other authorities mentioned in s 28(5) and s 6(a) of the Traditional Leadership and Governance Framework Act 2003, have expired. What this means in practical terms is that tribal authorities become the default structure of rural governance among customary communities, because there are no longer these community authorities. Well deal in some detail with what community authorities are.

c) The Traditional Leadership and Governance Framework Act (TLGFA)

This is a very important piece of legislation, as it is the founding legislation for the recognition and regulation of traditional authority.

i) Section 1: Definitions

Section 1: headman or headwoman means a traditional leader who(a) is under the authority of, or exercises authority within the area of jurisdiction of, a senior traditional leader in accordance with customary law; and (b)is recognised as such in terms of this Act. senior traditional leader means a traditional leader of a specific traditional community who exercises authority over a number of headmen or headwomen in accordance with customary law, or within whose area of jurisdiction a number of headmen or headwomen exercise authority; Its interesting that the senior traditional leader doesnt have to be recognized as such in terms of this Act, or so this definitional provision suggests (as well see later, there is actually such a qualification). The important thing to notice here is the circularity of the definitions in attempting to define terms it uses the very words those terms contain, without defining them. What we see here is an assumption, either that there will be a top-down system where a senior traditional leader puts in place headmen or headwomen in his area of jurisdiction, or that there will be headmen and headwomen that exist in a particular area, over which a senior traditional leader will now be given jurisdiction. Either way, there is the assumption that there has to be a traditional leader, with an emphasis on the top structures rather than on the bottom-up processes. So the question arises, what if the customary law system that exists in a particular community works on a bottom up basis,

or without a senior traditional leader? Would we not require different wording to capture such a situation? Consider this example. In the Eastern Cape, particularly in the former Ciskei, chiefs were banned because such a hierarchical structure simply didnt exist. But now, under this legislation, the suggestion is that any traditional leaders which had previously in terms of old legislation been given authority over these areas, would now have a right to exist over these headmen and headwomen, who had not had chiefs over them before. Section 8 speaks about the specific traditional leadership positions which exist: the following leadership positions within the institution of traditional leadership are recognised: (a) Kingship or queenship; (aA) principal traditional leadership; (b) senior traditional leadership; and (c) headmanship.

What are each of these? Senior traditional leadership refers to chiefdom. The person who has within his kingdom a number of traditional communities (tribes) or senior traditional leaders (chiefs) is a king or queen. Having said that, there is the category of principal traditional leader who will also have within his authority a number of tribes this possibly aims to recognize those leaders short of kings in a hereditary sense, but who do in fact have a number of traditional communities in their sphere of authority. Queenship and principal traditional leadership were new inclusions introduced by the Amendment Act of 2009. In terms of jurisdiction: headmanship aligns with a ward, a village or a sub-community; senior traditional leadership aligns with what the legislation calls a traditional community a tribe, a more macro level; and principal traditional leadership is at a level somewhat akin to the kingship level, with a number of tribes within its jurisdiction.The important thing is that there is a hierarchy here. But, as weve said, what if in terms of living law there is no such hierarchy? In some communities, some of these positions might be missing, such as in the Eastern Cape example. The legislation seems not to make provision for such a possibility. Section 1 then defines a traditional leader as any person who, in terms of customary law of the traditional community concerned, holds a traditional leadership position, and is recognised in terms of this Act. Traditional leadership is defined as the customary institutions or structures, or customary systems or procedures of governance, recognised, utilised or practised by traditional communities. Again, the circularity of this is striking, particularly because traditional communities are themselves defined in terms of traditional leaders. However, there is the following important clause :

Nothing contained in this Act may be construed as precluding members of a traditional community from addressing a traditional leader by the traditional title accorded to him or her by custom, but such traditional title does not derogate from, or add anything to, the status, role and functions of a traditional leader as provided for in this Act. What this hints at is the fact that traditional leaders status is actually dependent on the governments recognition more than on the peoples particular sense of what the traditional leadership position is. This takes us back to the Black Authorities Act, where the traditional leaders position was at the behest of the state. By now we should be starting to see stark continuities between the former and the present.

ii) Section 2: Community constitution

Section 2 is also in a sense a definition section, insofar as it describes how a community comes to be recognized. Section 2: (1) A community may be recognised as a traditional community if it (a) is subject to a system of traditional leadership in terms of that communitys customs; and (b) observes a system of customary law. Whats striking here is, firstly, the circularity which weve already discussed, and secondly, the preeminence of traditional leadership. Again, we are forced to ask: what about communities that dont necessarily have a formal traditional leadership structure? There is a requirement of consultation with the community concerned in terms of the provincial laws, although they vary. Another qualification is that these communities must comply with the Bill of Rights, and encourage gender equality etc.

iii) Section 3: Composition sections

Section 3: (the underlined section has been added by Amendment) (1) Once the Premier has recognised a traditional community, that traditional community must establish a traditional council in line with principles set out in provincial legislation. (2) (a) A traditional council consists of the number of members determined by the Premier by formula published in the Provincial Gazette, after consultation with the provincial house, in accordance with the guidelines issued by the Minister by notice in the Gazette.

Section 3(2)(b) and (c) require change of composition of tribal authorities: 30% of council must be women although exemption is possible if it can be shown that insufficient women are available to participate; and 40% of the members of the Traditional Coiuncil are elected; the other 60% are appointed by traditional leaders. These sections suggest that communities could decide to come together to form the structure of a traditional community, but in fact if you look at the transitional arrangements clause in s 28, you see 3 key provisions (Section 28 is a VERY important section know it):

iv) Section 28: Territorial boundaries

Section 28(1): Any traditional leader who was appointed as such in terms of applicable provincial legislation and was still recognised as a traditional leader immediately before the commencement of this Act, is deemed to have been recognised as such in terms of section 9 or 11, subject to a decision of the Commission in terms of section 26. So basically, the traditional leader who is recognized today is the traditional leader who was recognized under prior legislation which existed under apartheid. Section 28(3): any tribe that, immediately before the commencement of this Act, had been established and was still recognised as such is deemed to be a traditional community contemplated in section 2 ... . In other words, the tribe that is recognized is the tribe that existed under apartheid. And so the boundaries which existed for tribes as they were established by the apartheid government are entrenched in this framework. Section 28(4): any tribal authority that, immediately before the commencement of this Act, had been established and was still recognised as such, is deemed to be a traditional council ... . In this subsection, the tribal authority which was entrenched under apartheid legislation is accepted as the traditional council. The net effect of s 28 is effectively to reestablish and entrench the homeland boundaries established by the Black Authorities Act. So, compare the below maps: the one on the left is of traditional councils in 2010; the one on the right is of homelands as they existed in 1986. Notice that the boundaries are almost identical. One might argue that this creates an opt-out system placing the onus on traditional communities to

withdraw themselves, to say: we dont want to be recognised as a traditional community and would like our status as a traditional community withdrawn, and be reconstituted in some other way. As well see, theres a flaw in the opt-out provision which actually makes it impossible for subgroups subsumed into bigger tribes to withdraw from them. The alternative to this, which Sindiso much prefers, is the opt-in system. If communities decided that they didnt want to retain the powers granted to traditional authorities, then that would have implications only for those communities concerned. So actually it should be the communities who are entitled to say that they would like to reconstitute themselves in an opt in rather than opt out way, and consequently give their traditional leader particular powers because they recognise him or her as legitimate. Dont worry if this isnt entirely clear at this stage well revisit it shortly in the context of s 7.

Section 28 ultimately depends on compliance with section 3(2), the re-composition provision requiring that 30% of the council is female and 40% of it is democratically elected. The initial compliance deadline with this provision was one year after the commencement of the Act: 24 Sept 2005. This was extended by provincial Acts (passed in 2005) until 24 Sept 2006. The one year period had always been contested because some had argued that it was inadequate. Ultimately, when the TLGFA Amendment Act of 2009 was passed, the transitional period for tribal authorities to comply was further extended until 24 September 2011. The result is that, presently, some Traditional Councils (particularly in Limpopo) are the same untransformed tribal authorities that existed before this legislation came into being one might even call them apartheid structures. There is a current proposal brewing in the National Traditional Affairs Bill, which has not yet even been introduced to parliament, to extend the deadline to 24

September 2012. One thing to note about these electoral procedures, which are to be a key feature of how these traditional councils are to be transformed, is that even where they have happened, for the most part they have not happened in the way in which they were supposed to.

v) Flawed electoral processes

Eastern Cape: Communities were not informed of elections or the call for nominations; and there was no evidence that the requisite community meetings were held. North West: The Provincial House of Traditional Leaders supervised elections, which introduced a conflict of interest. People were not permitted to nominate candidates that were not on pre-determined list! KwaZulu Natal: IEC boxes were borrowed and used to create the impression that elections were IEC-monitored when, in fact, there were insufficient funds to hire the IEC. Mpumalanga: The head of the Mpumalanga House of Traditional Leaders brought in a private company to carry out elections out in August 2009, but only did so in some parts of the province. The Mpumalanga Provincial House of Traditional Leaders claimed that some communities had not received results by Aug 2010. Limpopo: Seemingly pending. Empowering regulations are said to have been passed. Also North West and KZN are gearing up for a second round of elections. Lets return to the earlier discussion about the difference between an opt-out and an opt-in provision.

vi) Section 7: Possibility of withdrawal from a traditional community

Section 7(1) provides the basis for withdrawal. This is an example of an opt-out clause, and an ineffective one at that.

Remember that s 2 suggests that communities can form themselves into traditional communities that are officially recognized by standing together, suggesting an opt-in approach. But then you find in s 28 that it is in fact an opt-out approach, because the transitional mechanism says that old boundaries are reinforced, and that traditional communities are basically the tribes of old. And then you come to the below provisions in s 7 which say that it is the traditional community that must approach the Premier to withdraw. Now, remember that the traditional community is the tribe at large. So you have all these tribes that were mixed and matched; some of them were complete strangers and brought together; some contained multiple subgroups, which do not see themselves as part of the larger community and do not recognize their official traditional authority. If any one of these subgroups wants to withdraw, it has to persuade the community at large to approach the Premier to withdraw their status as a traditional community. Theres clearly a structural problem here: it requires a structural minority within a community to persuade the macro-community to approach the Premier, so that the status of the whole group can be withdrawn, allowing for the subgroup to reconstitute itself independently. You can also see that theres a problem for the traditional authority who now runs the risk of losing part of his territory/community. Because land claims dont have to be made by the traditional authority, the community could plausibly secede and take the land with them. Lets take a look at the section: Section 7: The withdrawal of the recognition of a community as a traditional community as provided for in section 2, may only be considered where (a) the community concerned requests the Premier of a province that its recognition as a traditional community be withdrawn; (b) the provincial government concerned is requested to review the position of a community or communities that was or were divided or merged prior to 1994 in terms of applicable legislation; These subsections allow the provincial government to launch an investigation into the legitimacy of the boundaries, to determine whether it was a mix-and-match job, and whether it is appropriate to regard the community as a single entity. But the details concerning the terms upon which this takes place are unclear. or (c) two or more communities so recognised, request the Premier of a province that they be merged into a single traditional community. So it doesnt speak specifically about improperly joined communities requesting to be divided, but it does speak specifically about communities that may have been artificially divided asking to be merged. So we still have the problem of the structural minority being trapped. In fact, s 7(1)(a) read together with s 28, which entrenches the tribes of old as the traditional communities of today, makes it almost impossible for a subgroup to withdraw.

Despite s 7(1)(b) allowing communities to approach the Premier, there have been documented cases of sub-communities who have tried to persuade the Premier to withdraw them, and been denied. The grounds for this denial, even after recognising the legitimacy of the subgroups claim to be withdrawn, has been that granting relief would open up the floodgates. Because there are so many illegitimately formed communities, there is clearly a fear that the situation could spin out of control.

This, albeit that in terms of section 7(3): The Premier of a province must, in terms of section 2, consider the recognition of separate traditional communities or a merged traditional community where a review of the division or merger of communities envisaged by subsection(1)(b) indicates that newly constituted traditional communities must be recognised. So clearly the Premier has some sort of obligation to recognize divisions or mergers when an investigation shows it to be necessary. But the provision relating to the investigation itself is permissive, rendering this provision not in fact as mandatory as it seems. In other words, while he must consider the recognition of communities shown by an investigation to have been illegitimately divided or merged, he need not authorize the investigation itself. What you often find Premiers falling back on is the Commissions established under Chapter 6 of TLGFA, which are supposed to investigate disputes over the boundaries of communities as well as over the legitimacy of traditional leaders. But the Commissions themselves have been less than stellar in their performance: - The Ralushai Commission was established in Feb 1996 by the Premier of Limpopo to investigate the legitimacy of the boundaries of the traditional authorities. But the report was not ever publicly released, and we still have no idea what its outcome was. - The Nhlapo Commission was established in terms of Chapter 6 on Oct 2004. Its final report was released on 29 July 2010, but it only dealt with paramountcies. Some of its findings were challenged in court due to the controversial methodology used. If it took 6 years to resolve the issue of paramountcies, can you imagine how long it would take to resolve the issue of traditional leaders in the rest of the country, when there are 823 recognised traditional authorities in the country? Problems with an opt-out system, rather than opt-in system of traditional authority and boundaries. Community authorities were traditional communities that were recognized outside of the tribal authorities framework by the apartheid government when it realisaed that there were some communities that were such mismatch that to try and put them under one traditional leader and make them a tribe would cause massive conflicts. So communities who, for instance, bought land together in black spots (areas where blacks could by land), and owned that land, were then put under a traditional authority even though they were made up of two or three different cultural groups (say Tsonga, Sotho and Ndebele together), and there were two or three different traditional authorities the government would realise that this could erupt, if they tried to situate them under a single traditional authority. So, in such cases they recognized them as an anomalous category a community authority through an amendment to the Black Authorities Act some time after 1951.

Another instance was areas where there was such a high proportion of traditional communities who didnt have traditional leaders, but were actually being governed by a headman or some kind of committee. These were also sometimes recognized as community authorities. Now, those community authorities are to be disestablished in terms of section 28(5) of TLGFA hence, reference in BAA Repeal Act that: The cut-off periods for the continued existence of the old community, regional and other authorities mentioned in section 28(5) and (6)(a) of the Traditional Leadership and Governance Framework Act, 2003, have expired The question as to what government structures these communities fall under if these community authorities are to go? It seems as though the makeshift answer to this question is that they are being subsumed into traditional authorities. In reality, the vast majority have not been disestablished and there is no clear indication as to what happens if they are not disestablished. The original deadline for disestablishment was 2005, but was extended to 24 Sept 2009 but that had already expired before TLGFA Amendment Act (which introduced the extension) was passed in Dec 09. So basically theres a bit of a bizarre set of circumstances relating to this legislation.

vii) Section 4: Functions of traditional councils

Up until now weve recognised that there are problems with the establishment and recognition of traditional councils, communities, and leaders. But now we proceed on the assumption that they are legitimate, so that we may better consider what it is that they are in fact meant to do in terms of the Act. 4. (1) A traditional council has functions including:

Administering the affairs of the traditional community in accordance with customs and tradition; Assisting, supporting and guiding traditional leaders in the performance of their functions; Supporting municipalities in the identification of community needs; and facilitating the involvement of the traditional community in the development or amendment of the areas integrated development plan (IDP); Recommending, with local and provincial Houses of Traditional Leaderss, appropriate interventions to government that will contribute to development and service delivery within the area of jurisdiction of the traditional council; Participating in the development of policy and legislation at local level; and programmes of municipalities, provincial and national government; Promoting the ideals of co-operative governance, IDPing, sustainable development and service delivery; and sharing information with other councils;

Promoting indigenous knowledge systems for sustainable development and disaster management; and alerting any relevant municipality to any hazard or calamity that threatens the area or people in jurisdiction; Performing the functions conferred by customary law, customs and statutory law consistent with the Constitution.

viii) Section 19 and 20: Functions of traditional leaders

Section 19: A traditional leader performs the functions provided for in terms of the customary law and customs of the traditional community concerned, and in applicable legislation. Observe the contrast: section 4 is very detailed; section 19 is not. However, the phrase and in applicable legislation leads us to the much more detailed listing of what traditional leaders may potentially do. For example: Section 20(1) of TLGFA enables national and provincial government to provide a role for traditional councils or traditional leaders in: arts and culture; land administration; agriculture; health; welfare; administration of justice; safety and security; registration of births, deaths and customary marriages; economic development; environment; tourism; disaster management; the management of natural resources; and dissemination of information relating to government policies and programmes; education (added by way of amendment)

Well focus on two of these in particular this semester: land administration and the administration of justice. Well return to them in more detail in future.

ix) Recent policy affirmations

The Department of Traditional Affairs is about to release proposed guidelines on the allocation of roles and delegation of functions to traditional leaders and traditional councils by organs of state in terms of the Traditional Leadership and Governance Framework Act. All the affected Departments will have a chance to align their plans with what the guidelines intend to achieve. President Zumas speech to the National House of Traditional Leaders: 20 April 2010

Section 20 was reaffirmed by the Deputy Minister of Cooperative Governance and Traditional Affairs in speech to the Traditional Councils, Local Government & Rural Local Governance Summit, eThekwini: 5 May 2010 In a nutshell what the guidelines intend to achieve is to bring traditional leaders into government in some way, with the suggestion being that traditional leadership structures may actually displace local government in rural areas. To say diplace is probably inaccurate, given that local government has in many rural areas almost already collapsed.

x) Assigning more powers

Section 20(2) continues: Whenever an organ of state within the national government or a provincial government considers allocating a role for traditional councils or traditional leaders in terms of subsection (1), that organ of state must (f) ensure, to the extent that it is possible, that the allocation of roles or functions is implemented uniformly in areas where the institution of traditional leadership exists; and (g) promote the ideals of co-operative governance, integrated development planning, sustainable development and service delivery through the allocation of roles and functions. These provisions deal in part with the accountability of traditional leaders. We know from Sindisos first semester pluralistic wankfest that there is a tension between standardisation, certainty, predictability and uniformity on the one hand; and the flexibility of living customary law on the other

hand. This tension is part of what the courts have to reconcile. This legislation seems to be too reflective of uniformity in a context where there is so much diversity. We should have noticed by now, and should continue to notice, some of the buzzwords that repeatedly come up: cooperative governance; service delivery; sustainable development. Well also see more references to the support of institutions supporting traditional leaders, respecting their role, status and functions.

xi) Section 5: Partnership governance

Section 5 entrenches the partnership / cooperative governance model with Traditional Councils. (1) The national government and all provincial governments must promote partnerships between municipalities and traditional councils through legislative or other measures. (2) Any partnership between a municipality and a traditional council must (a) be based on the principles of mutual respect (and recognition of the status and roles of the respective parties; and (b) be guided by and based on the principles of co-operative governance. (3) A traditional council may enter into a service delivery agreement with a municipality in accordance with the Local Government: Municipal Systems Act, (Act No. 32 of 2000), and any other applicable legislation. This basically allows for the outsourcing of local government functions to traditional leaders. Implicit in this section is the idea weve just dealt with, viz. that the recognition of traditional leadership and traditional councils forms part of the governance function of the state. This might be argued to be at odds with the Constitution, which recognizes only three levels of government. Does section 212(1) of the Constitution allow for this kind of recognition? Its debatable.212. Role of traditional leaders 1. National legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities.

xii) Consultation

Section 20(2) also says:

Whenever an organ of state within the national government or a provincial government considers allocating a role for traditional councils or traditional leaders in terms of subsection (1), that organ of state must (b) consult with (i) the relevant structures of traditional leadership; and (ii) the South African Local Government Association; (c) ensure that the allocation of a role or function is consistent with the Constitution and applicable legislation; (d) take the customary law and customs of the respective traditional communities into account; This consultation requirement is interesting given that uniformity was one of the conditions earlier. So theres clearly a balancing act that organs of state must play. One criticism that can be leveled at these consultation provisions is that there is no consultation with ordinary rural people. Ordinary people are treated as what Mamdani would call subjects people who things just happen to. The Memorandum to the Traditional Courts Bill reads: DEPARTMENTS/BODIES /PERSONS CONSULTED 3.1 As required by the Traditional Leadership and Governance Framework Act, 2003, the Department consulted with the structures of traditional leaders and the South African Local Government Association. Consultation with the structures of traditional leadership took place at national and provincial level. This shows the lack of consultation actually required by the Act. Note that consultation with ordinary rural people is not specifically required by s 20(2). One might argue that ordinary rural people are to be consulted in terms of s 20(2)(d), given that it says that the organ of state must take the customary law and customs of the respective traditional communities into account. But this is an argument unlikely to succeed, because government unfortunately seems to have embraced the idea that traditional leaders are the sole custodians of custom. Now we turn to resourcing how are these institutions funded?

xiii) Section 20 and section 4: Revenue and financing of institutions

The most important questions we need to deal with here are: who can collect it, when, who from and how? what can it do, and how do we make sure that it does that?

Key terms: Support, Powers / Role / Functions, Accountability, (Double) Taxation Traditional leaders can be said to be funded in terms of two major structures. Firstly, they can be funded centrally by the state. Secondly, they can potentially collect levies locally.

1. Central funding Section 20(2) says: Whenever an organ of state within the national government or a provincial government considers allocating a role for traditional councils or traditional leaders in terms of subsection (1), that organ of state must (e) strive to ensure that the allocation of a role or function is accompanied by resources and that appropriate measures for accounting for such resources are put in place; So it is the organ of state that bears the burden of ensuring that the money is accounted for. Of course, this depends on that organ being accountable enough to have good accounting mechanisms in place this is often unlikely in rural local governments. This provision is reinforced by section 6: The national government and a provincial government may adopt such legislative or other measures as may be necessary to support and strengthen the capacity of traditional councils within the province to fulfil their functions. Such legislation and measures do indeed exist. The Remuneration of Public Office Bearers Act provides for remuneration of traditional leaders; traditional council members receive stipends; traditional council offices are built and resourced, even if only minimally, primarily by provincial government. Section 20(3): Where an organ of state has allocated a role or function to traditional councils or traditional leaders as envisaged by subsection (1), the organ of state must monitor the implementation of the function and ensure that (a) the implementation of the function is consistent with the Constitution; and (b) the function is being performed. This is a clearly a very a low bar the function must merely be performed. Interestingly, the National Traditional Affairs Bill proposes to change the requirement to the function being performed efficiently and effectively. (4) Where a traditional council does not perform an allocated function as envisaged in subsection (3), any resources given to a traditional council to perform that function may be withdrawn.

So the funds can be withdrawn if the function is not in fact being performed. The real question is whether this kind or level of oversight required is given effect to in reality. Sindiso is not aware of any resources having been cut for any reason other than governments limited funds.

2. Tribal levies The background to the notion of tribal levies is that there was real resistance to traditional authorities levying money from their communities, because it was so abused during apartheid, and because the apartheid government used traditional authorities to collect money for its coffers. Remember that they wanted the homelands to be self-sustaining, so structures were created whereby traditional leaders were primarily accountable to no one but themselves. For this reason, there was resistance to the payment of tribal levies, particularly in Limpopo and the North-West. This resistance is reflected in the White Paper on Traditional Leadership and Governance, July 2003 (before the TLGFA), which states:The authority to impose statutory taxes and levies lies with municipalities. Duplication of this responsibility and double taxation of people must be avoided. Traditional leadership structures should no longer impose statutory taxes and levies on communities.

But, in contrast to the White Paper, section 4(2) of the TLGFA provides traditional leaders with a possible means by which to tax: Applicable provincial legislation must regulate the performance of functions by a traditional council by at least requiring a traditional council to (a) keep proper records; (b) have its financial statements audited; (c) disclose the receipt of gifts; ... And under section 4(3), more explicitly: A traditional council must ...(b) meet at least once a year with its traditional community to give account of the activities and finances of the traditional council and levies received by the traditional council. This is being challenged by those whove resisted it, because in particular, some Provincial Acts recognize the power of levying, and specifically provide for it. For example, in terms of the Provincial Act of Limpopo, section 25(1): A traditional council may, with the approval of the Premier, levy a traditional council rate upon every taxpayer of the traditional area concerned. Others provide for voluntary gifts which in effect are not very voluntary at all. The bottom line is that levies are still widespread. The constitutional problem in terms of levying is that the Constitution only recognizes three spheres of government. Only those three spheres are granted taxation powers. National and provincial government have an inherent power to tax, and provincial government is empowered to delegate it to local government. So really it comes back to the question of whether traditional leaders are legitimately perceived as part of local government under the Constitution if not, they do not have the power to tax; if so, then there is potentially

room for national or provincial government to devolve that power to them through legislation. However, the thing to keep in mind is that the National Traditional Affairs Bill has withdrawn the clause in s 4(3) pertaining to levies. It seems quite possible that they have heard these criticisms, and are coming around to the view that levying powers arent legitimate. But given how widespread it is in reality, its questionable whether it will make any difference. In practical terms, what is the argument against traditional leaders levying, other than the constitutional one? It is that the highest proportion of people living in rural areas are women (57%58%), and in having to pay levies, that money is coming mostly from remittances from people who work in urban areas and send money back, or, is coming out of social grants either pension or child grants. So this levy which is used to support a traditional leaders lifestyle is in many cases being taken from women who themselves are not even making an income. They are also already paying tax in the national economy in the form of VAT which is why the term double-taxation is often used. The final critique is that these are women who in many areas do not actually have a voice. So they are contributing financially to people who have more resources than themselves, but are still not guaranteed participation in community structures.4

xiv) Section 11: Appointment

Section 11(1) provides that: Whenever the position of senior traditional leader, headman or headwoman is to be filled (a) the royal family concerned must, within a reasonable time after the need arises for any of those positions to be filled, and with due regard to applicable customary law (i) identify a person who qualifies in terms of customary law to assume the position in question, after taking into account whether any of the grounds referred to in section 12(1)(a),(b) and (d)5 apply to that person; and (ii) through the relevant customary structure, inform the Premier of the province concerned of the particulars of the person so identified to fill the position and of the reasons for the identification of that person; and (b) the Premier concerned must, subject to subsection(3), recognise the person so identified by the royal family in accordance with provincial legislation as senior traditional leader, headman or headwoman, as the case may be.

4 5

I feel like a question in which we are required to consider arguments against tribal levies is very possible. These are the removal conditions, which well come to.

Remember that the national legislation is the framework act (as the title suggests), and that there are various provincial Acts all provinces which have traditional leaders have such Acts: North-West; Eastern Cape; Northern Cape; Limpopo; Free State; Mpumalanga and Kwazulu-Natal. The same section, in subsection (2)(b), stipulates that: Provincial legislation may also provide for (i) the election or appointment of a headman or headwoman in terms of customary law and customs; and (ii) consultation by the Premier with the traditional council concerned where the position of a senior traditional leader, headman or headwoman is to be filled. So, while the Acts earlier reference to a royal family seems to presume a somewhat hereditary process, this provision makes a semi- exception for headmen and headwomen, where provincial legislation could potentially allow for non-hereditary processes (election or appointment). (3) Where there is evidence or an allegation that the identification of a person referred to in subsection (1) was not done in accordance with customary law, customs or processes, the Premier (a) may refer the matter to the relevant provincial house of traditional leaders for its recommendation; or (b) may refuse to issue a certificate of recognition; and (c) must refer the matter back to the royal family for reconsideration and resolution where the certificate of recognition has been refused. These provisions give rise to a few problems: 1. The assumption that there is always a royal family to drive the process is a fallacious one, especially given the election of headmen and iziphakanyiswa. 6 What about communities where there is no such royal family? We sometimes find that there is a completely electoral process through which successors are elected into power that might legitimately be the customary law in a particular community. In KZN for example, an election process is often used rather than a hereditary system. Iziphakanyiswa are specific to KZN, but the phenomenon of elected customary leaders is not. 2. Moreover, by saying that provincial legislation may also provide for the election or appointment of a headman or headwomen, it allows the possibility that Provincial legislation does not provide for election, but only for appointment. For example, in former Ciskei, where chiefs were done away with, all that were left were iziponda (headmen). So the headmen occupy a position which doesnt quite fit with the hierarchical scheme of the TLGFA. Note that the National Traditional Affairs Bill is attempting to bring some of the specific processes which have not been spelled out in provincial legislation (such as the actual process by which6

Literally meaning to be lifted/appointed refers to people not born into positions of traditional leadership but raised or appointed, through some form of electoral process.

appointment/election takes place) into the Act. That would have specific procedural requirements, which the TLGFA doesnt have. 3. Or/and? The Act provides that the Premier may refer the matter to the relevant Provincial House of Traditional Leaders for recommendation OR he may refuse to issue a certificate of recognition. The use of or here is peculiar in those cases where the provision is applied and the process didnt happen in accordance with customary law customs and processes. Firstly, how would the premier know that it hasnt happened in accordance with customary law, in order to be able to challenge the appointment? Secondly, and more importantly, if the Premier has somehow established that it hasnt taken place in accordance with customary law customs or processes, why is it that the premier has discretion? Presumably, if it hasnt happened in accordance with customary law, the Premier should have to refuse to issue a certificate of recognition. 4. If the Premier does issue a certificate of recognition then he must refer the matter back to the royal family. This raises a number of issues itself. Weve spoken already about the fact that a royal family may not even exist in the relevant community. In addition, the referral back to the royal family has been questioned as being potentially inconsistent with the Constitution, because it doesnt allow the community to contribute to the decisions, and doesnt involve any community consultation. But if in fact the matter does come before a court, the question must be asked: Are courts well-placed to make such determinations? Consider this case: Litigation: Chieftainship won in the courts Mkhanyiseli Dudumayo (33), who forwent the traditional route and instead opted to have a judge intervene in his battle for chieftainship, has succeeded in his legal quest, says a Daily Dispatch report. Eastern Cape Premier Noxolo Kiviet has now been ordered to consider Dudumayos pledge for a traditional leadership position but first his uncle has to be stripped of the same position. The report notes the family feud began in June 2010 when Mhlabunzima Dalasile (77) was awarded headmanship of the Maphuzi administrative area in Mqanduli. Dudumayo disputed his uncles position and claimed that he was in fact the rightful heir, being the biological son of the late headman. Judge Zamani Nhlangulela, of the Eastern Cape High Court (Mthatha), agreed, saying he based his decision on the provisions of the provincial Traditional Leadership and Governance Act of 2005 and the Traditional Leadership and Governance Framework Act 41 of 2003. According to the report, he found that the decision to appoint Dalasile as headman had not been in compliance with the Act. He said Dalasile was not a customary heir and successor to Daliwonga Dudumayo and that the decision to recognise him as headman in 2010 and then appoint him this year, falls foul to the provisions of the Act. Courtesy of Legalbrief Today, 3 Jun 2011

xv) Section 12: Removal

The removal provisions raise some similar problems namely: 1. The assumption that the royal family exists; 2. No provision for a community-driven process or community participation; 3. From a policy perspective, even if the custom is that the royal family typically removes the traditional leader, is this not a power which the Constitution demands we assign along democratic lines, to the community at large?

Specifically, section 12(1) says: A senior traditional leader, headman or headwoman may be removed from office on the grounds of (a) conviction of an offence with a sentence of imprisonment for more than 12 months without an option of a fine; (b) physical incapacity or mental infirmity which, based on acceptable medical evidence, makes it impossible for that senior traditional leader, headman or headwoman to function as such; (c) wrongful appointment or recognition; or (d) a transgression of a customary rule or principle that warrants removal.

(2) Whenever any of the grounds referred to in subsection (1)(a),(b) and (d) come to the attention of the royal family and the royal family decides to remove a senior traditional leader, headman or headwoman, the royal family concerned must, within a reasonable time and through the relevant customary structure (a) inform the Premier of the province concerned of the particulars of the senior traditional leader, headman or headwoman to be removed from office; and (b) furnish reasons for such removal.

xvi) Section 21: Dispute and claim resolution

Section 21(1)(a), as amended in Dec 2009, reads Whenever a dispute or claim concerning customary law or customs arises between or within traditional communities or other customary institutions on a matter arising from the implementation of this Act, members of such a community and traditional leaders within the

traditional community or customary institution concerned must seek to resolve the dispute internally and in accordance with customs before such dispute or claim may be referred to the Commission. The amended section 21(1)(b) goes on to say If a dispute or claim cannot be resolved in terms of paragraph (a), subsection (2) applies. In terms of s 21(2)(a), the Provincial House of Traditional Leaders resolves the dispute in accordance with its internal rules and procedures; if it is unable to, then in terms of s 21(2)(b) the dispute must be referred to the Premier, who must resolve it after having consulted (i) the parties to the dispute or claim; and (ii) the provincial house of traditional leaders concerned. Failing this, the dispute is referred to the Commission on Traditional Leadership Diputes and Claims in terms of sections (2)(c) and (3). Here it is striking that the Premier is under no obligation to consult the community, but only institutional actors. According to the definition in section 1: a customary institution or structure means those institutions or structures established in terms of customary law. But customary law is not defined in the TLGFA. So its not clear whether it means the official customary law that is constituted by the TLGFA or living customary law, which in terms of s 211 of the Constitution is trumped by legislation dealing with customary law to the extent that the legislation is consistent with the Constitution. A customary institution probably means the traditional leader and traditional council as referred to in sections 28, 3, 4, 8, 11, 19 and 20. This is a very specific provision dealing with disputes or claims which end up at the Commission. Weve encountered these commissions before in terms of the investigations they carry out, and whose decisions regarding kingship and queenship are often challenged. This is only provision in which the community is given explicit mention as playing a role in the determination of the appointment or removal of their leader. It says that members of the community and the customary institution concerned must seek to resolve the dispute internally and in accordance with customs. The question arises here: who determines what the customs are? Could the customary institution decide that custom means the exclusion of the community?

xvii) Overview of the Act:

Section 1: Definitions Section 2: Recognition of the traditional community Section 3: Recognition of the traditional council);

Section 28: Transitional arrangements but they are still in force today, and are in a sense an override of ss 2 and 3). Section 7: Possibilities of Withdrawal Section 4: Functions of TCs Section 19: Functions of TLs Section 20: Scope for extending TL powers Section 5: Partnership / Cooperative Governance Section 20: Who is to be consulted in making traditional leadership laws? Section 20: Resourcing expanded TL functions Section 4: Alternative Resources and Accountability (Tribal Levies) Section 11: Appointment of TLs Section 12: Removal of TLs Section 21: Dispute and claim resolution And, buzz words: cooperative or partnership governance, service delivery and development, support for / promotion of the institution of traditional leadership, respect for the status and role of traditional leaders

d) The politics of traditional leadership: the rising star of traditional leaders

What if we were to ask the question why? Why is it that laws like these are coming into being? Think about this especially in the context of traditional leaders in a lobbying capacity around the drafting of the Constitution, as they wanted customary law to be independent from the Constitution. Remember that they lost the battle against the gender activists. Whats happened since then though? Jane Guyer makes the following observation in talking about Nigeria:

there is a seeming paradox of restricted constitutional powers but rising political profile of chiefs; indications that the traditional rulers star may be rising again *and this+ has at least as much to do with the seriousness with which the corporate sector, both economic and political, deals with high level chieftaincy as with the peoples cultural attachment to the institution.

Asking the question why is important, as we must recognize the fact that the prominence of traditional leaders is not necessarily determined by the will of people in communities. It might be so where traditional leaders rule justly in terms of the will of the community, but where they rule unjustly, and against community will, it has a lot to do with economics and politics. John Comaroff and Jean Comaroff, in their book Ethnicity Inc., summarise the position in South Africa well:The Congress of Traditional Leaders of South Africa (Contralesa) is the representative voice of ethnicity in the country. It speaks for culture, customary law, and the collective rights of indigenous peoples. Also for the authority of their chiefs and kings, past and present. Contralesa has long been committed to bringing about a change in the national constitution. Its ultimate objective is a nationstate that accords to traditional leaders sovereign autonomy over their realms, a nation-state that puts the dictates of culture at least on a par with, if not above, universal rights of citizens. Meanwhile, Contralesa seeks, by whatever political means possible, to privilege the kingdom of custom. And the customary privileges of kings.

This is not an unfair representation of the current situation. There are a number of arguments made for the rise to prominence of traditional leaders: 1. The argument that traditional leaders bring in the votes: Traditional leaders control the rural vote, so if the ANC is to retain its political stronghold then it has to support traditional leaders. An example of this is the passing of CLARA, which was sped through just before the 2004 general election, because traditional leaders needed to be brought onside and encouraged to canvass for votes in rural areas. 2. The argument that traditional leaders are the custodians of culture: this is one of the general perceptions in the public domain. But what about the fact that living customary law is a distributed entity in terms of who makes it and who determines its content? Why arent ordinary people custodians of culture if living customary law is what we say it is? 3. The argument that traditional leaders hold a significant amount of social and political capital. We find that the co-Chairperson of the Constitutional Review Committee is a traditional leader, The Portfolio Committee on Justice (responsible for the Traditional Courts Bill) has a traditional leader on it; the Portfolio Committee on Rural Development and Land Reform (responsible for the Communal Land Rights Act) also has a traditional leader on it (Nelson Mandelas grandson). So you have these various traditional leaders involved in political processes, with the reach and ability to speak where ordinary people do not. 4. The economic capital argument: the fact that the interests of traditional leaders have been conflated with the interests of ordinary people. Its assumed that whats best for the Traditional Leaders is best for the people. But is that the case when traditional leaders are

earning government incomes, and when many of them are educated people, and are often in an entirely different social and economic position to their people? The conflation of the interests of traditional leaders with the interests of their people is related to another, namely, the conflation of the promoting institution of traditional leadership with community development and service delivery. 5. The argument that government is desperate: that in the absence of local government, there needs to be someone to fill in the gap. Traditional institutions are an existing apparatus that the government can use for this purpose. But at the same time, ordinary rural people (and the organisations that represent them) are arguing that government is throwing us away they want to be part of the same democratic South Africa as everyone, where all have citizenship, and everyone has the vote.

e) The nature of governance in terms of living customary law

i) Who makes living customary law?

In one sense, Shilubana provides the basis for saying that the royal family represents the high water mark on decisions regarding succession. In deciding whether the traditional authorities had the authority to bestow chieftanship on Tiniko Shilubana, the daughter of Hosi Fofoza, the court held that section 211(2) of the Constitution specifically provides for the right of traditional communities to function subject to their own system of customary law, including amendment or repeal of laws and that it must be held that *traditional leaders+ have the authority to act on constitutional considerations in fulfilling their role in matters of traditional leadership. But it would be a troubling precedent if it was understood to mean that living customary law is determined only by traditional authorities, rather than the community. But the case clearly recognizes the community vote to confirm Tiniko Shilubanas appointment. At paragraph 5, the court finds:On 5 August 1997 the Royal Council accepted and confirmed that Hosi Richard would transfer his powers to Ms Shilubana. On the same day, a duly constituted meeting of the Valoyi tribe under Hosi Richard resolved that in accordance with the usages and customs of the tribe Ms Shilubana would be appointed Hosi.

So ultimately the court in Shilubana finds that living customary law is determined by the community, and says:as has been repeatedly emphasised by this and other courts, customary law is by its nature a constantly evolving system of law. Under pre-democratic and apartheid regimes, this development was frustrated and customary law stagnated. This stagnation should not continue and the free development by communities of their own law to meet the needs of a rapidly changing society must be respected and facilitated.

And so while it could be argued that the court does endorse the traditional authorities/royal familys role, the court clearly also endorses the communitys role.

ii) Localised authority structures

Ultimately the reality is that each community has a different form of leadership. Some have royal families; others dont. Some are quite hierarchical, and you might find a chief (nkosi, kgosi) or king (silo, ndabezitha, kgosi) at the apex. But in others you might have a headman (isibonda) at the top, or even a committee of numerous people. We can generalize that traditional communities have councils, but this is where generalization ends these councils are variously constituted: sometimes only members of the royal family form part of the council; sometimes only men, or headmen, or other elders in the community, or a combination. This clearly makes the TLGFAs job very difficult, in terms of trying to universalize the way in which traditional communities look. Each community must be individually discovered, in terms of its history and its present (in terms of the Shilubana test). Leadership can be hereditary, typically in the case of kings / chiefs / headmen, or can be elected, for example, some Eastern Cape headmen and community authority committees. Even royal succession is hardly ever in fact strictly hereditary. The reason it is often thought to be hereditary is that people often speak about it being so. If you ask people, theyll relate historical accounts of how succession took place, without going into the detail of the fact that overthrows happened, etc. This is how communities talk about themselves, and forms part of their own self-identification or selfimagination. But in reality, succession battles are often won through contestation and political processes and maneuvering among community members. Of course, a complete, closed list of authority structures and norms surrounding traditional governance under living customary law is not possible. Good lawyers do the research (and get experts who know the history and present of the community concerned) on a case-by-case basis. So if we, as lawyers, find ourselves presented with a set of circumstances where we need to figure out what the authority and governance structure of a community is, we cant just turn to textbooks. We need to investigate the history, politics and lived reality of that particular community. Having said that, lets attempt to generalize as far as possible. Well now look at some of the themes and general principles which overarch the experience of traditional communities. But bear in mind that these are always contingent upon the reality of a particular community.

iii) Social organisation: bottom up, reciprocal and interdependent

Generally, traditional communities are layered, so you have overlapping levels of authority. They are also nested, so you have polycentric systems of social organization, such as subgroups and clan formations. Okoth-Ogendo describes this in the context of land administration:

a social hierarchy in the nature of an inverted pyramid. The tip of the pyramid represents the authority of the family unit over cultivation and residence; the middle the clan or lineage unit over grazing, hunting or redistribution of resources in space and time and between generations; and the base the authority of the community or nation over a wide range of cross-cutting functions including territorial expansion and defence, dispute settlement and the maintenance of transit facilities.

Heres what that looks like visually. The typical conception sees a chief wielding significant power over the community, the a headman with slightly less power, and then the family head. But Okoth Ogendo is talking about an inversion of that, where the bulk of the power is situated at the bottom tip of the triangle in the family, with the clan holding some of the intermediate power, and the nation or tribe where the chief is situated having the diffused power, not as highly concentrated.

This speaks to the notion that a chief is a chief by the people inkosi yinkosi ngabantu, or morena kemorena kabatho. South African Historian, Jeff Guy says that this saying is critical, as it captures well the direct relation between power and numbers of people. In other words, from the chiefs perspective, having lots of people adds to his domain and his role. It also breaks down the dichotomy between chief and people it not only unifies them but it also gives them equal weight. It counteracts the view, a feature of both pre- and post-conquest eras, that gives power and significance predominantly, even exclusively, to the chieftainship. In other words, the chief and his people are intricately connected, and the chief is not merely an individual independent actor he is deeply dependent on his people. The equal weight of the chief and his people is reflected in the reciprocal relationship between the two. Guy observes that in pre-colonial times, through allegiance, the chief received people (ukukhonza means to give allegiance) who offered him their labour, services and an army. In exchange for this, the people received land, protection and dispute resolution. There was reciprocity. In the words of Peter Delius (2008):Aside from their role in land allocation which will be discussed in detail chiefs were responsible for providing their subjects with defence from enemies and were also expected to help them in times of economic need, assist them with rain-making, maintain proper relations with the ancestors,

punish witches and resolve difficult disputes in their courts. Subjects were expected to pay tribute to the chiefs in the form of a small proportion of the produce of the fields, their herds and the hunt, and to provide labour when called upon for both military and productive purposes.

iv) Colonial and apartheid interference

What colonialism essentially did was to reduce the amount of land available, thus limiting the potential of people to revolt and move away. This potential had previously been a very important check against despotism. Colonialism secured the chiefs benefits at the expense of ordinary people. Labour migration meant that homesteads often had too few hands on deck for subsistence farming. In the process, chiefs often became severe: Any idea that a chief was a chief by the people was also vigorously dispelled and legitimacy was clearly established as coming from above. (Delius). And so the balance was radically shifted, from a system of reciprocity to one in which chiefs had all the bargaining power. As Jeff Guy says, the pre-standing reciprocity was utterly undermined by colonial and apartheid laws:efforts to confine the chiefs power by defining his authority in territorial, not in personal terms: an attempt to regulate personal relations which I suspect has not been successfully imposed to this day. This legislative authoritarianism was exacerbated by the more general, but related developments by which homesteads were economically undermined by the loss of access to land, taxation and labour migration, to which one of the responses of the kraal head and the chief was [to] come down even more severely on the people over whom they now had a new authority no longer a chief by the people, but a chief over the people. power based on people, the very essence of pre-conquest societies, had to be pr[o]scribed in colonial regimes. Colonial administration sought to restrict chiefly authority by defining it in terms of territory and then limiting it to specific bounded wards. The shift from the personal to the territorial definition of chiefly authority is one of fundamental significance but in spite of massive legal and political attempts to enforce it I am not sure that even today the notion that chiefly powers are personal ones has been eradicated. It is perhaps an idea that could be developed in a democratic regime in order to reinforce the principle that popular support is a feature of all political authority including that of chiefs.

More on colonial interventions:When the colonial powers imposed new provincial and international boundaries, the customary method for protesting against unpopular rulers secession was lost, because those disaffected with a chiefs rule were prevented from leaving the chiefdom to settle elsewhere. *and+ an individual wanting to move to another chiefdom, without implying any sense of rebellion against his leaders rule, had to obtain written permission.

Section 3(2) of the Natal and KwaZulu Codes made relocating to another chiefdom without prior permission an offence, and s 31(1)(m) of the Administrative Authorities Act 37 of 1984 (Ciskei) criminalised a traditional leaders incitement or assistance in secession.

So you can see that there was a definite legal orientation to banning the possibility of people seceding and forming new communities a possibility that was so important prior to colonization.

v) The importance of opting in and out

Instead of people being connected by the personal allegiances and relationships, people were compelled to particular territorial domains. In the process they lost access to land, and chiefs were able to tax them heavily. The pre-existing personal rather than territorial boundaries had provided for a degree of accountability, because very few rulers were able to rule uncontested. There was thus a degree of insecurity for those in positions of power, and the constant possibility of revolt and secession, that is, the option of opting in or out. As Bennett notes:Regardless of the term used to describe an office of leadership, it is nonetheless true that few rulers had an uncontested hold on power. If an office holder is constantly under threat of usurpation, he has to take great care to cultivate goodwill and appease hostile factions. Political insecurity explains why an African rulers power could not have been absolute. The wise leader, therefore, did not dictate to his subjects. Ultimately, however, revolt and secession were the only methods for forcing corrupt or incompetent leaders to bow to popular will or relinquish office.

And as Delius notes:A key characteristic of chiefdoms was a profound tension between the forces of centralisation, which allowed individuals to build up political and economic power, and competition for authority by rivals. Thus, through time, chiefdoms constantly fragmented and reformed as factions gained power, built up strength and subsequently lost control to other groups. The key shortage was of people. As a result, power and wealth depended on being able to build up a large following. Chiefs needed to attract and hold followers. Those who could offer material and military security as well as effective leadership gained followers. Those who were harsh, capricious and incompetent lost followers [and army]. The availability of land made it relatively easy for groups to move between chiefdoms. This mobility also contributed to cultural heterogeneity, which undermines the depiction of these communities as tribes composed of culturally homogenous populations with clear social and geographic boundaries.

Other mechanisms of accountability

Another form of accountability was the existence of councils which represented, and spoke on behalf of the people. The chief generally wouldnt act without having consulted them by virtue of the fact that they let the chief now what the people were saying.

Bennett (citing M W Prinsloo) describes how there were other more subtle accountability mechanisms especially:

[v]arious councils of a tribe maintained a form of administrative control over the leader by means of a requirement that he consult with them before taking any major decisions *and+ [b]ecause they gave voice to the popular will, they were the leader's most immediate link with his people. Councillors were partly selected on the basis of popular support and achievement and/or representing significant subgroups. (Delius)

Chiefs acted consultatively with community (men) in council. Whilst politically diverse, vital to the social and political fabric of South African society were forms of chieftainship that contained key elements of both consultation and political competition, which ensured that the interests and opinions of commoners could not be easily ignored. (Delius)

vi) Some cases

In the early stages, chiefs powers (especially over land) were not thought to be autocratic: Hermansberg Mission Society v The Commissioner for Native Affairs and Darius Mogalie 1906 TS 135: held that the consent of all tribal people was not necessary but the unanimous consent of the headmen was sufficient to justify alienation. Also, Mogale v Engelbrecht and Others 1907 TS 836: held that a chief must obtain the consent of a majority of his councilmen before he can sue on an issue related to the transfer of land. About two decades later, we find a shift towards recognizing an invented form of customary law, a far cry from living customary law. Mokhatle & Others v Union Government (Minister of Native Affairs) 1926 AD 74: The decision by the Supreme Chief (that is, the Governor-General) to expel 9 members of Bafokeng tribe was rationalised through the lens that *t+he Government to-day has the power the old chiefs exercised in terms of section 13 of Law 4 of 1887 (the predecessor to the Black Administration Act 1927). The question at issue then become whether or not the Governor-General, as supreme chief, would, in terms of native law and custom, need the support of his councilmen and the permission of a court judgment in order to expel members of his tribe. The Court suggested that the native mind is more suited to a less democratic process wherein the chief has full discretion to determine such matters, and others need not be consulted. Therefore, even though the court recognises that the community members expressed somewhat different views, it ultimately ruled in favour of chiefly (and, ultimately, state) hegemony and unlimited power. Rathibe v Reid 1927 AD 74: the Appellate Division described the chief as an autocrat and found that while the chief was guided by the advice and counsel of his legothle (council)whether [he] is obliged to act on that advice is doubtful. But, despite this trend, people continued to contest the authority of traditional leaders and continued to express their right to have a say in decision making:

Mandhlakayise Ngcobo v Chief Native Commissioner for Natal 1936 NPD 94: the court addresses the tribes dissatisfaction with its leader, one component of which is the chiefs appointment of a principal induna without consulting the tribe. (Cf. Rex v Magano and Madumo, 1924 TPD 129, where court holds: the natives have no say in the election of the council, which is appointed by the chief entirely at his will.) Similarly, in Moepi v Minister for Bantu Administration and Development 1965 (1) SA 533 (T), a tribal community, led by the chiefs councilmen, brings a chief before the Bantu Commissioner for his failure to consult the headmen on matters which required their approval.

viii) Constitutional protection

Section 235 of the 1996 Constitution, provides for the right to self-determination, saying that:The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation.

Exactly how much of a right to self-determination is there? And, does the TLGFA give adequate expression to it in terms of s 7? Or does s 7 constitute a limitation of the right to self-determination? Is this limitation legitimate? Sindiso thinks that s 7 does not give adequate expression to this clause, because certain minority groups could certainly claim to be a community sharing a common cultural and language heritage. This is especially so in the context of tribes which had nothing in common being forced together in the formation of a traditional community. The fact that s 7, read with s 28, doesnt allow for subgroups to withdraw means that there is an argument to be made that this particular clause is not being given adequate recognition. We now move onto taxation power and the transformation that traditional authorities power to elicit funds underwent.

f)

Taxation power

i) Origins of taxation power

Under pre-colonial indigenous law, gifts were voluntary. Ukukhonza was a modest gift given to the chief, perhaps a share of the fruits of ones produce; but nothing approximating what we now know

as annual levies and taxes. They were part of the reciprocal relationship we spoke of earlier one would pay allegiance to the traditional authority, who would provide land and protection in return. The form that these levies take today has led some to question what relation they have to precolonial practices. The argument is that the form of taxation that we see in traditional communities isnt derived from indigenous practice, but rather from a process of legislation that occurred under apartheid.

ii) Evolution and abuses of taxes

The first step in this process was the government recognising a special rate in the Black Administration Act of 1927. These were legislated voluntrary levies that were supposed to be collected within a limited timeframe they had to be gazetted and the timeframe during which they would be collected specified. They had to be approved at a community meeting before they could be gazetted for collection, and were also subject to approval by the Minister of Native Affairs. They were also only for specific projects, for example the buying of land, the building of a school, or the sinking of a well. As Aninka Claassens observes:what began as voluntary contributions for specific agreed projects became, in practice, a tax to finance the running costs of Bantu Authorities so special rates became rates that formed the source of ongoing funding for tribal administration over multi-year timeframes.

By the 1980s these levies were very widespread. Even though they were originally connected to the migrant labour system, and were thus primarily attached to households earning an income in the formal economy, they became indiscriminately applied, to any household regardless of whether there was a migrant labourer in the household. Migrant labourers were the original target of a particular tax whereby your contract was renewed only if you had paid the levy to the chief. You would be given a signature after you paid your levy, and then only would you have permission to work wherever you migrant labour base was. If you failed to pay you then couldnt go and work. There has been a continuation of this in the present day: if people dont pay their levies they may not receive an RDP house, or they may not receive a letter saying theyre a resident and may thus be denied an identity