First and foremost, it is important to acknowledge that colonial and apartheid regimes succeeded in severely undermining and disintegrating the institution of traditional leadership. These regimes never accorded traditional leaders pride of place in South Africa’s governance system. They mainly used traditional leaders as agents or tools to further their interests. In the last 25 years, the political and academic community has grappled with and debated the question of the relevance and role of traditional leadership in democratic South Africa. It is submitted that the institution of traditional leadership is here to stay and has an important role to play. The role of the institutional of traditional leadership is primarily important because it forms part of the existing social institutions and impacts the lives and activities of the rural communities where traditional values and customs still (will continue to) reign supreme. It is time that the review of the role of the institution of traditional leadership in democratic South Africa stimulates conversation and not contestation and competition. 

The preamble of the Statement of Intent of the GNU states that South Africa has made great strides since 1994 toward establishing a non-racial, non-sexist, united and democratic society and improving the lives of all who live in it. The preamble further asserts that we are building a democratic state guided by a progressive Constitution and a system of institutions that aim to translate the values of the Constitution into practice. Those institutions, for the purposes of this article, are local government and the institution of traditional leadership. The Statement of Intent, therefore, makes it clear that one of the ways of improving the quality of life of rural residents and service delivery in areas governed by traditional leaders is to review the role of traditional leadership in the governance framework. How did traditional leaders react to the establishment of the GNU?

On the 30th of June 2024, the Secretary-General of the Congress of Traditional Leaders of South Africa (Contralesa), Mr Mkhiva, raised concerns that traditional leaders had been left out of the political negotiations ahead of the formation of the proposed GNU. According to the Secretary-general, Contralesa was not opposed to the establishment of the GNU. However, continued the Secretary-General, in order to ensure that there is a mainstream of South Africa’s indigenous law storage system and that the policy texture of the country is localised, Africanised and decolonised, traditional leaders ought to form part of the Cabinet.

Additionally, Mr Khiva said that traditional leaders in society represented almost more than half of the country’s population and that the African National Congress (ANC) enjoys a strong support base in rural communities because people take the party as theirs and, therefore, request for the restoration of land to its rightful owners, with traditional leaders as custodians of this land. In response, the ANC met with Contralesa in line with the GNU’s Statement of Intent principle aimed at reviewing the role of traditional leadership in the governance framework. In discussions with Contralesa, the ANC reaffirmed that Contralesa is an important stakeholder to the ANC as well as the society, at large, and, therefore, recommitted itself to working with traditional leaders. The key question is what are the key issues for consideration when reviewing the place and role of the institution of traditional leadership in the governance framework? This article submits four broad proposals.

Clarify the role of traditional leadership in land use management

The authority to allocate land by traditional leaders in terms of customary law is important to the institution of traditional leadership. It is a source of livelihood for many traditional leaders in rural areas. The land allocation fees they receive contribute a great deal to supporting their families and their communities at large. Naturally, the establishment of local government imbued with land use management authority in areas governed by traditional leaders caused contestation and competition. There is also confusion due to the lack of clarity on the extent and limit each institution may exercise its authority in practice. The Spatial Planning and Land Use Management Act of 2013 (SPLUMA) and its Regulations and the Traditional Leadership and Governance Act of 2019 acknowledge the role traditional leaders play in land use management. The legislation provides ways in which municipalities and traditional leaders may work together when exercising their land use management authority to develop rural communities. The legislation confirms that traditional leaders retain their authority to manage land use and their role as custodians of communal land. However, the exercise of that authority in practice must take into account the municipal spatial development framework and land use scheme of the municipality. Against this background, it is submitted that GNU must consider clarifying the role of traditional leaders when it comes to the management of communal land.

Dispel the notion traditional leaders "own" communal land

A further suggestion is to clarify the long-standing misconception regarding who "owns" communal land between traditional leaders and the communities they govern in democratic South Africa. What has fomented instability in the traditional leadership governance framework in the last 25 years is the misconception that traditional leaders "own" the land based on their role in land allocation. This misconception has dominated parliamentary debates on the role of traditional leadership in democratic South Africa and more often than not finds expression in legislation. It is, however, encouraging to see that the Secretary-General of Contralesa regards traditional leaders as "custodians" of rural land rather than "owners".  Thus, land must be restored to the rightful owners, namely rural communities and families.

Rural voices must be heard

Over the last 25 years, Parliament has enacted several laws aimed at rectifying the long-standing issue of insecurity of land tenure in rural areas, where communities enjoy informal land rights. However, these legal measures have repeatedly fallen short of addressing this issue. The process leading to the adoption of these measures failed to sufficiently consider the voices of rural communities on how best to secure and strengthen their land rights in a manner which gives effect to the "living customary law" that they observe and follow. Instead, the enacted laws have often mirrored the interests of traditional leaders who exert control over land and its allocation within their jurisdictions. The exertion of excessive control over rural land by traditional leaders without due regard and respect for the land rights of rural communities has precipitated the deep marginalisation of these communities in democratic South Africa. It is therefore high time that the government, Parliament, and traditional leadership pay attention to the voices of rural communities when developing legislation on customary law and traditional leadership.

Parliament’s role in the review of the traditional leadership governance framework

The review of the role of the institution of traditional leadership in the governance framework must also address the role parliamentarians play in promoting and protecting the land rights of rural communities. Parliamentarians are voted into Parliament to represent the voices of their constituencies, particularly those sections of their constituencies whose voices are not heard and whose land rights are violated. Parliament, in consultation with rural communities and traditional leadership, needs to pass legislation which respects the land rights of rural communities. Additionally, the legislation must carve out a role for traditional leaders as a governance institution which contributes to the promotion of the rule of law, as well as the protection, safeguarding and strengthening of customary law and the land rights of rural communities.

Conclusion

Chapter 12 of the Constitution deals with customary law and the institution of traditional leadership to ensure effective governance of rural communities by traditional leaders and the protection of the rights they derive from customary law. The GNU has identified the traditional leadership governance framework as one of many aspects of South Africa’s governance system that requires a review. This review must be guided by the Constitution so that the institution of traditional leadership contributes to the translation of the values of the Constitution into practice. This governance framework needs to be crafted in a manner which enables the institution of traditional leadership to address matters which affect rural communities. The suggestions above are not in any way intended to denigrate or cast aspersions on the institution of traditional leadership. Rather, they are meant to serve as potential points of discussion in the review process.

By Xavia Poswa