Current arrangements rely heavily on goodwill, custom and informal practice, with limited clarity on roles, standards, or consequences for non-compliance. This has reduced collaboration to symbolic participation, eroded the dignity of Traditional and Khoi-San leadership, and failed to prevent land-use decisions and settlement patterns that undermine development, service delivery and public safety.

Binding local compacts

The Draft White paper proposes the establishment of a Municipality–Traditional and Khoi-San Council Compact in every municipality where Traditional or Khoi-San leadership is recognised. It is submitted that this aspect of the proposal raises a few concerns. 

First, in some Traditional and Khoi-San areas across the country, the constitution of many Traditional and Khoi-San Councils is not in line with the requirements set out in law, particularly with respect to the representation of women and the youth. This means such councils are not properly constituted and therefore lack legal recognition. The establishment of these Binding Local Compacts may therefore not be lawful or “binding” if the relevant Traditional and Khoi-San Councils, which are part of the Compacts, are not legally recognised.  

Second, what should happen to those traditional councils that are recognised in law but are not recognised by the community which they purport to serve? Whose benefit will the Compact serve in those circumstances? The community or the Traditional or Khoisan Council? Moreover, what should happen in areas that are governed by Community Property Associations and not by a Traditional or Khoi-San authority? The Associations are a creation of the land reform programme, dating back to the 1990s. They created an avenue for groups that were dispossessed under colonialism and apartheid to acquire, hold, and/or manage land as a collective. An example is Dithakweneng - the residents of Driefontontein that needed to acquire a legal entity to manage their land. This is against the background that the law made provision for a traditional authority in an area to assume responsibility of that area. Can such Associations also enter into these binding local compacts with municipalities or as the name of the compact states, it is restricted to “Municipality and Traditional and Kho-San Council”?  

Lastly, it is not clear whether these compacts will replace the service level agreements contained in the Spatial Planning and Land Use Management Act of 2013 (SPLUMA) or whether they are another layer of instruments in addition to the service level agreement (SLA) that applies to land use management decisions exercised by traditional leaders and municipalities in rural areas. The same question can be raised with respect to service delivery agreements (SDA) which set parameters for how municipalities enter into partnerships with external entities to provide basic municipal service. These two agreements are different in nature and serve different purposes but overall, they are designed to ensure delivery of services in a planned and responsible way. Further, they are not as elaborate and legalistic in nature as the proposed compacts. This is to ensure that each municipality negotiates with a Traditional and Khoi-San Council on delivery issues in terms of these agreements. In other words, these agreements are flexible and accommodate greater consensus around living customary considerations and municipal planning requirements and land use management obligations. The aim is to foster negotiation in an environment where service delivery issues must take into account customary law directives and planning law requirements.

Enforceable spatial planning procedures

Current policy and practice on land-use management has not adequately integrated Traditional and Khoi-San systems and indigenous knowledge into municipal planning and land-use decision-making. The proposed policy shift therefore requires clearer and enforceable SPLUMA procedures that recognise the advisory role of Traditional and Khoi-San Councils in customary land areas, while retaining final decision-making authority with municipalities. It is submitted that the wording used in this proposed policy shift, namely, “advisory role” of Traditional and Khoi San Councils while retaining “final” decision-making authority with municipalities will unfortunately serve to upset or “re-traumatise” traditional leaders. This policy position seems to make the same mistake that eventually led to SPLUMA being vilified and rejected by traditional leaders for more than a decade. It is difficult to imagine which land management functions or duties Traditional and Khoi-San leaders would agree to carry out in terms of this compact if they would only advise and not exercise some form of land development or land use decision-making powers in areas under their control. It is this exclusion from decision-making that fuels anger, confusion, distrust and conflict between traditional leaders and municipalities. 

It is feared that this proposed policy shift may re-trigger conflict that is currently being addressed by the Department of Land Reform and Rural Development which is responsible for the implementation of SPLUMA through the Land Planning Programme in areas governed by traditional and Khoi-San leaders. Traditional and Khoisan leaders have the power in terms of customary law to approve or decline proposed developments within their areas of governance while municipalities also have the power to approve or decline proposed developments in terms of their municipal planning authority. Failure to agree on whether to approve a certain development should then trigger the cooperative governance mechanisms as suggested in this new policy shift. 

It is obvious the Draft White Paper recognises traditional authorities as organs of state; hence it subjects them to the principles of cooperative governance. If the compact has any chance of survival or even being implemented, it is suggested that provincial legislation which regulates issues specific to the institution of traditional leadership in a particular province be abolished.  This means that all traditional authorities will be treated the same and follow the same rules as adopted by Parliament, through legislation. Only then can enforceable compacts have a chance of being implemented. This ultimately takes away diversity in terms of internal arrangements within Traditional and Khoi-San Councils – against the background that some do not want to be fully regulated by the law of the land. In Namibia, for instance, this has been done and there is convergence and compliance with national law regulating all Traditional and Khoi-San institutions across rural areas.

By Xavia Poswa