Traditional and Khoi-San Leadership Act that ‘recreates the Bantustans’ heads to ConCourt

Njalo ngonyaka sikhokh’ imali yamasim’ enduneni (Every year we pay land fees to the chief), goes the line in the hit song, Imbizo, released in 1992 by maskandi legends Phuzekhemisi and his late brother Khethani. Nithi siyithathaphi imali? it asks a little later. Where do you think we get the money from?

More than 30 years later, rural citizens living under traditional leaders are asking themselves why they are still fighting for their customary rights, and why the leadership of the country has seen fit to entrench the apartheid legacy that ignored customary law. 

Their newest fight goes to the Constitutional Court on 23 February 2023 when oral arguments will be heard in the matter of Constance Mogale and Others v Speaker of the National Assembly and Others, CCT 73/2022. In this case, rural citizens and civil society will be challenging the constitutional validity of the Traditional and Khoi-San Leadership Act (TKLA) that President Cyril Ramaphosa signed into law in 2019.

Rural citizens argue that by signing the TKLA, the President made the abusive actions of traditional leaders legal. They have no issue with the fact that at last the law recognises Khoi and San leaders and communities. This important move is long overdue and should have been implemented much earlier in our democracy.

The regulation of traditional leadership is also welcomed – this recognises the institution of traditional leadership, and it recognises customary law which is an important part of the identity of rural citizens. However, rural citizens strongly object to aspects of the TKLA that pose serious threats to rural democracy, especially in the area of land rights. 

Critically, section 24 of the TKLA allows traditional councils to enter into agreements and partnerships with anyone, including mining companies, without the consent of the landowners or those whose land rights will be directly affected. The upshot is that rural citizens are at risk of being dispossessed of their land without their consent.

Rather than securing protections for rural citizens, section 24(3) states that any partnerships and agreements agreed by traditional councils must be entered into in terms of the TKLA only. This provision excludes the only piece of legislation that until now has protected the land rights of rural citizens; the Interim Protection of Informal Land Rights Act 31 of 1996.

Section 2(1) of this act says that no one may be deprived of their land rights without their consent, which is a stronger requirement than provided for in the TKLA.

Another concern is that the section of the TKLA concerning the management of finances of traditional councils lacks robust mechanisms to enable rural communities to hold their traditional leaders and councils accountable. It requires traditional communities’ money from any source to go into a government-controlled account.

This is despite evidence collected by traditional communities who have lost huge sums of money through the actions of traditional councils, traditional leaders, and the government. In North West, the Baloyi Commission revealed that the Bakgatla ba Kgafela lost an estimated R5-billion due to financial mismanagement by their traditional council, while a report of the Public Protector revealed a loss of R800-million by the Bapo ba Mogale in the same manner.

Read more in Daily Maverick: “The chief, the mines and the lost Bakgatla billions”

Section 25 allows government departments to allocate their functions to traditional leaders and councils. This effectively creates a fourth sphere of government. But the Constitution, mindful of the need to ensure governance accountability, provides that only elected government structures can hold governmental powers.

If traditional leaders abuse the powers they have been allocated, how are they going to be held accountable as they are not elected?

Similar provisions in the now-repealed Traditional and Governance Framework Act 41 of 2003 (which was replaced by the TKLA) also resulted in traditional leaders taking on a wide range of powers that should correctly have belonged to municipalities or other community structures. This included land allocation, including burial sites, as well as issuing of proof-of-address letters which citizens need to get identity documents to open bank accounts and to access other critical services.

In Limpopo some traditional leaders used these powers to force people to pay levies. Those who failed to pay the levies were denied these services. Later this year, on 15 May, the Limpopo High Court will hear oral arguments in Mohlaba and 11 Others vs Minister of Cooperative Governance and Traditional Affairs and 10 Others, when rural citizens from Limpopo take seven tribal authorities to court for forcing them to pay levies.

Another criticism of the TKLA is that it recreates the former Bantustans. Much like its predecessor, the act retains structures created by the colonial and apartheid governments, under new names. “Tribes” have become “traditional communities”, and “tribal authorities” are now “traditional councils”.

These structures were created under apartheid through the violence of forced removals and land dispossession. Many communities were forced to live under traditional leaders that they do not recognise, and disputes in this regard are still playing out today.

The mechanisms that were included in the Framework Act to democratise structures have failed. The Commission on Traditional Leadership Disputes and Claims (the Nhlapho Commission), was established to deal with leadership disputes and many of its outcomes have been challenged in court.

Elections in which community members were supposed to vote for 40% of the members of traditional councils were not properly conducted in many communities. In Limpopo the elections never took place.

The Framework Act had a cut-off date for reconstituting tribal authorities into traditional councils, after which those that had not been reconstituted were to be deemed constitutionally invalid.

However, many untransformed tribal authorities have simply continued to operate, and continue to enter into deals and agreements on behalf of communities. This is despite the fact that where the transformation requirements of the Framework Act were not met, these deals and agreements became constitutionally invalid.

Rural citizens now find that with the repeal of the Framework Act, the TKLA, instead of holding the untransformed tribal authorities accountable, has simply granted them more time to transform. The cut-off date for transformation is coming up in March and very few provinces have announced traditional council elections.

It seems that this process is likely to fail again, and constitutionally invalid structures will continue making decisions and entering into agreements that affect people’s land rights without the consent of the landowners.

Called out in song