Navigating the tensions: political parties' promises to traditional leaders threaten rural representation

President Cyril Ramaphosa. (Photo: Gallo Images / Lefty Shivambu)

31 Oct 2024

Continued neglect of rural communities and domination of traditional leaders over land administration and rural governance pose threats to customary laws and the Constitution.

Before the 2024 National and Provincial Elections, promises by some political parties, such as the uMkhonto Wesizwe (MK) party and the Inkatha Freedom Party (IFP), to traditional leaders stirred severe concerns for rural democracy.

Some of these promises are contrary to customary laws (also called indigenous laws) and the Constitution and may inadvertently lead to further marginalisation of communities living under traditional authority. With IFP as part of the Government of National Unity (GNU) and its president, Mr Velenkosini Hlabisa, as the newly appointed Minister of Cooperative Governance and Traditional Affairs, we are yet to see if and how some of their promises will be implemented.

While the African National Congress simply stated that it intends to continue collaborating with traditional leadership to enhance local governance, other political parties have articulated more defined strategies.

The IFP plans to support traditional courts and amplify the roles of traditional leaders in provincial and local governance structures. Central to its agenda is a proposed amendment to the Constitution to explicitly define traditional leaders’ roles, powers, and functions. Additionally, the IFP pledged to expand the Ingonyama Trust model in KwaZulu-Natal to encompass other provinces while protecting communal land under the custodianship of traditional leadership.

Read more: Zulu king fumes about government ‘overreach’, wants less state oversight of Ingonyama Trust

On the other hand, as one of the opposition parties to the GNU, the MK party plans to support a policy that will strengthen the authority of traditional leaders in governance and community development.

Its vision includes expropriating land without compensation and transferring ownership to the people under the custodianship of the state and traditional leaders. Furthermore, it has promised to establish a parliamentary upper house for indigenous kings, queens, and other traditional leaders and introduce a traditional government sphere within local administration responsible for development.

The Economic Freedom Fighters (EFF), similar to the IFP, has articulated plans to clarify traditional leaders’ land administration powers, aiming to mitigate conflicts with municipalities over land use rights. Additionally, it promises to define traditional leaders’ roles in rural development and indigenous justice systems and repeal apartheid-era legislation. Legislative mechanisms are proposed to specify traditional leaders’ roles in land allocation, accompanied by measures ensuring their representation and participation within municipal councils.

Failure to democratise

Since 1994, the institution of traditional leadership has been plagued by the failures to democratise. The Traditional Leadership and Governance Framework Act of 2003 (TLGFA) was the first legislation enacted to regulate traditional leadership after the transition to democracy.

One key aim of this Act was to democratise the institution of traditional leadership and cleanse it of colonial and apartheid legacies. The Act provided for the transformation of tribal authorities into traditional councils through elections, where the community would elect 40% of the members, and a third would be women. This process of democratisation failed despite multiple extensions.

To address the TLGFA’s failures and to recognise the Khoi and San communities and leadership structures, the TLGFA was repealed in 2019 by the Traditional and Khoi-San Leadership Act of 2019 (TKLA). However, the TKLA was challenged procedurally at the Constitutional Court in Mogale v Speaker of the National Assembly.

In May 2023, the Constitutional Court held that Parliament failed to facilitate public involvement in the enactment process of the Act, as required by the Constitution, and declared the TKLA unconstitutional. However, the order was suspended for 24 months to give Parliament time to rectify the unconstitutionality. This means the TKLA remains operational until Parliament enacts a new law before May 2025. Should Parliament miss this cut-off date, the TKLA will be struck down, and the TLGFA will be resuscitated.

While the TLGFA failed to address historical distortions of customary law and traditional leadership, the TKLA failed to address the failings of the TLGFA. Instead, it introduced further issues of concern regarding traditional leaders’ power over land and governance.

Section 24 of the TKLA empowers traditional councils to enter into agreements with external entities, such as mining companies, without explicitly requiring the consent of affected land rights holders as mandated by the Interim Protection of Informal Land Rights Act of 1996. Section 25 allows government departments to give any of their functions to traditional leaders.

Rural communities and civil society organisations, such as the Land and Accountability Research Centre (LARC), have alerted Parliament to these deficiencies and advised it to consult thoroughly with rural communities before passing legislation to prevent the further entrenchment of the oppressive colonial version of customary law that the TKLA features.

traditional leaders ramaphosa President Cyril Ramaphosa. (Photo: Gallo Images / Lefty Shivambu)

Similar problems have transpired with the Traditional Courts Act of 2022 (TCA) that President Cyril Ramaphosa signed in 2023. Significant substantive and procedural challenges regarding the TCA were highlighted to Parliament through the public comments process to the Act and ignored.

This Act forces rural citizens to participate in matters before the courts of traditional leaders without the option of going to the magistrates’ courts until they have exhausted their entire customary law court system, from the headman’s court to the king’s or queen’s court.

Marginalisation

The government’s marginalisation of rural communities in favour of traditional leaders has meant that democracy remains elusive in rural South Africa, resulting in the expansive subjugation of already vulnerable groups, such as women.

This persistent empowerment of traditional leaders over rural citizens can be attributed to the fact that, over the past 30 years, the post-1994 democratic legislatures have replicated the colonial and apartheid models of rural governance rather than defining the roles and authority of traditional leaders in terms of living customary law (the actual practices of people) within a democratic framework.

Seemingly, most parties, particularly the EFF and IFP, recognise the need for defined powers and roles of traditional leadership institutions – a task entrusted to the legislature by Section 212 of the Constitution. However, these parties also persist in placing greater emphasis on affording a dominant role to traditional leaders over land administration and local governance without adequately acknowledging the nuanced applicable local customary laws.

Moreover, the consequences of such political stances and the domination of traditional leadership have already manifested in many rural communities.

See, for example, the Casac judgment where the Ingonyama Trust was found to have been unlawfully and unconstitutionally concluding leases with customary land rights holders living in traditional communities. IPIRLA remains temporary and sometimes overlooked, but it is the only legislation safeguarding the customary land rights of rural communities.

This underscores a lack of willingness to permanently secure rural citizens’ customary land tenure rights, making them vulnerable to abuse by dominant traditional leaders and developers. Some rural communities, such as Xolobeni in the Eastern Cape and Melmoth in KwaZulu-Natal, continue to face the challenges and adverse effects of development projects that disregard their consent.

Despite numerous pieces of evidence from customary communities that show how the dominant roles afforded to traditional authorities over rural communities are sometimes contrary to customary law, the government has persisted in this stance. The IFP and MK plan to follow the same trajectory in the strongest sense, further affording a dominant role to traditional leaders and potentially exacerbating the already existing disparities.

The continued neglect of rural communities and domination of traditional leaders over land administration and rural governance pose threats to customary laws and the Constitution.

Awareness about these political trajectories will help ordinary citizens hold Parliament accountable for any legislative framework and policies that create a top-down approach towards traditional leadership and rural communities. The courts have correctly distorted these colonial origins and made it clear that in terms of customary law and the Constitution, the voices of traditional leaders cannot trump the voices of the communities. True democracy hinges on the participation and inclusion of rural communities in matters that directly affect their daily lives. DM

Wandile Brian Zondo is a Researcher at Natural Justice, Southern Africa Hub, and a PhD Candidate in Public Law at the University of Cape Town (UCT). Thanks to the Land and Accountability Research Centre (LARC), Dr Nomfundo Ramalekana (Senior Lecturer, UCT), Thiyane Duda (Research Officer, LARC), and Monica de Souza Louw (Deputy Director, LARC) for their assistance with this article.

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South Africa

Failure to democratise

Marginalisation