In the public law sphere, the legislature has enacted the Traditional Leadership and Governance Framework Act to define the nature of traditional leadership in the post- 1994 era, with a stated aim of reforming the historically patriarchal institution. The aim was to accommodate the structural and gender imperatives of constitutional democracy in African law. The aims and objectives of the Traditional Leadership Act in so far as they impact on the reform of customary law and traditional leadership are stated as:
to provide for the recognition of traditional communities; to provide for the establishment and recognition of traditional councils; to provide a statutory framework for leadership positions within the institution of traditional leadership, the recognition of traditional leaders and the removal from office of traditional leaders; to provide for houses of traditional leaders; to provide for the functions and roles of traditional leaders; to provide for dispute resolution and the establishment of the Commission on Traditional Leadership Disputes and Claims; to provide for a code of conduct … .39
As the long title indicates, the Traditional Leadership and Governance Framework Act seeks to provide a national framework for the recognition and governance of the
See Act 38 of 2005.
37
See Act 41 of 2003 (hereafter Traditional Leadership Act).
38
Idem the long title.
institution of traditional leadership in South Africa’s constitutional democracy. To this end, chapter 2 of the Traditional Leadership Act provides certain criteria for the recognition of traditional communities, as well as for the withdrawal of such40
recognition.41
The Act establishes a framework for the recognition of traditional councils and42
formulates the functions of such councils. Chapter 3 provides for the recognition and43
appointment of traditional leaders and their removal from office. In other words, the44 45
legislature has clearly expressed its concern for the so-called democratisation of the traditional leadership institution in South Africa.
Chapter 4 establishes Houses of Traditional Leaders and prescribes their functions.46
Chapter 5 is devoted to functions and roles of traditional leaders as established by provincial and national governments. It also deals with the interaction between47
traditional leadership institutions and organs of state.
Chapter 6 establishes the Commission on Traditional Leadership Disputes and Claims, the appointment of its members, its powers and dispute resolution functions.48 49
It is significant that these reforms posit traditional leadership as an agent of the dominant Western liberal democracy and make it a partner in the latter’s local government institutions whilst African culture is totally overlooked.
The enactment of the Traditional Leadership Act was clearly motivated by the
Idem section 2. 40 Idem section 7. 41 Idem section 3. 42 Idem section 4. 43
Idem section 8 lists the recognised positions of traditional leaders as the kingship, senior traditional
44
leadership and headm anship/headwom anship. Section 9 provides for the appointm ent of kings and queens.
Idem section 10 deals with the procedure for the rem oval of kings and queens from office, whilst
45
section 12 outlines the process for the rem oval of senior traditional leaders and headm en/ headwom en.
Idem section 16(a) establishes a national House of Traditional Leaders and section 16(b) establishes
46
local houses.
Idem sections 19 and 20.
47
Idem section 22.
48
Idem section 23.
constitutional recognition of both customary law and traditional leadership. The Act50
seeks to transform the institution of traditional leadership. Indeed, the role of the royal family and its institutions that were supplanted by the BAA under apartheid has been restored. Consequently it is now the royal family that identifies the new traditional leader to be appointed, not the government as was the case under the old order. To this end section 9(1) of the Traditional Leadership Act reads:
Whenever the position of a king or a queen is to be filled, the following process must be followed:
(a) the royal family must, within a reasonable time after the need arises for the position of a king or a queen to be filled, and with regard to the applicable customary law –
(i) identify a person who qualifies in terms of customary law to assume the position of a king or a queen, as the case may be, after taking into account whether any of the grounds referred to in section 10(1)(a), (b) and (d) apply to that person.
In this way the possibility of illegitimate traditional leaders being appointed to the throne has been greatly reduced.
Unfortunately, nothing indigenous in the nature of institution of traditional leadership has been recognised. The provisions of the Act betray that the law-maker’s focus was not on ensuring traditional leadership was aligned with indigenous culture and its value system in the light of its new status as a recognised institution under the Constitution. Rather, the Traditional Leadership Act focuses on transforming the traditional leadership institution to fit into the dominant Western-style governmental framework in South Africa. The following preamble to the Act bears testimony to this:
WHEREAS the state, in accordance with the Constitution, seeks –
To set out a national framework and norms and standards that will define the place and role of traditional leadership within the new system of democratic governance;
To transform the institution in line with constitutional imperatives;
AND WHEREAS the institution of traditional leadership must be transformed to be in harmony with the Constitution and the Bill of Rights so that –
democratic governance and values of an open and democratic society may be
See section 211 of the Constitution.
promoted; and gender equality within the institution of traditional leadership may progressively be advanced …
A glance at the Act reveals a defective conceptualisation of the idea of constitutional transformation on the part of the legislature as its notion of democratisation seems to coincide with Westernisation. This is despite the reassurances given elsewhere in the preamble that the Act seeks “to restore the integrity and legitimacy of the institution of traditional leadership in line with customary law and its practices”. The Traditional Leadership Act in fact transforms the traditional leadership institution into a Western liberal democratic institution without infusing the African communal values of a shared sovereignty into its organisation.51
The Traditional Courts Bill is not dealt with in depth in this chapter as it has been52 serving before parliament since 2008 and is still being opposed by a long list of civil society organisations opposed to traditional leadership and traditional institutions. The Pretoria News has captured the controversy surrounding this Bill by listing its opponents as follows:
• the Alliance for Rural Democracy,
• the University of Cape Town’s Law, Race and Gender Research Unit; • the Rural Women’s Movement;
• the Rural People’s Movement; • Sonke Gender Justice;
• the Women’s Legal Centre;
• the University of the Western Cape’s Community Law Centre; • Section 27;
• the Treatment Action Campaign; and
• other bodies said to be working with rural residents.53
However, the Bill correlates with the other statutes relating to the so-called improvement
See Mahao NL “O se re ho m orwa ‘m orwa towe!’ – African jurisprudence exhum ed” (2010) XLIII/3
51
CILSA 317 at 328.
See Government Gazette 30902 of 27 M arch 2008.
52
See Pretoria News Thursday 7 April 2012 at 2.
of the institution of traditional leadership. It “aspires to provide a framework for the54
effective operation of the traditional justice system” and the effective resolution of55 disputes by promoting fairness and efficiency. The Bill seeks to involve traditional leaders in affording access to speedy restorative justice to millions of the rural poor in a flexible, familiar, conciliatory, participatory and inexpensive manner.
The strength of the Bill lies in its quest to integrate elements of the traditional justice system with those of the dominant Western justice system. More importantly, the Bill56
addresses what is constantly perceived as the worst weakness of the traditional justice system, namely, affirming gender equality and assuring the dignity of women as required by the Traditional Leadership and Governance Framework Act.57
This notwithstanding, the Traditional Courts Bill suffers from chronic defects in that it persists in subjecting traditional justice to the appeal and review processes of the Magistrates Courts which are premised on Western jurisprudence. It also fails to58
introduce an indigenous appellate hierarchy to afford a culturally-focused application of African jurisprudence. The Bill is modelled on its apartheid antecedents which59
targeted only the “homelands” as its areas of jurisdiction instead of addressing customary law matters throughout urban and rural South Africa.60
5.4 Promotion of Equality and Prevention of Unfair Discrimination Act61