The Traditional Leadership and Governance Framework Act (Framework Act) was enacted in 2003. It was the first of a “package” of new laws entrenching the powers of traditional leaders. In essence, the Framework Act goes no further than to establish the structures, boundaries and hierarchy of state-recognised traditional leaders (chiefs), traditional communities (tribes) and traditional councils (tribal authorities).
Section 20 of the Act provides that other national and provincial laws will be enacted to provide traditional leaders and councils with specific powers. The Communal Land Rights Act (CLaRA) of 2004 was the first such law, vesting the powers of land administration and ownership in traditional councils. It was declared invalid by the Constitutional Court in 2010, which found that Parliament had not followed the correct procedure in enacting the law.
Then came the provincial laws enacted pursuant to the Framework Act, which were introduced in 2005. Their enactment has had a major impact in bolstering the power and confidence of traditional leaders to revert to the arrogant approach of the Bantustan era, for example in banning community meetings and extorting tribal levies. This is despite the fact that the provincial laws do not authorise such actions.
Most recently the Traditional Courts Bill was introduced in 2008. It met with massive opposition in Parliament, and was left to languish until December 2011, when it was reintroduced to Parliament with exactly the same wording. It has sparked a furore – also, significantly, in rural provinces, resulting in ANC-dominated provincial legislatures such as North West, Eastern Cape and Gauteng calling for its immediate withdrawal.
At the centre of opposition to CLaRA and the TCB has been the issue of imposed and disputed tribal boundaries. Two of the four applicants in the Tongoane case that challenged the CLaRA were groups of people whose land rights would have been nullified by the CLaRA vesting control and ownership of the land in traditional councils. Of these two applicants,
- one was a group of historical land purchasers whose land had been subsumed within a larger tribal authority created in pursuance of establishing the KwaNdebele Bantustan;
- the other was a group of restitution beneficiaries whose land would have been subsumed within the jurisdiction of the chief who had agreed to their initial forced removal.
Both had been locked in long-running battles contesting the traditional council’s jurisdiction over them.
The other two applicants had less formal land rights, but argued that the impact of the CLRA would be the same. They would lose control and ownership of their land to centralised tribal authorities that they could neither control nor influence in any way. In all four cases the groups would have been made structural minorities within larger overarching “tribes” that were unaccountable to them.
The TCB builds on the same contested tribal boundaries – making it a criminal offence to refuse to come to court once summoned by the officially recognised traditional leader. It also prevents opting out of traditional courts to use the magistrate’s courts.
Rural people argued that the Bill empowers unpopular chiefs to simply summon those who challenge their authority and impose a range of serious punishments, including forced labour, or expulsion from the area. Headmen also opposed the Bill, arguing that it ignores the village level courts that mediate power, and instead centralises all power to senior traditional leaders as presiding officers of traditional courts.
Basic rights such as land rights or access to justice are undermined when governance powers are vested in imposed structures that are locally rejected. South Africans living within traditional council boundaries are deprived of basic rights without an adequate safety valve to enable them to challenge or secede from the jurisdiction of the Traditional Community.
In practice, however, the problems generated by ascribed tribal boundaries are not limited to those instances where specific statutory powers are at issue. There is a range of institutional arrangements inherited from the Bantustan era that place rural people under the thumbs of imposed chiefs even when those chiefs have no statutory authority to act as they do.
Examples of this include the following:
- People living in the former homelands areas do not have formal addresses. The only way that they can meet the “proof of residence” requirements imposed by a range of laws is by producing a “proof of address” letter from their local traditional council. Without this letter it is impossible to get an ID book, a child support grant, a pension, a car licence, to open a bank account, or to get a body released for burial from the mortuary.
- Those who don’t pay annual and ad hoc “tribal levies” are refused “proof of address” letters. These levies are not legally sanctioned (except arguably in Limpopo) but since 2004/5 there has been a massive resurgence of demands for payment of tribal levies.
- In many areas development money for agricultural or infrastructure projects will not be released by the relevant government department without the approval of the local chief.
- Chiefs have taken to banning community meetings in a number of areas on the basis that only officially constituted traditional councils are allowed to call meetings. They have successfully obtained interdicts to stop community meetings in North West, despite there being no legislation that explicitly authorises the banning of community meetings by traditional leaders.
- In the Eastern Cape communities that previous elected their headmen have been told that all headman positions are henceforth hereditary. Despite strong opposition the Eastern Cape government is replacing elected headmen with hereditary headmen.
- The Department of Rural Development and Land Reform is refusing to transfer title to land to restitution and redistribution beneficiaries who have established Communal Property Associations in the former homelands, even in cases where the transfer agreement was signed by the Minister. This is because of opposition by chiefs who claim that there should be no countervailing authority over land within “their” areas.
These examples illustrate the dual nature of the problem facing rural people. Ascribed tribal boundaries serve both to lock people under the authority of imposed leaders and structures and to exclude countervailing structures and institutions that could otherwise provide the services they need. Tribal boundaries enforce inclusion at the same time as precluding rural people from being able to associate in ways that challenge the tribal identities imposed on them, or to enforce their rights through other channels.
Through a mesh of interlinking institutional arrangements the traditional council becomes the only sanctioned intermediary between rural people and the rest of government. In that context, vesting specific legislative powers in traditional leaders becomes secondary to shoring up their disputed tribal jurisdiction.