The Traditional Leadership and Governance Framework Act (Act No 41 of 2003) is the first and pivotal law in the package of traditional leadership laws drafted during the 2000s.
Enacted on 19 December 2003, some of the TLGFA’s stated objectives are to:
- recognise traditional communities;
- establish and recognise traditional councils; and
- provide a statutory framework within which traditional leadership will operate.
There is a stark contrast between Sections 2 and 3 of the Act, which suggest that traditional communities and councils will be established and recognised from scratch on the basis of neutral criteria, and Section 28, which contains “transitional arrangements”.
Section 28 deems the “tribes” that were created during apartheid to now be traditional communities. It also deems the tribal authorities created in terms of the Bantu Authorities Act of 1951 to now be traditional councils, provided that they comply with new composition requirements.
These requirements are that 40 percent of the members of a traditional council be elected, while 60 percent can be appointed by the senior traditional leader. The Act also provides for a women’s quota of 30 percent.
Section 20 enables national or provincial government to enact laws that empower traditional councils in relation to a wide range of roles and functions pertaining to, amongst others:
- land administration
- health and welfare
- safety and security
- the management of natural resources
- disaster management
Effectively, the TLGFA entrenches the controversial boundaries and structures inherited from apartheid, while other laws such as the Communal Land Rights Act and the Traditional Courts Bill provide traditional leaders with expanded statutory powers. The Act also entrenches the position of chiefs appointed during the Bantustan era.
In practice the effect of the Act and its associated laws is to subsume groups who oppose apartheid-imposed tribal borders within the boundaries of larger encompassing “tribes”. As a result, these groups, without their consent, become minorities subject to the powers vested in traditional leaders without their consent.
The TLGFA provides the national framework for the provincial traditional leadership laws enacted during 2005. One of these laws, the Limpopo Act No. 6 of 2005, authorises tribal levies, which are regarded by critics as a form of extortion. Lawyers advise that the Limpopo Act is not consistent with the constitutional dispensation governing taxation power and is unlikely to withstand legal attack.
Download the Traditional Leadership and Governance Framework Act (Act No 41 of 2003) in PDF.
Download the Limpopo Act No. 6 of 2005 in PDF