UPDATE: FEBRUARY 2020:
The Traditional and Khoi-San Leadership Act 3 of 2019 was signed into law by the President on 20 November 2019. This followed the processing of the Bill, as it then was, by both Houses of Parliament. Despite civil society and community based organisations speaking out against this law, the President subsequently proclaimed that the Act will come into force on 1 April 2021. This means that it will replace the Traditional Leadership and Governance Framework Act of 2003 as the law recognising and regulating traditional leadership structures in South Africa. Although the Act provides overdue recognition for Khoi-San communities and leaders, it keeps in place apartheid boundaries and locks traditional communities into those jurisdictions. The Act allows traditional councils to enter into partnerships or agreements with a third party without the need for consent from people who will be directly affected. This puts the land rights of communities and individuals at risk – effectively, a traditional council can sign a mining or development deal without the express permission of land right holders. Not only does this undermine the safety mechanisms that are in place in terms of the Interim Protection of Informal Land Rights Act of 1996, which protects people from being deprived of their land rights without their consent, it also weakens customary consultation processes.
The Traditional and Khoi-San Leadership Bill (‘TKLB’) was made available to the public in September 2015. The national Department of Traditional Affairs published a notice in the Government Gazette on 18 September 2015, saying that the Minister of Cooperative Governance and Traditional Affairs would introduce the Bill in Parliament. On 23 September 2015, Parliament announced that the Bill had been introduced by the Minister and said that the Bill was referred to the Portfolio Committee on Cooperative Governance and Traditional Affairs.
While the Bill will replace the Traditional Leadership and Governance Framework Act of 2003, its ostensible primary objective is to include Khoi-San leaders into formal traditional leadership structures.
The TKLB has been given an official number, namely B 23–2015A and Parliament is planning to start the full public participation process at the end of November 2015, which will give people opportunities to attend public hearings and send in written submissions. The National Council of Provinces and provincial legislatures are also required to provide the public with a chance to have their say on the Bill.
This Bill follows on another draft Bill, called the Traditional Affairs Bill, which was published by the Department of Traditional Affairs for comments in 2013. The Department made some adjustments to the wording of the 2013 Traditional Affairs Bill and changed its name to the Traditional and Khoi-San Leadership Bill. However, many of the concerns that were raised about the Traditional Affairs Bill are still relevant to the TKLB.
The Bill re-entrenches the controversial Bantustan boundaries adopted by the Framework Act, thereby locking people living in the former Bantustans into ascribed tribal identities. In this way TKLB takes us back to the ‘tribal’ classifications of the apartheid-era, and entrenches stark legal divisions between the former Bantustans and the rest of South Africa.
The TKLB does not address government’s failure to transform traditional institutions as required by the Traditional Leadership and Governance Framework Act 41 of 2003 (‘Framework Act’). As a result many traditional councils are not validly constituted. Furthermore it uses the same mechanisms as the Framework Act for trying to achieve transformation, except this time the consequences of non-compliance are weakened.
The TKLB also allows government departments to give roles that deal with any of government’s functions (for example, health, housing, agriculture and education) to traditional leaders and councils (clause 25) without any guidelines on what roles can be given or how this should be done. The TKLB also does not make it clear what the relationship will be between elected local government and traditional structures if these roles are given to them.
This is questionable in light of the Constitutional Court’s finding in 1996 that the Constitution does not provide traditional structures with governmental powers and functions. This could have the effect of creating a fourth tier of government, despite the Constitution’s provision for only three tiers.
Download the Traditional Khoi-San Leadership Bill in PDF.