ARE POWERS AND FUNCTIONS OF LEADERS SUFFICIENT, IN A REPUBLICAN AND DEMOCRATIC DISPENSATION, ESPECIALLY IN ITS CURRENT CHARACTER? IF NOT, WHAT NEEDS TO BE DONE? ADV. RICHARD SIZANI 30 MAY 2017 1
A. OVERVIEW 1. CONSTITUTIONAL RECOGNITION AND INCORPORATION OF TRADITIONAL LEADERSHIP AND INSTITUTIONS, AND RECOGNITION OF CUSTOMARY LAW: Chapter 12 of the Constitution determines as follows as regards traditional leadership and the recognition of customary law: • Section 211: Recognition “(1) The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution. (2) A traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendments to, or repeal of, that legislation or those customs. (3) The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.”
• Section 212: Role of traditional leaders “(1) National legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities. (2) To deal with matters relating to traditional leadership, the role of traditional leaders, customary law and the customs of communities observing a system of customary law - (a) national or provincial legislation may provide for the establishment of houses of traditional leaders; and (b) national legislation may establish a council of traditional leaders. Section 219: Remuneration of persons holding public office Schedule 4 (Part A): “Cultural matters,” as well as “traditional leadership” (subject to Chapter 12 of 1996 Constitution) and “indigenous law and customary law” (subject to Chapter 12 of 1996 Constitution) are functional areas within concurrent domain of national Parliament and provincial legislatures
2. STRUCTURAL AND FUNCTIONAL ARRANGEMENTS ACCORDING TO THE 1996 CONSTITUTION 2.1 ELECTED GOVERNANCE - 3 BRANCHES (ARMS) OF GOVERNMENT: LEGISLATURE, EXECUTIVE AND JUDICIARY • Legislative branch: Parliament (NA+NCOP), Provincial Legislatures and Municipal Councils • Executive branch: Cabinet, Provincial Executive Council, Municipal Council • Judicial branch: Independence of Judiciary - 2010 Establishment of separate national entity - Office of the Chief Justice (currently still located in the Executive as a government department) 2.2 TRADITIONAL GOVERNANCE: OVERVIEW: TRADITIONAL COMMUNITIES, TRADITIONAL LEADERSHIP AND TRADITIONAL COUNCILS Traditional Communities: Approximately 40% of South Africans form part of traditional communities. Currently ± 800 (African) traditional communities are officially recognised. Traditional community members live under traditional governance systems (in varying degrees), predominantly in the former homelands.
Traditional Leadership: The following levels of traditional leadership are recognised: • Officially recognised Kingships & Queenships (hereditary) • Officially recognised Principal Traditional Leaders • ± 800 officially recognised Senior Traditional Leaders (one for each of ± 800 traditional communities) (hereditary) • Officially recognised Headmen and Headwomen (mostly hereditary, sometimes elected). Traditional Councils: Each recognised traditional community has an officially recognised (and established by law) Traditional Council, the membership of which is composed of 60% traditional/customary; 40% elected (by commoners from commoners); 1/3 overarching female membership. In addition, the following categories of Councils are also recognised: • Kingship and Queenship Councils; • Principal Traditional Councils; • Traditional Sub-councils.
3. RECOGNITION OF TRADITIONAL COMMUNITIES, TRADITIONAL LEADERS AS WELL AS OF TRADITIONAL COUNCILS (INCLUDING THE DETERMINATION OF THEIR JURISDICTIONAL AREAS): Recognition of traditional communities: * Pre-2004: recognition by RSA and homeland governments * 2004+: recognition by Premier of the province concerned Appointment / recognition of traditional leaders: * Pre-2004: appointment by RSA and homeland governments * 2004+: recognition by Premier of the province concerned (and as regards king-/queenship, by the President) Recognition of traditional councils and determination of their jurisdictional areas: * Pre-2004: RSA and homeland governments * 2004+: Premier of the province concerned
4. POST-1994 POLICY AND STATUTORY PROCESS 1998: Cabinet decision: initiate policy and legislative process: • Status Quo Report on Traditional Leadership and Institutions • Discussion Document on Traditional Leadership and Institutions • Draft White Paper on Traditional Leadership and Governance • White Paper on Traditional Leadership and Governance
5. THREE KEY FUNCTIONAL AREAS RELATING TO TRADITIONAL LEADERSHIP • Governance (recognition; role, powers, functions and duties; relationship with elected government; etc.) • Judicial matters • Land allocation and management
6. TRADITIONAL LEADERSHIP: ALLOCATION OF RESPONSIBILITIES WITHIN THE EXECUTIVE BRANCH (POLICIES, LEGISLATION, STRATEGIES, IMPLEMENTATION, OVERSIGHT AND M&E) Governance of Traditional communities and leadership affairs within the Executive Branch (“Traditional leadership” being a Schedule 4 (Part A) concurrent functional domain): • 2009: Separate national Department of Traditional Affairs established • 8 Provincial Departments of Cooperative Government and Traditional Affairs Traditional leadership: Judicial arrangements within the Executive Branch (Judicial matters being an exclusive national functional domain; whilst “indigenous law customary law and customary law” is a Schedule 4 (Part A) concurrent functional domain): Department of Justice and Constitutional Development (exclusive national function) Traditional leadership: Land allocation and management arrangements within the Executive Branch (Land matters being an exclusive national functional domain: Department of Rural Development and Land Reform
7. DISCONTINUATION AND CONTINUATION OF PRE-1994 FRAMEWORKS IN RESPECT OF THE THREE KEY FUNCTIONAL AREAS: Discontinuation of pre-1994 legislation: (a) Governance matters (Traditional communities, and their governance structures (leadership and councils); National, Provincial and Local Houses of Traditional Leadership, as well as 20% representation in Municipal Councils (non-voting)): • (national) Traditional Leadership and Governance Framework Act 41 of 2003 • National House of Traditional Leaders Act 22 of 2009 (which replaced the National House of Traditional Leaders Act 10 of 1997) • Provincial Traditional Leadership and Governance Acts • Provincial House of Traditional Leaders Acts • Section 81 of the Local Government: Municipal Structures Act 117 of 1998
Continuation of pre-1994 legislation: (a) Judicial matters (Traditional courts): * Traditional courts (applying customary law in civil cases, and having limited criminal jurisdiction) continue to operate under national Department of Justice and Constitutional Development * January 2002: South African Law Reform Commission’s Project 90 dealt with traditional courts and judicial function of Traditional Leaders * Black Administration Act 38 of 1927 (in process of being repealed by Traditional Courts Bill, 2015) * Homeland legislation (in process of being repealed by Traditional Courts Bill, 2015) * Traditional Courts Bill, 2015: currently before National Assembly (b) Land matters: * Homeland + SADT legislation + Proclamations issued in terms of section 25 of the Black Administration Act 38 of 1927 still in force * Pre-27 April 1994 legal framework continues in operation (exception: Ingonyama Trust land) * Communal Land Rights Act 11 of 20 invalidated in 2010 by Constitutional Court on account of incorrect procedure followed by Parliament * Draft Communal Land Bill, 2017 (still to be published for public comment)
8. TRADITIONAL LEADERS: STATUTORY CONSULTATION (AND PARTICIPATION) STRUCTURES Statutory structures for liaison with, and provision of advice to, 3 spheres of elected government: * National House of Traditional Leaders (national sphere) * Provincial Houses of Traditional Leaders (provincial sphere) * Local Houses of Traditional Leaders (municipal sphere) • Membership of Municipal Councils (non-voting) (Section 81 of the Local Government: Municipal Structures Act 117 of 1998
9. PERFORMANCE OF FUNCTIONS BY TRADITIONAL LEADERS Section 19 TLGFA provides for the performance by Traditional Leaders of functions provided for in terms of: * Customary law * Customs * Applicable legislation 19 “A traditional leader performs the functions provided for in terms of customary law and customs of the traditional community concerned, and in applicable legislation”.
Recommend
More recommend
