Traditional leadership institutions in local governance: navigating between social science and law

The South African government continues to grapple with the complexities of local governance, particularly in rural traditional communities where the status and role of the institutions of traditional leadership warrant nuanced and critical considerations.

The institutions of traditional leadership play a crucial yet sometimes legally controversial role in local governance due to the richly intersectional nature of culture, law, and politics in local and traditional communities.

The institutions of traditional leadership are historically defined as custodians of culture, guiding their communities through customs and traditions. These institutions have operated against the advent of colonisation and apartheid which disrupted their systems of leadership and governance.

As a result, our constitutional dispensation has put in place measures to reconcile traditional and modern governance.

The legal recognition and role of traditional leadership institutions

Section 211 of the constitution provides for the recognition of the institution, status, and role of traditional leadership, given they operate according to customary law which is subject to the applicable legislation and the constitution.

Section 212 provides for the role of traditional leaders and permits national legislation to provide a role for traditional leadership as an institution at the local level on matters affecting local communities.

Section 212(2) further provides for the traditionally held role of dealing with matters relating to traditional leadership, the role of traditional leaders, customary law and the customs of communities observing a system of customary law. Over the past three decades, parliament has failed to enact national legislation that adequately advances this constitutional mandate.

Since 1994, two legislations have been enacted to give effect to the constitutional mandate. The Traditional Leadership and Governance Framework Act (TLGFA) of 2003 and the Traditional and Khoi-San Leadership Act (TKLA) of 2019 that was enacted to repeal and address the failings of the TLGFA.

However, these legislations have been strongly criticised for perpetuating colonial imposition of traditional leadership. The report of the High-Level Panel chaired by former president Kgalema Motlanthe highlighted the significance of the issues regulated by the TLGFA. It was held that the legal framework governing rural traditional communities does not match their lived experiences.

The High-Level Panel recommended reform of the frameworks that may “elicit constitutional challenges and undermine social cohesion and nation-building”.

In 2023, the Constitutional Court in Mogale v Speaker of the National Assembly declared the TKLA unconstitutional and suspended the declaration for 24 months to give parliament time to rectify the unconstitutionality. The 24-month suspension period ends in May 2025.

It was held that the legislature had failed to comply with the required standards of public participation as set out in the constitution and Parliament’s Guidelines. Furthermore, TKLA has been criticised for failing to address the failings of the TLGFA and is said to have introduced further concerns instead.

For example, section 24 of the TKLA empowered traditional councils to enter into agreements with external entities such as land developers without consultation and receiving consent from the land rights holders as may be required by the Interim Protection of Informal Land Rights Act (IPILRA).

This means that the question remains about the extent to which traditional leaders can exercise authority without undermining democracy.

The authority of traditional leadership has been the subject of extensive debate and criticism due to the absence of constitutionally defined roles in the legal framework. This legal gap has led to significant challenges for traditional communities over the past thirty years, as some traditional leaders have undermined human rights and centralised power in ways that conflict with living customary law.

Consequently, this situation has tarnished the reputation and legitimacy of traditional leadership. However, this should instead raise two pertinent questions: why has the legislature failed to adequately address these legal deficiencies? It is axiomatic that the legislature has not adequately consulted rural traditional communities about the nature and function of traditional leadership in contemporary local governance.

As a result, the existing laws continue not to accurately reflect the roles of these institutions.

The interface between social science and law

The complexity between traditional leadership institutions and modern legal frameworks creates an interface between two disciplines — social sciences and law — within the South African context, where local governance facilitates this interaction.

The role of social sciences involves an in-depth investigation into cultural preservation, historical practices, and societal roles as executed by the institution. In rural traditional communities, governance relies on these institutions' power to influence dispute resolution, foster social cohesion, and manage land as proclaimed custodians.

Conversely, the constitution principles, governance structures, and the recognition of traditional leaders in a democratic system are bound and grounded in the legal frameworks.

The interplay involving both systems coexisting and complementing each other requires an absolute understanding. This ensures that the institution of traditional leaders aligns with constitutional mandates for equitable governance, and human rights. The challenge lies in immersing the institution of traditional leadership into the modern local governance structures in the context of contemporary South Africa.

The role of traditional leaders most times conflicts with that of elected municipal officials, as they confusingly navigate about unclear roles from the legislation, regardless of the recognition the constitution gives.

The integration of the two disciples — social sciences and legal perspectives, simultaneously demonstrates the legitimacy and practice of the traditional institution among communities and emphasises accountability and alignment with democratic governance respectively.

To ensure the success of this interface, policies ought to be implemented at its inception to respect the cultural significance of traditional leadership, practice the rule of law, and promote inclusive and transparent governance.

The social recognition and role of traditional leadership institutions

The institution of traditional leadership historically played a vital role in South African communities, such as traditional chiefs and headmen.

The roles included the preservation of cultural identity, and upholding and practising traditions and customary law. As custodians of such rich indigenous practices, the leaders ensured the continuation of communal cohesion and local disputes resolved.

Maintenance of order and promotion of unity within the traditional leader's roles were deeply rooted in the social fabric of their respective communities.

The influence traditional leaders possess in contemporary South Africa is still significant. in rural areas where their role involves managing land allocation and resource distribution, enhancing and promoting social cohesion.

The traditional leaders' governance involvement depicts an integration into local government formal structures, fostering collaboration in addressing and prioritising immediate and urgent issues of service delivery, social justice and conflict mediation.

The dual hybrid system of governance demonstrates an immersion of modern administrative frameworks, to the traditional authority institution. Nevertheless, the existence of the institution still brings to attention its legitimacy and relevance in a democratic society.

Opponents dispute the purported hereditary structure, with a dominating representation of males, that it entirely diverges from democratic values like gender equality, and accountability.

As it stands, some rural traditional communities still withhold the traditional leaders in providing leadership that still possess cultural values and local knowledge, as trusted and respected community figures rather than elected officials.

In ensuring that democratic principles are practised and upheld in modern governance, careful negotiation with the traditional leaders’ roles ought to be balanced. The institution of traditional leaders in local governance structures should be influential, contributing to decision-making rather than remaining passive in the process can be one approach adopted, taking into consideration adherence to democratic constitutional principles of transparency and equality.

Such practices allow for the embedded democratic values in the constitution to be actively respected by the South Africans.

Conclusion

The challenge for the state in defining its role within the legal framework, even when the social science context offers a clear definition, often lies in the tension between theory and practical governance.

Social science can present an ideal vision of how the state should function, but translating those ideas into policy and law involves balancing competing interests, addressing resource limitations, and responding to evolving political and social dynamics. Furthermore, legal frameworks must account for complexities such as historical legacies, power structures, and the unpredictable nature of human behaviour, making it difficult to fully align with the clarity social science offers.

The legislature must understand these complexities not as unresolvable but as an opportunity for further discourse that advances the legal framework.

* Wandile Brian Zondo is a Researcher at Natural Justice (NJ); Southern Africa Hub and a PhD Candidate in Public Law at the University of Cape Town (UCT). He holds a Bachelor of Laws (LLB) from the University of KwaZulu-Natal (UKZN) and a Master of Laws in Environmental Law (LLM) from UCT.

* Otshepeng Mazibuko is a Research Assistant at the Division of Human Genetics at UCT and a PhD Candidate in Development Studies at the University of Pretoria (UP). She holds a Bachelor of Social Sciences (BSocSci) in Population and Development Studies from North West University (NWU), an Honours Degree (Hons) in Development Studies, Development Economics, and International Development from UP, and a Master’s Degree in Development Studies from UP.