Annex 3: Contemporary traditional leaders a study on land and governance in South Africa
Book : Parcours international de débat et propositions sur la gouvernance, International Meeting Process for debate and proposals on governance
Table of content
By Kristina Eberbach, Amber Kubera, Noëlle Lee Okoth and Aiko Watanabe
School of International and Public Affairs - Columbia University
South Africa today has one of the newest – and in many ways, most liberal – constitutions in the world. Yet, at the same time, South Africa continues to recognize non-elected traditional leaders who have important powers, especially over rural land. This paper examines the often controversial governance role of traditional leaders in South Africa, with a particular focus on rural land. Land in South Africa is a politically charged and profoundly contested issue, and the control of rural land by unelected officials complicates the picture: What role do traditional leaders play in governance, particularly with respect to land? How do we assess this role in trying to understand ‘good governance’ and social justice? Drawing on scholarly research and fieldwork in Limpopo, Johannesburg, and Pretoria, this paper seeks to provide a better understanding of the range of popular conceptions of traditional leadership and the nature of its functions as they exist today. Specifically, this paper examines the roles and responsibilities of traditional leaders as they relate to land, including with respect to allocation and use of land, representation, cultural stewardship, environmental management, economic development, and dispute resolution. Finally, it examines the larger implications of the evolving relationship between government, civil society, and traditional leaders in contemporary South Africa, in order to contribute to broader debates about good governance and traditional leadership in Africa.
Context: traditional leadership and South Africa
South Africa’s unique and historically inspired institutional, legislative, and constitutional reforms recognize the equal rights of all citizens and seek to embrace the pluralistic nature of the country. However, in an effort to acknowledge this diversity, South Africa’s constituent institutions also recognize and incorporate traditional forms of leadership, including hereditary positions such as chiefs and headmen.
When assessing the current roles of traditional leaders, it is important to critically examine the political history of these institutions as well as assertions of pre-colonial roots. Traditional leadership is frequently claimed to be indigenous, historical, and a continuation of an immemorial authority. Moreover, it is often assumed that this indigenous nature, historicity, and other notions of tradition are able to confer legitimacy. Tradition, however, is a highly fluid concept, often deriving more power from such claims than from their actual relation to practices of the past.
Traditional leadership is also associated with antiquated and despotic practices due to its manipulation under the systems of indirect rule and apartheid. The British colonial system in South Africa relied on traditional governance structures to facilitate indirect rule and institutionalized a system of traditional leadership that did not previously exist. Additionally, the British did not always follow customary mechanisms of selecting traditional leaders, deposing those who were uncooperative and supporting those who were compliant. Leaders not eligible for position by lineage were appointed, often without seeking approval from councillors or elders. This use of traditional governance structures to further indirect rule continued during the apartheid era, with the government bestowing more power on traditional leaders than they had previously held.
Another legacy of these systems was the creation and enforcement of spatially bounded communities, “Bantustans,” which generally lacked political or cultural relevance for those forced to live within them. Officially recognized traditional leaders were given tremendous authority over these territories and the populations assigned to them. Additionally, widespread forced removals in the fifties and sixties displaced populations to areas in which they had not previously lived. As a result, the traditional leaders who exercised authority over these areas did not necessarily represent the interests of the populations under their jurisdiction, nor did they necessarily have legitimacy based on shared political and cultural norms.
The current debate surrounding the contemporary role of traditional leadership draws heavily on this controversial history. While some see current traditional leaders as a remnant of the apartheid system and an instrument of indirect rule, and therefore as fundamentally incompatible with a modern democratic system,7 others maintain that traditional leaders are in a unique position to play an important role in the management of land, in the administration of justice, and the stewardship of culture.
Amid these debates, it is important to recognize that traditional leaders nonetheless continue to actively govern their communities and that there have been increasing efforts to define the role of traditional leaders in contemporary South Africa. In the light of this reality one must critically assess the role of traditional leaders both within their communities and in broader national governance structures.
Constitutional and Legal Reforms
Policy reforms since 1994 reflect an effort to define the roles of traditional leaders and to harmonize such roles with a constitution that emphasizes individual rights and democratic procedure. In fact, Chapter 12 of South Africa’s Constitution formally recognizes the “institution, status and role of traditional leadership, according to customary law.”
In theory, traditional leadership institutions, customary law, and related legislation are “subject to the Constitution” and must respect enshrined rights and principles of equality. Practice, however, can be far removed from law, as illustrated by the continuing lack of gender equality associated with traditional leadership. Subsequent legislation has been enacted in an effort to address the seeming incompatibility between the rights laid out in the Constitution and some traditional practices. For example, the Traditional Leadership and Governance Framework Act (TLGFA) of 2003 declares that “traditional communities must transform and adapt customary law and customs […] so as to comply with the relevant principles contained in the Bill of Rights in the Constitution, in particular by (a) preventing unfair discrimination; (b) promoting equality; and (c) seeking to progressively advance gender representation in the succession to traditional leadership positions.” Moreover, this Act specifies that at least a third of traditional council members must be women and that forty percent of members must be democratically elected.
The TLGFA, along with other legislation, also seeks to define the roles and powers of traditional leaders that are unspecified in the Constitution. It states that “the following leadership positions within the institution of traditional leadership are recognized: (a) kingship; (b) senior traditional leadership; and (c) “headmanship.” In giving leadership powers in rural communities to ‘traditional councils’ (Tribal Authorities, reformulated to include somewhat more democratic requirements) through the TLGFA, the government provides a role for traditional leaders with respect to arts and culture, land administration, welfare, the administration of justice, and the environment, among other functions.12 Again, it is noted that the government is required to ensure that these roles and functions are consistent with the Constitution.
However, in spite of recent policy and legislation, incongruity exists between the official roles and responsibilities of traditional leaders and those actually exercised on the ground. As a result, expectations with respect to the degree of authority that is, or should be, vested in traditional leaders vary greatly depending on the individual leader and community. Lack of clarity about these roles also contributes to inefficiencies and to an unclear relationship between government functionaries and traditional leaders. Furthermore, official recognition of some traditional leaders, but not others, has led not only to competition for power within communities, but also to inconsistent processes for determining which contenders should be recognized.
While the recognition process and structure of traditional leadership varies across South Africa, at the community level the spheres of influence of traditional leaders are more homogenous. Barbara Oomen, in her research in the Sekhukhune District Municipality in the Limpopo Province, identifies land issues, dispute resolution, and participation in initiation schools as the three primary areas of responsibility for traditional leaders. These areas of responsibility have been reaffirmed throughout South Africa and also by our fieldwork, though it is important to note that not all leaders enjoy the same degree of authority or influence due to significant local differences in support for traditional leadership.
National Level Institutions
The integration of traditional leaders within state institutions has also changed significantly in recent years. There are currently two representative bodies of traditional leaders: the Provincial Houses of Traditional Leaders (PHTL) and the National House of Traditional Leaders (NHTL), with the establishment of Local Houses of Traditional Leaders anticipated in the near future. Members of the PHTL are chiefs who are elected by other traditional leaders to represent their respective provinces. The same process applies to the NHTL, where representatives are elected by members of the PHTL.
In addition to participation through these institutions, some traditional leaders directly serve in government structures, and consult with various departments, including Provincial and Local Government (DPLG) and Land Affairs (DLA). Despite the strong presence of traditional leaders at the national level, few linkages exist between local and national levels of governance, and communication between the two existing levels of houses of traditional leaders remains rudimentary.
Contemporary Land Issues
Traditional leadership presides at the nexus of current controversies over land in South Africa. As noted, apartheid and colonialism led to widespread land dispossession, intimately linked to the creation of Bantustans, which South Africa is now seeking to remedy. Indeed, South Africa’s Bill of Rights declares that “the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources.” Land reform in South Africa broadly includes: the redistribution of land to disadvantaged and poor South Africans in order to achieve a more equitable distribution of land; restitution, in order to redress specific instances of historic dispossession; and tenure reform to address historically insecure ownership rights for black South Africans. A form of such tenure is “permission to occupy” or PTO certification, which continues to be a common form of land holding in rural communities. Major land reform programs include the restitution of land through the Land Restitution Commission and the Land Claims Court; the Communal Land Rights Act (CLRA), which recognizes a secure form of group tenure rights under the authority and administration of traditional councils; and the extension of private land tenure opportunities to previously ineligible areas. Although the pace of many programs is increasing, South Africa’s ambitious land reform process has been extremely slow, due to the magnitude and complexity of the process, resistance from current landowners, insufficient dedicated resources, and apparently inadequate political motivation.
Traditional leaders in South Africa are playing a key role in the landreform process. This is because, as discussed in greater detail in the following sections, cultural connections exist between traditional leaders, land, and communities, and also because traditional leaders maintain effective (as well as de jure) control of allocation and management of land in many areas. Traditional leaders also play a role in articulating claims for restitution.
Community-based claims for land rights are generally led by traditional leaders and can facilitate land redistribution by consolidating groups of individual or overlapping claims. Such claims can also work to the advantage of traditional leaders; for example, the redistribution and restitution of land often expands the territory over which traditional leaders exercise control. It is important to note that while traditional leaders often represent communities in restitution cases, and thereby contribute to the resolution of land disputes, this representation is not strictly necessary for a community to make a claim. This suggests that the authority vested in traditional leaders to represent the community and their ability to address subsequent land issues could diminish.
As some previously exempt areas begin to include private land ownership, traditional leaders lose some authority over land use, which one leader described as being “the cornerstone of the institution.” As such, a transition to private land ownership is opposed by many traditional leaders. Privatization of land, which also reduces the territorial jurisdiction of traditional leaders, is often strongly opposed by traditional leaders on the principles of community rights and social welfare. Indeed, most traditional leaders have consistently challenged legislation that transfers land to individuals and other legal land-holding entities, instead advocating that it “be transferred to traditional or tribal authorities,” in some cases greatly expanding their jurisdiction.
The direction and pace of South Africa’s land reform process will continue to be intimately linked with the power of traditional leaders over land. The following section will explore the governance roles of traditional leaders as they relate to land, as well as the current state of integration of traditional leaders and other state structures as they continue to negotiate land distribution, ownership, and use in a complex and evolving framework of institutions, policies, and realities.
Traditional leadership and governance trough the lens of land
Management and administration of rural land are critical roles played by traditional leaders and are intimately related to many of their other functions and responsibilities. Using the lens of land, we will examine some significant governance roles and responsibilities of traditional leaders, recognizing that both positive and negative consequences emerge from the fulfilment of these roles.
The Role of Traditional Leaders in Land Allocation and Use
Beyond its economic functions as an input to production and commodity for exchange, land is imbued with spiritual and social significance and plays an important role in individual and community identity. The ability to maintain the fertility of land and promote positive ancestral relations is an important dimension of traditional leaders’ legitimacy as arbitrators of land issues. This role is first manifested in the initial allocation of land to families participating in the founding of communities. It continues through ongoing oversight of use and distribution of communal land and serves a mediating function that underlies both the social and spatial distribution of land assets within the community. Similarly, assignment and resolution of overlapping and competing use claims provides social and economic protection, as well as safeguards for community resources.
While authority over land allocation and administration formally transferred to the colonial state as owner of these lands, on the ground many traditional leaders continued to exercise a great deal of control in this respect through official and unofficial allocation of land, and substantial authority has been returned by the TLGFA and CLRA, which vest administrative powers over land in traditional councils on behalf of the communities that now own their land. This role is in many respects rooted in the authority traditional leaders have historically exercised over land.
However, interpretations of ‘customary chiefly ownership’ vary. For instance, we found that land in areas of the Limpopo Province was often referred to as “the kgoši’s [chief’s] land,” and indeed, in some cases community land is titled in the traditional leader’s name. However, in other areas, groups have received redistributed land independently through Communal Property Associations and other land-ownership structures that permit group tenure rights on the basis of a democratically created constitution without requiring the leadership of a traditional leader.
The ambiguity of traditional leaders’ authority over land and the process through which land is allocated can lead to a lack of transparency in land administration. This system of allocation is frequently criticized by those who are denied access to land or perceive their share as inappropriate. Community members have reported that those with a higher social status receive preferential land allocation, and that women and youth remain largely excluded by the allocation norms. For example, some have asserted that land allocation is not based on need or equality: “People without land go to the chief for land…your access depends on the relation of your surname to the chief. If you are close, you have a chance.” While women do not generally have equal access to land, progress has been reported in some communities: “Five years ago, everything changed completely, and now women can go to the chief to get land, because of so-called democracy, now all of this has changed.” Despite this progress, the lack of equality and transparency experienced by many community members remains problematic.
However, other interpretations of traditional authority over land emphasize the role of leaders in ensuring societal well-being through working and living on the land and fulfilling social welfare functions within their communities. For example, during our research it was asserted that “Nkosi [chief] is also a farmer himself. He is responsible for making sure people do not suffer. He encourages them to work on the land, so they do not starve….”24 One traditional leader asserted to us that the right to land derives, in principle, from responsibility for others, and that “even Nkosi cannot issue land to someone who is not married. It’s given because you’re responsible for someone, so a woman with children and siblings will be given land, [but] a man [who] could not afford to get married and is not responsible (for family) [would not].” This in many respects reflects the communal importance and social welfare notions of land use and allocation.
Traditional leaders play an important role in representation on both a national and local level and through formal and informal processes. In particular their authority over land and knowledge of related issues – including its distribution, history, and capacity for development – put traditional leaders in a unique position to inform, influence, and actively participate in decision-making processes.
Traditional leadership representative structures, known as “houses of traditional leaders,” discussed in the previous section, serve as a parallel representative structure through which traditional leaders can provide policy recommendations and review legislation. Through these new institutions, traditional leaders have the potential to challenge national-level politics and governance policies in their areas of influence. Moreover, to the extent that traditional leaders speak for their communities, such structures provide an opportunity to represent otherwise under-represented rural communities.
A number of our interviewees noted that state government officials did not always provide long-term leadership and were subject to political party mandates (particularly those elected by proportional representation in rural areas), but felt that traditional leaders were able to serve as permanent representatives of community interests. One community member expressed his feeling that traditional leaders are more responsible to the community than their elected counterparts: “the most important thing is trust. That it is someone you grew up with. A community does not worry…if they know you. Politicians are corrupt because they are leaving in five years,” implying that elected officials are likely to misuse resources in the limited time that they have access to them.
Traditional leaders, at times better educated than the majority of their community members, are also well placed to articulate their members’ positions to a larger audience. Indeed, the number of formally educated traditional leaders participating in politics, law, and development is increasing. However, not all of those serving in traditional leadership structures are educated, or motivated primarily by the desire to represent their constituents. As one respondent explained, “Educated traditional leaders see that the NHTL is toothless, and don’t want to participate. Those who don’t have much to do might do it to build their profile, and those are the ones that go up to the national level.” Another respondent noted that status and financial remuneration may be incentives for participation in these representative structures. “They focus too much on pay, they look at everything on how they will be remunerated… traditional leaders see NHTL as a payment structure, and [are] using it to advance their case.” And, while this new institution could potentially be a valuable form of representation for rural community members as a national interest group, it would require disaggregating of individual communities’ interests in order to avoid creation of a monolithic Native Administration-type voice in national level politics.
Another important aspect of representation is effective communication between decision-making bodies, communication of community interests to such bodies, and finally, the transfer of information to communities with regard to resolutions reached by decision-making bodies.However, within the current information-sharing networks, “there is no formula for communication between [the two levels of traditional] houses. The provincial level sends delegates to the National House, but they don’t report back, even though they request the minutes.”Similar issues arise as traditional leaders seek to inform elected officials about community land issues. As these institutional frameworks are strengthened, however, traditional leaders may be able to serve as more effective representatives of their communities’ concerns.
Traditional leaders (as well as the state-affiliated Ward Councillors) are expected to share information on new policies and business conducted at the regional and national levels with their communities. We were told that in addition to announcements during regular kgotla meetings, extraordinary sessions may be called for dissemination of information, and that media, including local print and radio, are also sometimes asked to attend and to make these announcements. However, the consistency and frequency with which information is shared with the community is such that community members are not always aware of the decisions being made on their behalf.
Nonetheless, the traditional office can serve as an important space for other government officials, including the Ward Councillor and the police, in that it provides a common, public area where community members can convene. While traditional offices can provide space for consultation with other officials, it is unclear whether community members feel comfortable raising concerns there that would reflect negatively on traditional authorities.
The fact that both traditional leaders and state government officials, particularly Ward Councillors, fulfil overlapping functions on a local level can also be problematic. For instance, both the Ward Councillor and traditional leader have the ability to issue reference letters, yet individuals continue to use the traditional office for this service.
Similarly, traditional leaders can be publicly perceived as responsible for providing some government services and bringing development funds to the community because they serve as a conduit for programs initiated and funded at a higher level. This lack of clarity in roles can not only lead to inefficiency, but makes it more difficult for community members to demand accountability or raise issues with the appropriate governance body. Thus, although traditional leaders have the ability to represent their communities in certain respects, their ability to effectively do so remains subject to internal and external constraints within a complex, largely democratic system.
Traditional leaders are often supported because they are seen as a link to – and a representative of – ‘tradition’ and ‘culture,’ and are a powerful symbol of unity and pride for many people. Indeed the fact that traditional leaders are charged with the administration of land links them to the continued management of a cultural resource, with ties to ancestry and history. As Ben Cousins explains, “traditional leadership draws much of its legitimate authority from its embeddedness in the social and cultural life of rural communities, where discourse of ‘tradition’ associated with cultural identity are still persuasive for many.” This stewardship of culture is demonstrated not only in the management of common resources but also in the practice of cultural norms, such as the management of initiation schools.
Within communities under traditional leadership there may be a link to a common sense of values and language, for which traditional leaders are a leading voice on the national and provincial levels. However, just as this link to culture and identity can unite a population, it may also have the effect of marginalizing those who are not members of a dominant group but are still residents in the community. By the same token, women and young people within communities under traditional leadership can be marginalized by the ways in which ‘culture’ has been defined and performed in these communities. For instance, women are significantly underrepresented in traditional forums, leaving them largely excluded from major decision-making. The role of culture and socialization in the exclusion of women is also manifest in the relationship between traditional courts and women, as discussed in a subsequent section of this paper.
‘Culture,’ therefore, is contested and dynamic and the exclusionary aspects of cultural practice reflect asymmetries of power. However, cultural norms do have meaning, both positive and negative, for many communities, and traditional leaders are often at the center of cultural debates. Moreover, it is important to note that reforms to enhance the inclusion of women and disadvantaged groups are also proceeding, for example through the TLGFA, and we encountered strong verbal support for new gender inclusion programs among leaders, although their implementation remains far from complete.
Management of the Environment/Natural Resources
Closely tied to traditional leaders’ supervision of land usage is the responsibility for the protection of land fertility. Traditional leaders observe rituals and activities to maintain soil fertility and determine appropriate land usage in accordance with ancestral norms. In Pedi culture, for instance, the chief is responsible for initiating the process of rain-making, for determining the appropriate time for planting to begin, and for overseeing the first harvests. Traditional leaders can draw upon their symbolic repertoire for protecting land in order to perform environmental regulation roles. Although a clear role for traditional leaders in environmental management is not legally defined, in some areas traditional leaders have been entrusted with the regulation of natural resource use on behalf of the community, for example through the allocation of wood-cutting permits. Within communities we studied, traditional leaders continue to play a role in ensuring that land is allocated in such a way as to allow for rotational land use.
The role of environmental management is also intimately related to the economic resources associated with land. In some instances, communities under traditional leadership have been able to benefit from shared usage rights. One respondent reported that, “things like sand and thatch tend to be [collected in] rural communities, which is good because they can be sold as a commodity by the community. The money is used to build hospitals and schools.” However, there have also been cases in which traditional leaders have illicitly sold land or commonly held natural resources.
Tensions arise from instances in which economic imperatives trump environmental protection concerns and are evidenced by certain cases of mining development. In one instance, we were told that the local chief “sold land to develop for mining to a foreign company, without any consultation, although this is required.” Problems also arise when the state’s ownership of mineral resources conflicts with local tenure and ownership regimes: “Mineral rights are a concern for both freehold and PTO land, because if the government exercises its mineral rights, the person doesn’t effectively own the land.”Although communities are compensated, current mining policies seem to prioritize financial gain over other concerns. As South Africa continues to develop its industrial and extractive economic base, such conflicts over the responsible use and control of land may become more frequent, and traditional leaders could possibly serve as intermediaries in many such situations.
Traditional leaders are central in debates over whether land should be used to promote social welfare or for economic growth more generally. In a market economy, traditional leaders can enunciate communitarian principles of land-holding and use on a national level within a highly market-based and individually focused economic system, a function unlikely to be filled by other stakeholders. One Land Affairs official noted the potential contributions of traditional leaders in this respect, and observed that their insights can promote equitable reforms.
Business Development, Resource Allocation and Use
Balancing local community development and guardianship of the communal land entrusted to traditional leaders is a particular challenge when community members do not have the resources needed to develop businesses to encourage economic growth. There are many obstacles to attracting outside investment to traditional authority areas, which can include their isolation, low profitability, and discrimination against outsiders.
One key obstacle to investment is the fact that the acquisition of land for business purposes is more burdensome for those who are not considered members of the community. At the same time, applications for land leases can involve a pledge to the traditional leader to employ a certain number of community members, as well as a commitment to business longevity. All rents —which are assessed at a higher rate for those not from the community—are paid to the traditional leader, who is responsible for redistributing them to the community.
Few other voices are being heard at the national level for non-commercial valuations of land or for community-based agricultural marketing, and the promotion of African understandings of these commoditized resources is a unique contribution of traditional leaders to South Africa’s development. Many of these roles for traditional leaders, however, stand squarely opposed to market institutions and equal citizenship notions supported by the government.
One traditional leader mentioned a recent development within his community that strives to bridge this gap. “A new thing that we are starting is a system for land to be secure for bank investments,” he said. “A system of long leases is secure. Now the bank can only lease the land [for a relatively short period of time] in a rural area. If you cannot pay back a loan, the bank used to take the land forever. If you owe 2 million, they take it forever. This is how much land was taken [from our communities]. Now the bank only gets the land for a period of time, until the loan is paid.”37 This is a new system, being implemented in specific areas, but it has the potential to fundamentally change the dynamics of landholding in areas administered by traditional leaders.
The role of traditional leaders as guardians of communal land is ultimately tied to their responsibility for the maintenance and promotion of the well-being of their communities. A PTO is not automatically granted to every person who solicits land occupation rights, but is instead based on the degree of responsibility borne by the individual or family requesting this land. The imposition of such a requirement helps ensure that land is allocated based on need, rather than simply on economic or political grounds, and serves a role in curbing landlessness among community members with few resources.
In the event that community land is sold, the payment is entrusted to the traditional leader not for personal use, but for redistribution to the community. Thus, the role of traditional leaders with respect to land can contribute in many respects to the effective balancing of group and individual rights based on notions of social justice, to the overall benefit of the community.
Because traditional leaders play such a significant role in the administration and allocation of land, they also play a dominant role in resolving related disputes. Interestingly, traditional leaders can play the role of mediator between community members by addressing problems outside of court, as an arbitrator in traditional courts, and as a negotiator or representative of the community in inter-communal disputes.
Traditional leaders play an important role in resolving inter-communal land disputes. For instance, during our fieldwork, a case in the Limpopo Province in which one particular piece of land had many claimants was being discussed. This land dispute had heightened inter-communal tensions, reflected in allegations of property vandalism and field burning. The traditional leaders of both communities consulted with one another to address the problem and to ensure that members of each community did not engage in such activities. While the Land Claims Court, rather than the traditional leaders, will ultimately determine ownership in contested cases, such inter-communal communication can foster greater understanding and, arguably, prevent the escalation of conflict.
Generally, when a dispute arises in a traditional authority area, if it cannot be solved within the family unit, it is taken to a headman. If it still cannot be resolved it is referred to the chief. From there, traditional court cases can enter the Magistrate’s Court on appeal if they cannot be resolved within the community.
Traditional dispute resolution mechanisms not only reduce the burden placed on state institutions, they also take into consideration the cultural, linguistic, and inter-personal contexts of a particular community. Indeed, traditional courts can promote fairness in certain respects because traditional leaders are able to effectively contextualize the dispute. For example, the procedural flexibility of traditional courts provides an opportunity for members of the community, even those not acting as official witnesses, to attend hearings and offer their opinions and comments.
However, there are certain aspects of traditional courts that can be problematic. For instance, the lack of procedural uniformity and the applicability of “living and oral customary law”, rather than codified law, can result in disparate treatment among cases. The application of customary law is also controversial for those who see the equality of rights and citizenship as embedded in the uniform application of a single legal system and view the application of customary law as a remnant of indirect rule. While customary law is currently required to be applied in accordance with the rights enshrined in the Constitution, the application of customary law, and the structure of traditional courts more generally, can be discriminatory in practice. This is particularly evident from a gender perspective. For example, while women do participate in some traditional courts as witnesses, as members of royal councils, and even as leaders, some women in Limpopo have “stated that they are not prohibited from attending and participating in the court proceedings but they do not attend because they believe that it is a man’s job and it would be contrary to culture for them to attend. Thus, the socialization of women as to their role in society, in the traditional context, is an impediment to their participation in public life and institutions.” For this reason, women interviewed in KwaZulu Natal as part of a South African Law Commission project argued that customary courts should not have jurisdiction over matters relating to land. Youth have also expressed dissatisfaction with the way in which the traditional courts handle matters. As explained by one community member, decisions are not always based exclusively on the merits of the case, but also on the social identities of the parties involved and on the reputation of the families of which they are members.
Interestingly, it has been noted that “[a] good chief is someone who ‘judges wisely without looking where you come from’ and ‘builds the community.’” This concept of community-building is reflected strongly in the notion of restorative justice, which “teaches the communities the values of responsibility, respect, caring and knowledge…[and] ultimately replaces vengeance with forgiveness, alienation with healing, and punishment with education.” This approach to justice is based on the idea that parties to a dispute are also members of a community and, as such, dispute resolution does not focus simply on the determination of guilt or responsibility and the meting out of punishments, but also on enforcing certain social norms. These social norms can be reinforced through the allocation or denial of PTOs, the latter being one means of punishment. However, this function of traditional leaders has become increasingly challenging in some communities; as certain traditional leaders have noted, enforcement can be difficult because youth are not always compliant with the system and do not necessarily respect their authority. The challenges of norm enforceability through land allocation are further exacerbated by the fact that most youth do not apply for PTOs, as they are not normally eligible to hold them.
With respect to land disputes, traditional leaders are particularly knowledgeable about land and their communities’ related needs, and are therefore in an advantageous position to resolve such disputes. However, even for those who support traditional courts and find them substantially better than the Magistrates’ Courts, there is also a compulsory element to the use of such courts as the forum of first instance. As a result, although appeals may be made to other courts, the degree of effective access to such courts is questionable. As one Magistrate’s Court official noted: “It often happens that people come to us with cases that belong in the traditional courts, like family problems and disputes over land. They want us to try them, because they say the chiefs are biased. We tell them to still go to the traditional court first,band that they can always appeal to us afterwards. But somehow they never do. These people are loyal to their chiefs.”54 While this phenomenon could be explained in part by the fact that traditional leaders are able to satisfactorily resolve the dispute, it could also be a reflection of social pressure or logistical challenges, such as the difficulty of travelling to Magistrates’ Courts.
Therefore, while traditional courts are accessible, allow for the consideration of important factors that are often ignored by state judicial structures, and contribute to the just resolution of disputes in certain respects, they also raise concerns regarding the realization of certain civil and political rights.
Examining the ways in which traditional leaders currently represent their communities on multiple levels illustrates that a nuanced understanding is necessary when exploring the role of traditional leadership and governance in contemporary South Africa. The critical issue of land is but one lens that can be used to examine many of the contemporary roles of traditional leaders, yet it is one that illuminates a full range of their contributions and contradictions at the local and national levels. Traditional leaders in some cases present problems of representation, but can also play an important social role in increasing equity and voice for their often marginalized rural communities. What is clear is that they cannot be ignored by those concerned with conceptions of governance. The fact that traditional leaders continue to enjoy legitimacy in the eyes of many community members, despite a controversial history, is significant, even if such legitimacy is not universally conferred.
As with many forms of leadership, the individual personality of a traditional leader and the particular characteristics of a community can play a determining role in the degree to which a leader is perceived as legitimate. However, support for traditional leaders is also rooted in their unique contributions including cultural maintenance, social welfare, and dispute resolution. Traditional leaders can contribute to their communities not simply by performing these functions, but also by the ways in which such roles are fulfilled – traditional leaders are in a position to take the local context into consideration in the fulfilment of these roles, including relational dynamics and community interests, by nature of the fact that they are members of these communities.
However, just as traditional leaders understand their communities Dynamics, awareness of the risks of cultural fragmentation and discrimination is essential, particularly within a larger society that continues to address the legacy of apartheid. While the pluralistic nature of South Africa has been rightfully embraced, there is also a danger that traditional leaders could perpetuate potentially divisive ethnic identity politics in making community-based claims. Moreover, adequate progress has yet to be made in terms of ensuring the realization of rights of equality and non-discrimination; the responsibility to respect and ensure these rights falls both on the state and on traditional leadership.
Traditional leadership has the potential to contribute to governance in both positive and negative ways and therefore must be assessed with a thorough understanding of this complexity. In addition, in order to understand the relationship between traditional leadership, land, and governance, one must also explore the current dynamics of power and authority that allow traditional leaders to make these contributions.
On a functional level, particularly within communities, the authority of traditional leaders is intimately linked to their control over land and their ability to determine who “belongs” to a particular community through, for example, the provision of residency letters. However, as more individuals obtain alternative forms of land tenure, such as freehold, certain functions of traditional leadership could become unnecessary, thereby reducing the degree of control they exercise over their communities. Land reforms could also potentially counter some negative aspects of traditional leadership – if the power of traditional leaders ceases to be significantly based on their control over land, they may seek to garner support through actively addressing and representing community needs.
On a more institutional level, rather than the incremental exclusion of traditional leadership that many observers anticipated in the late 1990s, the roles of traditional leaders are experiencing accelerated definition, particularly on a national level. This is evidenced most recently by the establishment of the National House of Traditional Leaders and new institutions, such as the Department of Traditional Leadership, that could potentially enhance the authority and capacity of traditional leaders.
An effective understanding of the governance role of traditional leadership and constructive policies is a challenge for policymakers and those interested in understanding governance. Equally problematic polarities emerge; one cannot ignore traditional leadership, but at the same time, this form of governance cannot be supported or rejected without a thorough, critical, and contextualized analysis of the realities of contemporary governance.
It is only after such an analysis that policymakers should seek to bolster positive elements of this form of governance and to ameliorate negative ones. Not only will such assessments vary among communities and leaders, because traditional leadership does not operate in a governance vacuum, but over-simplified policies that fail to consider the socio-political context may have negative implications.
The past decade has seen a resurgence of interest in traditional leadership and it is into this context that South Africa has emerged, actively negotiating the relationship between state and community, cognizant of its complex past and of the existence of competing claims over the status of traditional leadership. However, because traditional leadership in South Africa is a product of its unique history and socio-political context, one cannot simply export the South African model to other countries. It is important to examine the particularities and merits of each case, and this paper has sought to identify some of the tensions and complexities associated with traditional leadership as it operates on many levels in South Africa. Such complexities undoubtedly arise in all countries and communities where traditional leadership exists and must be critically examined and addressed. It is important to understand what makes this form of governance valuable to communities and the state, but one must also identify the aspects of this traditional leadership that are problematic and inconsistent with other norms that are valued by society. Such norms, as well as the relationship between traditional leadership and other governance institutions, will inevitably vary among states, yet many of the same tensions are likely to exist.
It is evident that while South Africa is enhancing the role of traditional leaders in some respects, national policies with respect to land reform also have the potential to weaken the authority of and perceived necessity for traditional leadership on a local level. The nature of these interactions and the implications for citizens that will result from the land reform process and the integration of traditional leaders into high-level government and Policy remain to be seen.
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