7. APPOINTMENT/RECOGNITION OF TRADITIONAL LEADERS

Different laws of succession, sets of legislation and procedures are being used by different provinces in the appointment of traditional leaders into different positions of power. This has resulted in a number of problems for policy formulation in this area.

The power to appoint traditional leaders, which power was vested in the supreme chieftaincy, was assigned to the Governor-General by the Black Administration Act of 1927. This power was later re-assigned to the President of South Africa in 1961 and then to the homeland governments upon the attainment of self-government status, and to the TBVC states upon gaining independence. Outside the former self-governing territories and "independent" TBVC states traditional leaders were still being appointed by the South African President.

Traditional leaders generally begin their term of office upon official appointment by government, followed by a customary inauguration.

Eastern Cape

In both the former Transkei and former Ciskei there are officially appointed kings/paramount chiefs (iikumkani), deputy paramount chiefs and chiefs (iinkosi).

Succession to the position of king/chief is hereditary along the male line and is further determined by the law of succession of each traditional community. Females can only act as regents on behalf of their minor sons.

In the former Transkei the government formally appoints the headmen (izibonda) after consultation with the king/paramount chief concerned. In the former Ciskei no headmen were appointed after 1984 except with prior approval of the then Minister of Native Affairs and the concurrency of the then treasury.

In 1994 the power to appoint traditional leaders was assigned to the Premier of the Eastern Cape or the delegated MEC.

The following legislative measures determine the appointment of traditional leaders: the Transkei Constitution Act of 1976, the Transkei Authorities Act of 1965, the Ciskei Constitution Act of 1981, the Ciskei Administrative Authorities Act of 1984 and subordinate legislation.

Free State

In the former Qwaqwa there are kings (marena a maholo) and chiefs (marena) who rule over a defined territory. There are also hereditary headmen marenana or non-hereditary elected headmen (boramotse) who are subordinate to the chiefs.

The position of traditional leader (paramountcy (borena bo boholo), chieftaincy (borena) and headmanship (borenana)) is hereditary along the male line. Females are appointed as regents for their male sons who have not yet reached the age of maturity. In the category of non-hereditary headmanship (borametse) the headmen (rametse) are elected by the villages/wards (metse) over which they exercise jurisdiction.

In Thaba Nchu there is a chief (kgosi) and non-hereditary headmen (dikgosana). Chieftaincy (bogosi) is hereditary along the male line while non-hereditary headmen are elected by the inhabitants of the villages.

In the districts of Vrede and Harrismith there are recognised chiefs (marena) who are landless and do not have traditional authorities and prescribed areas of jurisdiction. They do, however, exert influence by virtue of their recognition as marena by their subjects. Their positions are hereditary in the male line.

In 1994 the power to appoint traditional leaders was assigned to the Free State Premier or the delegated MEC.

The following legislative instruments determine the appointment of traditional leaders in the Free State: the Bophuthatswana Constitution Act of 1976, the Bophuthatswana Traditional Authorities Act of 1978, the Black Administration Act of 1927 and the Qwaqwa Administration of Authorities Act of 1983, as well as subordinate legislation.

KwaZulu-Natal

Traditionally, the king (Ingonyama/Isilo samabandla) and the chief (inkosi) acquire their positions through hereditary succession along the male line. The law of succession of each traditional community also informs succession.

There exists also a category of elected chiefs (iziphakanyiswa). Deputy chiefs (amasekela enkosi) are appointed by the chiefs or elected chiefs, and acting chiefs (amabamba bukhosi) are appointed by the clan (umndeni) to act as chiefs when the rightful persons cannot be appointed for various reasons.

Succession to the position of headman (izinduna) is hereditary, elected or appointed.

In 1994 the power to appoint traditional leaders was assigned to the Premier of KwaZulu-Natal or the delegated MEC.

The following legislation dealing with the appointment of traditional leaders applies to KwaZulu-Natal: the Black Administration Act of 1927 and the KwaZulu AmaKhosi and Iziphakanyiswa Act of 1990 (and subordinate legislation).

Mpumalanga

Succession to the positions of kings (iingwenyama) and chiefs (makgoshi/marena/ amakhosI/magosi) in Mpumalanga as a whole is hereditary along the male line and is further determined by the law of succession of each traditional authority.

The headmen (tindhuna) are not officially appointed. They are appointed by either the king or chief in consultation with the traditional authority and the royal council of the community concerned. This position is also hereditary.

In 1994 the power to appoint traditional leaders in Mpumalanga was assigned to the Premier or the delegated MEC.

The following legislation dealing with the appointment of traditional leaders applies to Mpumalanga: the Black Administration Act of 1927, the KwaNdebele Traditional Authorities Act of 1984, and the Bophuthatswana Traditional Authorities Act of 1978.

Northern Province

In the former Lebowa there are officially appointed chiefs (magoshi) as well as headmen (mantona) who are not officially appointed. There are also clan headmen (borakgoro) who are under the authority of chiefs and headmen.

Succession to the position of chief and headman is hereditary along the male line and is further determined by the law of succession of each traditional community. The general law of succession among the BaPedi is that a chief is succeeded by his eldest son born from the masechaba wife (the so-called "candle wife"). The exception to this general law is the Modjadjis, where succession follows the female line.

In the former Gazankulu, there are officially appointed chiefs (tihosi). The headmen (tindhuna) are divided into three categories: independent headmen, headmen formally appointed by chiefs, and headmen non-formally appointed by chiefs and independent headmen. Independent headmen are formally appointed by the government. These headmen are not under the authority of chiefs, but among their subjects they enjoy the same status as chiefs and the title hosi is used to address them. In addition, there are formally recognised headmen who are appointed by chiefs as well as headmen who are not officially recognised by government. Below headmen there are petty headmen (xamuganga) who are responsible for the administration of their respective villages.

In the former Venda there are officially appointed chiefs (mahosi), officially appointed headmen (vhamusanda), non-formally appointed headmen (vhamusanda) as well as petty headmen (vhakoma). Succession to the positions of chief and headman among the VhaVenda is hereditary along the male line. A chief's successor is identified by the royal council and is usually the eldest son of the dzekiso wife (i.e. the one married by the sister's lobola cattle).

In 1994 the power to appoint traditional leaders was assigned to the Premier of the Northern Province or the delegated MEC.

The following legislation applies to the appointment of traditional leaders in the Northern Province: the Black Administration Act of 1927, Proclamation R110 of 1957, the Lebowa Local Authorities Act of 1984, the Lebowa Royal Allowances Act of 1984, the Venda Traditional Leadership Proclamation 21 of 1991 and the Venda Districts and Territorial Councils Act of 1986.

North West

In the former Bophuthatswana there are formally appointed chiefs (dikgosi). Succession to the position of chief is hereditary along the male line. The law determines that a chief be succeeded by the first-born son of his principal wife.

There are two categories of headmen (dikgosana). The first category is the independent headmen who do not fall under the authority of chiefs and receive remuneration from government. The second category is that of headmen appointed by chiefs. They are not officially recognised and do not receive remuneration from the government. Succession to the position of headman is either hereditary along the male line or elected.

In the former RSA part of Northwest there are appointed chiefs (dikgosi). The law of succession to the position of these chiefs is the same as the one followed in the former Bophuthatswana. In addition, each traditional community influences succession.

Headmen under appointed chiefs are appointed to their position by the chief (kgosi) concerned, which appointment is then confirmed by the government.

In 1994 the power to appoint traditional leaders was assigned to the Premier of Northwest who may delegate this power to the relevant MEC.

The following legislative instruments determine the appointment of traditional leaders: the Black Administration Act of 1927, the Bophuthatswana Traditional Authorities Act of 1978, and the Bophuthatswana Constitution Act of 1977 as well as subordinate legislation.

Appointment Procedures

The following appointment procedures (subject to regional variations) apply in respect of the different categories of traditional leaders:

In the official appointment of the different categories of appointed traditional leaders (kings/paramount chiefs, chiefs and appointed headmen), the following considerations apply:

1. Three layers of institutions play a role:

• Customary institutions (e.g. the royal family)

• Administrative institutions (the provincial department concerned)

• Statutory institutions responsible for the official appointment. In this context the applicable pre-1994 legislation (see below) has been assigned to the provincial premier concerned. However, from one province to another, from one category of traditional leader to another, and in some instances even from one area in a particular province to another, the actual appointing functionary differs: either the Premier or the Executive Council or the Premier in consultation with the Executive Council or the MEC concerned.

2. In general the provincial department concerned seeks the advice of the Provincial House of Traditional Leaders.

3. In some instances other statutory institutions are also consulted (e.g. the Regional Authority, Chief's Council, Traditional Authority or the king/paramount chief/chief concerned).

In identifying and appointing headmen who are not officially appointed in terms of legislation, the following considerations apply:

• Involvement of customary institutions
• "Unofficial" appointment by a chief in terms of customary law

As regards the appointment of independent headmen (for those traditional communities that do not have their own chiefs), the following considerations apply:

• Involvement of customary institutions
• Involvement of administrative institutions (the provincial department concerned)
• Appointment in terms of applicable legislation by the statutory institution referred to above.

In appointing/confirming elected (non-hereditary) headmen, the following considerations apply:

• Election by the community concerned
• In some provinces: appointment by the chief concerned
• Involvement of administrative institutions (the provincial department concerned)
• Confirmation/appointment in terms of applicable legislation by the statutory institution referred to above.

In appointing elected chairpersons of those community authorities that do not have independent headmen as leaders, the following considerations apply:

• Election by the communities concerned
• Involvement of administrative institutions (the provincial department concerned)
• Appointment in terms of applicable legislation by the statutory institution referred to above.

7.1. Disqualification

Succession to traditional leadership is gender specific. Succession is hereditary in the male line, with the exception of the Modjadjis, where succession is hereditary in the female line.

The identification of the successor is determined by the customary law of the community concerned. If the identified successor is still a minor, an acting chief - who can be a female or a male - is appointed to rule until such time as the minor concerned has reached maturity.

7.2. Retirement of Traditional Leaders

Customary law does not make provision for the voluntary retirement of traditional leaders. However, legislation in the Eastern Cape and Northwest makes provision for the retirement of traditional leaders.

Challenges

• There are no uniform procedures in the appointment/recognition of kings, paramount chiefs, chiefs and headmen. This can be attributed to different norms, values, genealogy and various acts governing the different provinces. The diversity of the sources of influence and their various but concurrent effects have resulted in a number of problems that call for a clear policy on the appointment of traditional leaders.

• The relationship between government (as supreme chief) on the one hand, and customary institutions and practices on the other hand, as regards the appointment of traditional leaders has been the subject of conflicting court decisions (e.g. Sigcau v Sigcau). Putting a policy in place will remove uncertainties in this regard.

• Occasionally the legitimate successor declines appointment. To which extent such a declination can be reversed or whether the decliner's children are entitled to succeed into his/her position need to be determined by policy in cases where custom does not provide a clear answer.

• Communities have expressed a strong wish to retain the customary practice. They contend that the formal/official way in which appointment and recognition are handled is not only detached from the people, but also excludes a significant section of the community from participation.

Strategic Questions

1. Should there be a uniform system of appointing traditional leaders in all provinces?
2. What role should government play in the appointment/confirmation of traditional leaders?
3. Should government be involved in the appointment of headmen?
4. Should the position of supreme chief be retained?
5. What should be the roles of government on the one hand, and customary institutions on the other hand, as regards the identification and appointment of traditional leaders?
6. What role, if any, should the national and provincial houses of traditional leaders in the appointment of traditional leaders?
7. To what extent can a legitimate successor who has declined to be appointed as a traditional leader remain a legitimate successor?
8. Are the children of a traditional leader who has declined to succeed to the position of traditional leader be entitled to succeed to this position?
9. What should be the role of government in the ceremonial installation of traditional leaders?

8. REMOVAL OF TRADITIONAL LEADERS FROM OFFICE

According to custom, traditional leaders may be removed from their positions if they commit acts that are deemed by the Royal Council to be acts of misconduct.

Legislation also provides for the removal of a traditional leader from office, where the traditional leader is deemed to have committed acts of misconduct. Acts of misconduct amongst others include conduct that is disgraceful, improper or unbecoming, using intoxicating liquor or dependence-producing drugs excessively, abusing of powers, and being convicted by a competent court of acts stipulated in Schedule 1 of the Criminal Procedure Act of 1977, i.e. murder, treason and other conduct.

A number of traditional leaders were deposed in terms of various laws for not being amenable to colonial and apartheid government directives. Notwithstanding the traditional legitimacy they enjoyed, they were ousted from office or passed over in matters of succession. Legislation was also used to establish new chieftaincies as well as to merge and dissolve existing communities. New traditional leaders were also imposed on the new chieftaincies.

8.1. Succession Disputes

Cases are known where chieftainship has been usurped or acquired by trickery or force. This has resulted in succession disputes that involve mostly genealogical controversies, i.e. questioning the legitimacy of the person/s claiming to be the successor/s to traditional leadership.

Recently women in traditional communities came to challenge succession laws and customs on the basis that these laws and customs discriminate against them. The Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act were used as a basis for such challenges.

Customarily, succession disputes are resolved by the Royal Council, using the prevailing law of succession and provincial legislation as guidance.

Challenges

• There is a need for uniform policy on the removal from office of traditional leaders by the traditional institutions concerned and by government.

• The issue of traditional leaders who were deposed for political reasons has presented practical problems where such traditional leaders claimed their original positions. This has potential for destabilising communities, particularly where the current incumbent who was imposed/installed at the expense of the legitimate one, is seen to have looked after the interests of the community well and has gained legitimacy in it.

• The creation of new chieftaincies and the installation of chiefs during the colonial and apartheid eras have raised serious concerns regarding the legitimacy of the traditional leadership institution.

• Succession disputes present a problem where the law of succession is challenged on the basis of the equality provision of the Bill of Rights.

• Different provinces handle succession disputes differently; as a result, there is lack of uniformity.

Strategic Questions

1. Should government be involved in the removal of traditional leaders? If so, what should be the reasons for removing traditional leaders?
2. What role should the Royal Council concerned play in the removal of a traditional leader?
3. What should be the role of the national and the provincial houses of traditional leaders in the removal of traditional leaders from office?
4. Should leaders who were "imposed" be removed and be replaced with the "legitimate" traditional leaders?
5. How should a succession dispute be resolved, especially in cases where elements of the right to equality as entrenched in the Bill of Rights contraventions are involved?
6. Should a dispute resolution mechanism be established?
7. What form should this dispute resolution mechanism take, e.g. should it be a commission of inquiry?

9. THE ROLE OF WOMEN IN TRADITIONAL LEADERSHIP

With the exception of the matrilineal society of the Modjadjis in the Northern Province, traditional South African societies have always been defined along patriarchal lines, i.e. the head of the household was a man, and his wife/wives were subordinate to his authority. Wives were responsible for the general welfare of the family and the upbringing of children. The women in the households of traditional leaders also gave advice in matters of succession (for example, sisters of the king/chiefs and headmen were part of the group of advisors to these leaders). These women also assisted in and co-ordinated the family's ritual functions (for example weddings and inaugurations), mediated during family disputes, and also acted as regents in cases where the successors to the leaders were under-aged.

The successive colonial and apartheid regimes significantly altered the role played by women in traditional communities. For example, the migrant labour policies and the creation of African reserves left them on their own to act as heads of households responsible for a range of functions formerly executed by men.

KwaZulu-Natal was the first province where women were officially acknowledged as leaders in predominantly patriarchal traditional communities. The AmaKhosi and Iziphakanyiswa Act 9 of 1990 provided for any person (including a woman) to be appointed as an inkosi or isiphakanyiswa.

Challenges

• The Promotion of Equality and Prevention of Unfair Discrimination Act prohibits discrimination against men and women. This includes any distinction, exclusion or restriction made on the basis of gender that impairs or nullifies the recognition, enjoyment and exercise by women and men of their human rights and fundamental rights.

• The Act further provides for the outlawing of gender-based violence (including witchcraft or ritual-related violence), the barring of women from inheriting family property, female genital mutilation, any practice (including traditional, customary or religious) that violates the dignity of women and undermines equality between women and men, as well as any policy that unfairly or unreasonably limits women's access to land.

• The Act also outlaws any acts or conduct that create or sustain systematic forms of domination and disadvantage that perpetuate and reinforce unequal gender relations and prevent women from developing their full human potential and participating fully in society. Stakeholders are therefore called upon to consider whether the patriarchal nature of traditional communities discriminates against women and contradicts the equality clause in the Bill of Rights and the Promotion of Equality and Prevention of Unfair Discrimination Act.

• The extent to which the institution of traditional leadership can be transformed in line with the equality clause and equality legislation, without undermining the cultural values on which it is based, must also be considered.

• Traditional leaders have often argued that discrimination against women with regards to succession is not aimed at excluding them from meaningful participation, but rather at preserving the lines of succession. When a woman from a royal family gets married, her children are not considered to be part of the royal family, but as part of her husband's family. Her children are therefore excluded from any rights accruing to members of their mother's family. Although in terms of the Bill of Rights this boils down to discrimination against women, there are calls for preserving the hereditary nature of family succession, which is an integral part of the institution of traditional leadership.

Strategic Questions

1. How can the prevailing law of succession and customary law be reconciled with the equality clause entrenched in the Bill of Rights and the Promotion of Equality and Prevention of Unfair Discrimination Act?
2. Taking into account the prevailing democratic dispensation, what role should women play in institutions of traditional leadership, such as customary courts and izimbizo?

10. THE STATUS OF THE YOUTH/MINORS IN TRADITIONAL COMMUNITIES

In African traditional culture, age and seniority played an important part. The youth were raised knowing that their seniors should be respected and honoured. They were also taught from early in life the responsibilities of adulthood, such as providing for their children's sustenance. The children were otherwise left to fend for themselves and make decisions on their own. This independence later on inspired them to demand to play a more important role in the affairs of communities. The more they were prevented from exercising this role, the more rebellious they became.

In traditional communities minors were not seen as belonging to their families only, but also to their communities as a whole. Thus, if parents died, the relatives and, where they were not available, the community would care for the children and afford them the benefits that they would have enjoyed in their original family. That is why there were no homeless children in traditional communities.

According to customary law, minors could not succeed into positions of traditional leadership. Where a minor was the next in line to succeed, a regent was appointed on the minor's behalf. In some cases, only men who had reached a certain stage of development and maturity (depending on the customs of that community) were allowed to play a role in traditional institutions.

The royal youth were represented in customary traditional institutions such as the Royal Council. Although they did not participate in the discussions, they were brought in as observers in order to obtain the necessary experience of how these institutions functioned, and how the deliberations were conducted. The commoner youths, on the other hand, were not allowed to attend such meetings.

Challenges

• There are instances where regents appointed on behalf of a youth refuse to vacate the position when the youth becomes eligible for the position of traditional leader. This creates instability and prolonged claims.

• The Constitution prohibits discrimination on the basis of age. The impact of this on the law of succession in different traditional communities and on the participation of youth in traditional institutions needs to be determined.

Strategic Questions

1. Should there be a policy on the age of succession?
2. What role should youth play in traditional leadership institutions?
3. Where the leadership position of a minor is temporarily handed over to a regent, what mechanisms should be implemented to ensure that the rightful holder assumes this position upon maturity?
4. Where the leadership position of a minor is temporarily handed over to a regent, what rights do the minor and his/her mother have as regards general care (including remuneration)?
5. How should customary law and the law of succession be reconciled with the equality clause in the Bill of Rights?
6. Should government have a responsibility towards the family/families of a deceased traditional leader as regards general care, etc.?

11. PARTY POLITICAL AFFILIATION

Prior to the Union of 1910, various colonial governments had made several attempts to reconstruct the chieftainship and make it pliable to colonial rule. For example in the Eastern Cape this was achieved mainly through military conquest, (and the frontier wars are a good example of this), while in other areas by way of contrast, treaties between the 'chief' of a 'tribe' and a colonial or republican political power might provide the basis for maintaining a limited tribal autonomy. With the creation of centralised administration in 1910 and with the evisceration of the reserve economy it became possible to finally reorganise traditional political institutions. In terms of the South Africa Act of 1909, the Governor General was conferred as a 'supreme chief' over all African tribes, and in 1927 the Native Administration Act consolidated these powers, and vested them in the Minister of Native Affairs, with the Bantu Authorities Act of 1951 finally reducing traditional leaders to the position of an element in the bureaucratic hierarchy.

However as a response to the establishment of the Union in 1910, Africans began to express their political demands in more concrete terms. For example the formation of the African National Congress in 1912 represented the first political instrument by which such demands were to be articulated. Though organized across ethnic and tribal lines, the ANC nonetheless maintained a respect for traditional leaders, which was due both to the recognition of the role that they had played in resisting colonialism, as well as the fact that Africans in urban areas, despite increasing industrialization, and the concomitant proletarianization, still maintained their loyalty to the institution of traditional leadership. Because of the respect accorded to traditional leaders after that formation of the ANC, some traditional leaders were made honorary vice presidents within the ANC. When the ANC adopted its first constitution in 1919, despite the fact that leading personalities in the African community had emerged from outside the institution of chieftaincy, it provided for a forum within Congress known as the Upper House of Chiefs. All kings, princes, paramount chiefs and chiefs by heritage, as well as other persons of royal blood in the direct line of succession among all the Africans in Southern Africa, had the right to attend the meetings of Congress either in person or by representation. This form of representation for traditional leaders, besides showing respect for, and honoring the status of traditional leaders, was also intended to get the political consent of all the ethnic groupings assembled within the ANC.

The South African government, fearing that traditional leaders would become radicalised by their involvement with the ANC, moved swiftly to counter this by enacting the Native Administration Act of 1927, in terms of which a separate administration for Africans was created. From this moment onwards, no 'chief' who held views contrary to those of government was confirmed in his position as 'chief' by the Governor - General, irrespective of his hereditary right by African custom.

Subsequent to the enactment of the Native Administration Act, traditional leaders became important tools in the government's strategy of extending its control over Africans in the countryside, through the establishment of 'reserves', 'self-governing states', 'homelands' and later 'independent states'.

Challenges

The participation by traditional leaders in party politics is rooted both in the history of the establishment and consolidation of colonial and apartheid regimes, as well as in struggles against such regimes. However the question of their participation in party politics in this Discussion Document, arises out of recent experiences, where in the past traditional leaders played a leading role in homeland party politics and recently in various parties which are participating in the new political dispensation.

The Constitution provides that every citizen is entitled to belong, stand for elections and vote for a political party of their choice. For example section 19 of the Constitution provides for the political rights of all citizens.

There is a need to consider, in view of the need to promote governance and impartiality, whether or not it is counter productive for traditional leaders to overtly espouse their party political views.

Strategic Question

1. Given then that every citizen is constitutionally entitled to belong, stand for elections and vote for a political party of their choice, how should the participation of traditional leaders in party politics be limited if at all?
2. Can any restrictions be placed on the political party activities of traditional leaders?
3. How should traditional leaders be capacitated to play a more impartial role?

12. REMUNERATION OF TRADITIONAL LEADERS

In the past traditional leaders, with regard to their remuneration, occupied a position of unique privilege and authority. In addition to all other entitlements they enjoyed, a traditional leader was a repository of wealth and a dispenser of gifts. His exalted status was reflected in the ceremonial surrounding him and in the obligations of his "tribesmen" towards him.

He and his family normally took precedence in the "tribe" in matters of rituals, such as the first fruits and initiation ceremonies. He had the first choice of a site for building his home, of "tribal" lands and of grazing for his cattle. He was invariably the richest man in the "tribe". All offences against him are generally punished far more severely than similar offences against ordinary "tribesmen". He could send people where he liked and on any errand that he liked and could also use their wagons and oxen, provided that the work involved was on behalf of the "tribe". He was also entitled to free labour from the age-regiments for both public and private purposes. A traditional leader's most important source of wealth was cattle. As a rule he possessed by far the largest lands in the "tribe".

With the advent of colonialism and apartheid laws were introduced which drew distinctions between a traditional leader and his community, defined his role, powers and functions and regulated his benefits. These laws gradually alienated the traditional leader from his community and took away some of his powers. He became an instrument in the hands of the administration through which instructions and conformity could be demanded. He was made to be responsible for the implementation of laws passed by the administration e.g. hut-tax, labour recruitment, etc.

In the era of democracy, the remuneration of traditional leaders has now completely assumed new completely dimensions. Unlike in the past, where traditional leaders enjoyed benefits from their "tribes" and earned respect and emoluments by close association and devotion to their communities, they are paid in terms of laws passed by the central government on a uniform basis and without any distinction of the size of the "tribe". With the introduction of both the 1993 and 1996 Constitutions provision was made for the establishment of Houses of Traditional Leaders. This also necessitated the design of payment processes for traditional leaders serving in these Houses.

The Constitution and Remuneration of Public Office Bearers Act of 1998 provide for the remuneration of traditional leaders. As regards benefits, the President may in his discretion determine whether benefits, if at all should be paid. It is important to note that only kings and "chiefs" are paid. Headmen are not paid. There are however instances where, in some provinces, headmen are paid as well.

The remuneration is regulated in terms of the Remuneration of Public Office Bearers Act of 1998, and takes place at four levels:

1. King/Paramount chief level
2. Chief level
3. Provincial Houses level
4. National Houses level.

At both National and Provincial House levels only allowances are paid. Members of Houses have proposed that these Houses be make permanent and that they be paid salaries as full time members.

Challenges

The remuneration of traditional leaders by government imposes a number of consequential duties and obligations on both government and traditional leaders. Not only does it create fiscus obligations on the government but also creates, accountability to government by traditional leaders.

Once government remunerates traditional leaders then the following issues come to the fore:

1. The nature of the relationship between traditional leadership and government becomes one of the employer and employee.
2. The principle of accountability which would dictate that traditional leaders account for the work they do in, inter alia, advising governmentto address the developmental needs of communities.
3. The conclusion of performance agreements/contracts with traditional leaders.
4. The implications of traditional tributes like inxaxheba/sehuba/ ukuvasizandla/tlhatswa letsogo.

Strategic Questions

1. Who should pay traditional leaders, and why?
2. Should headmen be paid, and if so, by whom?

13. CO-OPERATIVE GOVERNANCE

Chapter 3 of the Constitution provides for a co-operative model of government and co-operative intergovernmental relationships. The institution of traditional leadership can play a meaningful role within this model. Amongst others, section 41(1) provides that all spheres of government and all organs of state within each sphere must co-operate with one another in mutual trust and good faith by fostering friendly relations, assisting and supporting one another, building on common interest, co-ordinating their actions (and legislation) with one another, adhering to agreed procedures and avoiding legal proceedings against one another.

13.1. Co-Operative Governance At National Level

At national level the Department of Provincial and Local Government is responsible for the administration of traditional affairs. The department therefore organises regular MINMEC meetings on traditional affairs, attended by the Minister of Provincial and Local Government and the MECs responsible for traditional affairs in the provinces concerned. In addition, the department is responsible for the formulation of national policy and legislation on traditional affairs, and co-operation with the provincial directorates for traditional affairs (see 13.2) as regards policy implementation, the rendering of advice on the administration of traditional institutions and related matters. A MINMEC technical committee on traditional affairs has also been established. It comprises national and provincial officials, and they meet regularly to discuss matters relating to traditional affairs. Other national departments (especially the Department of Justice and the Department of Land Affairs) administer legislation that impact on traditional institutions.

At national level various structures were established to provide for liaison between traditional leaders and other government institutions. Traditional leaders were closely involved in discussions and the drafting of legislation on the establishment of the National House of Traditional Leaders, its composition, and administrative and secretarial support provided by the Department of Provincial and Local Government. (See Chapter 14 for a discussion of the National House of Traditional Leaders.)

In addition, through the National House of Traditional Leaders, traditional leaders have made representations on issues affecting traditional leadership, traditional communities and customary law. These representations were made to Parliament, portfolio committees and statutory bodies (e.g. the SA Law Commission and the SA Human Rights Commission). Meetings with national departments such as the Department of Provincial and Local Government take place on a regular basis. Briefings by national departments such as the Department of Land Affairs also happen from time to time when the need arises. The National House of Traditional Leaders is also invited to participate in national and other conferences. Meetings with the President and the Deputy President (attended by a number of cabinet ministers) are also held. The voluntary organisations of traditional leaders, CONTRALESA and OTLSA, are also involved in meetings and discussions with government and the statutory bodies, and their opinions are often sought. They have also been involved in the Status Quo Report phase of the White Paper Programme on Traditional Leadership and Institutions, as well as in discussions that informed the drafting of this discussion document. The National House of Traditional Leaders also meets on a regular basis with the provincial houses of traditional leaders.

It is foreseen that traditional leaders will play a strong supportive role as regards the transformation of our society and the further implementation of good and effective governance, e.g. by participating in and making inputs to bodies such as the Aids Council, the Demarcation Board and the Tourism Board.

13.2. Co-Operative Governance at Provincial Level

The six provincial houses of traditional leaders have been established in close co-operation and consultation with traditional leaders. (See Chapter 13 for a discussion of the provincial houses of traditional leaders.)

Relationships with government and the functions of the provincial houses differ from province to province. For instance, in KwaZulu-Natal the provincial legislature has referred several bills to the Provincial House of Traditional Leaders for its inputs and in the Eastern Cape the Provincial House of Traditional Leaders has advised the provincial legislature, and its meetings coincide with those of the provincial legislature. In the other provinces there have not yet been any direct and formal meetings with provincial legislatures.

The premiers and MECs concerned with traditional affairs meet regularly to discuss issues of mutual concern. Some provinces have informal committees consisting of key members of the Provincial House and the Executive Council.

Provinces are responsible for the administration of traditional affairs and for the appointment, removal and remuneration of traditional leaders. Provincial directorates were established for this purpose in 1994. They also allocate funds to regional and traditional authorities.

The provincial houses of traditional leaders also interrelate with the provincial administrations responsible for the administration of traditional affairs. As regards the appointment of traditional leaders, the customary practices within individual communities are taken into account and the advice of the Provincial House of Traditional Leaders is sought by the provincial government before the Premier or other functionary makes an appointment. In addition, the existing regional authorities (and the chiefs' councils in the Free State) also advise the provincial governments, especially in respect of succession and appointments, but also as regards other issues pertinent to traditional communities. (Also see chapters 5, 6 and 7.)

The relationship between communities resorting under the same traditional leader but resident in different provinces as well as the position of their traditional leaders (and the challenges arising from this situation) are discussed in Chapter 14.

13.3. Co-Operative Governance At Local Level

According to the Constitution, national legislation must provide for the role of traditional leaders at local level on matters affecting local communities. The White Paper on Local Government also proposes a co-operative model of rural local government in which traditional leaders have representation and a role to play.

For a detailed discussion of the role of traditional leaders at local level, see Chapter 5.

Challenges

• The institution of traditional leadership is as old as Africa itself. It has served the African people over many years in various forms. It has retained a role for itself in modern-day South Africa. This role, however, needs to be properly defined and focussed.

• Some form of partnership must be established between local councillors and traditional leaders. The relevance of the institution of traditional leadership depends to a large extent on how the institution serves its communities - customarily, culturally and developmentally. While traditional communities support democracy and are increasingly conducting their lives in accordance with democratic principles, such as equality of treatment, right of participation and choice, they simultaneously support traditional leadership. Hence the two systems, in so far as they relate to governance, need to be synergised within the framework of co-operative governance.

Strategic Questions

1. At which of the three levels of government should traditional leadership be located?
2. How can a more meaningful and dynamic relationship between traditional leaders and government be effected?

(See also the strategic questions in Chapter 5.)

14. ROLE AND FUNCTIONS OF STATUTORY BODIES REPRESENTING TRADITIONAL LEADERS

The 1996 Constitution provides for national legislation on the establishment of a National House of Traditional Leaders on the basis of relevant national legislation, and for national and provincial legislation on provincial houses of traditional leaders. The functions of these houses of traditional leaders are to advise government on matters affecting traditional leadership, traditional communities and customary law. All these bodies are in place. The six provincial houses were established in terms of provincial legislation passed by the provincial legislatures within the framework of the 1993 Constitution.

14.1. National House Of Traditional Leaders

The National House of Traditional Leaders (previously the National Council of Traditional Leaders) was established in terms of the National Council of Traditional Leaders Act of 1998. It consists of 18 members (3 nominees from each of the six provincial houses). The National House has established six committees, namely the management committee, the rules committee, the constitutional development committee, the internal arrangements committee, the social development committee and the committee on traditions, customs and culture. Each of these committees consists of six members. Each provincial house is represented in the National House by one of its three delegates in each committee, and each delegate represents their respective Provincial House in two committees. One of the three members of each provincial delegation is a chairperson of one of the six committees.

The National House is empowered to advise national government on issues regarding traditional leadership and institutions, traditional communities, customary law and customs, as well as matters referred to it by government. It is not obligatory or mandatory for government to seek the House's advice before or during the submission of legislation and policy documents to Parliament.

The National House has established various forums for interaction between it and the provincial houses. These include a chairpersons' forum, inter-house executive committee meetings and a secretaries' forum. It has made presentations to Parliament and has participated in or attended public hearings organised by various portfolio committees. The South African Law Commission has also discussed issues relating to customary marriages, the Child Care Act and the law of succession with the National House.

Its members (including the chairperson) are part-time members, although legislation is being drafted to provide for the chairperson to be appointed on a full-time basis. The National House has indicated that it wants to become a full-time body and to play a more significant role in policy formulation and the finalisation of legislation.

14.2. Provincial Houses Of Traditional Leaders

The six provincial houses of traditional leaders were established in terms of the respective provincial acts within the framework of the 1993 Constitution. The number of members of the six provincial houses is as follows: Eastern Cape 20; Free State 15; KwaZulu-Natal 76; Mpumalanga 21; Northern Province 36; and Northwest 24. They act in an advisory capacity and make proposals to the provincial government on any matter relating to traditional authorities, indigenous law and the traditions and customs of traditional communities within the province. They, too, are part-time institutions. The provincial governments are not obliged to refer any matters to them before submitting them to the provincial legislature. The provincial houses have made it clear that they want to play a more substantial role.

The following problems have been identified:

• No uniform criterion in terms of which these houses are constituted. Their composition differs from province to province.
• Lack of training and infrastructure.
• Lack of clarity as regards functions.
• Lack of sufficient links to the provincial governments and provincial legislatures.
• Undefined relationships with the National House of Traditional Leaders.

Challenges

Taking into consideration the fact that the 1996 Constitution provides for a National House of Traditional Leaders as well as for provincial Houses of Traditional Leaders, the following challenges as to their composition, role and functions as well as their relationship with government, traditional communities and traditional leadership need to be addressed:

• The determination of the status and role of the National House and the Provincial Houses.
• The need to determine the operational status of these Houses or whether they should be permanent, sessional, periodic and whether some members should serve on a part-time basis..
• The composition of the provincial Houses with respect to representativity of the communities resident in the province concerned
• The size of the National House with respect to the proportionate representation of South Africa's traditional communities.

STRATEGIC QUESTIONS

1. Should the size, composition, role and functions of the National and Provincial Houses of Traditional Leaders, be reviewed, taking into account the 1996 constitutional provisions?

2. What mechanisms should be developed to ensure accountability by the National House to the provincial Houses, traditional leadership and traditional communities,

3. What mechanisms should be developed to ensure accountability by the provincial Houses to traditional leadership and traditional communities in the province concerned?

4. To which structure(s) of government should the National House and the Provincial Houses account?

5. Should their relationship with other government structures, and their administrative and financial accountability to those government departments to whom they are administratively linked, be reviewed?

6. Should national government and the provincial governments be obliged to seek the National House's or the provincial Houses' advice on traditional issues before policy proposals and legislation are submitted to Parliament or the provincial Legislatures respectively?

7. Should a formal link between the National House and Parliament be established, possibly by providing for the National House to advise the National Council of Provinces as regards traditional issues?

15. TRADITIONAL COMMUNITIES AND ISSUES HAVING TRANS-PROVINCIAL IMPLICATIONS

Cross-boundary issues are a reality following the displacement and separation of traditional communities resulting from the historical determination and adjustment of what are now provincial boundaries. Other factors which compound the problem are the merger and splitting of communities, the deposement of legitimate traditional leaders and the imposition of illegitimate leaders by the colonial and apartheid governments, as well as the impact of migration.

Some traditional communities in the provinces concerned (Free State, KwaZulu-Natal, Mpumalanga, the Northern Province and North West) are affected in a number, (sometimes varying), ways by their (sometimes) close links with senior traditional leaders and traditional communities in other provinces. In some instance the areas of jurisdiction of the formally appointed traditional leaders straddle more than one province. There is also the cross-boundary distribution of sections of what used to be a specific traditional community (sharing in pre-colonial times a unified traditional community territory) - sometimes as separate communities, sometimes still as a specific community. This gives rise to a number of issues:

• the question of which provincial authority has jurisdiction over traditional communities based in more than one province as a result of the splitting of traditional communities across provincial boundaries;

• the question of whether the status of a traditional leader should be determined within the narrow context of his/her newly acquired jurisdiction in another province or rather within the broader context of the community as a whole, irrespective of provincial boundaries, and

• the question of finding an acceptable solution to the restitution of land to (parts of) communities who lost their land (either in full or in part) in terms of the racially based land discriminatory legislation - especially where the land parcels which are allocated, are now situated in different provinces. This also impacts on the question of whether a new chieftaincy should be established for such a group to whom restitution of land is made available.

Challenges

Taking into consideration the fact that the 1996 Constitution provides that the boundaries of the provinces are those that existed when the Constitution took effect and that there are communities who are divided by such boundaries (and are consequently administered by different provincial governments, the following challenges should be addressed:

• There is clearly a need for a uniform policy and administrative practice on relationships between traditional communities and traditional leaders resident in different provinces.
• A uniform approach as to the administration of communities located in more than one province should be identified.

Strategic Questions

1. What co-operative relationships should be forged among the provinces affected?
2. What challenges do these cross-provincial relationships pose for both local governance and provincial governance?
3. As a consequence of removals of communities (or parts thereof) in terms of racially based measures in the past, some communities have now in accordance with the land restitution programme been allocated land. What should be the approach to a request for the establishment of a chieftaincy by such a community (or part thereof)?
4. To what extent can these relationships contribute positively to the resolution of succession and other community disputes?

16. TRADITIONAL COMMUNITIES, NATIONAL BORDERS AND TRANS-NATIONAL IMPLICATIONS

The historical arbitrary determination of national borders by colonial governments (resulting in the displacement, separation and splitting of traditional communities), the deposition of legitimate traditional leaders and the imposition of illegitimate leaders by the respective colonial governments, as well as the fact of migration in the Southern African continent, have had implications for South Africa and the communities concerned.

There are traditional leaders whose traditional areas of jurisdiction extend to an adjacent country, e.g. Swaziland and Mozambique in the case of traditional leaders in Mpumalanga and KwaZulu-Natal, Botswana in the case of North West, and Losotho in the case of Free State. There are also instances where a traditional leader in terms of custom owes allegiance to a senior traditional leader in a neighbouring country, and where such a senior traditional leader plays a role in customary issues such as succession to chieftaincy. In addition, some communities are closely linked to sections of the very same communities in an adjacent country. This phenomenon is not unique to South Africa. The national borders of the 53 African states, determined by the colonial powers following the 1884 Berlin Conference, are recognised by the Organisation of African Unity. Problems that emanate from this state of affairs are amongst others:

• the possibility of a conflict of interest in cases where a traditional leader owes allegiance to a senior traditional leader in a neighbouring country whose wishes are not necessarily in consonance with those of the South African government

• the problems of communication, contact and cultural cohesion between members of the same traditional community based in separate countries.

Challenges

Taking into consideration the fact that the African Charter and the Organisation for African Unity provide that the colonial boundaries of national states are fixed, and that there are (a) communities straddling South Africa's national borders and those of adjacent countries (e.g. Botswana, Lesotho, Swaziland and Mozambique), (b) communities who are strongly linked to other communities in adjacent countries, and (c) instances where a more senior traditional leader in an adjacent country plays a role in customary processes in South Africa (e.g. chieftaincy succession), a number of challenges should be addressed:

• There is clearly a need for a uniform interregional policy on the handling of the relationship of the ties that exist between South Africa and its neighbours in the case where traditional communities and/or more senior traditional leaders are resident in adjacent countries.

• It is constitutionally imperative that all traditional leaders in South Africa should owe allegiance to the Republic of South Africa. Within this context the issues of affinity to traditional leadership institutions in adjacent countries should be examined.

Strategic Questions

1. What forms of relationships exist between communities (parts of which reside in different countries) and their traditional leadership structures?
2. What co-operative relationships should be forged between the countries affected?
3. What interregional structure(s) should deal with matters of this nature?
4. What challenges do these trans-national relationships pose for effective local governance and development planning?
5. What commonalities in policy and administrative practice are there among the affected countries and to what extent can such commonalities promote the African Renaissance?
6. How should the issues of trans-national common identities and nation building be dealt with?

17. CONCLUSION

This discussion document is by no means conclusive. In fact, it merely states a number of challenges and posits a number of questions so as to elicit comments and debate from stakeholders. These responses will be used to inform the Green Paper, which will contain a number of policy options.

All traditional leaders, traditional organisations and formations, government departments, statutory bodies, local government officials, NGOs, women, the youth, academics, and interested persons are therefore requested to comment on this discussion document. They are requested to read closely the issues requiring policy formulation and to respond to the strategic questions raised in Section B, as well as to pay particular attention to all the issues requiring definition (Annexure A).

All comments must reach the Department of Provincial and Local Government by end April 2000.

Please refer all enquiries regarding this discussion document to:

Monde Nkasawe: (012) 334-0886
Nobahle Tshabalala: (012) 334-0865

Send your written comments to:

The White Paper on Traditional Leadership
Chief Directorate Traditional Affairs
Department of Provincial and Local Government
Private Bag X804
PRETORIA
0001

Fax: (012) 334 0613
Email: tradpolicy@dso.pwv.gov.za

18. ACKNOWLEDGEMENTS

We wish to acknowledge the contributions of the following stakeholders (without which the drafting of the Status Quo Report and this Discussion Document would have been impossible):

Staff of the Department of Provincial and Local Government, other government departments, provincial task teams, MINMEC members focussing on traditional affairs, statutory bodies (e.g. the SA Human Rights Commission (SAHRC), the national and provincial houses of traditional leaders, the Gender Commission, the Youth Commission), the South African Local Government Association (SALGA), academics, the National Democratic Institute (NDI), the Human Sciences Research Council (HSRC), the Institute for Democracy in South Africa (IDASA), the Institute for Multiparty Democracy (IMPD), traditional leaders, as well as NGOs (e.g. the Congress of Traditional Leaders of South Africa (CONTRALESA), the Organisation of Traditional Leaders of South Africa (OTLSA) and the South African National Civics Association (SANCO)).

Contents | Annexures