1. Legal Resources Centre Submission on the Traditional and Khoi-San Leadership Bill 2015
February 2016

2. The Legal Resources Centre
The Legal Resources Centre is a non-profit public interest law firm. Much of the work of our organisation is devoted to representing poor rural communities, and our comments on the TKLB are on behalf of such communities. More particularly, they are on behalf of the numerous communities who have approached us for legal advice on how to hold their leaders to account when they go astray or how to assert their cultural identities if they still find themselves within imposed apartheid boundaries after suffering the horrors of forced removals. On both scores, we have seen the current legislative framework fail these clients.
The LRC represented and continues to represent citizens and communities in litigation involving customary law and its status. The LRC in fact dedicates significant resources to the furtherance of the recognition and proper implementation of living customary law. We appeared on behalf of clients in the Constitutional Court in the matters of Bhe, Richtersveld, Shilubana, Pilane, Mayelane and Sigcau. Our clients include the communities that successfully challenged the constitutionality of the Communal Land Rights Act of 2004.

3. The TLGFA
The introduction of the TKLB provides a significant opportunity to evaluate the schema created by the TLGFA.
What should the TLGFA do?
We sell customary law short if we think the TLGFA must give effect to section 212(1) only (see Memorandum on Objects of the Bill). Rather, it should give expression to one of the most radical shifts provided for by the Constitution: the recognition of living customary law as a legal system equal to the common law.

4. Restoring living customary law
The last decade saw a focus on restoring the dignity of traditional leadership from the distortions of colonial and apartheid governments by the legislature and the officials, with too little emphasis on restoring the status and proper implementation of living customary law as law.
Cala Reserve cases – “in terms of customary law” became meaningless [little indication that COGTA has moved].
TKLB even worse: definition of community no longer includes reference to observing a system of customary law.
To honour the Constitution – and our communities – we must honour the recognition of customary law as law.
Recall that existence of a system of customary law is the basis for land and other resource rights.
Cala Reserve: a community told the Premier repeatedly that their new headman was not identified in terms of their customary law. Premier, MEC and Chief argued that “in terms of customary law” means nothing. Community won twice. Why is this important?

5. The TLGFA schema: the challenge
2000 Discussion Document of Ministry of Provincial and Local Government:
Pre-colonially, traditional leaders ruled according to the principles of African democracy and accountability….With the advent of colonialism, the African traditional government was systematically weakened, and the bond between traditional leaders and their subjects was gradually eroded…When the National Party came into power in 1948…legislation increasingly strengthened tribal divisions and gave traditional leaders powers and roles they did not possess before….Essentially, these laws established a system of local government that placed the traditional leaders at the centre of the bureaucratic system of traditional authorities. Chieftainship came to be reduced to a very different institution. As one commentator noted: ‘It was a public office created by statute. That is the reversal of the position of the chief in traditional society in which the role of the chief was to represent his people according to the dictates of customary practice. This reversal, effected by the Act, has plainly made the appointment, suspension and deposition of chiefs subject to political manipulation […] the customary structures of governance of traditional leadership were put aside or transformed. New structures were established in their place in terms of the Black Authorities Act of 1951”.

6. The TLGFA schema: the challenge
2003 White Paper identify as challenges:
Tribal levies (“double taxation”);
unrecognized legitimate traditional leaders - “recognised levels of traditional leaders should be based on custom and customary law; and levels which were introduced as a result of colonial, apartheid and homeland laws….should be abolished”;
accountability to government rather than to communities;
boundaries….(to be freshly demarcated by DLA)
“the legitimacy of those occupying positions within the institutions should be beyond reproach…When traditional leaders have to be identified and designated as such, the State should play a limited role which is guided by the culture and tradition of the relevant community”

7. The TLGFA schema: the response
Recognition of traditional communities: (1) observe customary law; (2) traditional leadership in terms of customary law. (Self-definition)
Establishment of traditional councils 40% elected.
CLEAN SLATE? NO.
Because of transitional provision (section 28) and the creation of Commissions of Leadership Disputes (Chapter 6).

8. The TLGFA schema: evaluation
Transitional provision: not a success. Limpopo has not had elections, others saw disputed elections. Elected structures fail to hold leaders accountable.
Some communities not even aware of elections happening.
Commissions on Leadership Disputes: national commission fell apart; continued litigation.
Provincial commissions: general overwhelmed. NW interdicts to see report. EC no reports released. Widespread challenges of Commission decisions.
Most important: lack legitimacy. [Note recent application by Pres Zuma]
Boundary disputes as a rule dismissed.

9. The TLGFA schema: evaluation
A community forcibly removed in the 1970s to a farm outside Polokwane. Community committee governed. Since 2005, suddenly under the authority of a Chief that stops and overturns land allocations, enforces charges. Asserting independence leads to violence. No recourse within the Act either to curb the violence or assert customary boundaries.
Village in the North West meets to discuss their acting leader. The acting leader asks the tribal court to interdict the community from doing so [despite Bop Act] – and the order is granted in their absence….despite Pilane. The community has no recourse under the Act to challenge him.

10. The TLGFA schema: an evaluation
Increasing interest in the land and resources of customary communities – but decreasing ways of having their voices heard (TKLB). Leadership structures illegitimate, or become so – communities have no means to hold them to account.
N2 toll road; Lonmin deal.

11. TKLB… Keeps transitional provision (section 70) Keeps the commissions
Even less recognition of customary law, weaker accountability to communities
Less consultation
Broader powers

12. TKLB: a chance to reflect
Legitimate and accountable leaders are being undermined by their illegitimate and unaccountable colleagues who run amok and who cannot be challenged by their communities.
Practicality cannot be an excuse for continuing to suppress the rural poor.

13. Recommendations
White Paper: “measures [must be] taken to ensure that people in rural areas shape the character and form of the institution of traditional leadership at a local level, inform how it operates and hold it accountable”.
Scrap the transitional provisions and allow communities to self-identify and to assert and shape their customary institutions.
Allow them to hold their structures accountable through opting in.
We are often asked whether in SA people are free to practice their cultures. Yes, but African rural people under the TLGFA/TKLB cannot choose not to practice an imposed or unimposed culture. The introduction of the regulation of Khoi-San leadership makes that apparent – as the Khoi San are allowed choice.
How can we continue to discriminate?