Finding Roles in Unseen Places: Government Action Conferring Roles on Traditional Authorities in South Africa

Abstract

Chapter 12 of the South African Constitution opens the door for traditional leadership institutions to exercise a public role at the local level of government. The wording of this chapter was subject to contestation before the Constitution came into force, and its interpretation has been debated since. What does it mean for traditional authorities to have a constitutionally recognised role in South Africa, and what should be the extent of their powers? While these debates continue, the South African parliament continues to develop new laws that determine traditional authorities’ role in relation to specific government functions, including land administration and dispute resolution. Parliamentary processes thus create new opportunities for public debates about traditional authorities’ place within South Africa. At the same time, government has continued to provide roles for traditional authorities through parallel processes that have largely gone unnoticed by the public. This article attempts to explore the scope of these unseen roles and lay the foundation for assessing whether they could withstand constitutional scrutiny. In a context where traditional authorities are paid by government but not held to the same standards of accountability as government officials, what are the inherent dangers in providing these roles to traditional authorities and how can accountability be ensured?