Abstract
The Traditional Leadership and Governance Framework Act 2003 provides for the transformation of apartheidera tribal authorities into constitutional-era traditional councils with a role in traditional governance. The process involves reconstituting these councils to meet certain thresholds of women and democratically elected members. Where councils have failed properly to meet the thresholds – seemingly the case in much of North West Province – their present legal status is called into question. In North West, the ambiguity surrounding their status has been compounded by the conduct of the provincial government, underlying tensions in the legislation, and a confusing series of contradictory government notices and court judgements dealing with the issue. This article examines how the reconstitution requirements have been applied in practice in North West and considers the legal and material impacts of the existing uncertainty surrounding traditional councils’ status. Where these councils are put forward as democratic bodies representing traditional communities in North West’s platinum mining belt, these are particularly important issues to consider in relation to the legitimacy of traditional councils.
Highlights
When it came into force in 2004, the Traditional Leadership and Governance Framework Act 2003 (Act 41 of 2003, hereafter the TLGFA) provided a framework for the hierarchical recognition and regulation of various traditional leadership institutions
The Traditional Leadership and Governance Framework Act 2003 provides for the transformation of apartheidera tribal authorities into constitutional-era traditional councils with a role in traditional governance
Who would be responsible for traditional governance and how would they be held democratically accountable? The North West government would have to determine the appropriate legal method of dealing with prior decisions and transactions by traditional councils that have been declared unlawful
Summary
The need for clarity on the legal status and membership of traditional councils in North West is accentuated when considering the possible legal, political and social impacts of terminating their legal authority. There is legal support for the existence of customary authorities separate from, and parallel to, traditional institutions officially recognised by state legislation.[137] it is questionable whether traditional councils operating de facto in North West are customary in nature and origin If they remain untransformed and do not enjoy statutory recognition, are they not still the same tribal authorities that were created under apartheid?138 Acceptance of untransformed traditional councils may render futile the TLGFA’s underlying transitional rationale and defy the Constitution’s broader demand for democracy, equality and accountability. These important considerations require that national and provincial government take seriously the difficulty and dissatisfaction that has been noted in respect of traditional council reconstitution in North West. The legitimacy of these supposedly democratic institutions could be undermined
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