The Failure of an Arranged Marriage: The Traditional Leadership/Democracy Amalgamation Made Worse by the Draft Traditional Affairs Bill

Abstract

This article presents an analysis of the recently published Draft Traditional Affairs Bill, 2013 and, in particular, clause 25 thereof. Clause 25 (‘[a]llocation of roles…’) contemplates something akin to the delegation of legislative power – in an unguided and unfettered manner – to ‘departments’ in the national and provincial spheres of government and the concomitant subdelegation of ‘roles’ in respect of the functional areas of these spheres to unelected traditional councils and leaders. This provision threatens not only the rule of law, but also the delicate twofold constitutional division of power: the horizontal separation of powers between the three arms of state and the vertical division of government into three spheres (national, provincial and local). Against the backdrop of the constitutional framework governing traditional leaders, this article unpacks the elements of clause 25 of the Draft Bill by addressing several specific questions which illustrate how and why clause 25 will fail to pass constitutional muster. Amongst other things, the notion of a ‘role’ is considered and compared with that of a ‘function’ and ‘power’ respectively. Similarly, the meaning of ‘allocation’ is considered and insofar as it amounts to delegation, the limits to the delegation of legislative and discretionary powers – as carved out by the Constitutional Court – are applied to the provisions of clause 25. Finally, it is determined that although customary law may be a source of administrative power for traditional leaders, these leaders may not exercise quintessential governmental power and insofar as clause 25 purports to confer such governmental powers on traditional leaders and councils, the Draft Bill impermissibly seeks to render traditional leaders a fourth sphere of government in breach of the twofold separation of powers and in violation of the explicit provisions of section 212(1) of the Constitution.