Towards Living Customary Administrative Law

Abstract

Traditional leaders in South Africa wield significant public power. They do so under a raft of legislative enactments and also as a matter of customary law. When other organs of state exercise legislative power, they are subject to the prescripts of administrative law – they must always act lawfully and rationally, and, where their conduct constitutes administrative action under the Promotion of Administrative Justice Act 3 of 2000, they must also act reasonably and in a way that is procedurally fair. Our law reports are replete with cases of organs of state being held to these standards. Yet there is a surprising paucity of case law or literature on the administrative law obligations of traditional leaders. This article explores the potential for administrative law to hold traditional power to account and confronts the challenges of such an approach. It suggests that administrative law offers a means by which to ensure greater accountability and transparency on the part of traditional leaders while at the same time recognising traditional forms of governance and social organisation.