Topic 6 — Traditional leadership

ss 211–212

s 211(1): recognises the institution, status and role of traditional leadership according to customary law — subject to the Constitution. s 211(2): traditional authorities observing customary law may function, subject to legislation. s 211(3): courts must apply customary law when applicable. s 212(1): national legislation may provide a role at local level; s 212(2): houses of traditional leaders may be established.

Wider frame to cite: cultural rights (ss 30–31) are exercised subject to the Bill of Rights, and s 39(2) obliges every court to develop customary law in line with its spirit, purport and objects — that duty is the constitutional engine behind the Shilubana method below.

From framework to omnibus

The TLGFA (2003) tried to convert apartheid tribal authorities into democratic traditional councils: tribes deemed communities, chiefs deemed leaders (opt-out transitional scheme). The TKLA (2019) is omnibus legislation — it repealed the TLGFA, its 2009 Amendment and the National House Act at once — commenced 1 April 2021, and largely carries TLGFA substance forward, including the frozen colonial boundaries (s 63(3)).

CaseMogale v Speaker (CC, 30 May 2023)

TKLA declared invalid — Parliament failed to facilitate reasonable public involvement (ss 59/72/118: poor notice, no pre-hearing education, inaccessible hearings). But the declaration was suspended (24 months, extended in 2025 to 29 May 2027), so the TKLA still applies.

Hierarchy (s 7) and community (s 3)

Four levels: kingship/queenship → principal → senior → headman/woman. A traditional community (s 3) needs senior-level leadership, observed customary law, distinct identity with proven history, a specific area, and cultural heritage. Contrast Khoi-San recognition (s 5): self-identification, a member list, scattered areas allowed — self-determination honoured for Khoi-San (cf s 235) but largely denied to traditional communities.

Appointment (s 8)

Step 1 — identify: the royal family, within a reasonable time and with due regard to customary law and customs. Step 2 — recognise: the President for kings/queens (after consulting the Premier and the Minister); the Premier for everyone else. Step 3 — formalise: Gazette notice + certificate of recognition + inform the relevant House. Disqualifiers include serious criminal conviction, incapacity, non-residence and customary transgression. s 7(2) additionally demands proof — of the position's history, community acceptance, and hereditary or elected pedigree (the elected-leadership door, incl. iziphakanyiswa).

Investigation (s 8(4)–(5)) and removal (s 9)

Where there is evidence or an allegation of improper identification: investigative committee (House member included) → royal-family comment → President/Premier decides. Removal: mandatory for conviction, incapacity, non-residence, court order; discretionary (royal family) for code-of-conduct/custom breaches — act within 90 days. No community consultation required.

Councils (ss 16, 20) and partnerships (s 24)

Composition: 60% leader-appointed, 40% elected, at least one-third women — but reconstitution deadlines kept lapsing (the DG conceded no council was lawfully constituted). Functions (s 20): administer community affairs per custom, guide the leader, support municipalities (needs, IDPs, service delivery, disasters), cooperative governance. Partnerships (s 24): written, beneficial, clear terms, community consultation + majority of those present, council support, Premier ratification.

Funding (ss 15, 23) and disputes (s 59)

Only the state may tax, so councils live on state support with regulated accounts and monitoring. "Tribal levies"/"voluntary contributions" extracted under sanctions (no court access, no residence letters, no burial) = alleged double taxation of the rural poor. Disputes: the CTLDC handled historic (post-1927) claims; leftovers go to s 59 — provincial mechanism, else a President/Premier investigative committee (report in 60 days, comment in 60 days, written decision).

CaseBhekuzulu → CasePrince Mbonisi (SCA, 6 Oct 2025)

Davis J (Dec 2023): set aside President Ramaphosa's recognition of King Misuzulu — mere allegation triggers mandatory s 8(4) investigation. SCA reversed (appeals upheld, both challenges dismissed): (1) an "allegation" must plead facts capable of showing custom was breached — bare assertions don't trigger s 8(4), and the President may evaluate; (2) identification was res judicata (Madondo AJP 2022: the 14 May 2021 meeting was valid); (3) s 8(1)(b) consultation was satisfied — the Premier was engaged throughout (four rationales: relevance, integration, legitimacy, cooperative governance).

Role vs function + Shilubana

s 212 permits a role; the TKLA assigns functions (ss 15, 20, 25) — critics say this exceeds the constitutional grant, entrenches heredity and bypasses consent (formal uniformity over substantive). Counterweight: CaseShilubana — communities may develop living customary law constitutionally (a woman installed as leader; ascertained from present practice with community endorsement, per the s 39(2)/s 211(3) development duty).