7 June 2000

EDA welcomes the Department of Provincial and Local Government's decision to proceed with a legislative process on the roles and functions of traditional leaders. From our own experiences in the Eastern Cape and the Northern Province, we note the lack of clearly defined and distinct roles for traditional leaders and institutions is an obstacle to development in rural areas.

It must be accepted that the credibility of traditional institutions has been severely damaged and undermined by colonialism and apartheid in South Africa. To regain credibility, traditional leaders and institutions will need to be situated in a democratic framework where they are accountable to the people on who's behalf they are speaking.

The discussion document says very little at all about land and its' management at a local level. We feel there can be no conclusive discussion about the role of traditional leaders and institutions without referring centrally to local land allocation and management.

We recommend:

• The Constitutional imperatives and principles of gender equity and democratic decision making form the basis of any government intervention in this arena
• The roles of traditional leaders and institutions should be defined through democratic processes at a local level
• The Integrated Development Plans (IDPs) and Land Development Objectives (LDOs) need to form the core of any and all developmental and land-related interventions
• Traditional leaders must be subject to popular control at all times. Development and management structures need to be designed to ensure this.

Further recommendations will be forthcoming.

The Environmental and Development Agency (EDA) Trust is a non-governmental organisation with over 20 years of experience in integrated rural development in the communal areas of South Africa. EDA works with rural communities and organisations in the Herschel and Maluti sub-regions of the Eastern Cape, in the southern and central districts of the Northern Province and in the Bronkhorstspruit district in Mpumalanga/Gauteng. EDA is affiliated to a number of rural networks of NGOs and CBOs, and will work to widen the discussions on traditional leaders and institutions into these networks, and to encourage broad participation in the popular formulation of policy at all levels.

EDA is concerned that the roles and functions of traditional leaders remain unclarified six years after the first democratic elections. Practical experience demonstrates that this is a stumbling block in the way of rural development in communal areas. We welcome the Department of Provincial and Local Government's decision to proceed with a legislative process in this regard. We count on it leading to clear policy and legislation which serves to resolve the impasse and allow for co-ordinated and effective development interventions in the rural areas. We also welcome this opportunity to present our initial ideas to the Portfolio Committee for consideration.

The submission draws on:

• EDA's experiences in rural development, and in the facilitation of multi-stakeholder forums in our areas of operation;
• Initial processes of consultation on the discussion document with rural communities, local councillors and traditional leaders in our areas of operation.

EDA's interpretation of the overall goal of the discussion document is that it aims to facilitate broad and participatory discussion on the roles and place of traditional leaders and institutions in a democratic South Africa. We trust that the will of the people will determine the government's future approach to these and related issues, and that a clear statement of the government's approach will be made in policy and legislation as a direct result of the processes of consultation now under way.

EDA notes that:

• In many instances, the lack of clearly defined and distinct roles for traditional leaders and institutions is an obstacle to the implementation of activities aimed at the development of rural areas;
• Conflict caused by this role confusion has resulted in the loss of life and a loss of unity in some rural communities;
• Three separate policy processes relating to traditional leaders and institutions are presently under way viz. the discussion document on traditional leadership and institutions (Dept of Provincial and Local Government); traditional courts and the judicial function of traditional leaders (Dept of Justice); and communal land ownership and management (Dept of Land Affairs);
• There are varying levels of public consultation and opportunities for public participation in these processes;
• The White Paper on Local Government states that "traditional communities will be entitled to vest the responsibility for general administration and the allocation of their land in the institutions of their choice". This may, but does not have to, include traditional institutions.
• The White Paper on Local Government (March 1998) states that any model of co-operative rural governance must be in line with the Constitution;
• Sub-section 211 (1) of the Constitution recognises traditional leadership and institutions subject to the Constitution;
• Section 9 of the Bill of Rights in the Constitution outlaws any form of discrimination, including discrimination on the basis of gender or age, and holds the government of the day to take measures to protect or advance persons disadvantaged by unfair discrimination;
• Sub-section 151 (3) of the Constitution states that a municipality has the right to govern, on its own initiative, the local government affairs of its community; and sub-section 152 (1)(a) indicates that one of the objects of local government is to provide democratic and accountable government for local communities;
• Sub-section 152 (1)(e) makes it an objective of local government to encourage the involvement of communities and community organisations in the matters of local government.

The case study below is only one example of the developmental blockages caused by confusion of the role of the traditional leaders and institutions. EDA has numerous experiences of similar problems across our areas of work, including in the Eastern Cape, Northern Province and Mpumalanga/Gauteng. These experiences can be elaborated on if required. This particular case study example emerged in the process of ongoing rural development work in the area, and is an account of the way in which confusion on the role of traditional institutions and leaders is causing limitations for development, especially with respect to land-related matters. It is one of many practical experiences EDA has regarding blockages to development caused by lack of clarity of roles and lines of authority in rural areas.

In the George Mosheshe area of Mparane in the Maluti District of the Eastern Cape, the Department of Education gave the community permission to extend their school. In order to extend the curriculum, the Department requires that junior schools are separated from high schools. The community had to identify three potential sites where they wanted the new high school to be built. They collected R13 000 as the community contribution to the building of the school. But when it came to allocating the chosen land, the process was bought to a standstill. The chief did not feel he was able to allocate the land, and referred the community to the agricultural extension officer for demarcation. But the extension officer did not want to allocate the land, apparently because he feared there was too much conflict around land allocation in the area. As a result, the community lost the project, with the Department of Education using the money elsewhere.

Community members do not know who to approach with regard to land allocation and administration decisions, or who has the legal authority to perform land-related functions. In the former Transkei, a senior role in land allocation functions at community level was passed from headmen to chiefs in terms of Proclamation 110 of 1957. After political democratisation, land administration functions were inherited by the provincial Department of Agriculture and Land Affairs, but without the necessary posts or structure to perform these functions. During 1997, the Eastern Cape legislature passed the Regulation of Development in Rural Areas Act, which transfers all 'development' functions enjoyed by tribal authorities in terms of the Bantu Authorities Act of 1951, as amended, to elected councillors. This is in line with the 'development' functions as prescribed in the Constitution.

It will be extremely difficult to clarify the roles of traditional leaders and institutions without integrating the question of land allocation and management in communal areas.

It must be accepted that the credibility of traditional institutions has been severely damaged and undermined by colonialism and then apartheid in South Africa. There is a loud voice from many - although not all - rural communities that many traditional leaders were imposed without community participation or acceptance, that the original structure has been badly distorted and has led in particular to the loss of accountability, that traditional leaders have never played a developmental role and that, in the words of a community representative from the Maluti district at a workshop on 1 June 2000, "chiefs were meant to be everything but they turned to be used as a tool to oppress their own people." This voice should not be underestimated. To regain credibility, traditional leaders and institutions will need to be situated in a democratic framework where they are accountable to the people on who's behalf they are speaking. Where this is already the case, there is no problem. Where it's not the case, it must be made so.

The discussion document says very little at all about land and its' management at a local level. While we understand this is being dealt with in a separate process by the DLA, confusion over land-related roles is one of the fundamental sources of tension between traditional leaders, local councillors and rural communities. Government policy up to now has not explicitly stated whether land allocation and management is included in the definition of "traditional customs". It is hoped that this question will be clarified in the policy and legislation emerging from current processes. Likewise, the meaning and implications of "attending and participating in the meetings of municipal councils and advising them on the needs and interests of their communities" need to be clarified. EDA considers the need to define the role of traditional leaders and institutions in land management and allocation at the local level as a critical issue that needs finalisation.

There can be no conclusive discussion about the role of traditional leaders and institutions without referring centrally to local land allocation and management systems. EDA urges the Department of Provincial and Local Government to draw the links between its' own and the other policy processes relating to traditional institutions noted above. An integrated approach to traditional leaders and institutions must consider, inter alia:

• land allocation and management;
• sustained popular participation in local planning, development, governance and resource management;
• relations and interactions between government and civil society structures and institutions;
• the role of women, particularly in imbizo/lekgotla and traditional courts.

These are inter-related issues and cannot successfully be dealt with separately.

The Green Paper on Development and Planning (1999, Development Planning Commission) points out that a problem from a spatial planning perspective (how space is organised, rather than particular uses of pieces of land) is that traditional institutions have historically controlled land allocations and therefore sub-division. But this has often been done without any reference to efficiency or any larger spatial organisational system. The result is that settlement forms are highly inefficient, wasteful in terms of land and almost impossible to service effectively. This requires clear intervention on the part of government to build the capacity of traditional leaders and local councillors on efficient spatial planning. In turn, this requires close conformity to the IDP and LDO processes as outlined in the Development Facilitation Act and the Local Government Transition Act.

EDA concurs with the general thrust in the discussion document that a way must be found to identify roles for traditional leaders and institutions which do not contradict the right to democratic local government for rural people. Accountability is the key to local leadership and governance. This requires free and fair elections where people choose their own leaders. It also requires the right of recall, where a process exists to remove elected leaders if the people who elected them feel they are no longer carrying out the mandate given to them.

As noted above, the Constitution enshrines the right of democratically elected local government for all South Africans, urban or rural. The functions of local government are also defined, although these are in somewhat broad terms. Similarly, there is the imperative to involve local communities in issues affecting them. Gender equity, and the right of women to participate freely and equally in all decision-making structures, is established as a guiding principle for South Africa's democracy. These already existing legal and policy statements must be the point of departure in defining the place and roles of traditional leaders and institutions. Any policy or legislative intervention by government should strengthen and make these rights more real for all people living in South Africa.

• Gender equity needs to be encouraged actively by the state at all levels, so that women become equal participants in all decision-making structures affecting their daily lives.
• The roles of traditional leaders and institutions must be determined on the basis of democratic, local-level decisions by those immediately affected. National and provincial government legislation should provide a framework within which this can happen.
• The underlying principles of democracy and gender equity need to structure the legal framework and define the parameters of decisions resulting from local processes.
• All issues related to land planning, allocation and management need to fall within the framework of the IDPs and LDOs, subject to popular participation in the formulation of these objectives and plans.
• Capacity to understand and plan from a spatial perspective needs to be built in traditional leaders, or their local and district level representatives, and local councillors.
• Traditional leaders must be subject to popular control at all times.

An ongoing process of consultation, with network partners and rural organisations and communities, will enable EDA to provide more detail on these and other recommendations in the coming months. In particular, further detailed recommendations will be made on the integration of traditional leaders at the local level, and on multi-stakeholder local-level land management structures which include traditional leaders or their representatives.

Stephen Greenberg

EDA policy team convenor