T.L. and G. Bill

Introduction:

Objective of the white paper (p.9)

CHAPTER 2. Vision for the institution of traditional leadership (p.23)

(p.23)

(p.23)

(p.24)

(p.24)

To set out a framework that will inform legislation intended to:

(a) define the place and role of the institution within the new system of democratic governance;

(b) transform the institution in accordance with constitutional imperatives;

(c) restore the dignity and legitimacy of the institution of traditional leadership in accordance with customary law and practices.

"It is the vision of government, therefore, to transform and support the institution of traditional leadership in accordance with the constitutional principles of democracy and equality and that it may represent customary interests of communities, play a role in socio-economic development and contribute to nation-building, and be accountable. […]

"Traditional leadership has to function in a manner that embraces democracy and contributes to the entrenchment of a democratic culture, thus enhancing its own status and legitimacy amongst the people. To this end, the critical challenge facing both government and traditional leadership is to ensure that custom, as it relates to the institution, is transformed in accordance with the Constitution and the Bill of Rights. Such a transformation exercise must ensure that the institution:

• responds and adapts to change;
• is in harmony with the Constitution and the Bill of Rights, and promotes democratic governance and the values of an open and democratic society;
• promotes freedom, human dignity and the achievement of equality and non-sexism;
• derives its mandate and primary authority from applicable customary laws and practices;
• strives to enhance tradition and culture;
• respects the spirit of communality;
• promotes unity and peace amongst people;
• promotes and facilitates a sound relationship between the institution and [government];
• mobilises rural people to participate in rural local governance so as to achieve [development];
• manages an efficient, effective and fair dispute resolution system through customary law courts for traditional communities; and
• acts in partnership with municipalities […]

Preamble

Whereas the State, in accordance with the Constitution, seeks –

And whereas

- to set out a national framework and norms and standards that will define the place and role of traditional leadership within the new system of democratic governance;

- to transform the institution in line with constitutional imperatives; and

- to restore the integrity and legitimacy of the institution of traditional leadership in line with customary law and practices;

- the State must respect, protect and promote the institution of traditional leadership in accordance with the dictates of democracy in South Africa;

- the institution of traditional leadership must be transformed to be in harmony with the Constitution and the Bill of Rights so that democratic governance and the values of an open and democratic society may be promoted; and

- the institution of traditional leadership must -

- promote freedom, human dignity and the achievement of equality and non-sexism;

- derive its mandate and primary authority from applicable customary law and practices;

- strive to enhance tradition and culture;

- promote nation building and harmony and peace amongst people;

- promote the principles of co-operative governance and its interaction with all spheres of government and organs of state; and

CHAPTER 3.

3.3.1 Roles, Functions and Structures within the National Sphere of Government

(p.31-32)

3.3.2 Roles, Functions and Structures within the Provincial Sphere of Government

(p.32)

3.3.3 Roles, Functions and Structures within the Local Sphere of Government

(p.33-34)

(p.33)

(p.33)

(p.33)

(p.33-34)

(p.34)

(p.34)

(p.34)

(p.33-34)

(p.46)

(p. 35-36)

(p.36-37)

3.3.4 Guiding Principles and Norms for Allocation of Roles and Functions

(p.37)

(p.37)

3.4 Traditional Leadership and Participation in Politics

(p.38)

(p.38)

3.5 Traditional Leadership and Municipal Boundaries

(p.40)

3.6 Traditional Communities situated in More than One Province

(p.40)

3.7 Traditional Leadership, Capacity Building and Support

(p.41)

(p.42)

(p.42)

The National House of Traditional Leaders as established by national legislation will continue to exist as a mechanism for structured interface with national government. The National House of T.L shall […(a)-(f)]

Subject to new legislation, the Provincial Houses of Traditional Leaders as established by provincial legislation will continue to exist as a mechanism for structured interface with provincial government.

The Provincial House of T.L shall [(a)-(f)]

1. District Houses:

At a district level, District Houses of Traditional Leaders shall be established to advance a co-operative relationship with District Municipalities. Therefore, the District Houses shall:

(a) advice district municipalities in developing the rules and bylaws impacting on rural communities;

(b) advice district municipalities in development of planning frameworks that impact on rural communities;

 

 

(c) participate in local programmes geared towards the development of rural communities, and;

(d) participate in local initiatives meant to monitor, review and evaluate government programmes in rural communities.

 

2. Traditional Councils

At a local level, traditional councils, as established by custom, will promote co-operative relations with local municipalities. The institution of traditional leadership can also participate in the municipal Ward Committees established in terms of national legislation. Traditional leaders will also continue to participate in municipal councils in terms of section 81 of the Municipal Structures Act No.117 of 1998, until legislation providing otherwise is introduced.

Traditional councils shall:

(a) support municipalities in facilitating community development in development planning processes;

(b) communicate community needs to municipalities and other spheres of government;

 

 

 

(c) recommend appropriate interventions to government to bring about development and service delivery;

 

(d) promote indigenous knowledge systems for sustainable development;

(e) participate in the development programmes of municipalities and other spheres of government;

 

(f) participate in the development of policy and legislation on the local level.

 

The functions set out above are in addition to the customary functions of traditional councils and traditional leaders.

Note: Customary functions of traditional leaders are also provided for in section 3.3.3(d) of the White Paper (p.36-37), and elaborated in section 4.1 (p.46). The functions mentioned there are found in section 4(1)(f), (g) and (k).

 

 

 

 

Traditional councils may also enter into partnership and service delivery agreements with government, at all levels, to promote development.

 

Partnerships between municipalities and traditional councils shall be strengthened through legislative and other measures. The envisaged partnerships will be based on the principles of mutual respect and recognition of the status and roles of the parties.

The partnerships will also be based on, and guided by, principles of co-operative governance.

 

Partnerships could also include the roles of traditional councils as information centres for government programmes and service pay points, and so forth.

Government will introduce mechanisms meant to ensure that a co-operative relationship exists between these structures and municipalities.

 

 

3. Additional roles and functions

In addition, national or provincial departments, through legislation or other means, shall provide for the traditional councils and their leadership, among others, to:

(i) arts and culture […]

(ii) land and agriculture […]

(iii) health and welfare […]

(iv) justice, security and home affairs […]

(v) economic development […]

(vi) environment and tourism […]

(vii) national resource management […]

(viii) communication and information […]

 

 

 

 

4. Customary functions

Traditional leaders will also continue to perform functions in terms of the customary laws and practices of different communities, subject to the Constitution and applicable legislation.

In providing for these roles, national and provincial government must:

(a) consult with national Minister or the provincial MECs responsible for traditional leadership matters/issues;

(b) consult with the relevant structures of traditional leadership;

(c) ensure that the allocation of roles and functions is consistent with the Constitution and applicable legislation;

(d) take into account customary law and customary practices of the different communities;

(e) strive to ensure that the allocation of roles and functions is accompanied by resources and, where necessary, appropriate measures for accounting for the resources that are put in place;

(f) ensure that, to the extent possible, the allocation of such roles and functions applies uniformly in areas where the institution of traditional leadership exists; and

(g) promote the ideals of co-operative governance, integrated planning, sustainable development and service delivery.

Government will put in place mechanisms to ensure an integrated, structured and coordinated involvement of the Houses of Traditional Leaders in various policy development processes and programmes.

Should a traditional leader participate in elected legislative structures through an electoral process, at any level, on a full-time basis, the royal family must take appropriate measures to ensure that the work of the institution is not adversely affected. A traditional leader that assumes a public office shall only be remunerated either as a traditional leader or a public representative and shall not draw more than one salary.

Provision will have to be made in law for someone else to be appointed as a deputy to act as a chief for as long as the incumbent is not able, due to such political appointment, to carry out his/her normal duties.

It is … necessary that mechanisms be found to address problems resulting from the splitting of traditional authority areas. One mechanism would be the constant review of the situation by the Demarcation Board. Another mechanism could be the formulation of service level agreements to which all affected municipalities would be party.

The affected provinces and provincial Houses should recognise the existence of [trans-provincial boundary] relationships, and should put co-operative mechanisms in place to deal with traditional and customary relations across provincial boundaries.

(a) Capacity Building

Summary: Need for capacity building, together with councillors, but also more specifically focused, "to enhance and empower traditional leaders and traditional institutions to enable them to address and respond to the challenges arising from this White Paper and the Constitution."

The provincial governments and national government should share the responsibility for funding the programme.

(b) Support

… traditional authorities will still have to be allocated funds to ensure maintenance of their properties, personnel and infrastructure.

Other institutions and government departments which allocate responsibilities and functions to traditional leadership on an agency basis will also have to assist with funding.

The authority to impose statutory taxes and levies lies with municipalities. Duplication of this responsibility and the double taxation of people must be avoided. Traditional leadership structures should no longer impose statutory taxes and levies on communities.

Chapter 4.

Houses of Traditional Leaders

Chapter 2.

3(1) Establishment and recognition of traditional councils

4. Functions of traditional councils

4. Functions of traditional councils

5. Partnerships between municipality and traditional councils

Chapter 5. Roles and Functions of Traditional Leadership

18(1)

Chapter 5

18(2)

18(2)

18(2)

-

Chapter 3.

13. Deputy traditional leaders

Not recognised in bill.

-

Chapter 2.

6. Support to traditional councils

Funds for maintenance of traditional councils not provided for in bill

18. Allocation of roles…

15. The Houses of traditional leaders in the republic are –

(a) a national house of traditional leaders and provincial houses of traditional leaders as provided for in section 212(2)(a) of the Constitution; and

(b) district houses of traditional leaders established in accordance with the principles set out in section 16.

16(1) A district house of traditional leaders must be established in accordance with provincial legislation […]

16(3) The functions of a district house of t.l. are –

1. to advice the district municipality or metropolitan municipality in question on –

(i) matters pertaining to customary law, custom, traditional leadership […];

(ii) the development of planning frameworks that impact on traditional communities; or

(iii) the development of by-laws that impact on traditional communities;

(b) to participate in local programmes that have the development of rural communities as an object; or

(c) to participate in local initiatives that are aimed at monitoring, reviewing or evaluating local programmes in rural communities.

3(1) Once the Premier has recognised a traditional community, that traditional community must establish a traditional council in line with principles set out in provincial legislation.

4(1) A traditional council has the following functions:

(a) facilitating the involvement of the traditional community in the development or amendment of the integrated development plan of a municipality in whose area that community resides;

(b) supporting municipalities in the identification of community needs;

(j) alerting any relevant municipality to any hazard or calamity that threatens the area of jurisdiction of the traditional council […]

(c) recommending appropriate interventions to government that will contribute to development and service delivery within the area of jurisdiction of the traditional council;

(e) promoting indigenous knowledge systems for sustainable development;

(d) participating in development programmes of municipalities and of the provincial and national spheres of government;

(h) participating in the development of policy and legislation on the local level;

(f) administering the affairs of the traditional community in accordance with custom and tradition;

(g) assisting, supporting and guiding traditional leaders in the performance of their functions;

(k) performing the functions conferred by customary law, customs and statutory law consistent with the Constitution;

(i) promoting the ideals of co-operative governance, integrated development planning, sustainable development and service delivery;

5(1) The National Government and all provincial governments must promote partnerships between municipalities and traditional councils through legislative and other measures.

(2) Any partnership between a municipality and a traditional council must –

(a) be based on the principles of mutual respect and recognition of the status and role of the respective parties; and

(b) be guided by and based on the principles of co-operative governance.

18(1) National Government or a provincial government, as the case may be, may, through legislative or other measures, provide for a role for traditional councils or traditional leaders in respect of –

1. arts and culture;
2. land administration and agriculture;
3. health and welfare;
4. the administration of justice;
5. safety and security;
6. the registration of births, deaths and customary marriages;
7. economic development;
8. environment and tourism;
9. the management of natural resources; and
10. the dissemination of information relating to government policies and programmes.

See 4(1) (f), (g) and (k) above.

17(1) A traditional leader performs the functions provided for in terms of customary law and practices of the traditional community concerned, and in applicable legislation.

18(2) Whenever an organ of state within the national government or a provincial government considers allocating a role for traditional councils or traditional leaders in terms of subsection (1) above, that organ of state must –

1. seek the concurrence of –

(i) the Minister if it is an organ of state in the national sphere of government; or

(ii) the Member of the Executive Council resp for trad affairs in the province concerned if it is an organ of state of that province;

(b) consult with the relevant structures of traditional leadership;

(c) ensure that the allocation of a role or function is consistent with the Constitution and applicable legislation;

(d) take the customary law and practices of the respective traditional communities into account;

(e) strive to ensure that the allocation of a role or function is accompanied by resources and that appropriate measures for accounting for such resources are put in place; [see also 4(2)]

(f) ensure, to the extent it is possible, that the allocation of roles and functions is implemented uniformly in areas where the institution of traditional leadership exists; and

(g) promote the ideals of co-operative governance, integrated development planning, sustainable development and service delivery through the allocation of roles and functions.

13(1) A king, queen, principal traditional leader, headman or headwoman […] may, after consultation with the royal family, appoint a deputy to act in his or her stead whenever that king, queen, principal traditional leader, headman or headwoman –

(a) becomes a full-time member of a municipal council;

(b) is elected as a member of a provincial legislature;

(c) is elected as a member of the National Assembly;

(d) is appointed as a permanent delegate of the National Council of Provinces; or

(e) is elected to, or appointed in, a full-time position of any house of traditional leaders.

(2) An appointment in terms of subsection (1) must be made in accordance with provincial legislation, which legislation must provide for –

1. [removal]
2. [issuing of certificate]

(3) A person who as been appointed as a deputy … may exercise any powers and perform any duties that are attached to [that position].

6. A provincial government may adopt such legislative or other measures as may be necessary to support and strengthen the capacity of traditional councils within the province to fulfil their functions.

[Organ of state allocating functions to traditional councils or leaders must -]

CHAPTER 4

4.1 Structures of Traditional Leadership (p.45)

(p.45 cont.)

(p.45 cont.)

(p.46)

4.2 Leadership Positions within the Institution

(p.49)

4.3 Succession to Traditional Leadership Positions

(p.50)

(p.51-52)

(p.51)

(p.51)

(p.51)

(p.52)

(p.52)

4.4 Salaries, Allowances and Benefits of Traditional Leaders

(p.53)

4.5 Accountability of Traditional Leaders and Structures

(p.54)

(p.54)

(p.54)

(p.54-55)

4.6 Termination of Service of Traditional Leaders

(p.55)

(p.55)

(p.56)

4.7 National and Provincial Houses of Traditional Leaders

(p.60)

(See also ch. 3 above)

4.8 District Houses of Traditional Leaders

(p.62)

(p.62)

(p.57)

(p.62)

(p.62)

(p.62)

4.10 Resolution of Traditional Leadership

Disputes

(p.64)

(p.64)

(p.65)

(p.65)

(p.65)

(p.66)

(p.65)

(p.65)

(p.66)

Structures which were created by apartheid and homeland legislation, including community authorities, regional authorities, ward authorities and ibandla la makhosi, should be disestablished.

Tribal councils, as they existed before colonialism, and which were based on custom, should be established and renamed ‘traditional councils’.

…

They should be well-resourced and their staff capacitated so that they can play a meaningful role.

These councils must also allow for the representation and participation of women in their own right. At the least, one third of the members should be women.

The approach to different levels of traditional leadership should be as follows:

• the position of kings/queens, chiefs and headmen, should be the only ones to be recognised, and such recognition should be based on custom and customary law duly modified or adapted to bring into line with the Constitution;
• the remuneration of headmen, given the peculiarities relating to their appointment, recognition, remuneration, numbers, status and role from community to community, should be dealt with by provincial governments, taking into consideration these peculiarities; and
• the Commission [dealt with further below, in 4.10] shall determine whether…
• criteria for the recognition of a kingship, chieftainship or headmanship will be provided for in national/provincial legislation, and these will be based on the customs and traditions of the relevant communities and other relevant principles.

General statement:

"The existing rules of succession are in conflict with the principles contained in the equality clause in the Bill of Rights. The challenge, therefore, is to reconcile customary laws and practices in relation to succession with the principles of equality enshrined in the Constitution. […] custom should not be seen to be static and archaic and an affront to change and the rights of women."

The approach to succession to traditional leadership positions should be as follows:

• custom and customary law should, generally, be the basis for regulating succession;

• custom and customary law should be adapted and transformed so as to comply with the principle of equality in the Bill of Rights and allow qualifying men/women who were previously discriminated against on the basis of gender to succeed as traditional leaders in their own right;
• principles regulating succession, as well as the date from which such succession shall take effect, will be provided for in legislation. The new legislation dealing with this matter should be effective from 27 April 1994; and
• the legislation to be introduced will acknowledge that the rules of succession are not uniform and differ from community to community, and that the communities themselves must adapt custom.

Government must play a limited role in the designation of traditional leaders. It is, firstly, the prerogative of the royal family, acting in consultation with other members of the traditional council, to identify a traditional leader.

Government’s role should be to confirm that customary processes have been followed, and issue a certificate of recognition to such a traditional leader which seeks to endorse and recognise such a designation. The appointment process will be regulated by national and provincial legislation.

(p.53) Traditional leaders will, subject to the proposals set out in chapter 4.2 in respect of headmen, continue to receive salaries in terms of the framework set out in national legislation. Consequently, mechanisms will have to be devised to ensure that traditional leaders do indeed perform the functions for which they are remunerated.

Traditional leaders should continue to enjoy certain entitlements or gifts recognised by custom. Any corrupt practices, however, will be dealt with in applicable laws. Provision will have to be made in legislation for the disclosure of gifts.

There is a consensus view that traditional leaders and structures should be held accountable. Thus they should be held accountable to government.

At the local level, traditional leaders and structures must ensure that, together with traditional communities, they put in place mechanisms through which they must account for their activities. In this regard, custom is not sufficient[…].

The responsible authority in the province charged with the administration of traditional affairs must ensure that traditional leaders and their authorities carry out their role and functions in accordance with custom and applicable laws.

Legislation to regulate the accountability of traditional leadership and authorities as well as a code of conduct, will be introduced. Such legislation must provide for transparency and the maintenance of records, auditing, reporting mechanisms etc.

The approach to the termination of service of a traditional leader should be informed by the following:

• a traditional leader’s service should, where circumstances warrant it, be terminated on the grounds of misconduct;
• he/she may, on the advice of the relevant Provincial House of Traditional Leaders, be removed from office, either temporarily or permanently, on the grounds of inability to carry out, or physical incapacity or mental infirmity which inhibits him/her from carrying out, his/her functions or duties efficiently; and

• where the service of a traditional leader is terminated, for whatever reason, a successor, according to the customary rules of succession and/or statutory rules of succession, should assume the position, role and responsibilities.

Conduct that constitutes misconduct and conditions that constitute incapacity or inability will be elaborated upon in national and provincial legislation.

The Houses must –

[this is not spelt out here as it is not supposed to be included in the bill(?)]

The District Houses of Traditional Leaders should oversee the nomination of candidates to the Provincial House of Traditional Leaders.

Each Provincial House must ensure that at least a third of its membership is drawn from women. This requirement will be phased in.

At a district level it is proposed that District Houses of Traditional Leaders be established. This structure will replace regional authorities and other structures similar thereto.

These houses will focus primarily on advising district municipalities on matters pertaining to custom and customary law, traditional communities, traditional leadership and development.

Generally, these Houses will, at a district level, exercise the same authority, and discharge the same responsibilities, as are presently entrusted to the Provincial Houses of Traditional Leaders. They will also play the role outlined in chapter 3.

The following principles (set out for Provincial Houses in chapter 4.7.2) will also apply in respect of the District Houses. The Houses must -

• ensure that there is co-operation between structures of traditional leadership, the three spheres of government and other organs of state;
• ensure that traditional leaders are properly elected to represent their communities in Provincial Houses and the National House of Traditional Leaders;
• ensure that there is adherence to a common national vision between structures of traditional leadership and other government structures;
• ensure that there are skills development programmes for traditional leaders;
• ensure that there is a communal use of resources and that resources that are allocated to traditional leadership structures are appropriately utilised within the principles of co-operative governance;
• ensure that traditional leadership structures carry out their functions and account for their activities;
• ensure that traditional leadership structures are well-resourced so that they may carry out their functions; and
• ensure that there is close co-operation amongst the Houses and the government of the province within which they are situated.

In those instances where traditional authorities exist within … a metropolitan municipality, the National Minister responsible for traditional leadership may authorise the establishment of a Metropolitan House of Traditional Leaders.

Membership will be part-time. The numbers of members must be reasonable and manageable.

An independent national commission should be established within the national sphere of government… it must be established in terms of national legislation that is separate from provincial legislation and the Commissions Act No.8 of 1947.

The Commission will be established for a period of five years, and its life may be extended from time to time as circumstances may demand.

The commission will investigate the following cases:

1. where there is doubt as to whether a kingship, chieftainship or headmanship was established in accordance with custom and customary law.
2. a traditional leadership position, where the title or right of the incumbent is contested;
3. claims by communities to be recognised as traditional communities;
4. legitimacy of establishment or disestablishment of tribes; and
5. disputes resulting from the determination of traditional authority boundaries and the merger of tribes; and
6. where good grounds exist, the commission may, either on request or of its own accord, also investigate any other matter relevant to the above issues, and which the commission deems fit.

The commission may, subject to the paragraph (f) above consider cases dating as far back as 1927.

When discharging its mandate, the commission will be guided by the requirements set out in legislation relating to the recognition of traditional leaders and traditional leadership institutions.

The commission will use the Constitution, applicable legislation, custom and customary law as a basic source of reference.

During the existence of the National Commission, all provincially appointed commissions’ recommendations will not be implemented. Claims that arise after the term of office of the commission will be dealt with by structures provided for in terms of other applicable legislation.

Although the commission will be nationally-based, provincial issues, in their variety, will be the key matters that the commission will be addressing.

Chapter 7

25. Transitional arrangements

25(3)

Chapter 2.

Chapter 3. Leadership positions …

9(1)(a)

(see also 10 and 11)

No explicit equivalence in the bill in relation to succession.

Such a date is not provided for in the bill.

Chapter 2

Recognition of traditional communities

Chapter 5.

This is not required in the bill.

Chapter 2.

Functions of traditional councils

Chapter 3

Removal of traditional leader

Chapter 3

Removal of traditional leader

Chapter 4.

Houses of traditional leaders

District houses of traditional leaders

Chapter 4.

Section 16.

District houses of traditional leaders

16. District houses of traditional leaders

Not provided for.

Chapter 6

Establishment of Commission

Functions of Commission

Chapter 6

Functions of Commission

Note the difference here.

Bill is silent on resources.

-

Functions of Commission

Decisions of Commission

25(4) Any community authority … continues to exist until it is disestablished in accordance with provincial legislation, which disestablishment must take place within five years of the commencement of this Act.

25(5)(a) The member of the Executive Council of a province responsible for traditional affairs must … within one year of the commencement of this Act disestablish any regional authority, Ibandla Lamakhosi, Councils of Chiefs and ward authorities functioning under tribal authorities …

25(3) Any tribal authority … still recognised as such, is deemed to be a traditional council contemplated in section 3 and must perform the functions referred to in section 4: Provided that such a tribal authority must comply with section 3(2) within four years of the commencement of this Act.

6. Support to traditional councils

[…]

3. Establishment and recognition of traditional councils

3(2) The members of a traditional council, of whom at least a third must be women…

Recognition of traditional leadership positions

8. The following … are recognised:

1. kingship;
2. principal traditional leadership; and
3. headmanship.

9. Recognition of kings and queens

[…]

10. Recognition of other traditional leaders

[…]

The royal family … must… with due regard to applicable customary law-

1. identify a candidate in terms of customary law…; and
2. through customary channels…

Principles regulating succession are found in 9(1)(a) + 10(1)(a) + 11(1)(a) [identification by royal family] and 9(1)(b), 9(2), 9(3), 9(4) + 10(1)(b), 10(2), 10(3) + 11(1)(b), 11(2), 11(3), 11(4) [procedure of governmental recognition].

The only section in the bill that deals with the necessary adaptation of custom is

2(3): A traditional community must transform and adapt applicable customs and customary law so as to comply with the relevant principles contained in the Bill of Rights in the Constitution. This section (above) does not specifically deal with succession.

Principles regulating succession are found in 9(1)(a) + 10(1)(a) + 11(1)(a) [identification by royal family] and 9(1)(b), 9(2), 9(3), 9(4) + 10(1)(b), 10(2), 10(3) + 11(1)(b), 11(2), 11(3), 11(4) [procedure of governmental recognition].

Functions of traditional leaders and code of conduct.

17(2)(a) A traditional leader must adhere to a code of conduct prescribed by or in terms of provincial legislation.

(b) The code of conduct… -

(i) must at least provide for the disclosure of gifts received by a traditional leader;

(ii) may provide for penalties other than the removal of a traditional leader as envisaged in section 14 for any contravention of the code of conduct; and

(iii) may provide for an acting position during the period that a traditional leader is suspended for any contravention of the code of conduct.

4(2) Provincial legislation may regulate the performance of functions by a traditional council by requiring a traditional council to –

1. keep proper records;
2. have its financial statements audited;
3. disclose the receipt of gifts;
4. adhere to a prescribed code of conduct.

14(1)A traditional leader may be removed from office on the grounds of –

1. conviction of an offence with a sentence of imprisonment for more than 12 months without an option of a fine;
2. physical incapacity or mental infirmity that makes it impossible for that traditional leader to function as such;
3. wrongful appointment or recognition;
4. a transgression of a customary rule or principle that warrants removal.

(2) Whenever a traditional leader is to be removed from office on any of the grounds referred to in subsection (1)(a), (b) or (d), the royal family concerned must, within a reasonable time –

1. inform the Premier…
2. furnish reasons for the request for such a removal.

(3) The Premier … must in terms of applicable provincial legislation –

1. withdraw the certificate of recognition with effect from the date of removal;
2. publish a notice… in the Prov Gazette; and
3. inform the royal family concerned and the removed traditional leader of such removal.

14(4) Where a traditional leader is removed from office, a successor in line of customary rules of succession may assume the position…

Houses of traditional leaders in the republic

15. The houses of traditional leaders in the republic are –

1. a national house… and provincial houses…
2. district houses of traditional leaders established in accordance with the principles set out in section 16.

16(1) A district house of traditional leaders must be established in accordance with provincial legislation for the area of jurisdiction of a district municipality or a metropolitan municipality where more than one principal traditional leader exists…

(3) The functions of a district house of traditional leaders are –

(a) to advice the district municipality or metropolitan municipality in question on -

(i) matters pertaining to customary law, custom, traditional leadership and the traditional communities within the district municipality or metropolitan municipality;

(ii) the development of planning frameworks that impact on traditional communities; or

(iii) the development of by-laws that impact on traditional communities;

(b) to participate in local programmes that have the development of rural communities as an object; or

(c) to participate in local initiatives that are aimed at monitoring, reviewing or evaluating local programmes in rural communities.

16(1) [provides that district houses of traditional leaders be established in accordance with provincial legislation also in metropolitan areas]

16(2)(a) The number of members of a district house of traditional leaders may not be less than five and may not be more than 10, or such other higher number not exceeding 20 as may be determined by the Minister where there are more than 35 traditional councils within the area of jurisdiction of a district or metropolitan municipality.

(b) Members of a district house of traditional leaders are elected by an electoral college consisting of…

20(1) There is hereby established a commission known as the Commission on Traditional Leadership Disputes and Claims.

23(6) Sections 2, 3, 4, 5, and 6 of the Commissions Act, 1947 (Act No 8 of 1947), apply with the necessary changes, to the Commission.

23(5) The Commission must complete its mandate within a period of five years or within such longer period as the President may determine.

23(2)(a) The Com. has authority to investigate, either on request or on its own accord –

1. a case where there is doubt as to whether a kingship, chieftainship or headmanship was established in accordance with customary law and custom;
2. a traditional leadership position, where the title or right of the incumbent is contested;
3. claims by communities to be recognised as traditional communities;
4. the legitimacy of establishment or disestablishment of tribes;
5. disputes resulting from the determination of traditional authority boundaries and the merging of tribes;
6. where good grounds exist, any other matters relevant to the matters listed in this paragraph.

23(4) The Commission has authority to investigate all traditional leadership claims and disputes dating from 1 September 1927, subject to subsection 2(a)(iv).

23(3)(a) When considering a dispute or claim, the Commission must consider and apply customary law and the customs of the relevant traditional community as they were when the facts occurred that gave rise to the dispute or claim.

(b) The Commission must be guided by the customary norms and criteria relevant to the establishment of a kingship, principal traditional leadership or headmanship as the case may be.

23(1) The Commission operates nationally and has authority to decide on any traditional leadership dispute or claim… arising in any province.

24(2) A decision of the Commission must, within two weeks of the decision being taken, be conveyed to the relevant provincial government and any other relevant functionary…

24(3) Any decision taken by the Commission must be conveyed to the President.

23(1) The Commission… has authority to decide…

At a district level, District Houses of Traditional Leaders shall be established to advance a co-operative relationship with District Municipalities. Therefore, the District Houses shall:

(a) advice district municipalities in developing the rules and bylaws impacting on rural communities;

(b) advice district municipalities in development of planning frameworks that impact on rural communities;

(c) participate in local programmes geared towards the development of rural communities, and;

(d) participate in local initiatives meant to monitor, review and evaluate government programmes in rural communities.

At a district level it is proposed that District Houses of Traditional Leaders be established. This structure will replace regional authorities and other structures similar thereto.

These houses will focus primarily on advising district municipalities on matters pertaining to custom and customary law, traditional communities, traditional leadership and development.

Generally, these Houses will, at a district level, exercise the same authority, and discharge the same responsibilities, as are presently entrusted to the Provincial Houses of Traditional Leaders. They will also play the role outlined in chapter 3.

The following principles (set out for Provincial Houses in chapter 4.7.2) will also apply in respect of the District Houses. The Houses must -

• ensure that there is co-operation between structures of traditional leadership, the three spheres of government and other organs of state;
• ensure that traditional leaders are properly elected to represent their communities in Provincial Houses and the National House of Traditional Leaders (see also p.60);
• ensure that there is adherence to a common national vision between structures of traditional leadership and other government structures;
• ensure that there are skills development programmes for traditional leaders;
• ensure that there is a communal use of resources and that resources that are allocated to traditional leadership structures are appropriately utilised within the principles of co-operative governance;
• ensure that traditional leadership structures carry out their functions and account for their activities;
• ensure that traditional leadership structures are well-resourced so that they may carry out their functions; and
• ensure that there is close co-operation amongst the Houses and the government of the province within which they are situated.

In those instances where traditional authorities exist within [a] metropolitan municipality, the National Minister responsible for traditional leadership may authorise the establishment of a Metropolitan House of Traditional Leaders.

Membership will be part-time. The numbers of members must be reasonable and manageable.

Women must be represented in accordance with the principles set out for Provincial Houses [1/3 women to be phased in].

16(1) A district house of traditional leaders must be established in accordance with provincial legislation […]

16(3) The functions of a district house of traditional leaders are –

1. to advice the district municipality or metropolitan municipality in question on –

(i) matters pertaining to customary law, custom, traditional leadership […];

(ii) the development of planning frameworks that impact on traditional communities; or

(iii) the development of by-laws that impact on traditional communities;

(b) to participate in local programmes that have the development of rural communities as an object; or

(c) to participate in local initiatives that are aimed at monitoring, reviewing or evaluating local programmes in rural communities.

16(1) - provides that district houses of traditional leaders be established in accordance with provincial legislation also in metropolitan areas

16(2)(a) The number of members of a district house of traditional leaders may not be less than five and may not be more than 10, or such other higher number not exceeding 20 as may be determined by the Minister where there are more than 35 traditional councils within the area of jurisdiction of a district or metropolitan municipality.