In Peril: How the Traditional and Khoi-San Leadership Bill 2024 Continues to Threaten Informal Land Rights and Rural Democracy

“Women of Ndebele village, Mpumalanga, South Africa” is licensed under Creative Commons BY 2.0.

In May 2023, the Constitutional Court of South Africa ruled in Mogale v Speaker of the National Assembly that the Traditional and Khoi-San Leadership Act of 2019 (TKLA) was unconstitutional.

The Court found that Parliament failed to facilitate adequate public participation during the Act’s enactment, in violation of sections 59 and 72 of the Constitution. The TKLA aimed to recognise the Khoi and San communities and their leadership structures, while also repealing and addressing the deficiencies of the Traditional Leadership and Governance Framework Act of 2003 (TLGFA), the first legislation regulating traditional leadership after the South African transition to democracy in 1994.

However, the Constitutional Court order was suspended for 24 months, granting Parliament time to rectify the TKLA’s unconstitutionality. Until new legislation is enacted by May 2025, the TKLA remains operational.

On 29 November 2024, the Department of Cooperative Governance and Traditional Affairs (CoGTA) published the draft Traditional and Khoi-San Leadership Bill 2024 (TKLB) for public comment. This TKLB is nearly identical to the TKLA. The only significant change is that it additionally repeals and replaces the National House of Traditional Leaders Act of 2009 (NHTLA) and provides a new framework under chapter three that governs the Houses of Traditional and Khoi-San Leaders.

While the TKLA in Mogale was only procedurally challenged, those behind the challenge have pointed to other significant substantive issues. The new TKLB continues to fail to address the deficiencies of the TLGFA and like the TKLA further entrenches the historical distortions of living customary laws and traditional leadership.

A primary concern relates to the threat to informal land rights and the distortion of customary law related to the powers and functions of traditional leadership structures, such as traditional councils. Given South Africa’s historical context of colonisation, dispossession, and apartheid – the role of traditional leadership and land administration continues to be highly controversial.

Sections 211 and 212 of the Constitution establish a framework for traditional leadership governance, while section 25 addresses property rights, land expropriation, restitution, and redress for the dispossessed.

Section 25(6) of the Constitution asserts that individuals or communities whose land tenure is insecure due to past discriminatory laws are entitled to secure tenure or comparable redress. Moreover, Section 25(9) mandates that Parliament enact legislation to uphold these principles.

The Interim Protection of Informal Land Rights Act of 1996 (IPILRA) was introduced to fulfil these constitutional obligations, particularly safeguarding the rights of customary landholders in former homelands and reinforcing rights linked to various informal land tenure arrangements, such as Permissions to Occupy (PTOs) and living customary law systems.

IPILRA is essential in protecting informal land rights. Section 2(1) states that no person may be deprived of their informal land rights without consent. For communal land, section 2(2) allows for deprivation only in accordance with the community’s customs, barring expropriation cases. Additionally, section 2(4) mandates that affected parties receive adequate notice and the opportunity to participate in decision-making regarding their land rights. Importantly, these decisions require majority support from the affected persons present at consultations.

Despite its protections, IPILRA functions as a temporary law, continuously renewed (annually) by Parliament since its inception in 1996. This temporariness undermines a comprehensive approach to land rights protection, leading many stakeholders, including rural citizens and government officials, to overlook the Act.

However, the Constitutional Court has affirmed IPILRA’s significance in Maledu v Itereleng Bakgatla Mineral Resources, highlighting the need for secure tenure for historically disadvantaged communities in the context of mining rights, which could infringe upon landowners’ rights. It was held that the Mineral and Petroleum Resources Development Act of 2002 (MPRDA) must be read in consonance with the provisions and requirements under section 2 of IPILRA.

The High Court in Baleni v Minister of Mineral Resources also held that the MPRDA and IPILRA must be read together and that in keeping with the purpose of IPILRA to protect informal rights, customary communities have the right to decide what happens with their land.

The TKLB, in contrast, aligns with section 212 of the Constitution, establishing a framework for traditional leadership and governance, which includes the structure of traditional councils. Section 24 of the TKLB empowers traditional councils to form partnerships and conclude agreements with external entities, such as mining developers, without the explicit consent of land rights holders. Section 24(2) provides that traditional councils may enter into partnerships and agreements with each other and with municipalities, government departments, and any other person, body, or institution.

“section 24 of the TKLB perpetuates the cycle of past discriminatory laws that tainted the security of tenure that section 25(6) of the Constitution provides.”

Rautenbach and Ferreira have argued that the government recognises traditional councils as significant stakeholders in rural development. Thus, CoGTA persists in fostering collaborative governance between traditional councils and municipal bodies by facilitating a partnership and service delivery agreements.

Regulation 19(1) of the Spatial Planning and Land Use Management Regulations: Land Use Management And General Matters, 2015 also provides that a traditional council may conclude a service level agreement with the municipality in whose municipal area that traditional council is located. This is subject to the provisions of any relevant national or provincial legislation, in terms of which the traditional council may perform such functions as agreed to in the service level agreement, provided that the traditional council may not make a land development or land use decision.

However, the exclusion of land development or land use decisions under Regulation 19(1) does not respond to the threats (of dispossession and exploitation), legal gaps, and uncertainties created by section 24 of the TKLB, particularly for mining-affected communities. This regulation only applies to agreements and partnerships between traditional councils and municipalities. It excludes other stakeholders stipulated under section 24 of the TKLB.

This provision of the TKLB poses significant and imminent conflicts with IPILRA and continues to threaten the security of land tenure of informal land rights holders and rural democracy. Section 24 excessively centralises decision-making within traditional councils and neglects obligations for consent in customary land rights-related matters.

Meyer has persuasively argued that this could lead to abuse of power where community members could be pressured to vote for a project by other community members or traditional leaders. Furthermore, traditional leaders could also be persuaded by project developers to approve agreements that are detrimental to the communities. Therefore, section 24 of the TKLB perpetuates the cycle of past discriminatory laws that tainted the security of tenure that section 25(6) of the Constitution provides.

In the unlikely event that section 24 passes constitutional muster on a constitutional challenge, the provision would still be expected to co-exist alongside the provisions of IPILRA. This would mean that the TKLB and IPILRA must be read in a manner that permits each to serve their distinct purpose.

The TKLB governs traditional leadership, while IPILRA protects communities with insecure land tenure. However, given the invasive nature of section 24 agreements and partnerships to informal land rights in land-related matters, an overlap between the two laws is inevitable. By parity of reasoning in Maccsand (Pty) Ltd v City of Cape Town and Others, Maledu, and Baleni, the two Acts would have to operate alongside one another.

Furthermore, a careful reading of section 2(1) of the TKLB reveals the obligation on traditional leadership and governance structures to transform customary law and customs to align with constitutional principles and the Bill of Rights, including section 25(6) of the Constitution.

Therefore, while section 24 of the TKLB permits traditional councils to conclude agreements and partnerships with third parties, these agreements and partnerships must be concluded after the consent required by IPILRA is secured for them to be constitutionally valid and binding. The refusal of such consent should render any agreements and partnerships constitutionally invalid.