Traditional Leadership in
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Brief History of Traditional Leadership in South Africa
Preliminarily, it must be stated that this section provides a general overview of the history of traditional leadership in South Africa. The nuances of the history of traditional leadership and customary law cannot be fully detailed in this publication.
In the mid to late 1800s, the British colonial government formally established a system of indirect rule over ‘native reservations’ – areas of predominantly indigenous people. They did this by formally recognising traditional leaders and establishing ‘native administrations’ of which traditional leaders formed a part. They also established local ‘native courts.’ This created the impression of independence and self-governance. Indigenous communities could govern themselves except where such governance conflicted with colonial interests and rules. Chiefs’ power was elevated above what it was in precolonial times, as they now had greater decision-making powers regarding property and disputes under colonial law. However, chiefs’ power was curtailed by the colonial governor of the area who was the ‘supreme chief,’ the ‘ultimate authority’.[1] These strategies were aimed at providing legitimacy to the colonial government as it co-opted traditional leaders, while the British colonial government still ruled, in effect. The British also sought to divide the majority population into tribes, rather than forming unified force.
“The view that traditional leaders historically held ultimate decision-making power in South African traditional communities has been shown to be erroneous. This understanding is a distortion of the nature of the power of chiefs used to further the processes of ‘indirect rule’, in terms of which the institution of chieftaincy was controlled and manipulated by colonial and, later, apartheid authorities to further their own causes. In fact, in precolonial chieftaincies, the general availability of land meant that members were able to ‘break ranks and strike out on their own’ if they felt that their chief was acting improperly or inadequately. Given the advantages of social accumulation through a large following, the possibility of members deserting a chief created a check on his power and an incentive to remain accountable to, and transparent with, his community.”[2]
During the Union period of 1910-1947, the Black Administration Act 39 of 1927 retained the paramountcy of the white authority over customary rule. The Governor-General had the power to ‘recognise or appoint any person as a chief or headman in charge of a tribe or of a location, and … to make regulations prescribing the duties, powers and privileges of such chiefs or headmen’ as well as to ‘depose any chief so recognized or appointed’. The Black Administration Act also subjugated married women to be perpetual minors – seen as children in the eyes of the law and excluded from positions of power or decision-making.[3]
During the apartheid period of 1948-1994, the white minority government extended the concept of indirect rule further. A key step in creating apartheid was the Black Authorities Act 58 of 1951. Under this Act, the State President held the power to establish ‘tribal authorities’ to govern ‘tribes’.[4] These ‘tribal authorities’ could only exercise powers and functions that were assigned to them by the Governor-General.[5] Initially, there was widespread opposition to the imposition of Bantu authorities, which resulted in rebellions in many rural areas. “Those traditional leaders who supported the Bantustan agenda were rewarded with large areas of land, while those who resisted were stripped of their power or relegated to headman status and confined to small areas. In many places, disputes about the apartheid manipulation of ‘tribal’ boundaries and the elevation and imposition of compliant leaders continue to this day.”[6]
The Bantu Self Governance Act 46 of 1959 and a number of other Acts created the Bantustan system where 10 ‘homelands’ where created out of the existing reserves, based on language and culture. These ‘homelands’ Bantu authorities were created in the ‘homelands’ with the idea that the ‘homelands’ would become independent of South Africa, with independent governments. Their citizens were would no longer be South African citizens but, rather, be citizens of the ‘independent homeland.’ Only the Transkei, Ciskei, Bophuthatswana and Venda ‘homelands’ became formally independent, although their actual independence was farcical – they were always beholden to the South African government militarily, financially and politically. This was the position until 1993 when, pursuant to the Interim Constitution, the assets and liabilities of the homelands were transferred to the South African Government and the homelands and their residents were formally reincorporated into South Africa. The following section shows how traditional leadership was not overhauled in post-democracy South Africa, retaining most of its features, subject to some changes.
[1] Himonga, C., African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives, 2014 (Himonga 2014), section 1.2.3
[2] Joanna Pickering & Thabiso Nyapisi, 2017, In Good Company 2nd Edition - Conversations around transparency and accountability in South Africa’s extractive sector by Open Society Foundation for South Africa (Cape Town: OSF), 28
[3] Himonga 2014, section 1.3.3
[4] Black Authorities Act, sections 2 &3
[5] Black Authorities Act, section 4(1)(d)
[6] Claassens, A. “Contested power and apartheid tribal boundaries: the implications of 'living customary law' for indigenous accountability mechanisms.” Acta Juridica, 2011 (1), 187
Preliminarily, it must be stated that this section provides a general overview of the history of traditional leadership in South Africa. The nuances of the history of traditional leadership and customary law cannot be fully detailed in this publication.
In the mid to late 1800s, the British colonial government formally established a system of indirect rule over ‘native reservations’ – areas of predominantly indigenous people. They did this by formally recognising traditional leaders and establishing ‘native administrations’ of which traditional leaders formed a part. They also established local ‘native courts.’ This created the impression of independence and self-governance. Indigenous communities could govern themselves except where such governance conflicted with colonial interests and rules. Chiefs’ power was elevated above what it was in precolonial times, as they now had greater decision-making powers regarding property and disputes under colonial law. However, chiefs’ power was curtailed by the colonial governor of the area who was the ‘supreme chief,’ the ‘ultimate authority’.[1] These strategies were aimed at providing legitimacy to the colonial government as it co-opted traditional leaders, while the British colonial government still ruled, in effect. The British also sought to divide the majority population into tribes, rather than forming unified force.
“The view that traditional leaders historically held ultimate decision-making power in South African traditional communities has been shown to be erroneous. This understanding is a distortion of the nature of the power of chiefs used to further the processes of ‘indirect rule’, in terms of which the institution of chieftaincy was controlled and manipulated by colonial and, later, apartheid authorities to further their own causes. In fact, in precolonial chieftaincies, the general availability of land meant that members were able to ‘break ranks and strike out on their own’ if they felt that their chief was acting improperly or inadequately. Given the advantages of social accumulation through a large following, the possibility of members deserting a chief created a check on his power and an incentive to remain accountable to, and transparent with, his community.”[2]
During the Union period of 1910-1947, the Black Administration Act 39 of 1927 retained the paramountcy of the white authority over customary rule. The Governor-General had the power to ‘recognise or appoint any person as a chief or headman in charge of a tribe or of a location, and … to make regulations prescribing the duties, powers and privileges of such chiefs or headmen’ as well as to ‘depose any chief so recognized or appointed’. The Black Administration Act also subjugated married women to be perpetual minors – seen as children in the eyes of the law and excluded from positions of power or decision-making.[3]
During the apartheid period of 1948-1994, the white minority government extended the concept of indirect rule further. A key step in creating apartheid was the Black Authorities Act 58 of 1951. Under this Act, the State President held the power to establish ‘tribal authorities’ to govern ‘tribes’.[4] These ‘tribal authorities’ could only exercise powers and functions that were assigned to them by the Governor-General.[5] Initially, there was widespread opposition to the imposition of Bantu authorities, which resulted in rebellions in many rural areas. “Those traditional leaders who supported the Bantustan agenda were rewarded with large areas of land, while those who resisted were stripped of their power or relegated to headman status and confined to small areas. In many places, disputes about the apartheid manipulation of ‘tribal’ boundaries and the elevation and imposition of compliant leaders continue to this day.”[6]
The Bantu Self Governance Act 46 of 1959 and a number of other Acts created the Bantustan system where 10 ‘homelands’ where created out of the existing reserves, based on language and culture. These ‘homelands’ Bantu authorities were created in the ‘homelands’ with the idea that the ‘homelands’ would become independent of South Africa, with independent governments. Their citizens were would no longer be South African citizens but, rather, be citizens of the ‘independent homeland.’ Only the Transkei, Ciskei, Bophuthatswana and Venda ‘homelands’ became formally independent, although their actual independence was farcical – they were always beholden to the South African government militarily, financially and politically. This was the position until 1993 when, pursuant to the Interim Constitution, the assets and liabilities of the homelands were transferred to the South African Government and the homelands and their residents were formally reincorporated into South Africa. The following section shows how traditional leadership was not overhauled in post-democracy South Africa, retaining most of its features, subject to some changes.
[1] Himonga, C., African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives, 2014 (Himonga 2014), section 1.2.3
[2] Joanna Pickering & Thabiso Nyapisi, 2017, In Good Company 2nd Edition - Conversations around transparency and accountability in South Africa’s extractive sector by Open Society Foundation for South Africa (Cape Town: OSF), 28
[3] Himonga 2014, section 1.3.3
[4] Black Authorities Act, sections 2 &3
[5] Black Authorities Act, section 4(1)(d)
[6] Claassens, A. “Contested power and apartheid tribal boundaries: the implications of 'living customary law' for indigenous accountability mechanisms.” Acta Juridica, 2011 (1), 187
Post-TLGFA Traditional Leadership
There are now three main sources of law regarding traditional leadership: the Constitution, the Traditional Leadership and Governance Framework Act 41 of 2003 (TLGFA) and living customary law. Living customary law is the non-legislated body of laws and customs that a customary community uses to regulate its own affairs. It is flexible and “develops over time to meet the changing needs of the community.”[1] However, living customary law has been curtailed by the TLGFA read with section 211(2) of the Constitution, which states that “[a] traditional authority that observes a system of customary law may function subject to any applicable legislation.”[2] The Traditional and Khoi-San Leadership Bill is currently being processed but the TLGFA is the only relevant legislation at this time.
In terms of the TLGFA, the above-mentioned ‘tribal authorities’ of apartheid are now called ‘traditional councils,’[3] although their functions and scope have not changed significantly. A traditional leader that was recognised under previous (apartheid) legislation continues to be recognised in terms of the TLGFA unless their status was revoked before the TLGFA came into effect.[4] Thus, the traditional councils and leadership structures have remained largely unchanged since apartheid. A ‘headman’ or ‘headwoman’ is defined, in the TLGFA, as “a traditional leader who is under the authority of, or exercises authority within the area of jurisdiction of, a senior traditional leader in accordance with customary”.[5] A ‘senior traditional leader’, in terms of the Act, is someone who is a “traditional leader of a specific traditional community who exercises authority over a number of headman or headwoman in accordance with customary law, or within whose area of jurisdiction a number of headmen or headwomen exercise authority.”[6] These are normally called chiefs or chieftianesses. A ‘king’ or ‘queen’ is defined as someone “under whose authority, or within whose jurisdiction, senior traditional leaders exercise authority in accordance with customary law”.[7] A ‘royal family’ is defined as “the immediate relatives of the ruling family within a traditional community, who have been identified in terms of custom.”
In general, traditional councils are empowered to administer a traditional community’s affairs according to custom and tradition and aid the traditional leader in carrying out their duties. Their role is predominantly supportive in nature.[8]
If a traditional community has been recognised by the Premier of a Province, the community must establish a traditional council. Traditional councils will only be officially recognised if they comply with certain requirements, such as that a third of the membership of a council must be women and 40% of the membership must be democratically elected.[9] These are drastic changes and, mostly, these requirements have not been met, which would render most traditional councils invalid. A deadline of one year was initially set for these requirements to be met. This deadline has been extended several times by provincial laws enacted in terms of the TLGFA.[10] However, this deadline lapsed in 2011. An amendment Bill[11] has been formulated that seeks to extend the deadline again and to empower the Minister of Traditional Affairs to ‘take necessary steps’ to ensure that the transformation measures of section 3(2) are complied with if a council is not compliant within one year of the Amendment. At the time of writing, the Bill was currently before the National Council of Provinces, having passed by the National Assembly. Both houses of parliament must pass the Bill before it becomes legislation.[12]
However, the matter is complicated by the Pilane judgment. Living customary law is still relevant to traditional leadership as the status and role of traditional leadership is only recognised if it is in accordance with customary law.[13] In Pilane v Pilane,[14] it was stated that “statutory authority accorded to traditional leadership does not necessarily preclude or restrict the operation of customary leadership that has not been recognised by legislation.”[15] Thus, it seems that traditional leadership not recognised by legislation may still undertake valid functions under living customary law. It is unclear whether an invalid traditional council can take on non-customary functions governed by statute which require statutorily constituted bodies, such as the creation of trusts.
Recognition of traditional communities can be withdrawn if the community requests the Premier to withdraw such recognition. Alternatively, if the Premier is asked to reconstitute the traditional communities because of a mis-classification by colonial or apartheid authorities, the Premier may do so if they feel it is necessary.[16] This Act does not contemplate the possibility of a minority group of community members requesting to withdraw and form their own traditional community for reasons other than historical mis-classification. This is, seemingly, contrary to section 235 of the Constitution, which states that communities “sharing a common cultural and language heritage” have the right to self-determination.
The TLGFA does not allow for much variation of the structures of traditional leadership. The Act does not provide guidance for when there is only one traditional leader of a community, e.g. there are no headman or women underneath a chief or no chief above a headman or women. The Act also assumes that there must be a system of traditional leadership in order for the community to live under customary law – a traditional community is only recognised if it is ‘subject to a system of traditional leadership’ and if it functions under a system of customary law.[17] In that away, it does not allow for living customary law to be developed. However, communities can develop their customary law to exclude traditional leadership. In Shilubane it was found that a community may develop its living customary law and traditional leadership rules even if such development is inconsistent with the traditions pre-dating the Constitution.[18]
If there is a vacancy in a traditional leadership position, the royal family concerned must identify a suitable candidate for appointment to the position and notify the Premier of the respective province of their choice. The Premier must then recognise the traditional leader in accordance with the applicable provincial legislation, which must require that the Premier publish a notice in the Provincial Gazette and issue a certificate to the identified person recognising them as the respective traditional leader. The Premier must also inform the provincial house of traditional leaders of such recognition.[19]
Disputes or contests of traditional leadership must be referred to the Commission on Traditional Leadership Disputes and Claims (‘the Commission’), which has the power to investigate the dispute[20] and must decide the matter in terms of the “customary law and customs of the traditional community as they were when” the dispute arose.[21] The Commission then makes recommendations in line with its decision to the Premier. Thereafter, the Premier must withdraw the certificate of recognition and publish a notice regarding the removal in the Provincial Gazette.[22] Finally, the royal family concerned is to elect the new traditional leader to be recognised by the Premier.[23] However, the TLGFA is problematic as it does not contemplate a situation where there is no royal family to elect the new traditional leader, or where the royal family does not hold such power, in terms of customary law. It does not account for variations in customary law between communities.
Traditional leaders must perform the functions that the traditional community’s ‘customary law and customs’ and applicable legislation dictate.[24] Legislation may be enacted that transfer certain non-traditional government functions to traditional leaders, such as functions regarding service delivery.[25] However, no such legislation or transfer has been enacted. The Communal Land Rights Act 11 of 2004 (CLRA) attempted to do so, by transferring the powers and duties of land administration committees to traditional councils.[26] However, this Act was declared unconstitutional on procedural grounds and consequently repealed.[27]
Traditional leaders do not have the power to administer land or represent their communities regarding deprivations of land rights, unless a respective community has given its consent for such deprivation, if the land is not held on a communal basis.[28] The SAHRC and High Level Panel have documented the common misconception amongst traditional councils that they are owners of communal land and that the consent of traditional councils is needed for mining to take place, rather than that of the community.[29] This goes against IPILRA. If the land is held on a communal basis, then the traditional leader or traditional council may only deprive the community of their land rights if such a decision is taken in accordance with the custom and usage of that community and a majority of community members have voted for such a deprivation.[30] Traditional leaders do not have the power to negotiate or transact on behalf of their communities without consulting their communities and they do not have the right, in terms of legislation, to be their sole representatives for consultation pursuant to mining.[31] Traditional authorities do not have the right to ban community meetings in opposition to recognised traditional leadership or decisions taken by recognised traditional leadership.[32]
[1] Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC), at 35
[2] The Constitution, section 211(2)
[3] TLGFA, section 28(4)
[4] TLGFA, section 28(1)
[5] TLGFA, section 1
[6] Ibid.
[7] Ibid.
[8] See the long list of functions in TLGFA, section 4(1)
[9] TLGFA, section 3
[10] Claassens, A. and Budlender, G., 2013. Transformative Constitutionalism and Customary Law. Constitutional Court Review, 3, p.81
[11] The Traditional Leadership and Governance Framework Amendment Bill [B8-2017]
[12] Fact Sheet on the Traditional Leadership and Governance Framework Act & 2017 Amendment Bill, 2017, Land & Accountability Research Centre [Accessed online]
http://www.larc.uct.ac.za/sites/default/files/image_tool/images/347/FactSheets/Fact%20sheet_TLGFA_Dec%202017%20updated_final.pdf
[13] The Constitution, section 211(1)
[14] 2013 (4) BCLR 431 (CC)
[15] Ibid. at 44
[16] TLGFA, sectin 28(3)
[17] TLGFA, section 2
[18] Shilubana, at para 45
[19] TLGFA, section 11
[20] TLGFA, section 21(1)(b), read with section 25(2)
[21] TLGFA, section 25(3)(a)
[22] TLGFA, section 12(2)
[23] TLGFA, section 11(1)
[24] TLGFA, section 19
[25] TLGFA, section 20(1)
[26] CLRA, Section 21
[27] Tongoane and Others v National Minister for Agriculture and Land Affairs and Others 2010 (8) BCLR 741 (CC), at 109
[28] IPILRA, section 2(1)
[29] SAHRC. 2017. National Hearing on the Underlying Socio-economic Challenges of Mining-affected Communities in South Africa, pp.57-58; Report Of The High Level Panel On The Assessment Of Key Legislation And The Acceleration Of Fundamental Change. 2017, pp.487-488
[30] IPILRA, section 2(2) read with section 2(4)
[31] Pilane and Another v Pilane and Another 2013 (4) BCLR 431 (CC)
[32] Ibid., at 50-51
There are now three main sources of law regarding traditional leadership: the Constitution, the Traditional Leadership and Governance Framework Act 41 of 2003 (TLGFA) and living customary law. Living customary law is the non-legislated body of laws and customs that a customary community uses to regulate its own affairs. It is flexible and “develops over time to meet the changing needs of the community.”[1] However, living customary law has been curtailed by the TLGFA read with section 211(2) of the Constitution, which states that “[a] traditional authority that observes a system of customary law may function subject to any applicable legislation.”[2] The Traditional and Khoi-San Leadership Bill is currently being processed but the TLGFA is the only relevant legislation at this time.
In terms of the TLGFA, the above-mentioned ‘tribal authorities’ of apartheid are now called ‘traditional councils,’[3] although their functions and scope have not changed significantly. A traditional leader that was recognised under previous (apartheid) legislation continues to be recognised in terms of the TLGFA unless their status was revoked before the TLGFA came into effect.[4] Thus, the traditional councils and leadership structures have remained largely unchanged since apartheid. A ‘headman’ or ‘headwoman’ is defined, in the TLGFA, as “a traditional leader who is under the authority of, or exercises authority within the area of jurisdiction of, a senior traditional leader in accordance with customary”.[5] A ‘senior traditional leader’, in terms of the Act, is someone who is a “traditional leader of a specific traditional community who exercises authority over a number of headman or headwoman in accordance with customary law, or within whose area of jurisdiction a number of headmen or headwomen exercise authority.”[6] These are normally called chiefs or chieftianesses. A ‘king’ or ‘queen’ is defined as someone “under whose authority, or within whose jurisdiction, senior traditional leaders exercise authority in accordance with customary law”.[7] A ‘royal family’ is defined as “the immediate relatives of the ruling family within a traditional community, who have been identified in terms of custom.”
In general, traditional councils are empowered to administer a traditional community’s affairs according to custom and tradition and aid the traditional leader in carrying out their duties. Their role is predominantly supportive in nature.[8]
If a traditional community has been recognised by the Premier of a Province, the community must establish a traditional council. Traditional councils will only be officially recognised if they comply with certain requirements, such as that a third of the membership of a council must be women and 40% of the membership must be democratically elected.[9] These are drastic changes and, mostly, these requirements have not been met, which would render most traditional councils invalid. A deadline of one year was initially set for these requirements to be met. This deadline has been extended several times by provincial laws enacted in terms of the TLGFA.[10] However, this deadline lapsed in 2011. An amendment Bill[11] has been formulated that seeks to extend the deadline again and to empower the Minister of Traditional Affairs to ‘take necessary steps’ to ensure that the transformation measures of section 3(2) are complied with if a council is not compliant within one year of the Amendment. At the time of writing, the Bill was currently before the National Council of Provinces, having passed by the National Assembly. Both houses of parliament must pass the Bill before it becomes legislation.[12]
However, the matter is complicated by the Pilane judgment. Living customary law is still relevant to traditional leadership as the status and role of traditional leadership is only recognised if it is in accordance with customary law.[13] In Pilane v Pilane,[14] it was stated that “statutory authority accorded to traditional leadership does not necessarily preclude or restrict the operation of customary leadership that has not been recognised by legislation.”[15] Thus, it seems that traditional leadership not recognised by legislation may still undertake valid functions under living customary law. It is unclear whether an invalid traditional council can take on non-customary functions governed by statute which require statutorily constituted bodies, such as the creation of trusts.
Recognition of traditional communities can be withdrawn if the community requests the Premier to withdraw such recognition. Alternatively, if the Premier is asked to reconstitute the traditional communities because of a mis-classification by colonial or apartheid authorities, the Premier may do so if they feel it is necessary.[16] This Act does not contemplate the possibility of a minority group of community members requesting to withdraw and form their own traditional community for reasons other than historical mis-classification. This is, seemingly, contrary to section 235 of the Constitution, which states that communities “sharing a common cultural and language heritage” have the right to self-determination.
The TLGFA does not allow for much variation of the structures of traditional leadership. The Act does not provide guidance for when there is only one traditional leader of a community, e.g. there are no headman or women underneath a chief or no chief above a headman or women. The Act also assumes that there must be a system of traditional leadership in order for the community to live under customary law – a traditional community is only recognised if it is ‘subject to a system of traditional leadership’ and if it functions under a system of customary law.[17] In that away, it does not allow for living customary law to be developed. However, communities can develop their customary law to exclude traditional leadership. In Shilubane it was found that a community may develop its living customary law and traditional leadership rules even if such development is inconsistent with the traditions pre-dating the Constitution.[18]
If there is a vacancy in a traditional leadership position, the royal family concerned must identify a suitable candidate for appointment to the position and notify the Premier of the respective province of their choice. The Premier must then recognise the traditional leader in accordance with the applicable provincial legislation, which must require that the Premier publish a notice in the Provincial Gazette and issue a certificate to the identified person recognising them as the respective traditional leader. The Premier must also inform the provincial house of traditional leaders of such recognition.[19]
Disputes or contests of traditional leadership must be referred to the Commission on Traditional Leadership Disputes and Claims (‘the Commission’), which has the power to investigate the dispute[20] and must decide the matter in terms of the “customary law and customs of the traditional community as they were when” the dispute arose.[21] The Commission then makes recommendations in line with its decision to the Premier. Thereafter, the Premier must withdraw the certificate of recognition and publish a notice regarding the removal in the Provincial Gazette.[22] Finally, the royal family concerned is to elect the new traditional leader to be recognised by the Premier.[23] However, the TLGFA is problematic as it does not contemplate a situation where there is no royal family to elect the new traditional leader, or where the royal family does not hold such power, in terms of customary law. It does not account for variations in customary law between communities.
Traditional leaders must perform the functions that the traditional community’s ‘customary law and customs’ and applicable legislation dictate.[24] Legislation may be enacted that transfer certain non-traditional government functions to traditional leaders, such as functions regarding service delivery.[25] However, no such legislation or transfer has been enacted. The Communal Land Rights Act 11 of 2004 (CLRA) attempted to do so, by transferring the powers and duties of land administration committees to traditional councils.[26] However, this Act was declared unconstitutional on procedural grounds and consequently repealed.[27]
Traditional leaders do not have the power to administer land or represent their communities regarding deprivations of land rights, unless a respective community has given its consent for such deprivation, if the land is not held on a communal basis.[28] The SAHRC and High Level Panel have documented the common misconception amongst traditional councils that they are owners of communal land and that the consent of traditional councils is needed for mining to take place, rather than that of the community.[29] This goes against IPILRA. If the land is held on a communal basis, then the traditional leader or traditional council may only deprive the community of their land rights if such a decision is taken in accordance with the custom and usage of that community and a majority of community members have voted for such a deprivation.[30] Traditional leaders do not have the power to negotiate or transact on behalf of their communities without consulting their communities and they do not have the right, in terms of legislation, to be their sole representatives for consultation pursuant to mining.[31] Traditional authorities do not have the right to ban community meetings in opposition to recognised traditional leadership or decisions taken by recognised traditional leadership.[32]
[1] Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC), at 35
[2] The Constitution, section 211(2)
[3] TLGFA, section 28(4)
[4] TLGFA, section 28(1)
[5] TLGFA, section 1
[6] Ibid.
[7] Ibid.
[8] See the long list of functions in TLGFA, section 4(1)
[9] TLGFA, section 3
[10] Claassens, A. and Budlender, G., 2013. Transformative Constitutionalism and Customary Law. Constitutional Court Review, 3, p.81
[11] The Traditional Leadership and Governance Framework Amendment Bill [B8-2017]
[12] Fact Sheet on the Traditional Leadership and Governance Framework Act & 2017 Amendment Bill, 2017, Land & Accountability Research Centre [Accessed online]
http://www.larc.uct.ac.za/sites/default/files/image_tool/images/347/FactSheets/Fact%20sheet_TLGFA_Dec%202017%20updated_final.pdf
[13] The Constitution, section 211(1)
[14] 2013 (4) BCLR 431 (CC)
[15] Ibid. at 44
[16] TLGFA, sectin 28(3)
[17] TLGFA, section 2
[18] Shilubana, at para 45
[19] TLGFA, section 11
[20] TLGFA, section 21(1)(b), read with section 25(2)
[21] TLGFA, section 25(3)(a)
[22] TLGFA, section 12(2)
[23] TLGFA, section 11(1)
[24] TLGFA, section 19
[25] TLGFA, section 20(1)
[26] CLRA, Section 21
[27] Tongoane and Others v National Minister for Agriculture and Land Affairs and Others 2010 (8) BCLR 741 (CC), at 109
[28] IPILRA, section 2(1)
[29] SAHRC. 2017. National Hearing on the Underlying Socio-economic Challenges of Mining-affected Communities in South Africa, pp.57-58; Report Of The High Level Panel On The Assessment Of Key Legislation And The Acceleration Of Fundamental Change. 2017, pp.487-488
[30] IPILRA, section 2(2) read with section 2(4)
[31] Pilane and Another v Pilane and Another 2013 (4) BCLR 431 (CC)
[32] Ibid., at 50-51