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South African Crime Quarterly 49
30 September 2014

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The articles in this edition of SACQ reveal the extent to which the promise of the democratisation of rural South Africa in the 1990s has turned to bitter disappointment for residents of mining areas in North West Province. Rural areas in the North West, as elsewhere in South Africa, are fraught with tensions.

The time is ripe for a serious debate about the role of chiefs in local governance. Twenty years into democracy, the jostling for position, influence, resources from the state and proceeds from commercial activity on communal land has brought us to a place where mismanagement, maladministration and corruption are rife. Checks and balances are failing. The Nhlapo Commission has not resolved who is a legitimate customary leader, and who is not. The democratisation of ‘traditional councils’ has been a failure.

The result is that the people in affected communities are increasingly frustrated and see their only option as resorting to illegal and often violent protest action, since all other avenues have failed to resolve their concerns. Urgent action is required on the part of government to set a new course.

The stated intention of the Traditional Leadership and Governance Framework Act of 2003 (TLGFA) was to redress the damage done to modes of pre-colonial governance by colonial and apartheid governments, which manipulated the institutions of bokgosi/ubukhosi/chiefship/traditional leadership to subjugate indigenous populations. The TLGFA sought to interrogate the legitimacy of claims to traditional leadership through a quasi-legal process undertaken by the Commission on Traditional Leadership: Disputes and Claims. It mandated the establishment of the Commission, colloquially known as the Nhlapo Commission after its first head, Professor Thandabantu Nhlapo. As Jeff Peires describes in his article in this volume, the Commission’s mandate, simply stated, was to decide who was a legitimate king, queen or chief and who was not. Peires shows through an examination of the cases of the Mpondo in the Eastern Cape and the Ndzundza in Mpumalanga that the Commission’s determinations were riddled with inconsistencies and contradictions, to the point of being almost illogical.

The TLGFA also sought to transform the deeply unpopular apartheid-era tribal authorities into more democratic ‘traditional councils’. These councils were required by the Act to democratically elect 40% of their members, while a third had to be women. By law the new councils should have been established within a year of the promulgation of the Act. Yet, as Monica de Souza’s article demonstrates, this transformation was an unmitigated failure in the North West for many years, as it has been in every other province. In the North West, council elections were held in January 2014, but at the time that De Souza’s article was written, in July 2014, the provincial government had not yet published the names of the new traditional council members. However, just before this edition of SACQ went to print, the North West Premier announced the members of ‘reconstituted’ traditional councils in an Extraordinary Provincial Gazette notice dated 8 August 2014. While the notice provides information with which to assess traditional councils’ present compliance with certain composition requirements, further research is required to assess its impact on the legal status of traditional councils. It is doubtful that the notice alone will undo all of the problems relating to the traditional council reconstitution process in North West, reported in De Souza’s article and signalled in attorney Hugh Eiser’s discussion with Brendan Boyle.

In On the Record, Eiser describes how, in the Bapo-ba-Mogale community, mismanagement, greed and corruption have set in to such an extent that it is ‘winner takes all’ for whomever can push himself to the forefront as the legitimate representative of the community, and surround himself with people who will go along with his way of conducting community affairs.

On the platinum mining belt, the failures of the TLGFA and the state have particularly significant consequences, as traditional leaders have the power to enter into mining deals, ostensibly on behalf of communities. When the communities these leaders purport to represent have little say in the nature of the deals, or how the spoils are shared, and are unable to hold the leaders to account, the result is deep dissatisfaction and even violence, as Mnwana’s and Boitumelo Matlala’s articles show. Mnwana and Matlala both demonstrate the effects of the ‘traditional leader takes all’ situation that has been created by the failure of the state to transform apartheid-era community structures, combined with the cavalier attitude of mining companies towards communities – and the jostling for power and wealth that can come with power – in places that are at the centre of the new scramble for mineral-rich land.

In the case note in this edition, Wilmien Wicomb describes a case in which the Bafokeng Landbuyers Association (BLA) challenged the authority of the kgosi of the Bafokeng to litigate on their behalf. The land owned by the Royal Bafokeng Nation (RBN) came to vest in the larger Bafokeng group because of the ‘six native rule’ in the Native Trust and Land Act of 1936, which disqualified groups of more than six Africans from buying and holding land in their own name. They had to either form a tribe or affiliate to an officially-recognised tribe. The BLA argues that its land was simply appropriated by the RBN. Wicomb concludes that in its ruling on a minor aspect of the case, the Mafikeng High Court may have opened the path to better accountability by traditional leaders in that they might have to seek the consent of those they lead before making decisions.

This special edition of SACQ offers insight into issues that are not usually the domain of the journal. However, in many respects it follows on from the discussions and debates raised in SACQ 35 (March 2011) about the Traditional Courts Bill. The edition offers important insights into the local struggles for power and resources that provided the context for the clash between miners and the police that led to the massacre at Marikana in August 2012. This edition, unlike the special edition on the Traditional Courts Bill, does not include the voices of traditional leaders themselves. Despite this, we hope it will serve to inform the debate that it will undoubtedly provoke, and lead to dialogue about the place of traditional authority, and its limitations, in a democratic state.

Mbongiseni Buthelezi (Guest Editor)  and Chandré Gould (Editor)

Table of contents -  SACQ 49

History versus customary law
Commission on Traditional Leadership: Disputes and Claims 
Jeff Peires

Chief’s justice?
Mining, accountability and the law in the Bakgatla-ba-Kgafela Traditional Authority Area
Sonwabile Mnwana

‘We want the bread, not the crumbs’
Challenging traditional authority in the platinum belt
Boitumelo Matlala

Justice and legitimacy hindered by uncertainty?
The legal status of traditional councils in North West Province
Monica de Souza

Case note:
Testing the authority of a chief to litigate on behalf of his people 
Wilmien Wicomb

On the record:
Interview with attorney Hugh Eiser
Brendan Boyle

 

The South African Crime Quarterly is made possible through funding provided by the Hanns Seidel Foundation and Ford Foundation. The ISS is also grateful for support from the following members of the ISS Partnership Forum: Governments of Australia, Canada, Denmark, Finland, Japan, Netherlands, Norway, Sweden and the USA.
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