The failure of an arranged marriage : the traditional leadership/democracy amalgamation made worse by the Draft Traditional Affairs Bill

• Author: Lauren Kohn
• DOI: 10.10520/EJC-7977e2a2d
• Record Number: sapr1_v29_n2_a7
• Date: 01 January 2014
• Published date: 01 January 2014
• Pages: -

I am grateful to Professor Hugh Corder for his comments on the administrative law aspects of this

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article, for encouraging me to publish my ideas and for being a wonderful mentor and colleague.

I must also thank the Centre for Law and Society (UCT) and the Legal Resources Centre for

instructing me to advise on this topic, thereby stimulating my research in this field. I am indebted

to Dr Aninka Claassens and Monica de Souza of the Centre for Law and Society for their invaluable

comments on a draft of this article, as well as Professor Tom Bennett for his feedback and

encouragement.

B.Bus.Sci LLB LLM (UCT). Attorney and Lecturer in the Department of Public Law, University of

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Cape Town.

The failure of an arranged marriage:

The traditional leadership/democracy

amalgamation made worse by the Draft

Traditional Affairs Bill*

Lauren Kohn**

Abstract

This article presents an analysis of the recently published Draft Traditional

Affairs Bill, 2013 and, in particular, clause 25 thereof. Clause 25

(‘[a]llocation of roles…’) contemplates something akin to the delegation

of legislative power – in an unguided and unfettered manner – to

‘departments’ in the national and provincial spheres of government and

the concomitant subdelegation of ‘roles’ in respect of the functional areas

of thes e sph eres to unelec ted tra ditiona l counc ils and le aders . This

provis ion thre atens n ot only the rule of law , but als o the de licate tw ofold

constitutional division of power: the horizontal separation of powers

between the three arms of state and the vertical division of government

into three spheres (national, provincial and local). Against the backdrop

of the c onstitutiona l frame work gove rning tr aditiona l leader s, this a rticle

unpacks the elements of clause 25 of the Draft Bill by addressing several

specific questions which illustrate how and why clause 25 will fail to pass

cons titutiona l muste r. Am ongs t other thing s, the no tion of a ‘role’ is

considered and com pared with that of a ‘function’ and ‘power’

respectively. Similarly, the meaning of ‘allocation’ is considered and

insofar as it amounts to delegation, the limits to the delegation of

344 (2014) 29 SAPL

Murray ‘South Africa’s troubled royalty: Traditional leaders after democracy’ Law and Policy Paper

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23, Centre for International and Public Law, Australian National University (2004) 23.

The Draft Traditional Affairs Bill, 2013 was published in Government Gazette No. 36856 of 20

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September 2013 by the Department of Traditional Affairs (‘the Draft Bill’).

Regarding this policy of indirect rule see, for example, Rugege ‘Traditional leadership and its future

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role in local governance’ 2003 Law, Democracy & Development 171 at 173, who notes that,

‘traditional institutions were transformed into agencies (tribal authorities) of the alien state and more

powers were given to these triba l authorities to control the Afri can population in order to be tter serve

colonial/apartheid interests’.

legislative and discretionary powers – as carved out by the Constitutional

Court – are applied to the provisions of clause 25. Finally, it is determined

that although customary law may be a source of administrative power for

traditional leaders, these leaders may not exercise quintessential

governmental power and insofar as clause 25 purports to confer such

gover nme ntal pow ers on traditio nal lead ers and counc ils, the D raft Bill

impermissibly seeks to render traditional leaders a fourth sphere of

government in breach of the twofold separation of powers and in violation

of the explicit provisions of section 212(1) of the Constitution.

1 Introduction

Writing in 2004, Christina Murray made the following observation:

It ma y be possib le to marry th e idealised notions of a n older, diff erent dem ocratic

order eulogised as an intrinsic part of an original, untainted, form of pre-colonial

traditional leadership with the requirements of a democratic state. But such an

amalgamation should not be the product of either short-term horse trading or

transparently sectional interests for whom tradition is little more than a shield from

the de man ds of de moc ratic ac counta bility.1

Ten years later, the awkward amalgamation between traditional leadership

and the prescripts of our constitutional democracy is just as Murray predicted: the

product of short-term horse trading aimed at appeasing traditional leaders hungry

for powers – not mere ‘roles’ – while purportedly remaining true to our

constitutional ethos, but falling horribly short of the mark. This ‘horse trading’ has

occurred through inept and disconcerting legislative efforts which have satisfied

neither traditional leaders nor those who argue that to survive, the institution of

traditional leadership needs a remodelling to ensure constitutional congruity. The

latest ‘effort’ takes the form of the Draft Traditional Affairs Bill, 2013 – an

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unfortunate manifestation of poor legislative drafting and the use of substantive

measures that hark back to the apartheid government’s strategic doling out of

powers to traditional authorities as part of its policy of indirect rule. On this score,

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