Abstract

Keywords

Traditional leaders; customary law; state functions; private participation; public-private partnerships; democratisation.

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1 Introduction

The former Minister of Tourism, Lindiwe Sisulu, sparked controversy a year ago with her strong criticism of the judiciary's role (or, according to her, its failure) in improving the lives of disadvantaged people in South Africa, particularly by black justices. 1

* Christa Rautenbach. B Iuris (cum laude) LLB (cum laude) LLM LLD (PUCHE). Professor, Faculty of Law, North-West University, Potchefstroom Campus, South Africa. ORCiD: https://orcid.org/0000-0001-6641-0123 . Email: Christa.Rautenbach @nwu.ac.za . The author gratefully acknowledges the Humboldt Alumni Reward for Innovative Network Initiatives she received in 2019. The generous funding of the NRF is also acknowledged, although she remains solely responsible for her ideas and potential mistakes.

** Gerrit Ferreira. B Iuris LLB (PUCHE) LLM (RAU) LLD (UNISA) LLD (PUCHE). Professor Extraordinary, Faculty of Law, North-West University, Potchefstroom Campus, South Africa. ORCiD: https://orcid.org/0000-0003-2425-1712 . Email: Gerrit.Ferreira@nwu.ac.za.

1 Sisulu 2022 https://www.iol.co.za/dailynews/opinion/lindiwe-sisulu-hi-mzansi-have-we-seen-justice-d9b151e5-e5db-4293-aa21-dcccd52a36d3.

In the 1990s the authors were members of the Traditional Authorities Research Group (TARG), which investigated the role and status of traditional authorities shortly after the commencement of South Africa's new constitutional dispensation. The research project, titled "The Administrative and Legal Position of Traditional Authorities in South Africa and their Contribution to the Implementation of the Reconstruction and Development

Programme", was a collaboration between five South African universities 4

4 The former University of the North in Polokwane (renamed the University of Limpopo), the former University of the North West in Mahikeng (now one of the three campuses of the North-West University), the former Potchefstroom University of Christian Higher Education (PUCHE) (one of the other campuses of the North-West University), the former University of Natal in Pietermaritzburg (now one of the campuses of the University of KwaZulu-Natal), and the former University of Zululand in KwaDlangezwa (now one of two campuses of the University of Zululand).

TARG also addressed the question of whether traditional authorities could be classified as "organs of state" as defined in the 1993 Constitution. 7

7 Constitution of the Republic of South Africa 200 of 1993 (hereafter the 1993 Constitution). The question came to the fore in the theme group on legislation. The group consisted of Beryl de Wet, Reginald Ndou, Gerrit Ferreira, Christa Rautenbach and Jenni Williams with Willemien du Plessis a theme co-ordinator. The group's findings were reported in TARG Administrative and Legal Position of Traditional Authorities (Vol VII) 1.

functionary". 9

9 1993 Constitution, s 233(1)(ix).

The current Constitution contains a more detailed definition of "organ of state" as either a state department or administration at the national, provincial, or local level of government or any other entity or individual. The latter category includes those that exercise public power or perform a public function according to the Constitution, a provincial constitution, or any legislation. 12

12 Constitution, s 239(1). It is important to note that the term "organ of state" does not include courts or judicial officers.

In the case of Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa, 1996 15

15 Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa, 1996 1996 4 SA 744 (CC).

Therefore, Constitutional Principle XIII was included in the 1993 Constitution to recognise cultural pluralism, but this recognition does not necessarily imply governmental recognition of traditional authorities as state organs. 17

17 Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa, 1996 1996 4 SA 744 (CC) para 195. Furthermore, the court determined that recognition of the institution of traditional leadership alone was adequate and that the details of how such leadership should operate in a wider democratic society which is complex, diverse, and constantly evolving should be addressed separately. See para 197.

This also seems to be the viewpoint taken by the government. Accordingly, it does not recognise traditional authorities as "government" akin to the South African government, but rather as "customary" organisations with specific functions under customary law complementing the "role of government in rural areas"; but this recognition cannot lead to any dispute over authority between traditional leadership and the state. 18

18 White Paper on Traditional Leadership and Governance (GN 2336 in GG 25438 of 10 September 2000) (hereafter the White Paper).

Bekink 19

19 Bekink Restructuring (Systemization) of Local Government 288.

At the time of the promulgation of the 1993 Constitution traditional authorities retained their broad "governmental powers" under customary law and prior legislation largely unaltered. 22

22 Bennett and Murray "Traditional Leaders" 26-2.

authorities possesses a unique position that makes them particularly suitable for aiding local governments in addressing the developmental requirements of rural populations. Regrettably, the legislative framework designed to facilitate such collaboration is intricate and often challenging to execute effectively. Consequently, the valuable input of traditional leaders remains underutilised, leading to adverse consequences for rural communities. Knoetze aptly encapsulates the prevailing situation as follows: The legislation this scenario as follows: 24

24 Knoetze 2014 Speculum Juris 195.

Legislation dealing with the developmental functions of traditional leadership is varied and various structures are involved with the discharge thereof. The interaction between these various structures seems not only complex and overlapping, but also merely consultative in many respects. The loose terms of 'assisting', 'supporting', 'facilitating', 'recommending', 'participating' and 'promoting' need to be systematised into functional institutional mechanisms to maximise the contribution of traditional leadership to development in local governance. This is necessitated by the principle of co-operative governance, in order to promote cohesion and prevent conflict between traditional leadership and municipal councils.

In this regard it is important to note that public perceptions rate the performance of traditional leaders unfavourably. A recent survey indicates this, revealing only 14% of respondents having contacted a traditional leader in the past year, with merely 31% expressing trust in them. It's important to note that this survey spanned both rural and urban areas. 25

25 See Nkomo and Kambule 2023 https://www.afrobarometer.org/publication/ad621-traditional-leaders-have-a-weak-hold-on-south-africans/ 2.

Several statutes outline the participation of traditional authorities in local government activities. For instance, the Spatial Planning and Land Use Management Act mandates municipalities to facilitate the "participation" of traditional authorities. 26

26 Spatial Planning and Land Use Management Act 16 of 2013.

government among national, provincial, and local spheres, lacking explicit mention of traditional leadership. Therefore, the performance of cooperative government does not inherently include traditional leadership. 27

27 See Rautenbach "Mapping Traditional Leadership and Authority" 504.

In light of the above, it becomes evident that comprehensive legislative review is necessary to explicitly delineate the position and role of traditional leaders as "partners" in cooperative government, especially at the local government level. The simplification and optimisation of structures and processes are equally crucial to ensure effective cooperative government between local governments and traditional authorities, ultimately benefiting rural communities. As the presence and influence of traditional authorities in rural areas are substantial, their significance in cooperative government cannot be underestimated.

The current policy of the South African government reflects an increasing focus on bolstering traditional and Khoi-San leadership institutions, with the intention of assigning them more defined roles within local government structures. Traditional authorities are continually evolving, primarily guided by the department responsible for regulating and overseeing traditional affairs. The government's medium-term objectives, as outlined in the South Africa Yearbook of 2021/2022, provide insight into its goals concerning traditional authorities. 29

29 See Government Communications South Africa Yearbook 2021/22 114.

leadership claims. Additionally, the department will take measures to regulate the initiation environment, ensuring the safe practice of customary initiation. To this end, plans are underway to establish a national oversight committee for initiation practices and a dedicated database to gather information on customary initiation activities. It is also stated that the department of traditional affairs is dedicated to the regulation and standardisation of traditional leadership by finalising the Traditional Leadership Handbook, thereby establishing uniform norms and standards for traditional affairs across different provinces. The government duly acknowledges the pivotal role played by traditional leadership institutions within South Africa's constitutional democracy and local communities, especially in their contributions to rural development. 31

31 See South African Government Date unknown https://www.gov.za/about-government/government-system/traditional-leadership.

Turning to traditional councils, the department's commitment remains steadfast in its efforts to democratise the composition of these councils through legislative measures. The legislation stipulates that a minimum of 40% of council members must be elected, and at least one-third of them must be women. The government recognises traditional councils as significant stakeholders in rural development. Hence, the department will persist in fostering collaborative governance between traditional councils and municipal bodies, primarily by facilitating the establishment of partnership and service delivery agreements. 32

32 See South African Government Date unknown https://www.gov.za/about-government/government-system/traditional-leadership.

However, it is important to highlight that the outlined policy and objectives do not unequivocally clarify whether the South African government aims to convert traditional and Khoi-San authorities into formal organs of state at the local government level. The government's avoidance of the term "organ of state", its ongoing reference to traditional institutions, and its consideration of service delivery agreements as the mechanism for transferring specific state functions to traditional councils collectively suggest that formalising traditional authorities as organs of state might not align with the government's intent. Concurrently, the government's policy strives to enhance the engagement of traditional authorities within cooperative governance efforts. This approach, however, poses a challenge, as it raises questions about how one partner in a cooperative governance relationship can be deemed an organ of state while the other is

essentially a private institution. Cooperative governance inherently involves the participation of two organs of state within the partnership.

Traditional leaders have a participatory and advisory role in municipal councils under the Local Government: Municipal Structures Act. 33

33 Local Government: Municipal Structures Act 117 of 1998, s 81.

The assertion is made that the functions and roles of traditional leaders could be regarded as a form of privatisation, given their operation outside formal democratic frameworks and reliance on traditional authority and customary law over administrative law. While traditional leaders may hold advisory and participatory positions, it is posited that their institutions are not governed by administrative law. However, the recent case of Bafokeng Land Buyers Association v Royal Bafokeng Nation 35

35 Bafokeng Land Buyers Association v Royal Bafokeng Nation 2018 5 SA 566 (NWM).

The right to be consulted is also an incident of the right to procedurally fair administration in terms of Section 33 of the Constitution. The decision to institute these proceedings constituted administrative action and is subject both to Section 33 of the Constitution and Promotion of Administrative Justice Act 3 of 2000 (PAJA).

This ruling introduced uncertainty about the exact nature of the RBN and traditional institutions in general. PAJA encompasses a comprehensive definition of administrative action. 37

37 See "administrative action" in s 1 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). In essence it means "any decision taken, or any failure to take a decision, by an organ of state …". And, "an organ of state" has the meaning "assigned to it under s 239 of the Constitution".

status of the RBN (specifically whether it could be classified as an organ of state), apart from acknowledging that 38

38 Bafokeng Land Buyers Association v Royal Bafokeng Nation 2018 5 SA 566 (NWM) para 3.

[t]he RBN is a tribal community …, a universitas personarum and a traditional community recognized in terms of Section 28(3) of the Traditional Leadership and Governance Framework Act 41 of 2003.

Furthermore, PAJA's definition of administrative action excludes "a decision to institute or continue a prosecution". 39

39 See s 1(b)(ff) of PAJA under "administrative action".

The Court's succinct reference to PAJA created additional ambiguity regarding the distinction between the audi alteram partem rule and public consultation. It is established jurisprudence that PAJA mandates adherence to the audi alteram partem rule for fair administrative action. 40

40 Section 3(2)(b)(ii) of PAJA.

In light of the above analysis of the Bafokeng case, it is apparent that the case does not unequivocally endorse the stance that traditional authorities function as organs of state performing administrative actions. Thus, this contribution adopts the viewpoint that traditional authorities essentially function as private institutions, albeit capable of undertaking specific state functions through agreements with local governments.

Traditional leaders do not undergo a democratic selection process; rather, they are appointed based on lineage and cultural traditions. 41

41 See Gouws et al "Traditional and Khoi-San Leadership and Governance" 223.

Traditional authorities participate in their "private" capacity in all spheres of government, as will be illustrated. They can even enter into partnerships and agreements with one another, third parties, government departments and municipalities. 45

45 Traditional and Khoi-San Leadership Act 3 of 2019, s 24.

Against this background, the research question aims to investigate to what extent partnerships between traditional leaders and public institutions, particularly municipalities, constitute a form of privatisation in South Africa. While we have briefly discussed the question of whether or not traditional authorities can be considered organs of the state, this paper will begin with a more in-depth examination of the current views on their status. We will then provide a historical overview of the legal provisions that have granted traditional leaders the power to perform state functions on behalf of the government. Next, we will focus on the issue of public participation by

traditional authorities in the performance of state functions through public-private agreements and partnerships. Finally, we will make concluding remarks on the future role of traditional leaders as organs of state in South Africa's governance structure.

To ensure clarity and avoid confusion, the terminology we use in this contribution must be clearly understood. The South African Constitution recognises the institution of "traditional leadership" 46

46 Constitution; s 211(1).

The term "traditional authority" generally refers to the traditional and customary systems of governance in a community or society where power is vested in specific individuals or groups based on customary norms and practices. 49

49 TARG Administrative and Legal Position of Traditional Authorities (Vol II) 54-56.

The Traditional and Khoi-San Leadership Act defines "traditional leadership" as the "institutions or structures established in terms of customary law or customs, or customary systems or procedures of governance, recognised, utilised, or practi[s]ed by traditional communities". The Act defines a "traditional leader" as "a person who has been recognised as a king or queen, principal traditional leader, senior traditional leader, or headman or headwoman … and includes regents, acting traditional leaders, and deputy traditional leaders". While it is true that the statutory definition of "traditional leadership" provided in the Act may not fully capture the broader cultural and historical meanings of the term "traditional authority" as used in different contexts, we will argue that the two concepts have the same meaning. Therefore, they will be used interchangeably.

2 The current views on the status of traditional authorities or leadership

Our argument is that the institution of traditional leadership constitutes a form of private participation because it is granted certain state powers and functions typically associated with state authority although it is not an organ of state. 54

54 Private participation in the context of this contribution broadly refers to the involvement of private actors in the provision of public goods or services.

In the light of this one may be inclined to view the institution of traditional leadership as an organ of the state. However, as mentioned earlier in the introduction, the constitutional provisions refer to the institution as a traditional authority but offer no additional characterisation of its nature. Nonetheless, as we hinted earlier, the Constitution of 1993 provided a very narrow definition of an organ of state, a state of affairs that was to a large

extent rectified by a more extensive definition in the Constitution of 1996 which reads as follows: 57

57 Section 239 of the Constitution.

In the Constitution, unless the context indicates otherwise … organ of state" means –

(a) any department of state or administration in the national, provincial or local sphere of government; or

(b) any other functionary or institution –

(i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation, but does not include a court or a judicial officer ... .

However, it's important to highlight that this definition lacks explicit exclusions. It would have been beneficial if the constitutional definition explicitly specified, for instance, that institutions (whether private or not) engaged in public/private agreements with the state—where the state transfers certain state functions to the institution—do not thereby fall under the organ of state definition and consequently become bearers of state authority.

It is important to keep in mind that the definition of "organ of state" in the Constitution applies to the concept only when and where it is used in the Constitution itself. As noted earlier, the constitutional provisions related to the recognition of traditional leaders and their indigenous law systems do not refer to the concept of "organ of state" in any way.

Mapping out the legal position of traditional authorities within the framework of democratic government is a challenging endeavour. 58

58 Rautenbach "Mapping Traditional Leadership and Authority" 514.

However, it is crucial to emphasise that traditional leaders do not fully align with the principles of modern governance, particularly concerning constitutionalism. Justice Albie Sachs suggests that chieftainship cannot

inherently be democratic, as it operates in a different sphere altogether. 60

60 Sachs Advancing Human Rights 78.

An examination of the institution indicates that the legal status of traditional leadership is complex and uncertain, occupying a unique position in the South African state architecture. While there are similarities between traditional leadership and states or governments, there are also significant differences, particularly concerning constitutionalism and the separation of powers. Despite this, there is no apparent reason why traditional leaders cannot participate in state power and functions. Moreover, the close relationship between traditional communities and their leaders suggests there may be collaboration opportunities with local government. 63

63 Rautenbach "Mapping Traditional Leadership and Authority" 508.

However, it should be noted that the institution of traditional leadership does not constitutionally form part of local government as the Local Government: Municipal Structures Act 64

64 See Local Government: Municipal Structures Act 117 of 1998, s 81(1).

Taken at face value, the recognition of traditional leadership subject to the Constitution is an anomaly. Modern notions of constitutional law presuppose the rule of law, the separation of powers, and the limitation of state power under a bill of rights. By contrast, traditional leadership is grounded in the idea that the word of the traditional leader is paramount, subject only to flexible traditional norms based on cultural practices … .

Even in cases where traditional authorities have obtained authorisation to engage in municipal proceedings, this situation is deemed unsatisfactory by certain commentators, including Matehenjwa and Makama. 67

67 See Mathenwja and Makama 2016 Law, Democracy and Development 200-214.

The recognition of traditional leaders should not be merely symbolic in South Africa. The bestowing of esteem on traditional leaders, without enabling the institution of traditional leadership to take its lawful space in local government, does not help to improve the unhealthy relationship between traditional leaders and councillors nor to strengthen democracy in local government. Democracy could be further strengthened by allowing different voices from different segments of the community in local government. Furthermore, the participation of traditional leaders in municipal councils without the power to vote might create further division between councillors and traditional leaders in that councillors may be perceived to be big brothers who have the final authority while traditional leaders as seen as being subservient to councillors capable only of influencing councillors to take decisions while they themselves cannot participate in the decision making. If the value of traditional leaders were not crucial in local government they could easily have been excluded completely from participating in municipal councils. It is their inclusion, while holding from them the power to vote in the deliberations of municipal councils, that impacts negatively on the status of traditional leaders.

Commentators like Ramalobe express particular concern regarding the strained relationship existing between traditional leaders and fellow councillors within municipal councils, suggesting potential adverse impacts on service delivery. 69

69 Ramalobe 2023 Journal of Local Government Research and Innovation.

This unfortunate predicament seems to emerge from the integration of two inherently disparate systems: that of a traditional leader living under customary law and the framework of a predominantly Western-style municipal council. This integration is further complicated by the absence of genuine voting influence for traditional leaders, unlike their empowered council counterparts. Proposals made throughout this contribution,

advocating for traditional leaders to attain the status of municipal organs of state, could potentially mitigate this issue. As municipal organs of state situated in rural areas, traditional leaders could serve as intermediaries between the local municipality and rural communities. Their involvement could span activities such as identifying developmental challenges within their communities, suggesting viable solutions, overseeing their implementation, and providing progress reports.

Relying solely on municipal officials who have lost touch with traditional leaders and their communities could prove counterproductive and detrimental to rural service delivery. These officials may lack the necessary communication skills and understanding of rural communities' unique needs.

Traditional leaders, in a general sense, often fall short of meeting the criteria expected of a modern government. Nevertheless, it can be posited that they align with the constitutional definition of an "organ of state" to the extent that they wield public power or execute certain "public" functions as defined by legislation. Despite this alignment, they do not enjoy a special status that parallels that of governmental organs. Rather, they are regarded as private individuals, albeit recognised in the Constitution as holding the authority to govern those who willingly opt to reside under indigenous law within a particular rural region.

The existence of a traditional council as a governing body for the traditional community, with its functions and powers outlined in the Traditional and Khoi-San Leadership Act, adds another layer of complexity to the debate over the role and status of traditional leaders in modern South Africa. It is worth noting that the Traditional and Khoi-San Leadership Act requires the establishment of a traditional council for each recognised leader or community, which serves as the governing body for the respective traditional community. 70

70 Traditional and Khoi-San Leadership Act 3 of 2019, ss 1, 16 and 17.

It is important to note that the functions of a traditional council concerning municipalities are much broader than those of a traditional leader under the Local Government: Municipal Structures Act, which only allows for the

participation of the traditional leader. 72

72 Local Government: Municipal Structures Act 117 of 1998, s 81(1).

3 Legal provisions granting traditional authorities state functions: a historical overview

Given the limitations of space, providing an exhaustive discussion of all the legal provisions related to traditional leaders is impractical. Thus, this article will concentrate on the provisions most relevant to the central question: whether traditional leaders' powers, functions and duties can be considered a form of private participation in performing state functions. Specifically, the focus will be on legal provisions concerning their functions that are closely aligned with the duties of governmental authorities.

In pre-colonial times traditional leaders' powers, functions, and duties were determined by the traditional rules of the particular group they presided over. 73

73 Pre-colonial roughly refers to the period before 1652.

Traditional leaders were responsible for enacting Laws of justice, settling disputes between community members, allocating land to community members, leading warfare, collecting taxes/tributes and lastly but not least, organising community and festive activities … . [T]raditional leaders had the responsibility to provide safety and security, preserving tribal sovereignty, allocating and distributing land, settling land disputes, spiritual leadership and administration of justice. In other words, they were endowed with social, political, welfare and economic power and responsibilities. … [B]efore colonisation, traditional leaders enjoyed seemingly unlimited and undefined supremacy over communities. … [T]he valuables and taxes collected by the traditional leaders were used for the upkeep and benefit of the traditional leaders' family, his army as well as community projects, ranging from community meeting squares, purchasing weaponry or land from other communities inter alia.

Mawere et al's research shed light on the extensive powers of traditional leaders in pre-colonial times, including the ability to collect taxes from subordinates—a function typically associated with a state. This historical precedent demonstrates that the levying of taxes was one of the strongest indications of emerging statehood, indicating that traditional leaders may

have functioned as quasi-states. 75

75 Kiser and Karceski 2017 Annual Review of Political Science 76 remark as follows: "Taxation has always been a central issue in political economy because it is one of the main activities of all states and a necessary condition for everything else states do. It is the core feature of state capacity."

[I]n pre-colonial times various forms of government existed, ranging from empires to tribal states. Power was hierarchical and consultative. The head of the kingdom or tribal state was at the apex of the power hierarchy with subordinate leaders … .

It can be inferred that traditional communities in pre-colonial times performed functions analogous to those of a modern state, suggesting the possibility of some of these communities developing into embryonic states had it not been for legislative intervention. Gouws et al support this idea, noting that the pre-colonial relationship between traditional authorities and their followers was a dynamic mediation process. 77

77 Gouws et al "Traditional and Khoi-San Leadership and Governance" 222.

In the historical context of South Africa and other African countries, particularly those under British colonial rule, the role of traditional authorities underwent significant changes due to government intervention during colonial and post-colonial times. 78

78 The colonial period in South Africa refers to the time when various European powers, including the Dutch and later the British, established colonies in different parts of what is now South Africa. This period began in the 17th century with the Dutch settlement at Cape of Good Hope and continued into the 19th and early 20th centuries as various European powers expanded their control over the region. The post-colonial period in South Africa refers to the time after South Africa gained independence from colonial rule. South Africa's colonial era formally ended with the establishment of the Union of South Africa in 1910 when the British colonies of the Cape, Natal, Transvaal, and the Orange Free State united to form a single self-governing dominion within the British Empire. However, true independence from British colonial rule was achieved in 1961 when South Africa became a republic and left the British Commonwealth.

Their authority was, in essence, governed by the legal framework established by the colonial governments.

During the post-colonial era, the government officially recognised the position of traditional leaders by enacting legislation that codified and expanded their functions. 80

80 In 1961, South Africa became independent from the United Kingdom and became the Republic of South Africa.

A general survey of the powers, functions, and duties outlined in the preceding paragraphs confirms two key aspects. Firstly, traditional leaders appointed by the government of the day carried out numerous functions and duties similar to those of the ruling government. However, they were not recognised as organs of the state. Secondly, the government retained complete control over the actions of traditional leaders, who existed and functioned with the special permission of the government in power. Proclamation 110 listed several important powers, functions and duties of traditional leaders. Among them were the requirements to promote the interests of the community, support measures for the well-being of the people, take measures to develop or improve the land, maintain law and order, and enforce all laws, orders, instructions or requirements of the government relating to various matters such as public health, the collection of taxes, the registration of births and deaths, the conducting of a census, and more. In addition, traditional leaders had powers like those of peace officers to arrest and take into custody any offender and to search without a warrant any person or homestead if reasonable grounds existed for suspecting that intoxicating liquor, arms or ammunition were hidden.

However, traditional leaders were not empowered to punish anyone in their area who had committed an offence or to hear and determine any civil claim brought before them unless the necessary jurisdiction had been conferred on them. Such jurisdiction was and still is derived from the Black

Administration Act. 83

83 Section 12 provides for the settlement of civil disputes by traditional leaders and s 20 empowers traditional leaders to try certain offences. Although most other parts of the Black Administration Act have been repealed, these two remain intact.

The powers, functions and duties granted to traditional leaders in terms of the Black Administration Act and its regulations were essentially the same as those of the government in the so-called white areas. Therefore, it can be argued that traditional authorities acted on behalf of the government and thus participated in the performance of state functions. This viewpoint is confirmed by Gouws et al, who observe that "the colonial policy of indirect rule transformed traditional rulers into governmental functionaries". 84

84 Gouws et al "Traditional and Khoi-San Leadership and Governance" 222.

During the apartheid era 86

86 The apartheid era in South Africa officially began in 1948 when the National Party came to power in the country's general elections. It implemented a series of policies of laws and policies that institutionalised racial segregation and discrimination, which were in place until the early 1990s.

The white minority government's ultimate goal during apartheid was to establish a politically and constitutionally independent state known as a homeland for each of the ten black ethnic groups. By the time of the democratic elections on 27 April 1994, some nominal independent states, such as Bophuthatswana, Transkei, Ciskei, and Venda, had been constituted. 93

93 Butler, Rotberg and Adams Black Homelands of South Africa 1.

The impact of the Black Authorities Act on traditional leadership and governance in South Africa can be best summarised by a comment on the website of South African History Online: 96

96 See South African History Online 2019 https://sahistory.org.za/archive/bantu-authorities-act-1951.

This was the first piece of legislation introduced to support the government's policy of separate development. It made provision for the establishment of Regional and Territorial Authorities for each specific ethnic group in the 'reserves'. Tribal Authorities were set up and positions were given to Chiefs and Headman who became responsible for the allocation of land, the welfare and pension system and development. The Traditional leadership of the African population had to some extent become representatives of the White

government. Uncooperative traditional leaders were faced with harsh penalties and were often deposed. For example, Chief Albert Luthuli was deposed from his position as chief when he refused to resign from the African National Congress .

The introduction of a fully democratic state with a majority government, a democratic constitution with a bill of fundamental rights, and a Constitutional Court in 1994 did not result in the abolition of the institution of traditional authorities. In fact, the new democratic Constitution explicitly recognises the role and status of traditional leadership, subject to the Constitution. The Constitution stipulates that a traditional authority following a system of customary law may function according to any applicable legislation and customs, including any amendments to or repeal of that legislation or those customs. 97

97 Section 211(1) of the Constitution.

The constitutional provisions above represent the Constitution's recognition and regulation of traditional leadership. While they are comprehensive, they are also vague and do not clarify the legal nature of this institution, particularly concerning its role in government. As already explained in the introduction, the government published the White Paper in 2003 to introduce a policy that led to the creation of the Traditional Leadership and Governance Framework Act in 2004. 101

101 Traditional Leadership and Governance Framework Act 41 of 2003. The Act commenced on 24 September 2004.

On 31 December 2017 the Traditional Leadership and Governance Framework Act underwent a significant transformation, being replaced by

the Traditional and Khoi-San Leadership Act. 103

103 Traditional and Khoi-San Leadership Act 3 of 2019.

Considering that the Traditional Leadership and Governance Framework Act served as the foundational framework for traditional leadership for over a decade, we revisit a selection of its notable provisions outlining the functions and responsibilities of traditional leaders, primarily for historical reference. The Act aimed to establish a comprehensive framework for the functioning of the institution of traditional leadership, which included recognising traditional communities, establishing traditional councils, providing a statutory framework for leadership positions, recognising traditional leaders and outlining the conditions for their removal from office, establishing houses of traditional leaders, defining the functions and roles of traditional leaders, creating mechanisms for dispute resolution, establishing the Commission on Traditional Leadership Disputes and Claims, and drafting a code of conduct for traditional leaders. 106

106 See the long title to the Traditional Leadership and Governance Framework Act 41 of 2003.

The Traditional Leadership and Governance Framework Act also identified the areas in which traditional leaders could participate if the national or provincial government granted the necessary powers through legislation. 107

107 Section 20(1) of the Traditional Leadership and Governance Framework Act 41 of 2003.

of cooperative governance, integrated development planning, sustainable development and service delivery should be promoted. 108

108 Section 20(2) and (3) of the Traditional Leadership and Governance Framework Act 41 of 2003.

The Traditional Leadership and Governance Framework Act clearly demonstrated that traditional authorities were expected to perform specific functions and duties on behalf of the national and provincial governments. As previously stated, the Act authorised them to execute duties and perform functions in several areas that are typically the exclusive responsibility of the national or provincial governments. Nevertheless, despite possessing these characteristics, it is important to clarify that traditional leaders cannot be categorised as government organs. In the subsequent paragraphs, we will delve into and elucidate the reasons for this distinction.

As previously outlined, the Traditional Leadership and Governance Framework Act was succeeded by the Traditional and Khoi-San Leadership Act. This Act not only addresses the recognition and appointment of traditional authorities but also extends recognition to Khoi-San leaders. It additionally establishes comprehensive operational structures for both groups. While the Constitutional Court did declare the Act unconstitutional in the case of Mogale v Speaker of the National Assembly, 110

110 Mogale v Speaker of the National Assembly (CCT 73/22) [2023] ZACC 14 (30 May 2023).

The Traditional and Khoi-San Leadership Act is somewhat vague regarding traditional leaders' roles and functions. It states that they perform the functions provided for in terms of customary law and customs of the traditional community concerned and any applicable national or provincial legislation. 111

111 Section 15(1) of the Traditional and Khoi-San Leadership Act 3 of 2019.

member and chairperson. 112

112 Section 16 of the Traditional and Khoi-San Leadership Act 3 of 2019.

Since the 1920s the legislative arrangements for traditional authorities have demonstrated a clear trend toward involving traditional authorities in governmental functions and duties. This involvement is legitimised through formal agreements between provincial governments and traditional councils established by the Traditional and Khoi-San Leadership Act. The following discussion will delve into this issue further.

4 Traditional authorities' involvement in state functions through public-private agreements and public participation

This contribution maintains that, although traditional leaders may exercise public powers and perform public functions, they cannot be classified as organs of the state. As demonstrated in the following section, the reasoning for adopting this stance is not based on the constitutional definition of an organ of state but rather on the concept of private participation in exercising state powers and functions.

The constitutional recognition of traditional leadership involves authorising these institutions' continued existence, status and role. Parliamentary legislation also contributes to the development of the role of traditional authorities beyond constitutional recognition. This authorisation allows traditional authorities to exercise state powers and perform state functions on behalf of state authorities, effectively privatising certain state powers and functions. However, the state authorities retain an essential measure of control in this process. As shown earlier, traditional authorities exercise these powers and functions subject to the Constitution, and the applicable legislation and customs may be amended or repealed.

The role of traditional leaders in local government is mainly supportive and advisory, as stated in the White Paper. 114

114 Rautenbach "Mapping Traditional Leadership and Authority" 508.

These partnerships could be interpreted to imply formal public-private agreements in which specific governmental powers and functions are transferred to traditional authorities to be exercised on behalf of and under the control of applicable governmental authorities. The Traditional and Khoi-San Leadership Act strongly promotes partnerships between traditional councils of traditional communities 116

116 Traditional councils are established and recognised in terms of ss 16 and 17 of the Traditional and Khoi-San Leadership Act 3 of 2019.

In the context of local government in South Africa, where traditional authorities may be well-suited for certain government functions, 120

120 De Visser, Steytler and Chigwata Date unknown https://dulahomarinstitute.org.za/ multilevel-govt/publications/doi-factsheets-9.pdf, observe as follows in this regard: "Whether or not their roles have been formally acknowledged, traditional leaders often continue to serve as an important link between the state, particularly local government, and the citizens. They provide services such as dispute resolution, land management and the coordination of response to natural disasters, which the modern state often fails to do due to its limited capacity. In short, in the absence of the state, they effectively become the state."

of the municipal property for its own commercial purposes. The private entity benefits from this arrangement through a consideration paid by the municipality or a municipal entity under the municipality's sole or shared control or through charges or fees collected from users or customers of a service provided by the private entity. Sometimes the private entity may receive a combination of these benefits. 121

121 The legislature introduced the concept of public-private partnerships in s 120 of the Local Government: Municipal Finance Management Act 56 of 2003 and defined it in clause 1 of the Municipal Public-Private Partnerships Regulations (GN R309 in GG 27431 of 1 April 2005) promulgated in terms of s 168 of the said Act. For a discussion of this description see Van der Berg 2015 PELJ 1006.

This description of a public-private agreement in South Africa is quite broad. It does not explicitly prohibit using such agreements as a form of private participation or "privatisation" in performing official functions on behalf of a municipality. Some commentators consider it a low-key form of privatisation, but others argue it should not be equated with privatisation. One key difference between public-private partnerships and privatisation is that in the latter the private sector assumes responsibility for both the delivery and funding of a particular service. At the same time, in the former the state retains the responsibility for providing services. Additionally, ownership rights under privatisation are sold to the private sector, along with the associated benefits and costs. Contrary to public-private partnerships, the state may retain the legal ownership of assets in the public sector. 122

122 For example see Anon 2017 https://2thepoint.in/difference-public-private-partnership-ppp-privatisation/.

Those who support public-private agreements distinguish them from privatisation by limiting the latter concept to the transfer of state entities to the private sector without any further state control. In contrast, public-private agreements imply a partnership between the public and private sectors, where the state maintains significant control over the private sector's functions under the agreement. 123

123 Farlam Working Together 3.

From the perspective of administrative law, public-private agreements constitute a form of decentralisation. This is because the state delegates certain functions to the private sector while retaining significant control over the delegate's actions. In contrast, full privatisation represents a form of

deconcentration, as the state and private sector act independently, with the state having little control over the latter's actions. 124

124 For the distinction between deconcentration and decentralisation as forms of delegation from an economic point of view see Khambule 2021 Local Economy.

The Traditional and Khoi-San Leadership Act places great importance on partnerships and agreements by allowing traditional councils to enter into such agreements with municipalities, government departments and other bodies, persons or institutions. 125

125 Section 24(2) of the Traditional and Khoi-San Leadership Act 3 of 2019.

The last condition may give the impression that a traditional council is granted the status of an organ of state by implication. It is difficult to envisage an agreement based on the principles of cooperative government if one of the parties to the agreement is not part of governmental structures. The principles of cooperative government are listed in the Constitution under the heading "Principles of cooperative government and intergovernmental relations". 127

127 Section 41(1) of the Traditional and Khoi-San Leadership Act 3 of 2019.

The premier in whose province the traditional council with whom the agreement or partnership has been concluded is situated must monitor the partnership or agreement and may take the necessary steps to ensure effective and efficient implementation or termination thereof if deemed necessary. 128

128 Section 24(6)(a) of the Traditional and Khoi-San Leadership Act 3 of 2019.

The Traditional and Khoi-San Leadership Act contains a rather peculiar provision concerning the role a traditional council could play. A department in the national or provincial sphere of government may, through legislative or other measures, provide a role for a traditional council in respect of any functional area of such a department, provided that such a role may not include any decision-making power. 131

131 Section 25(1) of the Traditional and Khoi-San Leadership Act 3 of 2019.

The Act and the relevant section, in particular, do not clarify the nature of the role contemplated for the traditional council to fulfil. However, what can be gathered from the said section is that the government would probably typically fulfil the role - in other words, a governmental role. As the role does not imply the exercise of any decision-making power on the part of the traditional council, the council would be responsible only for the execution of the decision taken by the government. It would thus seem that the traditional council would in this instance act in an executive capacity only, under the supervision of the government department that allocated the role to the particular traditional council.

5 Conclusion

Traditional leaders have historically performed functions that are similar to modern state functions, albeit in a primitive way. This may have contributed to the South African government's ability to employ traditional leaders to implement apartheid policies. The legislative formalisation of the relationship between traditional leaders and the government began with the Black Administration Act of 1927. This relationship has continued to evolve, particularly in relation to local government functions. Public-private agreements have played an important role in this process.

Regarding the current situation, we argue that traditional leaders are not part of the state as organs of state, but private citizens assigned or elected by their communities to function according to indigenous law in a specific area. The Constitution and relevant legislation recognise this choice. Traditional leaders are granted certain functions that resemble state functions at the local government level. As the Constitution recognises customary law, these functions could be seen as a form of private

participation in exercising state functions. However, the state retains extensive control over the actions of traditional leaders. Therefore, this form of private participation should not be viewed as full privatisation. Private participation can take place variously, ranging from consultation with the private sector by state authorities while retaining control, to full privatisation where the private sector takes full responsibility for state functions. Public-private partnerships are included on this spectrum.

Concerning traditional leaders, a public-private agreement serves to formalise the existing partnership between the state and the private sector, stemming from the constitutional acknowledgement of traditional authorities and their laws. Since systems of traditional law are unwritten, these agreements enhance legal certainty and clarity. In these instances the agreements do not create private participation between the parties, as it already exists in terms of constitutional recognition, but limited to the powers of traditional leaders in terms of customary law. However, if the agreements venture beyond the traditional functions of the leaders, it introduces the concept of private participation within that specific context. However, it's proposed that, for the sake of legal lucidity and certainty, a more coherent approach would involve transforming traditional authorities into integral components of the state's framework as organs of state, endowed with well-defined functions and authorities. This stands in contrast to the sporadic approach of using private participation agreements to confer relevant powers and functions aimed at enhancing the well-being of rural communities under their purview. To maintain standards, it may be prudent for the state to exercise appropriate oversight over these activities of traditional authorities.

In conclusion, traditional leaders play a significant role in developing and providing services to their communities in rural areas. Despite their historical misuse during apartheid to further the nationalist government's segregation policies, the constitutional recognition of traditional authorities and their legal systems has provided a legal framework for their continued involvement in local government functions with the potential to enhance the delivery of services to traditional communities through public-private agreements. However, given traditional leaders' vital role in their communities, it may be advantageous to transform them into organs of state on the local government level. The current legal position, wherein traditional leaders can only function as municipal councillors without voting rights, is unsatisfactory. This arrangement may foster contentious dynamics within the council and thus necessitates reform. It is advisable to revise this setup by also affording traditional leaders the ability to cast votes within council.

It is suggested that the institution of traditional authorities is in need of radical changes, particularly in terms of democratisation. Such a transformation would only be to the benefit of traditional communities, especially as far as the delivery of essential services is concerned. 133

133 De Visser, Steytler and Chigwata Date unknown https://dulahomarinstitute.org.za/

multilevel-govt/publications/doi-factsheets-9.pdf, observe as follows in this regard: "There is no doubt that there are several challenges associated with traditional authorities. However, traditional forms of governance cannot simply be wished away, given their continued relevance in modern day Africa. Traditional authorities have been around for millennia and are likely to stay in place well into the future. Thus, it is important that decentralisation laws and policies include ways of accommodating traditional leaders – particularly at local level – for the benefit of communities."

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List of Abbreviations