Abstract

Keywords

SPLUMA; traditional leadership; land use; spatial planning; equality.

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1 Introduction

Twenty-nine years after the demise of formal apartheid South Africa is still in the process of addressing spatial equality. Part of this process included the promulgation of the Spatial Planning and Land Use Management Act 16 of 2013 (hereafter SPLUMA) to provide a unified approach to planning and land use management in all geographical areas in South Africa, and to bring planning legislation in line with the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution) as to what sphere of government is responsible for planning. While municipal planning is a municipal power, traditional authorities have been given a role in planning law. This paper deals with what playing the role entails and how it fits into planning by looking at the current legislative framework on land use (in general) and traditional leadership.

The powers and functions of traditional leaders in local land-use decisions will be historically analysed and evaluated before specific land use decision-making powers will be considered. The most pertinent provisions of SPLUMA and the Traditional and Khoisan Leadership Act 3 of 2019 (hereafter TKLA), recently declared unconstitutional, will be discussed.1

This will lay the foundation for a critical evaluation of the role of traditional leaders in land use decision-making today.2

2 A brief historical overview of traditional leadership in South Africa

This section will look at how traditional leaders' powers and the systems of accountability developed (or not) over time. The ultimate aim is to understand what customary land use management might have looked like before the colonial and apartheid authorities governed South Africa.

2.1 The nature of the authority of a traditional leader

It is said that pre-colonial African societies had a kind of participatory democracy.3 This stance should be qualified with reference to the specific time and the communities, however. While many devolved polities had community participation in decision-making on important matters that affected them (often through a general assembly comprising adult men),4 later – with the clash between African, Boer and Portuguese forces, and the conditions of insecurity – communities became willing to give up this power in favour of more security.5

2.1.1 Early colonial times

To understand the role of traditional leaders in land use management, it is valuable to look at the historical dynamics that still impact on it today. Since this is not a detailed historical paper, the next paragraphs are an overview intended to lay the foundation for the discussion in terms of the current legislative framework.

Traditional leadership has a long history spanning back to probably around 300 AD.6 It seems as if particular communities were defined by recognising particular traditional leaders (in colonial terms, referred to as "chiefs"). These leaders were often descendants of a particular lineage. While some community members, or subjects, belonged to related lineages, others did

not. In fact, some members arrived later and required permission to settle in the area. There is often not only one history of the origins of a group, probably due to the high levels of mobility generally centred on the availability of land.7 Since the land was abundant, power and wealth did not lie in its accumulation but rather in a leader's ability to build large groups of followers by offering material and military security. In contrast, capricious and incompetent leaders lost followers.8

Noting the considerable movement between leaders is important, as it restrained their ability to abuse power.9 It also means that control was not based on territorial boundaries but on affiliation with a particular leader. People living in a geographical area were sometimes under the authority of different traditional leaders. Likewise, with the movement of people between leadership, some households recognised and paid tribute to more than one leader.10 Thus, the idea of a "tribe" as a culturally homogenous group with unambiguous political, social and geographical boundaries is more rooted in Eurocentric misconceptions and colonial manipulation than was the reality on the ground.11 There were thus areas between traditional leaders where there were no forms of overarching political authority, and individual homesteads could run their own affairs.12

Homesteads had considerable power to make important decisions. At the lowest level of decision making was the family, where household heads had political authority and oversight over their residences and resources, the clan or village over the ward or village, and the chief over the community at large.13

Traditional leaders also relied heavily on their councils. These councils were expected to communicate the will of the people, and the chief was expected to consult with them before making important decisions.14 The council was another level in the decision-making structure. The decision-making was more inclusive, involving each sphere. Most decisions were made locally.15

The above goes against the colonial understanding of succession to office, where clear rules were devised regarding who should become the traditional leader – usually the oldest son. Historical accounts of "chiefdoms" rather

show it as being fragmented and reforming as factions gain power, sometimes becoming stronger, and at other times losing control over groups. However, officials later in the 19th century believed that succession disputes could better be dealt with by turning to rules and genealogies for guidance.16 This was precisely what the Department of Native Affairs and later of Bantu Affairs busied itself with.17

Chiefs did not have unbridled power but were under pressure to rule fairly. The threat of the internal competition meant that they could easily be displaced if they were not accountable to followers. If they were not displaced, followers could easily align themselves with other traditional leaders.18

Councillors19 played an important role in the appointment of a new leader.20 The idea that rules determined succession was over simple and was based on colonial misperceptions and a specific idea of African customary law.21 There was also no linear pattern of political evolution over the centuries – powerful states rose and collapsed. Often, powerful rulers relied on armies to defend their chiefdoms and thereby relied on the willingness of people to go to battle. Unpopular or incompetent chiefs thus might find recalcitrant subjects unwilling to do so.22 In that sense, there were checks on power.23

All these relative uncertainties, the state of flux and the occasional threats to resources made leaders vulnerable and required flexibility between the different levels of leadership. This helped to ensure the establishment of consultation processes to gather the views of royals and commoners and gain support for initiatives.24 The more divisive the issue, the greater the processes of consultation. This was important for the leaders to stay in power.25

2.1.2 Colonial and apartheid rule

This hold on power was distorted during colonial and apartheid rule, where traditional leaders were allowed to preside over the day-to-day running of the community as government agents. This meant that accountability shifted from the people to the government. This also enabled the state to fire and appoint traditional leaders26 to suit their agenda in the furtherance of colonial and apartheid policies. The traditional institutions were changed into tribal authorities, and power resided in these authorities as agents of the apartheid state, to rule the people and serve the government's interests. Access to land and labour, therefore, took place through these traditional authorities. This meant that if people believed their traditional leader no longer served their interests, they could no longer rely on traditional methods to keep the leaders accountable, and access to land and jobs was threatened. Since the leaders were no longer required to be accountable to the people, some became oppressive, thereby losing their legitimacy with the people.27

The imperial powers settling in the Cape and the colonial expansion created additional contestation, especially with respect to land and labour. The conflict led to a centralisation of power in African polities and increased militarisation to protect against additional threats of land occupation and deprivation.28 Despite this, communities were dispersed around the country, with people living on various kinds of land: land held by the state, abandoned farmlands, and reserves (where taxes had to be paid).29 The colonial government did not recognise traditional leaders' powers, which means that in some rural regions homesteads had relative autonomy to make their own decisions regarding land use. It was eventually the Bantu Authorities Act 68 of 1951 that led to the eviction of African families from white-owned land and sparked the revival of chiefly control.30

A development of the hierarchies of land rights accompanied the above – with European land rights being regarded as superior to African land rights. This was reflected in the 1883 Native Laws Commission that stated that

land occupied by a tribe was theoretically regarded as the property of the paramount chief, holding the land in trust for the benefit of the community, and where the community held it in subordination to him.31

This, however, is only part of the picture. Some African families did not access land through a customary law system. Due to war, drought and economic changes, there was much mobility, with groups merging and splitting up and forming new communities. Land rights came from more localised kinship or residential groups, often with the permission of the subordinate leaders by the chief of the area. Families fleeing from war, for instance, separated from the larger groups and settled on land independently. If they settled on the land and established fields it became theirs. In settled communities the chief would grant particular areas of land to subordinate leaders. These leaders would grant the land to ward heads. Thus ward heads had the right to allocate land to household heads, according to the family's needs.32 Once in the household, the land would be passed from generation to generation, either through allocation or marriage and death.33 Once it had been so allocated it was unusual for a leader to reclaim it.34

Chieftainships were often established over people rather than over vacant land. The practice was to recognise the rights of groups and their relationship to land, once they had been taken over by new chieftaincies.35 Chiefs who denied land access or tried to take away land ran the risk of losing the support of their followers. This was an accountability mechanism for the powers of the chiefs.36

The point is that communities were not static but rather dynamic. Households and local communities had considerable power.37 This was changed by colonial rule, where chiefs were often used by the colonial power as instruments of control over land, people and labour. During Apartheid, this power flowed downwards from the Governor General (the Supreme Chief) to native administrators. The Supreme Chief had vast powers.38 Succession was no longer through political processes but rather through officials who had a simplistic understanding of the rules of

succession, drawing genealogies and seeking candidates that would do the colonial and apartheid government's bidding.39 Chiefs were chiefs by state recognition, which was later captured in legislation.40 These leaders had considerable powers – they made rules, executed the rules, and settled disputes while administrating the land and the people.41 This is also true with regard to land use decisions.

2.1.3 The influence of legislation on land use management and traditional leaders

Land administration was greatly influenced by legislation, with planning beginning from the late 1800s.42 The Natives/Black Land Act 27 of 1913 resulted in land being set aside for African occupation only. This was increased somewhat by the Development Trust and Land Act 18 of 1936 to release additional land to consolidate reserves. This Act provided that land occupation was in terms of a "permission to occupy" (hereafter PTO) system.43 The Act permitted magistrates to grant permission if the tribal authority allocated the land – provided that it was no more than one residential unit with arable land and provided that the person to whom it was allocated was married in terms of customary law.44 The idea was that these PTOs provided for secure rights. However, in reality PTO holders were vulnerable to government permission being withdrawn for reasons such as betterment plans, irrigation and other schemes. The traditional authorities played a crucial role in land allocation, especially after the 1951 Bantu Authorities Act.45 This further showed that local chiefs were accountable to the Department of Native Affairs rather than their communities.46

This pattern of power was largely confirmed in the post-apartheid political dispensation. Traditional leadership remained top-down governance reliant on state recognition and simplistic rules based on genealogy. It was a far cry from the pre-colonial dynamic and competitive system, where unpopular

leaders could be removed and subjects had choices as to what leader, if any, they wanted to be ruled by.47

It is this system that is contained in the Constitution through legislation. The Constitution provides a framework in section 211 that recognises traditional leadership institutions, status and roles according to customary law. It is not clear if what is meant by the "role of traditional leadership in accordance with customary law" is pre-colonial leadership or leadership as distorted by colonialism and apartheid. However, as will be discussed below, the colonial and apartheid misunderstanding of pre-colonial leadership persists.48

While traditional leaders do not have specific powers in the Constitution, the legislature may pass laws to provide for the role of traditional leadership as an institution at a local level, and on matters that affect the local communities. It first did so in terms of the Traditional Leadership and Governance Framework Act 41 of 2003 (hereafter the TLGFA), now replaced by the TKLA. The latter will be explained after looking at traditional leaders' historical land use management functions under colonial and apartheid governments.

2.2 Historical overview of traditional leaders and land use decision-making

Most of the land communities lived on under traditional leadership before 1990 was unregistered and unsurveyed state land. This emanates from the Glen Grey Act 25 of 1894, introduced by then Governor of the Cape Colony, Cecil John Rhodes, which is generally seen as the foundation for segregation policies.49 This Act restricted the jurisdiction of the traditional authority, replacing it with a governance system consisting of district councillors, with separate reserve areas under Rhodes's vision of what communal land tenure involved.50 The idea was one of "one-man-one-lot", where the land was divided into four or five morgen, with a restriction on land alienation and the risk of losing the land if it was not occupied beneficially.51

In terms of the 1913 Natives Land Act, scheduled areas were envisioned for exclusive occupation by Africans.52 African people were not legally

permitted to acquire land outside the scheduled areas. When these areas became overcrowded, the Development Trust and Land Act53 was promulgated to acquire additional land to consolidate the reserves or so-called scheduled areas. In terms of the Development Trust and Land Act, land occupation was based on PTO systems.54 This allowed the holder of the right to remain on the land until his death and to elect the person to whom the site could be allocated after his death. This right could be forfeited if the occupation was not taken up within a year or when there was no beneficial use for two years.55

This form of tenure, however, was very insecure. The PTO holders could be forcibly removed without consultation with the government if the nominal owner of the land deemed fit. This was the case with so-called betterment plans – development schemes for land that Black people occupied. Some houses were demolished without compensation or recourse to the law to implement betterment schemes. These PTOs were also not recognised as collateral by financial institutions.56

In terms of the regulations passed under the Black Administration Act 38 of 1927, tribal authorities or traditional leaders had a role to play in the allocation of arable land and residential lots in relation to areas set aside as "black areas". African people were required to get permission from the Bantu Affairs Commissioner for such allocation, and permission was granted after consultation with the tribal authority.57

With the promulgation of the Black Authorities Act 68 of 1951, traditional authorities started playing a more critical role in land allocation in the relevant areas.58 Traditional authorities were involved in the construction and maintenance of roads, rural bridges and drains; the supply of water to

rural communities; the establishment and maintenance of hospitals and clinics; and the improvement of farming afforestation and agricultural methods.59 Land in these areas was owned by the state, and traditional authorities, operating through tribal authorities, played an important role in its administration. Their powers were not only administrative but also judicial and executive; traditional authorities ruled the communities with a clenched fist.60

In the early 1990s, before the end of apartheid, the National Party introduced a reform programme that upgraded land rights, redistribution and utilisation, by way of the publication of the White Paper on Land Reform of 1991.61 The Upgrading of Land Tenure Rights Act 112 was introduced in 1991 to convert the PTOs to ownership.62 Section 19 provides that "[a]ny tribe shall be capable of obtaining land in ownership and … of selling, exchanging, donating, letting, hypothecating and otherwise disposing of it", subject to certain restrictions.63 There was also a possibility of obtaining title deeds on communal land, but this was criticised by the National Land Committee, which warned that there might be overlapping land rights in terms of customary law.64 There was thus a dual system of land administration and land use management to deal with the different types of rights.

In this situation and in the transition years the leaders were given recognition in a constitution that embodied democratic principles in local government, as well as in relation to land. Land reform programmes aimed at communal land should be understood in this context.65

After 1994 the Department of Agriculture and Land Affairs divided land reform into three programmes: redistribution, tenure reform and restitution. In the 1997 White Paper on Land Policy66 the Department recognised the

unique character of customary law rights in the land. It argued that these rights should vest in the people as the rights holders, not in institutions such as local authorities or tribal authorities. It differentiated between group rights and individual or family rights. The argument was made that when the rights are held on a group basis, the right holders must have a choice about how land administration would manage the land and rights on a day-to-day basis. In doing so, the rights of all the community members must be protected, especially the right to democratic decision-making and equality.67 The Minister made it clear in a meeting with the Congress of Traditional Leaders of South Africa that government cannot disregard the views of communities or individuals who have historical land rights that are registered as state-owned. Such actions would be regarded as unlawful.68

As has been shown, in early history a distinction was drawn between landownership and governance. Communities could decide how they owned the land, and they could make decisions about the land. This distinction gave power to communities.69 During apartheid the administration of land rights was the state's function, as delegated to traditional authorities (and thus governance).70 This changed to a large extent, however, with the introduction of legislation promulgated in the new constitutional dispensation. In what follows I first set out the powers of traditional leaders in terms of the TKLA before discussing their role in land use management under SPLUMA.

3 Traditional leadership under the Traditional and Khoisan Leadership Act

Sections 21171 and 21272 of the Constitution recognise the institution of traditional leadership and require that national government provide for a role

of traditional leadership as an institution functioning locally. The TLGFA was enacted to this effect and replaced in 2019 by the TKLA. Since many of the provisions of the TKLA are similar to those in the TLGFA, the former will be discussed first.

Section 2 of the TLGFA provides that a community could be recognised as traditional only if it were subject to a system of traditional leadership. Section 8 recognises specific traditional leadership positions, whether existing in customary law or not.73 In section 1 each of these leaders was defined as a leader holding a position in a "traditional community". The implication is that a traditional community that did not have a traditional leader would not be recognised in terms of the Act.

The TKLA goes further by criminalising leadership assertions by those not officially recognised. Section 3(4) of the TKLA states that a community can be recognised as traditional only if it is subject to a system of traditional leadership. Section 7(1) again recognises specific traditional leadership positions.74 Any contestation of traditional leadership is a criminal offence, in that any person not recognised as a traditional leader but purporting to be one "is guilty of an offence and liable upon conviction to a fine or imprisonment not exceeding three years".75 It is thus difficult to challenge the authority of unpopular incumbents by alignment with other leaders. This confirms the colonial and apartheid distortion of customary law rather than reflecting the practice in societies before the distortion.

Section 211(1) of the Constitution further clarifies that the institution of traditional leadership is subject to it. The Constitution establishes a democratic society with three spheres of government: local, provincial and national. Section 212 states that national legislation may be passed to provide for traditional leadership as an institution on the local level concerning local communities. Such legislation, however, is still subject to the Constitution. Sections 5 and 20 of the TLGFA envisaged a quasi-governmental role for traditional leaders to give effect to this constitutional provision. Section 5 of the TLGFA provided for "partnerships" between

municipalities and traditional leaders. Section 20(1) further provides that national and provincial governments could provide a role for traditional leaders through legislative or other measures in respect of land administration and the management of natural resources, among other things.

Once again the TKLA goes further. In section 24 national and provincial governments may regulate partnerships and agreements as contemplated in that section. This includes traditional councils that may enter into partnerships with each other and municipalities.76 These partnerships must be in writing and beneficial to the community represented by such a council. Such an agreement is subject to prior consultation with such a community and agreement by the majority of the community members present at the consultation.77 This also includes entering into a service delivery agreement with a municipality.78

These are great powers on a local level that can have a profound impact on the lives of people living in rural communities, specifically with respect to land use. The TKLA also provides plenty of governmental and decision-making powers for traditional councils and excludes the participation of traditional communities in decisions regarding community resources that fall outside section 24(3)(c). It is also not clear that meetings can always ensure maximum participation.

The exercise of this power should be considered in the context of the whole Act. Unlike the TLGFA,79 the TKLA does not refer to democratisation. Furthermore, the Code of Conduct of traditional councils is replaced with a code similar to the Code of Conduct from the Municipal Systems Act 32 of 2000. There are no references to community or democracy. Traditional leaders and traditional councillors must act in the council's best interest, not the community's interest, as the TLGFA required.80 Thus, the traditional leaders sometimes have powers similar to those of municipal councils but are not accountable to the people they lead or to the communities who live on the land about which they can make decisions.

The TKLA makes limited calls for the transparency and accountability of traditional leaders and councils to the community in that the new Code of Conduct provides for confidentiality, in that council discussions and decisions about common resources are not required to be open. It also no longer has a requirement as in the TLGFA81 for councils to disclose their records, financial statements, gifts and donations to the community. Instead, these must be disclosed to the Premier. There is also no obligation, as was the case with the TLGFA,82 to give effect to the principles of public administration. Thus, where meetings of the municipal councils are open to the public by default and where members of the public have a right to access to all documents that served before a council, traditional councils do not have such openness and transparency.

4 The Spatial Planning and Land Use Management Act

During apartheid each province and some Black homeland had separate planning legislation.83 Land use management systems applicable in white urban areas were absent from the rest of the country, especially in customary law areas under traditional leadership.84

After 1994 the challenge was to develop an integrated, overarching policy for spatial planning. Thus, the Constitution also provides the overarching framework for planning law. In this respect the Constitution assigns powers and functions to the different spheres of government.85 Municipal powers86 include municipal planning.87

The 1998 White Paper on Local Government88 lays down the new paradigm in which this must happen, focussing on integrated development planning. From this White Paper emanated the Municipal Structures Act 117 of 1998 and the Municipal Systems Act. The latter made a spatial development

framework89 part of the integrated development plan,90 but did not provide for comprehensive spatial and physical planning legislation. This was left to the 2001 White Paper on Spatial Planning and Land Use Management,91 which proposes some aspects for a new spatial planning and land use management system.92 Included are certain principles,93 land use regulators,94 integrated development plan-based local spatial planning,95 uniform procedures for land development approvals,96 and national spatial planning frameworks. A Spatial Planning and Land Use Management Bill emerged from this in different formats, until SPLUMA was promulgated.

SPLUMA97 brought about several fundamental changes to spatial planning and land use98 management.99 Firstly, this Act gives municipalities and not the provincial government the sole mandate in planning (land development and land use management), which means municipalities are the authorities in the first instance.100 Secondly, it establishes and determines the composition of municipal planning tribunals and appeal structures and sets out who can determine and make decisions on land development

applications.101 Thirdly, it also develops a single and inclusive land use scheme for the entire municipal area (including land held in terms of customary law) with an emphasis on a municipally differentiated approach.102 SPLUMA operates with the Municipal Structures Act and the Municipal Systems Act, which recognise traditional leaders as advisors to municipal councils.103

As explained, as first instance authorities, municipalities are responsible for land use management. The land use management systems involve the planning of new land development or managing change in the existing developed areas – such as the subdivision of land, the consolidation of land and land use change. It includes managing the density of the proposed land development. These land use management functions take place on a municipal level within the framework and standardised guidelines of SPLUMA.

In terms of SPLUMA municipalities can also make by-laws to make provision for matters dealt with in the Act and Regulations.104 The ability to provide for matters dealt with in the Act and Regulations allows municipalities to consider how they will administer land not previously administered as part of land use management schemes and accommodate local conditions such as customs and customary practices.

Municipalities do so mainly through municipal planning tribunals. These tribunals are established in terms of chapter 6 of SPLUMA, and are responsible for the facilitation and enforcement of land use and development measures.105 They must consider and approve municipal development applications and, since all land now falls under a municipality, this includes land administered by traditional authorities. Section 36 sets out the composition of the municipal planning tribunal, consisting of full-time officials employed by the municipality and persons not employed by the municipality but who have experience with spatial planning, land use management and land development. It does not say anything about the role of traditional leaders, councils or community members.

However, it does allow for the participation of traditional councils in planning matters, where such planning will have an impact on communities in areas

where traditional councils exist.106 In terms of section 23(3) "a municipality, in the performance of its duties in terms of this Chapter [on land use management], must allow the participation of a traditional council".107 In terms of the SLUMA Regulations, a service level agreement may be concluded with the municipality where the traditional council is located, and the traditional council may perform functions as agreed to in the service level agreement.108 It may not, however, make a land development or land use decision. Without such an agreement the traditional council will be required to provide proof of land use allocation in terms of customary law.109

This brings us to the third point: SPLUMA envisions a single inclusive spatial planning and land use system. Land held in terms of customary law rules has not been subjected to land use management systems. This is also why SPLUMA was so important. It ensures that through land use management the whole country has equal rights concerning a healthy and safe environment.110

If one looks at the living customary law, being the customary law that is recognised and promoted by the Constitutional Court,111 then the layered character of land administration is evident. Decision-making processes about land happen on different social organisational levels – family, household, clan, sub-village and village level.112 The allocation of land also implies "land use rights". Land use includes activities such as the erection of a homestead, the cultivation of crops and the keeping of livestock. Different rights can be held in relation to the same parcel of land, and community members also often have access to various communal resources on the land, such as water, clay or thatching. The allocation of

these rights is informed by indigenous knowledge and sometimes in the knowledge of formal town planning processes and procedures.113

In Tongoane v National Minister for Agriculture and Land Affairs114 the court described the common features of customary land tenure as land use that requires different degrees of "control at different levels of socio-political organisation". Land use decisions, although not always legally binding on outsiders, happen on different levels of society, and members have the right to participate in decision-making on various levels as relevant. The term "communal tenure" is somewhat problematic in this context because there are often strong family and individual rights in residential and arable plots, while certain land rights are communal.

Likewise, in Baleni v Minister of Mineral Resources115 the court stated that in terms of customary law, land accrues to persons by being members of a society and that land use decisions take place on a majoritarian basis. However, it is not just a majority vote; it requires a higher degree of consensus.116 Similarly, in Council for the Advancement of the South African Constitution v The Ingonyama Trust117 the court noted that in terms of customary law some land was not allocated to individuals. However, land used for residential and tillage purposes was allocated to individuals (using the term "individuals" loosely). Importantly, it also points out that as the nominal owner of land so held,118 the Trust does not have an unfettered right to deal with such land. Land allotted to a family becomes the property of its members, and their involvement or consent is needed for any and every decision relating to it.119 Pertinent from this case,120 as was also evident from the historical discussion, is the substantial rights in property that families held. This family property is nested in institutional layers based on social relations and order, creating reciprocal rights and obligations that determine beneficial land use and access.121 This has three implications.

Firstly, that land ownership is not vested in any one person.122 This has implications for a planning system that often relies on the input from owners indicated as such on a formal title deed. Secondly, these rights are secure in terms of customary law and cannot easily be taken away by traditional leaders. Land management therefore should reflect this. Thirdly, traditional leaders do not allocate land to families as set out in planning legislation and by-laws, and the boundaries are not clear-cut but often refer to natural landmarks.123 Land rights are furthermore based on a social hierarchy – with families having authority over the cultivation and residence, the clan and lineage over grazing, hunting or redistribution, and at the bottom other cross-cutting functions relating to territorial expansion and defence.124 This implies that multiple, layered authority exercises control over and the management of land. Colonial and apartheid models that form the basis for current land use management in South Africa are a poor fit.125

5 Conclusion

Land use management in some rural areas, as has been highlighted above, is subject to a dual system. In some instances traditional authorities allocate land, and in others the local authority is in charge. There is thus not, as SPLUMA requires, a uniform spatial planning and land use management system for the entire country. This is perhaps also not desirable, given the difference between the Western style ownership of land and the holding of land in terms of customary law briefly alluded to above. There thus seems a need for planning law to transform as well.126

When the focus falls on the service level agreements with municipalities, the question is whether these powers can legally be granted to the traditional councils. In terms of our Constitution traditional councils do not have governmental functions or powers. The First Certification case127 stated that only the "institution, status and role" of traditional leaders are recognised, with no specific local government functions being allocated. This recognition is also subject to customary law. One should therefore be concerned about the possibility that largely unelected and sometimes still apartheid-inherited traditional councils will perform the municipality's land

use and management functions without proper guidance or oversight on how to do so in a manner that reflects the values of the Constitution.

Should the power to make decisions on land use and spatial planning rest with the people, traditional councils or local government? The question is who is best suited to look after the people's needs. More importantly, how do we ensure that the principles of democratic decision-making are respected when it comes to these decisions and engagements?

It seems as if SPLUMA's regulations empower the "traditional councils" to define custom, as land use must be approved "in terms of the customary law applicable in that traditional area".128 This assumes that traditional councils or leaders determine customary law, and their particular interpretation or application of customary law does not need consent. This assumption in turn puts the decision of what land use is customary and what is not – which can influence land development – in the hands of traditional councils and leaders.129

This scenario does not reflect customary law, where decision-making occurs on various levels of the social organisation. It leaves people, especially marginalised groups, especially women, extremely vulnerable. The centralisation of power, with few mechanisms to hold the decision-makers accountable, is not only against customary law but also against the principle of democracy as contained in our Constitution, limited by land use systems, by-laws and the public participation requirement.

What should also be of concern is how to approach land use management where the systems were designed for demarcated parcels of individually owned land that might not be easily duplicated on communal land. Nevertheless, land use management is important for issues such as the provision of basic services, especially in disaster-prone areas. One could also question the suitability to local needs of the current land use systems.130

Problems surrounding traditional leadership will remain unresolved unless the roles, powers and functions of traditional authorities not only vis-a-vis local government but also concerning the communities themselves are demarcated, especially those pertaining to land. Without clear guidelines on how decisions should be made, specifically regarding community involvement, it is left to the traditional council to judge compliance with

customary law. The proposed powers of traditional councils to be involved in land allocation in the way that SPLUMA envisions, read with the TKLA, therefore distorts customary law.131

Historically the authority of a traditional leader was not so much territorial as it was governance related. At least as far as family property was concerned, the above historical exposé has shown that there was limited involvement on the part of the traditional leader. A leader who did not rule fairly stood to risk losing followers (who needed to compose armies for the community's protection). Some communities, though living in terms of customary law, did not necessarily follow a specific leader.

It is encouraging to see that the courts are trying to grapple with the nature of land rights and the power of decision-making over land. Regrettably, legislation keeps returning to the distorted blueprint of customary law. Perhaps the solution would be to ensure that legislation has mechanisms for communities to hold their leaders accountable, that the same principles of transparency in decision-making are applicable, and that where some of the local governance functions are delegated to traditional leaders, there are clear guidelines on how such a discretion must be exercised.

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Dubazane M and Nel V "The Relationship of Traditional Leaders and the Municipal Council Concerning Land Use Management in Nkandla Local Municipality" 2016 Indilinga: African Journal of Indigenous Knowledge Systems 222-238

Koelble and LiPuma 2011 Governance

Koelble TA and LiPuma E "Traditional Leaders and the Culture of Governance in South Africa" 2011 Governance 5-29

Koenane 2018 Africa Review

Koenane MLJ "The Role and Significance of Traditional Leadership in the Governance of Modern Democratic South Africa" 2018 Africa Review 58-71

Krige 1937 Bantu Studies

Krige JD "Traditional Origins and Tribal Relationships of the Sotho of the Northern Transvaal" 1937 Bantu Studies 321-356

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Luthuli MK The Roles and Functions of Traditional Leaders (Amakhosi) in the Democratic South Africa with a Specific Focus on Those Falling Under Ingonyama Trust: A Case Study of Ugu District Municipality (MA-dissertation University of KwaZulu-Natal 2015)

Lynd 2021 South African Historical Journal

Lynd H "The Peace Deal: The Formation of the Ingonyama Trust and the IFP Decision to Join South Africa's 1994 Elections" 2021 South African Historical Journal 318-360

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Maluleke MN Implications of Spatial Planning and Land Use Management Act (16 of 2013) (SPLUMA) on Land Allocation in Areas under Traditional Authorities (MSc-dissertation University of the Witwatersrand 2017)

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Mamdani M Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton University Press Princeton 2018)

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Mofokeng L et al African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives (Oxford University Press Cape Town 2014)

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Nicholson "A Critical Analysis of the Role of Traditional Leadership in Modern South African Law" 2006 Fundamina 184-192

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Ntsebeza L "Democratization and Traditional Authorities in the New South Africa" 1999 Comparative Studies of South Asia, Africa and the Middle East 83-93

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Poncian J and Mgaya ES "Africa's Leadership Challenges in the 21st Century: What Can Leaders Learn from Africa's Pre-Colonial Leadership and Governance?" 2015 Int'l J Soc Sci Stud 106-115

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Republic of South Africa White Paper on Land Reform (Government Printer Pretoria 1991)

Rugege 2003 LDD

Rugege S "Traditional Leadership and Its Future Role in Local Governance" 2003 LDD 171-200

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Schapera I A Handbook of Tswana Law and Custom (Cass London Cass 1970)

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Traditional Authorities Research Group "The Role and Future of Traditional Leaders in South Africa" 1999 Koers: Bulletin for Christian Scholarship 295-324

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Tlhoaele C The Interface between Traditional Leadership in Shared Rural Local Governance (MA-dissertation University of Johannesburg 2012)

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Todes A et al "Beyond Master Planning? New Approaches to Spatial Planning in Ekurhuleni, South Africa" 2010 Habitat International 414-420

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Case law

Baleni v Minister of Mineral Resources 2019 2 SA 453 (GP)

Certification of the Constitution of the Republic of South Africa 1996 4 SA 744 (CC)

Council for the Advancement of the South African Constitution v The Ingonyama Trust 2021 8 BCLR 866 (KZP)

Johannesburg Metro v Gauteng Development Tribunal 2010 9 BCLR 859 (CC)

Mayelane v Ngwenyama 2013 4 SA 415 (CC)

Mogale v Speaker of the National Assembly 2023 9 BCLR 1099 (CC)

Tongoane v National Minister for Agriculture and Land Affairs 2010 8 BCLR 838 (GNP)

Legislation

Black Administration Act 38 of 1927

Black Authorities Act 68 of 1951

Constitution of the Republic of South Africa, 1996

Development Trust and Land Act 18 of 1936

Glen Grey Act 25 of 1894

Local Government: Municipal Structures Act 117 of 1998

Local Government: Municipal Systems Act 32 of 2000

Natives/Black Land Act 27 of 1913

Spatial Planning and Land Use Management Act 16 of 2013

Traditional and Khoisan Leadership Act 3 of 2019

Traditional Leadership and Governance Framework Act 41 of 2003

Upgrading of Land Tenure Rights Act 112 of 1991

Government publications

GN R239 in GG 38594 of 23 March 2015 (Spatial Planning and Land Use Management Regulations: Land Use Management and General Matters, 2015)

Proc R188 in GG 2486 of 11 July 1969

Proc 26 in GG 2334 of 7 February 1936

Internet sources

Custom Contested date unknown http://www.customcontested.co.za/laws-and-policies/the-spatial-planning-and-land-use-management-act-SPLUMA/

Custom Contested date unknown Spatial Planning and Land Use Management Act (SPLUMA) http://www.customcontested.co.za/laws-and-policies/the-spatial-planning-and-land-use-management-act-SPLUMA/ accessed 5 November 2023

List of Abbreviations