Has SA found the sweet spot in dealing with traditional leadership under the Constitution?

Property rights and the powers and functions of traditional leaders are two areas within the Constitution of South Africa that have yet to be tested through judicial interpretation.

Joel Netshitenzhe is the executive director of the Mapungubwe Institute and a member of the ANC National Executive Committee (NEC). He writes in his personal capacity.

On the occasion of the 30th anniversary of the adoption of the Constitution, South Africa is called upon to reflect on the basics that underpin our democracy.

It can be argued that most of the Constitutional provisions have been tested and re-tested through implementation, policy refinement and astute judicial interpretation.

There are, however, a few areas that seem to defy certainty. Two of them stand out.

The first is on property rights, especially as they apply to land. In the words of then Deputy Chief Justice Dikgang Moseneke at a conference organised by Mistra and other partners in 2014:

“In 20 years, [the Constitutional] Court has not resolved even one case of land expropriation under the property clause… [and] the courts have never been called upon to give meaning to the property clause in the context of land expropriation or to decide on what is a just and equitable compensation. One would have expected that a matter so pressing as land use, occupation or ownership would pre-dominate the list of disputes in the post-conflict contestation.”

The second and related issue pertains to the powers and functions of traditional leaders. And it is an issue that has assumed the character of a ping-pong ball between legislators, the executive, the judiciary, communities, and traditional leaders themselves.

This is borne out by such cases as Melmoth (KwaZulu-Natal) on communal land ownership and valuation, Bakgatla (North West) on communal land rights, and Xolobeni (Eastern Cape) on community consultations regarding the granting of mineral rights.

With regard to generic legislation, the Traditional Leadership and Governance Framework Act of 2003 seemed to have struck the delicate balance, and it survived for some 20 years. However, besides the exclusion of Khoisan communities, it suffered from a few weaknesses, such as platforms of accountability and democratic representation (inclusive of gender); and the persistent complaint of some communities that the Act was largely observed in the breach.

Unfortunately, the Traditional and Khoi-San Leadership Act, which was meant to improve on it, did not pass constitutional muster and, according to community and other activists, it did not, in any case, resolve th