Traditional leaders, municipalities and land use management: Who does what?

The webinar sought to probe the respective roles of traditional leaders and municipalities in land use management in rural areas. The webinar panel consisted of Xavia Poswa (Doctoral Researcher, DOI), Nkosi Minenkulu Joyi (Traditional leader, Eastern Cape) and Prof Jaap de Visser (Director, DOI). The webinar was moderated by Dr Michelle Maziwisa from DOI, who set the scene by explaining how land use management in rural areas is a contested space.

Xavia Poswa

Xavia Poswa’s presentation focused on the policy and legislative position of the role of traditional leaders in post-apartheid South Africa. He isolated two statutes which have impacted the role of traditional leaders in democratic South Africa: the Traditional Leadership and Governance Framework Act of 2003 (Framework Act) and the Spatial Planning and Land Use Management Act of 2016 (SPLUMA). Poswa stated that while the Framework Act allocated functions to traditional leaders, these were of a supportive nature to clearly defined functions performed by municipalities. All of the functions allocated to traditional leaders were phrased as duties to “cooperate”, “recommend”, “facilitate”, “alert” etc and, therefore, did not vest real decision making powers in traditional councils. Furthermore, Poswa introduced SPLUMA as another piece of legislation which addressed the role of traditional leaders, particularly in land use management. He stated that SPLUMA ended the exclusive control of land use management by traditional leaders in rural areas as the Act empowers municipalities to take land use management decisions. Poswa, however, argued that this did not mean that the power of traditional leaders to allocate land was taken away by SPLUMA but that SPLUMA encourages traditional leaders and municipalities to work together in the management of land use in rural areas with a view to improving development by introducing land use management systems.

Poswa submitted that traditional leaders should be seen as “authorities of first instance” for receiving a request for land allocation and municipalities as “authorities of first instance” for receiving a land use or land development application. This then, according to Poswa, represents the existence of a system of land use management in rural areas in which authority to manage land use is shared by these two institutions. Poswa attributed the resistance by most traditional leaders to the implementation of SPLUMA to a lack of understanding of what the Act requires, adequate consultations by the national government, and trust between traditional leaders and the national government as well as between traditional leaders and municipalities. In conclusion, Poswa recommended that traditional leaders and municipalities must partner with one another and cooperate in managing land use in rural areas. The entry point to this partnership according to Poswa is the SPLUMA Regulations which specifically set out mechanisms that can facilitate cooperation in this regard.

Nkosi Minenkulu Njoyi

Nkosi Njoyi began his presentation by stating that traditional leaders are the closest governance structure to rural residents and that the institution of traditional leadership is constitutionally recognised. He highlighted that the new Khoisan and Traditional Leadership Act of 2019 further entrenches their recognition and allocates further roles to traditional leaders. Nkosi Njoyi went on to outline the process of allocating land to prospective residents in rural areas. He thereafter delved into how SPLUMA was perceived by traditional leaders as seeking to take away their powers in land management. He stressed that traditional leaders are willing to work with municipalities as long as their role is not undermined or seen as secondary or unimportant. He based his argument on customary law, which according to him, is the law which guides the decisions taken by communities and traditional councils. In conclusion, Nkosi Joyi stated that all they want as traditional leaders is for the government to empower them with the necessary information and personnel so as to better understand the land use management system that has been established under SPLUMA.

Prof Jaap de Visser

Prof Jaap de Visser responded to Xavia Poswa and Nkosi Nkosi Joyi’s presentations. He was proud that the DOI facilitated this discussion given that there are not many scholars that are engaging with the topic. Prof De Visser highlighted that there is a context behind the topic and explained how, for example, the institution of traditional leadership had undergone many trials and tribulations during colonialism and apartheid. Furthermore, he pointed out the capacity, proximity, and experience of both local government and traditional leadership and the fact that traditional leaders know what is needed by their communities. Prof De Visser lamented the fact that many people still believe that the contestation between traditional leaders and municipalities is never going to be solved because of how long it has been unresolved. He suggested that it is perhaps time to move from that kind of thinking because South Africa is not alone in this. There are many countries on the continent that are working their way through these tensions and it was also time for South Africa to move towards this direction. One of the ways of finding our way through this problem is seeking guidance on legal pluralism, the focus of which is on how we integrate legal systems that emanate from various sources. Prof De Visser outlined how the lack of cooperation between two institutions gave rise to land developments that were not part of the integrated development plans and budgets of municipalities which then severely affected municipalities and by extension the proper development of rural areas.

As a parting shot, Prof de Visser suggested that practical solutions and a pragmatic approach were needed in order for the contestation between municipalities and traditional leaders to be resolved. We should take advantage of both the law and practice which provide the necessary tools, mechanisms and approaches to overcome this contestation.

By Xavia Poswa, Doctoral Researcher