NOf'ml,WEST UNIV£1tSllY Yl,ltllBESITI YA l!OXONE•60PHLRIMA f . · HOOROWES,UNIVEPS!Tm
AN INVESTIGATION INTO CHALLENGES RELATING TO TRADITIONAL LEADERSHIP SUCCESSION IN THE NORTH WEST PROVINCE, SOUTH AFRICA (1927-2015)
OE KEOAGILE (17120969)
Mini-dissertation submitted in partial fulfilment of the requirements for the degree Master of Arts in Political Science at the North West University, Mafikeng Campus
Supervisor: Professor Lere Amusan
LIBRARY MAFIKENG CAMPUS
CALL NO,: 2021 -02- 1 5
ACC.NO.: NORTH-WEST UNIVERSITY FEBRUARY 2016 TABLE OF CONTENTS
I Acknowledgements ...... i II Declaration ...... i i iii List of Acronyms ...... iii iv Definition of concepts ...... i v v Abstract ...... v CHAPTER ONE ...... 1
1 .1 INTRODUCTION ...... 1 1.2 PROBLEM STATEMENT ...... 3 1.3 RATIONALE FOR THE STUDY ...... 3
1.4 SCOPE OF THE STUDY ...... 4 1.5 OBJECTIVES OF THE STUDY ...... 5 1.6 METHODOLOGY ...... s 1.6.1 Research design ...... s 1.6.2 Data collection ...... s 1.6.3 Data analysis ...... 6 1.7 ETHICAL CONSIDERATIONS ...... 6 1.8 LIMITATIONS OF THE STUDY ...... 6 1.9 OUTLINE OF THE STUDY ...... 6
1.10 CONCLUSION ...... 7
CHAPTER TWO ...... 8 LITERATURE REVIEW AND THEORETICAL FRAMEWORK ...... 8 2.1 INTRODUCTION ...... 8 2.2. LITERATURE REVIEW ...... 8 2.2. 1 Apartheid and its effects on traditional leadership ...... 9 2.2.2 The impact of the Bophuthatswana government...... 10 2.2.3 Customs versus the Constitution ...... 11
2.2.4 Politics versus traditional leadership ...... 14
2.3. THEORETICAL FRAMEWORK ...... 17 2.4. CONCLUSION ...... 20 CHAPTER THREE ...... 22 3.1 INTRODUCTION ...... 22 3. 2 HISTORY OF THE BAKGATLA BA KGAFELA IN MORULENG ...... 22
3.3. SUCCESSION IN BAKGATLA BA KGAFELA ...... 24
3.3.1. BBK Senior Traditional Leadership Succession ...... 26 3.4 SOCIO-POLITICAL CHALLENGES RELATING TO TRADITIONAL LEADERSHIP SUCCESSION ...... 26 3.4.1 Contravention of customary law of succession ...... 27
3.4.2 Recognition of a woman as a traditional leader ...... 29
3.4.3 Long-term regency of a traditional leader ...... 32
3.4.4 Political interference into the affairs of traditional leadership ...... 32
3.4.5 Royal family bureaucracy ...... 33
3.5 THE ROLE OF TRADITIONAL LEADERS IN SOUTH AFRICA IN THE 21 sr ...... 33 CHAPTER FOUR ...... 35 4.0 WHAT MAKES A RIGHTFUL TRADITIONAL LEADER AND THE FUTURE OF ...... 35 4.1 .1 What makes a rightful and legitimate traditional leader? ...... 35 4.1.2 The future of traditional leaders in South Africa beyond the 1996 ...... 36 Constitution ...... 36 4.1 .3 Conclusion ...... 37 CHAPTER FIVE ...... 38 5.0 CONCLUSION, FINDINGS AND RECOMMENDATIONS ...... 38 5.1 CONCLUSION ...... 38 5.2 MAJOR FINDINGS OF THE STUDY ...... 39 5.3 RECOMMENDATIONS ...... 40 5.4 _REFERENCES ...... 41 (i) ACKNOWLEDGEMENTS
I wish to thank the Almighty for His protection and guidance during my studies. Special thanks go to my supervisor, Professor Lere Amusan for his constructive criticisms. The criticisms helped significantly in my academic development.
This study would not have been completed without the humble and thought provoking inputs of my colleague, Dr Churchil Guduza. His meaningful contributions and engagement on relating to the topic assisted me immensely. I am grateful to my mother, Ms Pauline Keoagile. , for whom I dedicate this study, and my siblings for their support and understanding throughout the journey.
My sincere gratitude also goes to all stakeholders whose information contributed towards improving the quality of the study such as the North West House of Traditional Leaders, the Commission on Traditional Leadership Disputes and Claims and the Department of Culture, Arts and Traditional Affairs. (ii) DECLARATION
I, OE KEOAGILE, declare that the mini-dissertation entitled "An investigation into challenges relating to traditional leadership succession in the North West Province, South Africa (1927-2015)", hereby submitted for the degree of Master of Arts in Political Science has not previously been submitted by me for a degree at this or any other university. I declare that this is my work in design and execution and that all materials contained herein have been duly acknowledged.
Onketetse Edward 'Tumiso' Keoagile (iii) ABSTRACT
This study examines challenges relating to succession processes within institutions of traditional leadership. It also investigates succession issues and challenges between 1927- 2015 and makes recommendations on the fundamental issue of whether such challenges actually exist as hypothesized. Although successive colonial and apartheid regimes had negative impacts on traditional leadership institutions, as demonstrated by the Native Administration Act of 1927 and Bophuthatswana Traditional Authorities Act of 1987, which empowered the President and the so-called Governor-General respectively with the powers to either depose or install a traditional leader of their choice without following the customary law, it is equally important to note that the post-1994 period brought about its own unique challenges.
Since 1994, however, as established in this study, there have been significant processes aimed at revitalising and recognising traditional leadership institutions as enshrined in the Constitution of the Republic of South Africa, (Act No. 108 of 1996). Chapter 12 of the Constitution of South Africa recognises the status and role of traditional leadership as historically applied within customary practices. Challenges emanating from th is piece of legislation are unique and range as follows: firstly, those involving the infighting of tribesmen over traditional leadership and succession issues; secondly, those that relate to the inability of traditional councils in dealing with developmental issues in their respective communities; thirdly, where mining royalties usually serve as trigger mechanisms for the perpetuation of conflicts; and lastly, where the recognition of the role of women in the new dispensation is regarded as constituting the shifting of historical and traditional power dynamics where men have always played a dominant role.
The findings established in this study validate an argument that the above-mentioned challenges are the key factors perpetuating disputes over traditional leadership positions. Furthermore, such challenges have impacted negatively on traditional leadership institutions and succession processes.
In conclusion, this study responds to and provides solutions to the challenges analysed. This will further assist in terms of policy making and designing of government programmes. (iv) DEFINITION OF CONCEPTS
1. Bakgatla baga Kgafela: means a tribe which is named after an animal called a blue monkey 'Kgatla' for which they totem, and secondly, named after their first Chief 'Kgafela' who ruled the tribe 1500 years ago. 2. Bogosi: refers to an ancestry position occupied by a traditional leader appointed in accordance with the customs and traditions of traditional community of a particular area. 3. Democratic theory: a theory explaining public participation, freedom and the rule of law. 4 . DiKgosigadi: a female traditional leader, who in accordance with the laws and customs of a particular traditional community, is recognized as a hereditary traditional leader. 5. CTLDC: is acronym for a Commission on Traditional Leadership Disputes and Claims established by the President to investigate and make recommendations on traditional leadership disputes and claims. 6. Kgabo: an animal called a blue monkey which the Bakgatla ba ga Kgafela traditional community uses it as their totem . 7. Kgotla: a traditional kraal where traditional leaders normally meet to hold their meetings and traditional court. 8. Serobe: a core customary institution or structure constituted by an executive of the Royal family members such as such as uncles, siblings and aunts. 9. Colonialism: a policy or practice of acquiring full or partial political control over another country and exploit it economically. 10. Constitution: the supreme law of the state/country. 11 . Custom or customary law: is a common traditional law that is practice within a traditional community. 12. Apartheid: the official system of segregation or discrimination on racial grounds formerly practiced in South Africa. 13. SAPS: an acronym for South African Police Services. 14. Totem: a praise singing of a natural object, animal or a bird which is believed to have a spiritual and ancestry significance by a particular tribe/clan. 15. Genealogy: a record or family tree of the descendants of a person, family, or group demonstrating the birth of one generation to another. 16. MEC: an acronym used to refer to a Member of Executive Council. 17. D-Account: a developmental account where proceeds from mining companies other revenues such as the sale of the land are deposited as royalties for a particular traditional community.
LLJBRARYJ (v) LIST OF ACRONYMS
CTLDC : Commission on Traditional Leadership Disputes and Claims
SAPS : South Africa Police Services
MEC : Member of Executive Committee
ANC : African National Congress
HSRC : Human Science Research Council CHAPTER ONE
1.1 INTRODUCTION The arrival of colonial masters in Africa some decades ago obliterated traditional systems of governance and succession. The colonisers influenced the change in traditional leadership succession. For example, the supreme power of appointing a traditional leader was no longer vested in the Chief/traditional leader but in the hands of the Governor General in terms of the Black Administration Act 1927. Traditional leaders were overpowered by imperialists and were unable protect or defend their subjects and mineral resources of the territory under their control. Western politics instilled between cultures and traditions and introduced western modes of political arrangements. Consequently, the role of traditional leaders was reduced to that of a messenger without any customary status (White Paper discussion Document, 2000:14).
Keulder (2000: 1) maintains that colonial rule did not only indoctrinate the minds of African traditional leaders but also changed traditional structures, customary laws and procedures. As a result, there were regular appointments of illegitimate chiefs and headmen while on the other hand, deposing rightfully appointed traditional leaders who opposed them. In Namibia today, for example, some Nama communities have headmen not identified or appointed customarily. The latter was further precipitated by direct intervention of the then apartheid South African administrators. Furthermore, most Nama communities directly elect their traditional leader as a result of the same interference. It was only after independence of many African countries that some of these countries realised the ancestral traditional way of doing things.
Restoration of traditional leadership by government is premised on the fact that traditional leaders play a very significant role in the development of communities. The role of traditional leaders can therefore not be overlooked. Currently, South African traditional leaders are being given the opportunity to participate fully in the democratic process of governance. The Department of Traditional Affairs was established in April 2010 primarily to deal directly with issues of traditional leadership.
1 Furthermore, several pieces of legislation have been passed by parliament to focus mainly on issues of traditional leadership in South Africa. These pieces of legislation include, among others, the National House of Traditional Leaders Act, 2009 (Act of 2009) and the Traditional Leadership and Governance Framework Act 2003 (Act 41 of 2003) as amended. This legislation further provides in terms of Section (1) for the payment of salaries, car and house allowances as well medical aid to all traditional leaders (Public Office Bearers Act No. 20 1998 as amended).
All these developments were necessary and , have however, presented challenges to institutions of traditional leadership. These challenges, among others, relate to the lack of synergy between local government and traditional leadership succession. For the sake of this study, the challenges relating to traditional leadership succession are examined. These challenges include among others, infighting of tribesmen over traditional leadership positions, alleged interference of politicians in the affairs of traditional communities for their selfish interests, the role of mineral resources in perpetuating infightings of traditional leaders and contravention of customs and traditions by other royal family members for their own selfish interests.
In an attempt to respond to the above-mentioned traditional leadership challenges, the government established the Nhlapo Commission which its term of office lapsed in 2010. In substitution to the Nhlapo Commission, the National Commission on Traditional Leadership Disputes and Claims was subsequently established in same year. The mandate of this Commission was to investigate and make recommendations to the President, Premier and Minister on any traditional leadership disputes and claims submitted to it. Disputes and claims relating to traditional leadership succession seem to be endless while the members of the Commission come and go. As a point of departure, the said challenges need to be thoroughly investigated in order to make recommendations in terms of policy to the executive in order to properly manage institutions of traditional leadership.
It is against this background that this study investigates the socio-political challenges relating to traditional leadership succession in South Africa in the 21 st century.
2 1.2 PROBLEM STATE ME NT
Prior to colonialism, institutions of traditional leadership used to be the most respected by African communities. Even though colonialism and the subsequent apartheid system eroded institutions of traditional leadership in terms of westernising them, the post-1994 period brought its own unique challenges in South Africa. For example, during the colonial period, traditional leaders were not identified based on customary law of succession but chosen on the basis of their loyalty to colonial masters.
The post-1994 era in South Africa ushered in political freedom which saw the recognition of institutions of traditional leadership as per chapter 12 of the Constitution. Furthermore, South Africa became democratically governed and as a result, collision of the principle of the rule of law as opposed to the practice of traditions and customs became the order of day. This, however, resulted into many challenges faced by institutions of traditional leadership today, particularly with regard to issues of succession. The said challenges relate to: (1) the recognition of women as traditional leaders as opposed to customary law which precludes a woman from becoming a traditional leader; (2) the stiff contestation for traditional leadership positions; (3) the alleged interference of politicians in the affairs of royal families; and (4) lastly, the long term acting of traditional leaders in traditional positions (Constitution, 1996) .
It is against this background that this study explores the challenges relating to traditional leadership succession in the North West in the 21 st century. The focus of this is the Bakgatla ba Kgafela Traditional community of Moruleng village, Moses Kotane Municipality of the North West Province.
1.3 RATIONALE FOR THE STUDY The researcher once served on the Commission on Traditional Leadership Disputes and Claims investigating disputes and claims on issues of succession of traditional leadership in the North West Province. As an employee of the Department responsible for Traditional Affairs, the researcher has handled several disputes relating to traditional leadership in general and succession in particular. Furthermore, the researcher observed that disputes relating to traditional leadership succession are endless, and give rise to various challenges (political or economical in the post-1994 South Africa) .
3 Very few studies have been conducted on the above-mentioned challenges, thus the need for this study in order to come up with long lasting-solutions.
1.4 SCOPE OF THE STUDY
This study focuses on challenges relating to traditional leadership, particularly in terms of succession. Though many traditional communities in the North West are faced with traditional leadership succession issues, the position of the Bakgatla ba Kgafela senior traditional leadership seems to be the one highly contested by its own descendants. Moreover, for the sake of readers who do not know about the Bakgatla ba Kgafela, a historical background in relation to the contribution the Bakgatla made during the Anglo Boer war is provided in the study. The genealogical structure of the Bakgatla traditional leaders is examined in the study.
The main research question raised in this study is as follows: what are the actual challenges relating to traditional leadership succession in the North West province? After establishing the challenges, the study also interrogates (Chapter 3) the causes of such challenges. Interestingly, the issue that has widely been debated in the social discourse by scholars and policy makers with regard to the role which traditional leaders play in the post-1994 South Africa is also discussed in this Chapter.
Chapter two (2) is the literature review and informs Chapter three (3) in that it analyses a number of critical issues relating to the linkage between the Constitution and custom, the impact of apartheid and the subsequent Bophuthatswana government on traditional leadership succession. As a result, issues interrogated in the literature review are very interesting as they also buy into the arguments and analysis of other authors and . writers. tLJBRAivl r ,..,· ~ Chapter four (4) is a point of departure as it paves the way forward by posing a fundamental question: what makes a traditional leader to be a rightful and legitimate candidate? Based on the findings of this study, it also predicts the future of traditional leadership in the 21 st century. The findings and recommendations suggested constitute chapter five (5) of the study.
4 1.5 OBJECTIVES OF THE STUDY The objectives of this study were to:
• Investigate the role of traditional leaders in South Africa in the 21st century; • Identify and analyse challenges relating to traditional leadership succession with special emphasis on the Bakgatla ba Kgafela; and • Determine what makes a rightful or legitimate traditional leader.
1.6 METHODOLOGY Research methodology refers to the modus operandi used in conducting a study. The research methodology used in this study is qualitative as opposed to quantitative. De Vos (2001 :241) understands qualitative research as subjective in nature. Leedy (2001 :148) believes that qualitative research is the approach that objectively measures the society. This study explores research methodology techniques such research design, data collection and data analysis.
1.6.1 Research design
Research design is one concept that cannot be overlooked when dealing with the entire process of a research. This means looking into the approach of a methodology in terms of how the research project is structured and planned from the beginning to the end .
1.6.2 Data collection Various methods were employed in order to collect data for the study. The researcher has however relied more on secondary data collection techniques such as reviewing existing books, distributing open - ended questionnaires to the affected parties and the interviews.
Interviews were also conducted with all affected parties such as community members, traditional leaders and royal family members of the Bakgatla ba Kgafela.
Archives consulted in order to access records of the Bakgatla ba Kgafela customary laws of succession and institutions of traditional leadership were:
• The House of Traditional leaders in the North West province;
• The Department of Traditional Affairs; and
5 • The Commission on Traditional Leadership Disputes and Claims for further research .
1.6.3 Data analysis
Once the data was collected as explained above, it was analysed qualitatively. It should be indicated here that there are two categories of data: primary and secondary data. According to Weimar and Kruger (2000:71) , secondary data refers to information already existing somewhere and collected for another purpose while primary data consists of original information collected for a specific purpose.
Furthermore, the various types of data as explained above are important for different circumstances and purposes the study seeks to achieve. However, the researcher is of the view that primary data is pivotal and should dominate in a study.
1.7 ETHICAL CONSIDERATIONS
• The researcher ensured the confidentiality of data obtained from respondents. • Respondents were informed to participate voluntarily. • The researcher provided respondents with a report of the findings of the study.
1.8 LIMITATIONS OF THE STUDY
This study cannot be viewed as a panacea for all issues relating to traditional leadership, as a result, limitations were identified. The limitations include the fact that the study does not involve all traditional communities in the Province. Furthermore, the study pays specific attention only to challenges relating to traditional leadership succession in the North West province.
The findings and recommendations of this study will assist in resolving traditional leadership disputes. These findings and recommendations will not only be relevant to the North West province but to South Africa in general.
1.9 OUTLINE OF THE STUDY This study consists of five (5) chapters. In each chapter, there are several sub-headings listed which articulate specific issues relevant for that particular heading. Moreover, for the purpose of the reader's convenience, these chapters are divided as follows :
6 Chapter one - is a summary and an overview of the effects of apartheid and colonialism on traditional leadership governance in South Africa. The chapter also discusses the problem statement which in actual fact, warrants the need for this study. The aim and objectives address the rationale for the study and what the research seeks to achieve. In the same vein , the methods and theory used in conducting the study are also discussed. Furthermore, the scope of the study, ethical considerations, and limitations of the study are equally examined in this chapter.
Chapter two - presents the literature review which is basically the views, opinions and facts on what other authors and writers have written before on the topic. Literature review is discussed with the theoretical framework in the same chapter. It is through the theoretical framework that the reader is able to put the topic under discussion into context and simplify it.
Chapter three - presents the history of the Bakgatla ba Kgafela taking into consideration the fact that there is a need for the reader to understand the history of the community under discussion. Furthermore, all challenges relating to traditional leadership succession are articulated in detail. Lastly, the role of traditional leadership in South Africa in the 21 st century is discussed.
Chapter four - is a discussion that seeks to answer the question of what makes a rightful traditional leader.
Chapter five - presents the findings of the study, recommendations and the overall conclusion of not only this chapter but of the entire study.
1.10 CONCLUSION This chapter has presented the background of the study in relation to the impact of colonialism and apartheid on traditional leadership. It has also outlined the significance, and rationale of the study as well as exposed current challenges relating to succession with regard to traditional leadership. The objectives and problem statement derived from the overview and the background were examined and a discussion of objectives discussed. The next chapter presents the literature review and the theoretical framework that informed the study.
7 CHAPTER TWO
LITERATURE REVIEW AND THEORETICAL FRAMEWORK
2.1 INTRODUCTION Th is chapter examines what other authors, researchers, scholars and policy makers have written in connection with the topic under discussion. Various sources were consulted during the literature search (books, journal articles and research papers) that were of relevance to the study. The main source of data for this study consisted of book reviews on challenges relating to traditional leadership and succession in the North West province.
The second part of the Chapter is the theoretical framework that informed the study. The theoretical framework introduces and describes the theory as well as explains the research problem. It is also a structure that holds and supports the theory of a research study. A theoretical framework is necessary in a study in order to limit the scope of the topic, focusing essentially on specific variables affecting the study.
2.2. LITERATURE REVIEW
According to Cele (2004:13), many South Africans still consider traditional leadership as part of their culture and identity. It is evident that traditional leaders and ch iefs still play an important role in the lives of many South Africans. South Africa is by its origin and formation , constituted by various ethnic groups which subscribe and uphold institutions of traditional leadership in the country.
On the other hand, the history of traditional leadership in South Africa has a connection in one way or the other with previous oppressive regimes of apartheid and the Bophuthatswana government. It is therefore important to note their impact, particularly when the issue of traditional leadership succession is being discussed. In this regard , the analysis of such regimes have therefore been captured hereunder in order to provide a clear understanding of the relationship between traditional leadership and previous regimes.
8 2.2.1 Apartheid and its effects on traditional leadership
The period between 1948 and 1994 was characterised by racial segregation and exploitation of blacks by whites in what became known as apartheid. The most popular feature of the apartheid era were the territorial division of Africans based on ethnicity which subsequently led to the introduction of the Bantu Authorities Act, (Act No. 68 of 1951 ). It was through this system introduced by Dr Verwoerd that tribal authorities and later independent national units came into existence (Mbenga & Manson, 2010: 116).
Furthermore, it is the researcher's view that the colonial masters used oppressive laws not only to divide families and relatives but also to influence succession and gain access to tribal resources, especially land. Cele (2004:2) also maintains that the apartheid system destabilised traditional leadership governance in South Africa. This is evident in South African villages, especially villages in the North West province where some of the current generation of traditional leaders are the sons of traditional leaders/chiefs co-opted by colonial rulers. This was not done in accordance with the customary law of succession practised by the same traditional communities.
Similarly, the above-mentioned sentiment is echoed by Khunou & Maseng that "the apartheid government designed and sponsored conflicts and divisions among traditional leaders of South Africa" (Khunou & Maseng, 2013:8). lLJ:~i ·I It is, however, worth mentioning that though some traditional leaders were submissive · y_ to these apartheid rulers, others were repudiating the system. For instance, the reign of Kgosi Manotshe of Bafokeng in 1948 demonstrated the defiance of the apartheid system by refusing to succumb to the orders of the then Native Commissioner Visser. Moreover, the strength and patience of Kgosi Manotshe was tested on many occasions including when he was accused by the secretary of Lekgotla for dictatorship. Subsequently, the Native Commissioners, Visser and Reverend Brummerhof accused Kgosi Manotshe of maladministration and that he had adopted an anti-white attitude (Mbenga & Manson, 2010:117).
The researcher does not totally agree with Khunou (2009: 83) that traditional leaders themselves played a significant role in becoming agents of the colonial government. Koelble & Lipuma (2005: 07) carry forward this argument and maintain that the late
9 Chief Kaizer Matanzima (chief Minister of former Transkei) was the key ally to the apartheid regime.
When one looks at the broader impact of apartheid on traditional leadership governance, and succession in particular, one realises that the apartheid regime did more damage than good. The repercussions of such damage are now visible among traditional leadership institutions and in their governance. The introduction of the Black Administrations Act in 1927, which gave the Governor-General powers to appoint traditional leaders, was used as a tool to infiltrate and further influence traditional leadership succession. This was completely alien to institutions of traditional leadership, particularly in line with customary law of succession. It is argued that the enactment of the Black Administrations Act was as a result of the fear by authorities that many traditional leaders would be radicalised and be lobbied into the politics of the ANC (African National Cong res) (ANC, White Paper on Traditional Leadership, 2000).
2.2.2 The impact of the Bophuthatswana government
This study would be incomplete if the historical impact that the Bophuthatswana government had particularly in the North West province in terms the current challenges relating to traditional leadership succession is not mentioned. It is the view of the researcher that many disputes surrounding the succession of traditional leaders are as a result of the erroneous installation of illegitimate traditional leaders by the former President Mangope of the erstwhile Bophuthatswana government. In 1988, President Mangope amended the Traditional Authorities Act in order to give him powers to depose or appoint traditional leaders within the vicinity of the then Bophuthatswana state. For example, Kgosi Samuel Mankurwane of Batlhaping ba ga Phuduhucwana in Taung was deposed from his position. This decision was not taken only for the Mankurwane's matter but to other traditional leaders who did not agree with Mangope's regime (Mbenga & Manson, 2014:135).
The same Traditional Authorities Act was applied in the case of the Bafokeng Kgosi Edward Lebone Molotlegi for his resistance against the Bophuthatswana government in 1988. The same Act made it possible for Mangope to appoint his ally and brother to Kgosi Lebone Molotlegi, Mokgaro to act in place of Kgosi Lebone Molotlegi who was in exile in Botswana. The reason for Lobone's departure to Botswana was precipitated by
10 several factors and among them, his perpetual defiance of Mangope's attempt to gain access to the land and resources belonging to the Bafokeng community. The other aspect that kept the Bophutatswana contingent of police at Lebone's home was the allegation that Kgosi Lebone masterminded the failed coup in 1988 led by the leader of the People's Progressive Party, Rocky Malebane-Metsing.
During this period, Kgosi Lebone and his family, particularly his wife, Semane Molotlegi, were subjected to perpetual incarceration by the Bophuthatswana police though they were never charged. This was done merely to intimidate the victims, in order for them to eventually succumb to the Bophutatswana regime even though this did not materialise until the new dispensation in 1994 (Mbenga & Manson, 2011 :138).
2.2.3 Customs versus the Constitution
Cultural practices and customs are still being observed in many communities in South Africa. Soanes (214:2005) defines custom as; a traditional way of behaving or doing something that is specific to a society, place, or time. Albeit the respect that these customs and traditions receive, some appear to be old and unable to respond to current challenges in modern times. While on the other hand , the Constitution is written and documented, customary laws are forever provided verbally. Even though the Constitution supersedes all other laws of the land, it has become very pivotal that customs and customary laws among Batswana ethnic groups be clearly stated and documented for future generations. This is precisely because these customs and traditions evolve with time. Bekker & Rautenbach (2010: 20) are categorical that many customs ceased to exist during the reign of imperialists, precisely because there were no records on African customary law.
It should be noted further that though customs change over time, as indicated by Bekker & Rautenbach, there are those that are static regardless of changes in social or economic conditions. An example in this regard is the customary tradition of giving a token of appreciation (usually in kind) by the groom's family to the bride's family (lobola) which is still relevant today.
Upholding the customs of the land has, however, been challenged by the rule of law as enshrined in the Constitution of 1996. For instance, the case of Mrs Tumane of Bakgatla community wherein in 1998, made an interdict application that Bakgatla Ba Kgafela 11 Tribal Authority representative ordered her to stay inside her yard for a particular period of time. This was after Mrs Tumane refused to perform a burial rite considered a Setswana ritual requiring a newly bereaved spouse to sprinkle a herb called (Mogaga) (Comaroff, J. & Comaroff J. 2003:48) . Central to the foregoing , the Mafikeng High court eventually ruled in favour of E. Tumane.
After the deliberation on issues of the bill of rights against Batswana customs and beliefs, the Court subsequently found that Tumane's rights were violated by Bakgatla Tribal Authority members. The point in this case is that, at times, the principles of the rule of law brought about by democracy are at loggerheads with the customs and customary law of many traditional communities in the North West province in particular and South Africa in general (Comaroff, 2005:48).
The post-1994 period in South Africa with the enactment of the Constitution as the supreme law of the country has made significant strides in terms of maintaining justice and order in the society. Justice would then be the ultimate goal of achieving equality and prosperity among individuals in society. This context explains why Burns (2003:76) interpreted Aristotle's role of politics by maintaining that politics must enable a process of personal development to prevail. tLj: ~':tv J Subsequent to the foregoing , the Constitution was adopted in 1996 and recognises the diversity of South Africa taking into consideration the various tribes and ethnic groups practising diverse cultures and traditions. Clarity in this instance was given by President Zuma, during the National Assembly sitting where he called for consistence and preservation in respect of the balance between the republicans and monarchists. The President made reference to the provisions in Chapters seven (7) and twelve (12) of the Constitution , which among others, recognise the role and status of institutions of traditional leadership (National Assembly, 11 March 2015).
Furthermore, it is the researcher's observation that truth and justice are always compromised in South African Courts, especially when the presiding judge is not a black person and as a result, he has to adjudicate on cases involving customary laws and customs. Usually, the presiding judge is conversant with the principles and application of customs and as a result, the judge sometimes misinterprets the relevant and applicable legislation. Despite the Constitution being very clear in Chapter 12,
12 Section 211 (3) , that courts shall apply customary law where applicable, subject to the Constitution and any legislation that specifically deal with customary law, however, proceedings in courts have always demonstrated that it is survival of the fittest. The foregoing is very unfortunate, precisely because the position of traditional leadership is customarily hereditary and not democratic.
In 2013, the same sentiment was reiterated by the then acting MEC of Local Government and Traditional Affairs of the North West province, Honorable Paul Sebegoe. The acting MEC was briefed by researchers of the Commission on Traditional Leadership Disputes and Claims on the dispute of the position of senior traditional leadership of the Bakgatla ba Kgafela. In response , Honorable Sebegoe indicated that he was not in support of traditional leadership succession matters being argued out in Court. According to Sebegoe, the decision on traditional leadership succession lies strictly with the royal family and not external parties (Speech; Sebegoe, 2013).
Despite the challenges identified in this study regarding conflict between the Constitution and some customs and customary practices that occur from time to time, at least some progress has been registered. It is a milestone that equality is embraced in accordance with Section 9 (3) of the Constitution (1996:7) that:
The state may not discriminate directly or indirectly against anyone on the grounds of race, gender, sex, pregnancy, marital status, ethnic, or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
Central to the foregoing , this then suggests that participation of women across all spheres of government is now recognised in many pieces of legislation in South Africa, including eligibility of women to contest the position of tradition leadership. Subsequently, this customary law then becomes at loggerhead with this section of the Constitution, as it was a foreign practice among African tribes that a woman can become a senior traditional leader or headman. An example worth mentioning is the case of traditional leadership dispute between Ms Shilubana and Mr Nwamitwa of Valoyi Traditional community in Limpopo. In a nutshell, after the decision of both the High Court and the Supreme Court of Appeal that Mr Nwamitwa was the rightful heir to the Valoyi community, the Constitutional Court overturned such decision on the basis of
13 gender discrimination. This further led to Judge Westhuizen J ruling in favour of Ms Nwamitwa as the rightful heiress to the Valoyi traditional leadership position (Case CCt 03/07, 2008/ZCC9).
Furthermore, Bekker & Rautenbach (2010: 11) have identified many other sections of the Constitution that are in conflict with traditional customs and customary law and among others, are Sections 21 (3) and 25 (1 ). It is thus argued that law-makers should balance the equation between custom and the Constitution as instructed by President Zuma (National Assembly, 11 March 2015). This is based on the observation that where the Constitution bites custom, it should also able to nicely protect it.
2.2.4 Politics versus traditional leadership
It is worth noting that challenges relating to traditional leadership succession are attributed to the caliber of political leadership and political system in practice. This is because in a constitutional and republican state such as South Africa, state power lies with politicians as opposed to traditional leadership in a monarchical state. The most unfortunate part is that these political leaders are not all the time virtuous and fair because they tend not to influence the distribution of state resources in a fair manner. According to Plato's assertion as explained by Burns (2003:82), these leaders are not fit to govern as they do not possess what Aristotle referred to as nobility, merit and excellence.
Recently, the same issue was raised in the South African Parliament by Prince Mangosuthu Buthelezi during a questions and answers session to the President where he suggested the need to review Chapter 12 of the Constitution. Buthelezi is of the view that Chapter 12 of the Constitution which deals with recognition of institutions of traditional leadership were too shallow. Moreover, the same Chapter gives traditional leaders limited powers to exercise their authorities within traditional communities (National Assembly, 11 March 2015).
This type of political system explained above gives political heads at the national, provincial and local level more state power than traditional leaders. As a result, traditional positions become ceremonial in nature. This is normally evident where political interest is at stake and the fight over properties owned by traditional leaders such as land (with mineral resources) is intensified. Kgosi Lebone Molotlegi was wiser 14 to have dealt with the erstwhile Bophuthatswana government in the manner that he did. Kgosi Molotlegi was involved in a severe battle with President Mangope of Bophuthatswana government over ownership of land endowed with resources belonging to the Bafokeng in the early 1980s. The core of the said disagreement was because Mangope wanted to ultimately get access to the mining royalties of the said land (Mbenga & Manson, 136:2014).
Furthermore, though the combination of democratic governance and traditional leadership at the local level has proven to be effective and vibrant, however, there is an element of conflict and duplication with regard to the roles of the two systems at the local level. This duplication of roles has triggered contestation for recognition and limited resources among councilors and traditional leaders at the expense of poor communities. From time immemorial, institutions of traditional leadership have always not only been the centralised government at the local levels but have also been the custodian of customs and moral regeneration. Their role is thus very simple, to allocate land to indigenous people, address socio-economic problems arising from subjects, collect tax revenue in order to use in the building of schools, clinics and other social amenities. On the other hand , councilors are the political heads invented from the process of the democracy at the local government level. The role of councilors, just like traditional leaders, is to communicate socio-economic problems from their respective communities to provincial and national government (Khunou, 2009: 83).
Councilors are thus compelled , in terms of the legislation, to call community meetings at any time, so are traditional leaders. However, a conflict always arises between the two structures due to failure of engagement on their planned community programmes and activities. Notwithstanding, 20 years after the attainment of constitutional democracy, the South African government has been able to transform institutions of traditional leadership to the better even though it is not at its best. Donkers & Murray (1997:01) have quite frankly observed that traditional leaders in the country are at liberty to transform their institution within the framework of constitutional democracy unlike in the erstwhile apartheid and Bophuthatswana governments.
The foregoing revelation clearly explains and exposes the naked truth of the situation between political heads and traditional leadership. At times, political leaders are accused of abusing state power to ultimately push their selfish interests at the expense 15 of the poor and needy traditional communities. The political posture of this nature is best analysed by Machiavelli; Boucher & Kelly (2007: 157) where they acknowledge the contradiction between politics and ethics. According to Machiavelli, political life is above all , a gladiatorial arena where the strong subdue the weak and obtain preferential access to the limited resources.
On the other hand , traditional leaders are themselves sometimes divided and this may be on who benefits what or more in terms of the community's resources. These community resources may be the distribution of land, mineral resources underneath or other resources that are supposed to be shared equally among community members. Once these resources cause division among traditional leaders and their royal family members, succession disputes become inevitable. As a result, the legitimacy of the current Kgosi in power is usually questioned. Recently, in the North West province, traditional communities such as Bapo ba Mogale and Bakubung in Ledig near Rustenburg were on fire over missing mining royalties. / N WU. _I
In the case of Bakubung ba Ratheo, in Ledig, the community embarked JJ~,~J,\RYJ protests over the alleged misappropriation of royalties paid by the local mining company, the Bakubung into the coffers of the traditional council (SABC news, 12 April 2015).
Politicians further use political power to influence traditional leadership succession. This is motivated by the desire to use the person installed in the traditional position to their advantage. Politicians do this deliberately even though aware of the influence traditional leaders have in their own respective communities. This modus operandi was used by the apartheid government prior 1994, and ended up being a normal practice (Koelble & Lipluma, 2005:74) .
Furthermore, the D-Accounts have been a source for controversy and corruption, particularly in traditional communities with mining opportunities. A D-Account is the account where all mining companies deposit royalties for traditional authorities where they are operating. The D-Account is in terms of the law, managed by the Treasury of the Provincial government concerned. There are always speculations and insinuations that politicians are looting these accounts due to their influence and connections in government.
16 In 2013, the Bapo ba Mogale traditional community just like Bakubung ba Ratheo, dissented over mismanagement and continuous misappropriation of funds from their D Accounts. The foregoing culminated and triggered the attention of two governmental wings; the Public Protector and SCOPA (Standing Committee on Provincial Public Accounts). Reports on the investigations have not yet been revealed for public consumption (2013, The Mail Newspaper).
2.3. THEORETICAL FRAMEWORK
There are various theories which clearly explain the topic under discussion. These are the traditional leadership and democratic theories. The two theories are very suitable for the study. According to Marx Webber (2009:09) , in a traditional leadership theory, power is given to a leader based on the traditions of the past. As a result, many leaders under this theory inherit power from their predecessors. Traditional theorists, in many instances, are in favour of monarchical form of government where the head of the state is not elected but born a King. Traditional leadership theory therefore influences a monarch hence, the thinking and principles compatible to each other. Habsburg (2010:2) raises a very interesting question as to which form of government best serves the people between a monarch and a republic.
Theoretically, a lot of satisfaction has expressed in favour of a monarchical form of government than a republic. Some of the advantages raised in Von Habsburg's argument are that a King is born and grows up in his office as head of state and as a result, becomes not only a professional but an expert. More importantly, a king is not tied to any political party and does not owe his position to any voters or any business people vis-a-vis a president in the case of a republican government. Moreover, the advantages of the traditional leadership theory can best be understood within the context of a monarchical form of government in the sense that, under the latter, there is no need for elections as the person to occupy the traditional leadership position is known to the royal family. Moreover, it is assumed that the monarchy is the most accessible and highly participatory form of government in that the ruler is independent. He is for the citizens equally but not tied in the face of the minority and power, as a result, he is able to protect the rights of the weak (Von Habsburg, 2010:03).
17 Consistent with the traditional leadership theory, the danger of a monarchical state is that once a ruler has ascended to the throne, if he is bad or incompetent, it therefore becomes almost impossible to oust him. This is precisely because community members have no say on succession order, precisely because the position is hereditary to the eldest son of the late traditional leader.
On the other hand, there exists a school of thought based on the democratic theory which Sithole (2009:4) refers to as democratic pragmatism. According to Sithole, democracy and human rights are essentially defined consistent with this school of thought and further prioritises the rights of individual human beings to choice and freedom . Even though the democratic theory can actually fit in both a monarchy and a republic, however, it is indeed a theory influencing republicanism . Interestingly, monarchists have claimed that in fact democracy functions better under a monarchy than under a republic. It is in a republic where a democratic process of electing a head of the state is practised vis-a-vis a monarchical state. As a result, the tenets of a republican state are in this instance, used to better understand the context of a democratic theory. The pros and cons of a republican state are articulated hereinafter (Habsburg, 1970: 02).
The advantages of the democratic theory are that it promotes the significance of the participatory method of leadership with consensus - based on decision-making in the sense that the leader is compelled to put the interests of the people who have elected him/her above anything else. These principles are derived from the values on equality before the law. The theory further allows for the voices of women and the youth in governance issues.
Furthermore, in the event where the head of state elected is not delivering to the satisfaction of the citizens, they have all the rights to remove that particular head of state through voting processes. Even though monarchists have claimed the compatibility of a democracy and monarch, in fact, there seems to be incompatibility between customary practice and the rule of law brought about by democracy (Monga, 1996:18).
The example in terms of the above is drawn from the issue of succession disputes today, which in many instances end up being argued in a court of law. This is as
18 opposed to the appliance of customary law which allows succession disputes to be dealt with by traditional leaders themselves in accordance with their customs and traditions. As Schepera (1963: 52) remarks, no person who is not a senior member of the royal family lineage is entitled to succession. Ordinarily, the eldest son would qualify as an heir to the throne. The latter is consistent with the Setswana saying that 'bogosi boa tsalelwa' which literally translated means that 'a chief/traditional leader is a traditional leader because he is born into it'.
On the other hand, the concrete disadvantages of the democratic theory cannot be over-emphasised. The danger of the democratic theory is that once a president has voters and the support of powerful business men, he or she no longer represents the interests of every citizen but that of a political party and business people who helped him or her obtain the position.
Consequently, the combination of tenets of both democratic and traditional theories in this study constitutes and represents the Machiavellian school of thought. In his articulation of politics of state and citizenry, Machiavelli talks to the problem statement of this study. Moreover, Machiavelli never attempts to analyse things as they are imagined, but rather as how actually they are. His consistent analysis is to examine what is actually done compared to what should be done. According to Boucher & Kelly (2007: 155), Machiavelli's comparison of a monarch and the republic acknowledges the combination of the two systems as the number one killer, particularly with regard to ensuring both security and prosperity.
Machiavelli further applauds republics because it can be able to adapt better to the changing times and most importantly, acknowledges that the rule of law also allows for individual survival through adventurous and innovative spirit. Interestingly, Machiavelli goes on to clarify the nature of society as naturally divided into competing interests and could never be kept to a perfect unity and criticizes the classical and medieval idea that the community is naturally united (Boucher & Kelly, 2007: 155).
Even though the combination of both theories into one system of government may not necessarily be the best, they are better when combined. As a result, based on the deliberation of the two theories articulated above, the study adopted the 'democratic
19 theory' as it talks to the context and content of this research . Secondly, it is relevant to the current system of governance in South Africa.
2.4. CONCLUSION
Literature review and theoretical framework are used to understand the context of a research problem. An overview of issues discussed in the literature review reveals many issues linked to the existence of the problem, in th is case, challenges relating to traditional leadership succession. These issues, among others, include the linkage between the well-known Bophuthatswana and apartheid regimes and the problem which in the researcher's view, are the primary role players in terms of influencing the cu rrent challenges relating to traditional leadership.
It is worth mentioning that the tools that both Bophuthatswana and the apartheid regimes used were necessary for the survival of the said regimes and as a result, the same modus operandi may still be used by the current regime to influence traditional leadership succession in the name of constitutional democracy. The foregoing argument is further discussed under political interference in the affairs of traditional leadership in Chapter four (4) (para 3.3.4). Literature review provides the reader with a clue in terms of how other authors, policy makers, politicians and scholars would have viewed the study.
The discussion of theories which explain the context of the study is quite clear. It is thus concluded that challenges relating to traditional leadership succession in South Africa are as a result of the influence of a mixture both traditional leadership and democratic theories in a republican state. Even though the two theories interrogated above differ in terms of their advantages and disadvantages, it appears that they both influence the state of affairs in South Africa, particularly with regard to issues of traditional leadership. For an example, South Africa is not a monarchical state but a constitutional democracy; however, it is also governed traditionally through traditional leadership structures.
It is, however, evident that within the context which these traditional leadership challenges appear, they can only be understood in relation with the democratic theory. In this case, though the tenets of both theories are evident in this study, they are, however, dominated by the democratic theory. This also speaks to the system of governance practiced in South Africa today which surely resembles advantages 20 established earlier from both traditional and democratic theories. As a result, the democratic theory may be used to analyse the problem under discussion, in this case, the current challenges relating to traditional leadership succession in the North West province. As a point of departure, the study adopts the democratic theory as a tool for analysis.
21 CHAPTER THREE
HISTORY AND CHALLENGES RELATING TO BAKGATLA TRADITIONAL LEADERSHIP SUCCESSION AND THE ROLE OF TRADITIONAL LEADERS IN THE 21 sr CENTURY
3.1 INTRODUCTION This chapter discusses three major issues which are the embodiment of this study. The first issue discussed is the origin of Bakgatla ba Kgafela traditional community. The Chapter unpacks the history of Bakgatla ba Kgafela traditional community. Secondly, it discusses current challenges relating to traditional leadership succession in the North West province with particular focus on Bakgatla traditional community. Lastly, it explores the role of traditional leaders in the 21 st century. The discussion is aimed at interrogating and providing answers to issues relating to institutions of traditional leadership in the current democratic dispensation in South Africa.
3. 2 HISTORY OF THE BAKGATLA BA KGAFELA IN MORULENG
The totem of the Bakgatla Ba Kgafela tribe is a blue monkey (Kgabo). According to Breutz (1945:244) , the tribe is one of seventy four (74) Bantu tribes in South Africa. The Bakgatla ba Kgafela is therefore one of the prominent and historically rich tribes living in South Africa for decades. The BaKgatla ba Kgafela tribe is a Setswana-speaking community in the Bojanala District of the North-West province of South Africa. The village (which Bakgatla resided in) was formerly called 'Saulsport' but is today known as 'Moruleng'. Saulsport, as it was known in the past, was administered under the region referred to as 'Pilanesberg' in Afrikaans which literally means 'Pilane's mountain' (circular ring of mountains behind today's Sun City).
In his lecture on the participation of the Bakgatla ba Kgafela tribe in the South African War, popularly known as the Anglo-Boer War, Mbenga (2015: 3) maintains that the Voortrekkers arrived in the area during the early 1840s. He posits that the chief of the Voortrekkers in charge of the Bakgatla at the time was called Pilane hence, they named the mountains and the region 'Pilanesberg' after him.
22 The village has been referred to as Pilanesburg until today. The Bakgatla have lived in this area since the 17th century. The rest of the Tswana groups in the Pilanesberg area were invaded by the Bafokeng of Kgosi Sebitloane, the Ndebele of Mzilikazi and lastly, the Voortrekkers, later referred to as the Afrikaners. Fokeng and Ndebele conquests were relatively short-lived as both groups eventually left the region and headed north where they founded new kingdoms.
By the late 1840s, the entire western Transvaal in particular, which included Pilanesberg, had been brought under Boer rule . As part of their subjection of African societies, the Boers appropriated African-occupied land and Africans already living on it became tenants under conditions decided by them , the new landowners. In the governance of Africans in the Rustenburg District, the leading government official was Paul Kruger, a major landowner, as well as a political and military leader who, by the mid-1860s, had become a Commander-General. The largest concentration of the Bakgatla lived in Moruleng (or Saulspoort) under chief Kgamanyane who had come to power in 1848 or 1849.
Among the hallmarks of Boer rule resented by the Bakgatla and other Africans in the district was the flogging of their chiefs by government officials if they were thought to have flouted instructions. Africans also resented the compulsory rendering of unpaid labour on Boer farms and the extortion of some of their possessions. These pressures were becoming more onerous by the late 1860s. In April 1870, because Bakgatla men refused to continue with the forced transportation of cartloads of large boulders of stone for the construction of a dam for a wheat irrigation project in Saulspoort, Kgosi Kgamanyane was publicly flogged by Paul Kruger himself. This humiliating event was the deciding factor in Kgamanyane's decision to emigrate from the Transvaal (Mbenga, 2014: 2) .
Kgamanyane, with about half of his people, immigrated to the Mochudi area in the land of the Bakwena, who were then under Kgosi Sechele, in what was soon to become the British Bechuanaland Protectorate. When the Pretoria Convention was signed between Britain and the Republic of South Africa in July 1881 , an international border was fixed along the Madikwe River between the two territories. Thus, the border between British
23 Bechuanaland (today Botswana) and the Transvaal split the Bakgatla permanently into two segments, with their paramount chief located outside the Transvaal, a reality that has persisted until today. Today, there are about 350 000 South African Bakgatla people living in 32 villages on land they bought from the Boers between 1880 and 1930 and to which they hold legal titles. The capital of the Bakgatla's, Moruleng or Saulspoort, is the most central of their villages. They are currently ruled by Kgosi Nyalala Molefe John Pilane. Apart from acting chieftainships in between, he is the third kgosi to rule the Bakgatla of South Africa since the emigration of his great grandfather, Kgamanyane (Mbenga, 2014: 03).
3.3. SUCCESSION IN BAKGATLA BA KGAFELA According to Schapera (1945: 153), Mogale's son, Matshego had in his first house only a daughter named Mosetlha. In the second house, Matshego had a son named Kgafela. Upon Matshego's death, a dispute broke out over his succession between Mosetlha (daughter) and Kgafela (son) . This was because other Bakgatlas refused to be ruled by a woman (Mosetlha) and supported Kgafela as a senior son to rule them while others wanted Mosetlha to succeed her father (Matshego).
This difference in opinion split the Bakgatla ba Kgafela into two groups; the first one named the Bakgatla Ba Kgafela led by Kgafela and the second one Bakgatla ba Mosetlha led by Mosetlha. When Kgafela split with Mosetlha, he was accompanied by his younger brothers Kau and Motsha. When Kgafela, Kau and Motsha arrived at the Tshwane River, baga Kau and baga Motsha broke away from ba Kgafela and the place Tshwane.
It was shortly after ba Kau and ba Motsha broke away from Ba Kgafela that they also split. Today, there are the Bakgatla ba Kgefela in Moruleng, ba Mosetlha in Makapanstad, ba Mmakau in Mmakau and baga Motsha in Hammarskraal. History holds that in 1869, during the reign of Pilane's eldest son in the first house, Chief Kgamanyane left South Africa with other Bakgatla tribesmen and settled in Mochudi, the former Bechuanaland British Protectorate currently known as Botswana. According to Breutz (1945: 259), the reason for Kgamanyane's relocation was precipitated by Paul Kruger who wanted the Bakgatla men to work for him in farms free of charge.
24 History holds that when Kgamanyane left South Africa, he left other Bakgatla behind with Mokae, son of Moselekase. Moselekase was Kgamanyane's half brother in the 1O th house (Mohlamme, 2000). In 1874, Kgamanyane died and was succeeded by his eldest son from the great house, Lentswe I. During Lentswe's reign in Mochudi, he deemed it necessary to nominate his deputy who would rule Bakgatla in Transvaal, now South Africa. Lentswe accordingly, sent his younger brother in the same house, Ramone I to rule other Bakgatlas in Moruleng, South Africa in 1903. It is further noted by Schapera (1945: 20) as quoted above that Ramone I was the chief officially recognised by the then Transvaal government.
Ramone I ruled in Moruleng from 1903 to 1922. When Ramone I died, his eldest son Tidimane Ramone was still a minor and could not take over. Ramone l's half brother, Dialwa then acted from 1917 to 1922. Dialwa was then succeeded by Ofentse as a regent from 1922 to 1942 and lastly, Thari acted from 1942 to 1949. After all these three regents had acted, Tidimane Ramone eventually took his rightful position as Kgosi of Bakgatla ba Kgafela in Moruleng in 1949 and served until 1993.
Upon Tidimane's retirement in 1993, he wanted his eldest son Merafe Ramone to succeed him. However, Lentswe 11, being a chief of Bakgatla in Mochudi, Botswana, did not like Tidimane's wish that Merafe should succeed to the throne.
Central to the foregoing was the burning issue of who must succeed Tidimane Ramone. As a result, post-Tidimane's reign became associated with court battles for the search of the Bakgatla traditional leadership between both Tidimane and Lentswe 11. This was because of the Bakgatla custom and traditions which refers to Kgosi in Mochudi, Botswana as the 'paramount Chief' and therefore, has the prerogative to appoint a Kgosi in Moruleng South Africa (Ramono's interview, CTLDC, 21 November 2012).
Consequently, the court judgment of 1995 presided over by Judge Hendler ruled in favour of Lentswe 11. As a result, Lentswe 11 came all the way from Botswana to South Africa to appoint the current incumbent Kgosi Nyalala Pilane. Surprisingly, Kgosi Nyalala Pilane is the 5th child and son of Bogopa, Tidimane Ramono's younger brother.
25 3.3.1. BBK Senior Traditional Leadership Succession
MATSHEGO
KGiFELA
TEBELE• MASELLANE• (PHETO I) MARE• KGfEFANE• MOLEFE (1770-1790) PHETO• II (1795-1810) LETSEBE• (1815-1820) PILANE• (1825-1853) KGAMANYANE• (relocated to Botswana, Succession in Botswana) ( 1853-1874) LEN/swE I (1875-1924) RAMoto I (succession in South Africa, Moruleng)
KGAFELA• (1924-1936) Dialwa• (Regent 1917 -1921) MOLEFI• (1936-1945) Ofentse• (Regent 1922- 1942) LENTSWE• II (1963-2007) • Thari (Regent 1942-1949) KGAFELA• KGAFELA (2007 to date) TIDIMANE RAMONO (1949-1996) NYALALA PILANE (1996 to date)
3.4 SOCIO-POLITICAL CHALLENGES RELATING TO TRADITIONAL LEADERSHIP SUCCESSION
The bone of contention of this study is that, notwithstanding the detrimental impact brought about by the twin regimes of apartheid and Bophuthatswana to institutions of traditional leadership, which the subsequent constitutional democratic South Africa had to bear the brand of, the post-1994 period in South Africa later presented its own new additional and unique challenges. These current socio-political challenges pose many questions to the executives and legislators in relation not only to succession but also to the broader governance of institutions of traditional leadership. For the purpose of this
26 study, only impediments which affect traditional leadership succession are discussed. As a result, the Bakgatla ba Kgafela is the community in the spotlight, among others.
The Bakgatla ba Kgafela is a traditional community that strictly respects customary law and customs. As a result, any decision to identify or install a traditional leader has to be in accordance with Bakgatla customs. In terms of the latter, an heir should be an eldest son from the senior house of the Kgosi.
The North West Traditional Leadership and Governance Act No. 2 of 2005 in section 13 (1) stipulates that bogosi of a traditional community shall be in accordance with that community's customary law and customs. In the same way, Section (2) of the Act entrusts the royal family with the power to designate the kgosilkgosigadi of any traditional community in accordance with that community's customary law and customs. This legislative background is therefore provided in order to indicate to the reader that the current challenges relating to traditional leadership are not only customary but legal as well (North West Traditional Leadership & Governance Act, 2005).
3.4.1 Contravention of customary law of succession
Most of the time, traditional leaders find themselves at logger heads with their siblings and uncles over who is the rightful heir to the position of traditional leader. This happens quite often not because the people involved do not know an heir to the throne but precisely because they also want to obtain the position of power and incentives attached to such position. The dispute of the Bakgatla, which until today is still not resolved is an example. The dispute started as early as 1993 after the retirement of Tidimane Ramano following the appointment of the current incumbent traditional leader, Kgosi Nyalala Pilane by Kgosi the late Kgosi Lentswe II from Botswana (Oral History 2015).
At the centre of the dispute of the Bakgatla were two issues of customary practices which are very important. Firstly, it has always been the customary practice among the Bakgatla that the Kgosi in Mochudi, Botswana has a prerogative to appoint the Kgosi in Moruleng, which was followed in the case of the appointment of Kgosi Nyalala Pilane. However, according to the Bakgatla royal family (CTLDC Interview, 2013), before an
27 appointment is made, there must be proper consultation with the roya l families in Moruleng, South Africa and it is their conviction that such consultation never took place in the case of Kgosi Nyalala Pilane's appointment.
Secondly, the Bakgatla, like other traditional communities, observe a customary practice of the principle of male primogeniture in which the eldest son in line of succession is an heir to the traditional position . On the contrary, Kgosi Nyalala Pilane is actually the 5th son in the house of Bogopa Ramono-Pilane. Bogopa is the brother to Tidimane Ramono who led the Bakgatla in Moruleng from 194 7 to 1993 as discussed in para 3.3. Apart from the much talked about contravention of customary practices among the Bakgatla, the majority of these Bakgatla royal families being the family of Kgamanyane, Moselekase, Mantirisi, Tshomankane and Matshego, have expressed their discontent and disregard of the paramount Chief (Kgosi-Kgolo), Kgosi Kgafela Kgafela. These royal fam ilies, in fact, believe that they are not part of the Bakgatla in Mochudi, Botswana and therefore, not supposed to pay allegiance to Kgosi Kgafela. The secession was, however, not done formally (CTLDC Interview, 2013).
In addition, the issue of succession of Bakgatla in Moruleng, South Africa from those in Mochudi, Botswana seems to have gained momentum and further taken seriously by many Bakgatla in South Africa. Interestingly, this succession issue was highlighted and emphasised by the N. Ntibinyane of Botswana Guardian Newspaper revealed in an interview conducted on 22 August 2013 with one Royal Council member. Arguments presented in the North West High Court speak volumes about the latter (http://www.botswanag uardian .co .bw/news/941-is-kgafela-kgosi-kgolo-in-sa .html 27 August 2015.
Furthermore, many questions have been asked with regard to the legitimacy of Kgosi Kgafela and his position as 'paramount chief over the Bakgatla in Moruleng , South Africa . The first question relates to the relevance of the position of 'paramount chief in South Africa which is not covered in the legislation relating to the Traditional Leadership Governance Framework Act of 2003 as amended in 2009. The second question relates to the citizenship of Kgosi Kgafela. According to the department of Home Affairs, the status of his citizenship was put in abeyance pending investigations by the department. This was as a result of allegations that Kgosi Kgafela obtained his South African Identity 28 document fraudulently. Consequently, all these questions articulated above, have the potential to render illegitimate Kgosi Kgafela's customary prerogative traditional authority over Bakgatla traditional community in Moruleng, South Africa (CTLDC Report, 2014). It is, therefore, on the basis of the analysis articulated above that there is contravention of customary practices and non-compliance by the same traditional leaders. The non-compliance to customary practice ultimately degenerates into the appointment of illegitimate traditional leaders as is the case in many traditional communities in the North West province.
The second high profile and yet old dispute is that of Baphalane ba Ramokoka in Ramokokastad village which is still unresolved. The group of other members of the royal family led by Bensman Ramokoka alleges that the current incumbent Kgosi James 'Joy' Ramokoka is not the rightful heir to the throne. The researcher is strongly of the view that all parties to the disputes are familiar with the truth , particularly the Royal family with regard to who actually is an heir to the throne. It is therefore not necessary for these disputes to be debated outside the Royal family since they are the ones who are conversant with the genealogy and the customary laws of that particular ethnic group. Once the Royal family becomes divided and ultimately fails to amicably resolve a dispute, it means there is more to the dispute than just a question of the position of traditional leadership (CTLDC research report, 2012).
The deliberate violation of customary law of succession by traditional leaders is caused by the ignorant behavior sometimes displayed by the current recognised traditional leader. When the said recognised traditional leader is in power, he tends to exclude other royal family members and ignore the needs of the community. Eventually, only the Kgosi and his allies benefit at the expense of the community. As a result, the royal family is left with no option but to seek other avenues such as deliberately violating customary law of succession with the intention of removing the incumbent.
3.4.2 Recognition of a woman as a traditional leader
The demise of apartheid in South Africa marked the dawn of democracy and subsequent attainment of freedom. This led to the enactment of the Constitution of South Africa, Act 108 of 1996. Chapter 12 of the Constitution recognises the role and
29 status of traditional leaders for the first time since apartheid. As if this was not enough, the Constitution further stipulates that no one shall be discriminated upon based on gender, colour, or race. In a nutshell, the Constitution and other pieces of legislation equate women to men in terms of the work and positions they hold whether in government, the private sector or traditional leadership.
Furthermore, the foregoing has brought a paradigm shift within institutions of traditional leadership, precisely because customarily, women were precluded from acceding to positions of traditional leadership, a practice that has been in existence from time immemorial. Only men were allowed to lead tribes. In a scenario where in the senior house the traditional leader gave birth to a female, and the second child turned out to be a boy, ultimately, the male child is considered the rightful heir to the throne than a female. If there is no male child in the senior house, the position of traditional leadership goes to the available male child in the next senior house. This is referred to as customary law of succession. For example, the BBK have never been led by a female. This has always been a customary practice among the Bakgatla since 1600s. In fact, this was the major reason why the BBK broke away from Bakgatla ba ga Mosetlha. Mosetlha was a female heir and Kgafela the second child of Mogale did not want to be ruled by a woman (Mosetlha). As a result, Kgafela decided to break away from Bakgatla ba ga Mosetlha, hence, the name Bakgatla ba ga Kgafela (Schapera, 1945: 153).
Recently, one of the famous traditional leadership cases of Nomaxhosa Sigcawu was decided upon in the Constitutional Court on the basis of customary law rather than Constitutional imperatives. De Vos (2010: 1) argues that despite the South African Constitution being clear on the recognition of the role and status of traditional leadership subject to the Constitution, the case of Nomaxhosa Sigcawu brought another debate on the question of customary law at the expense of the Bill of rights.
Nomaxhosa was denied the right to succeed his father, Zwelidumile Sigcawe of Amagcaleka traditional community because she was a woman. This was because customarily, among the Amagcaleka community, only males can succeed to the throne. In her argument, Nomaxhosa claimed she should have been installed as a King of Amagcaleka community as the first child of King Zwelidumile Sigcawu's first wife, Queen Noziwe after the death of King Xolilizwe Sigcawu in 2006. Instead Xolilizwe, the male child from the junior house of King Zwelidumile and therefore Nomaxhosa's half 30 brother was installed in the position of Kingship after the death his father, Zwelidumile. Nomaxhosa argued that Xolilizwe was allowed to be a King because she was still a minor. Furthermore, Nomaxhosa's expectation was such that after the demise of Xolilizwe she could take over her position rather, Xolilizwe's son , Mpendulo took over the reign. As a result, Nomaxhosa claimed that the Amagcaleka customary law that only the oldest male could become a King/Traditional leader discriminated against her on the basis of her gender and was therefore unconstitutional (De Vos, 2010: 1).
The foregoing issue of succession has since brought intense debates within the society to the effect that women have felt discriminated against on grounds of gender. However, it is argued in this study that Nomaxhosa's case should not be construed as discrimination against women but rather the demonstration by the South African court to balance customary law and the Bill of Rights enshrined in the Constitution. The other mistake that most analysts make is to paint the two cases of Nomaxhosa of Amagcaleka traditional community and that of Nwamitwa of Valoyi Community with the same brush with regard of the court judgments made. As a point of departure, it is the view of this study that the two cases are different and the courts had to rule on both cases differently.
In conclusion, South African courts have over the past fifteen years, been overwhelmed by files of women from royal houses who want to lead their respective tribes as traditional leaders. Interestingly, some of these women have emerged victorious such as Ms Nwamitwa in the case of Valoyi traditional community in 2008 (Case CCt 03107, 2008/ZccgJ. l ,;~tvl Furthermore, the foregoing has been a challenge within institutions of traditional - leadership, precisely because customarily, women were precluded from obtaining positions of traditional leadership and this has been practised from time immemorial. Only men were allowed to lead different tribes. In a scenario where in the senior house the traditional leader gave birth to a girl, and the second child is a boy, ultimately, the boy is considered to succeed the father rather than the girl. If there is no boy in the senior household, and there are only girls, the position of traditional leadership goes to the available boy in next senior household. This is referred to as customary law of succession.
31 The issue of succession has since brought about intense debates within the society to the effect that women have felt they are being discriminated against on grounds of their gender.
3.4.3 Long-term regency of a traditional leader
Once a recognised traditional leader passes on or steps down and his/her successor is still a minor or working at the time, a regent is then appointed to act on his/her behalf. This regent is usually an uncle from the royal kraal (Kgotla) of that particular royal family. The challenge is usually when a regent acts in the position for a very long time. Furthermore, sometimes, even when the regent has passed away, the position is still erroneously given to his/her descendants. This is sometimes despite an objection being raised perhaps by prominent royal family members who are conversant with royal family genealogy.
Once the position of traditional leadership is taken by the descendent of the late regent, it goes from one child to another. This then means that the traditional leadership position has left its rightful family but to the family of the late regent. The other scenario is that, sometimes, while the regent (normally uncle) is still holding a traditional leadership position and on the other hand, an heir is ready to take up the position, the regent refuses to relinquish power. Once a regent refuses to surrender the position to its rightful incumbent, it subsequently leads to a dispute. This dispute, most of the time, causes infightings and divisions among members and relatives of the royal family.
3.4.4 Political interference into the affairs of traditional leadership
It has become a common factor that in most traditional communities, particularly where there are mines, traditional leaders with motives tend to seek for political validation and endorsement. As a result, politicians become involved in the affairs of traditional leadership.
Although a traditional leader is identified by the royal family taking into consideration the impartial application of customary law, this study cannot set a blind eye on the fact that the Premier or President in the case of Kingship endorses such appointments. This clearly demonstrates the role that politicians can play in terms of influencing appointments, particularly when there are interests at stake. 32 Apart from the influence through appointments, the so-called □ -Account has in recent years, sparked violence and revolts by most traditional communities in the North West
Province. The □-Account is the account for communities where royalties are deposited by the mining companies. Such accounts are administered by government (the Treasury) . As a result, there have been allegations of misappropriation of funds from these □-Accounts which have implicated some top politicians. In January 2012, the Public Protector was requested to investigate allegations of fraud , mismanagement and corruption into the □ -Accounts of Bapo ba Mogale and Bakwena ba Mogopa traditional communities. The traditional communities occupy the land in the Madibeng District between Hartbeespoort and Brits with vast deposits of platinum, vanadium and other mineral resources (City Press News, 11 February 2012).
3.4.5 Royal family bureaucracy
In the event where there is stable and proper traditional leadership in place, particularly in a village with mines, only few people benefit from such resources. Those who benefit are usually the friends and cronies of the kgosi/kgosana in power. This is done to the exclusion of other royal family members and the community.
More often, when royal family members get sidelined , they rebel against the current kgosrtkgosana's regime. This has happened in many traditional communities where a particular group of royal family members who feel aggrieved or excluded, dispute the legitimacy of the Kgosi/Kgosana. It happens not because the current Kgosi/Kgosana is not the rightful heir to the throne but because the perpetrators feel that they are somehow excluded from the affairs of their own traditional community. There is thus the need to interrogate why members of the royal family do not benefit from royalties paid by mines to the family.
3.5 THE ROLE OF TRADITIONAL LEADERS IN SOUTH AFRICA IN THE 21 ST CENTURY
Although there are still antagonising and contrary views on the role of traditional leadership in modern times, many believe that traditional leadership still plays a very
33 pivotal role at the level of local government. This is due to the social proximity to their communities and further empowers them to advise government on the socio economic needs of the people. Unlike during the colonial era, post-1994 South Africa drafted and promulgated into law the 1996 Constitution which clearly recognises the status and role of Traditional Leadership in Chapter 12. The enactment of Traditional Leadership and Governance Framework and Communal Land Rights Acts of 2003 essentially juxtapose traditional governance with that of the state. The promulgation into law of the above legal instruments was to ensure that the administration of rural areas was brought back to traditional councils through the control of land allocation (UN Economic Commission for Africa Southern Africa Office Workshop, 73: 2007).
Despite the theoretical battles regarding the relevance of traditional governance in modern times, the findings of a study conducted by Professor Amoateng reveal that the public still holds traditional leadership in very high esteem. In South Africa, for example, an analysis of data of a study conducted by the HSRC indicates that traditional leadership enjoys a sanguine reaction even in provinces where traditional leadership structures hardly exist such as in the Western Cape and parts of Gauteng. Consequently, Amoateng's findings reveal the same strong support for traditional systems even in an African country such as Zambia (Amoateng, 72:2007).
Boyane (2005:17) interviewed some members of SAPS and it was found that traditional leaders play a very vital role in crime prevention in their communities. The interviewees went on to suggest that traditional leaders should be further empowered with necessary resources in order to administer justice and help fight crime. Cele is of the view that South Africans still consider traditional leadership as part of their culture and identity despite the experiences of the apartheid regime.
34 CHAPTER FOUR
4.0 WHAT MAKES A RIGHTFUL TRADITIONAL LEADER AND THE FUTURE OF TRADITIONAL LEADERS IN SOUTH AFRICA BEYOND THE 1996 CONSTITUTION
4.1 INTRODUCTION The principles of democracy brought about by the transitional government post-1994 have had a tremendous impact on traditional leadership succession in South Africa. The identification of traditional leaders and their role is no longer primarily determined on the basis of customary law and traditions alone, but Constitutional imperatives are also taken into consideration. For example, the Constitutional Court case of 2008 involving Tinyiko Shilubana Nwamitwa v Sidwel Nwamitwa. The purpose of this chapter is to examine and discuss what makes a traditional leader a rightful heir to Bogosi. This also takes into consideration the customary law of succession and traditions of a traditional community and the Constitution of the Republic of South Africa. This chapter also examines the future of traditional leaders in South African beyond the 1996 Constitution as well as the relevance of traditional leadership in the 21 st century.
4.1.1 What makes a rightful and legitimate traditional leader?
The North West Traditional Leadership and Governance Act (No 2 of 2005) provides in section 13 that Bogosi of a traditional community shall be in accordance with the customary law and customs applicable in such traditional community. Furthermore, the same section stipulates that the royal family will designate the Kgosi/Kgosigadi to bogosi of a traditional community.
Furthermore, the principle of male primogeniture, which provides for the eldest son to succeed his father, cannot be ignored. The customary law of succession is the cornerstone in terms of which the successor to the position of traditional leadership is identified. This, however, does not rule out other customs and traditions such as Seyantlo and Go tsenela.
Ordinarily, a traditional leader is born not elected . In Setswana language, "Kgosi ke Kgosi ka e tsetswe". The foregoing further confirms that conclusion on the legitimacy of a rightful traditional leader cannot be determined on the basis of legislation affected only
35 but rather customary practices are also very important. In addition to the foregoing, certain processes of customary law of a particular ethnic group, whether Bakgatla, or Barolong, must be observed . On the same note, in 2013, the Mantirisi family made a submission during a joint interview with all the Bakgatla royal families (CTLDC interview, 2013) that consultation was never embarked upon when Kgosi Nyalala Pilane was appointed by Kgosi Lentswe 11 from Botswana. The members of the Mantirisi family are descendants of the great Pilane's houses. However, they were joined by the royal families of Bakgatla, that is, Kgamanyane, Chomankana, Matshego, Pheto and Moselekase.
Lastly, the rule of law as enshrined in the Constitution, Chapter 12 in particular, is that the Constitution supersedes customary law.
4.1.2 The future of traditional leaders in South Africa beyond the 1996 Constitution
The question that arises is whether or not South Africa should proceed with western system or be traditionally oriented? An analysis of pros and cons as far as traditional leadership succession and institutions of traditional leadership are concerned , will determine the answer to the above question. Mazibuko (2012 :15) maintains that traditional leadership is irrelevant in today's society, but at the same time, acknowledges the need for the recognition of identity. Mazibuko further posits that 'traditional leadership is not in line with the Constitution'. Based on these positions, it could be concluded that customs and traditions are not static. As a result, post-1994 with regard to the relationship between traditional leadership and constitutional imperatives are clear and balanced. As Khunou (2009:109) maintains, "all traditions, customs and customary laws are influenced and qualified by the Constitution".
The 1996 Constitution of South Africa has brought developments to the system of tradition leadership. Among them are the enactment of various legislation which make provisions for the establishment of the National, Provincial and local house of traditional leaders. Furthermore, this legislation provide for salaries and benefits fo r traditional leaders.
36 The 1996 Constitution has also influenced the manner in which traditional leaders get appointed. For example, women can now be appointed in positions of traditional leadership, unlike in the past. This is in line with Section 9 (3) of the Constitution which stipulates that:
The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
4.1.3 Conclusion Based on the discussion in this chapter, the reader is able to differentiate between customary law prior and after the 1996 Constitution of South Africa. This means the application of customary law in terms of appointing a traditional leader now makes reference to Constitutional provisions. Customary practices and traditions are, however, respected and recognised in terms of Chapter twelve (12) of the same Constitution. The reader is able to be in a position to understand the relationship between customary law and constitutional imperatives.
37 CHAPTER FIVE
5.0 CONCLUSION, FINDINGS AND RECOMMENDATIONS
5.1 CONCLUSION Traditional governance in South Africa is still to be considered as the most critical structure at the local level, especially in the villages. Challenges associated with this structure must be attended to at an early stage. This study has explored socio-political challenges relating to traditional leadership succession in the North West province. The challenges were identified and solutions proposed thereof in order to guide policy makers and government accordingly.
It is believed that a study of this nature is long overdue considering the relevance of leadership succession within traditional communities. This study has un-earthed a number of underlying issues which are immune, if not, detrimental to the existence of traditional leadership in the 21 st century. The study further sought to answer questions such as whether or not traditional leadership is still relevant in the 21st century. The definition of the role of traditional leadership vis-a-vis local councilors and the question of what constitutes a legitimate traditional leader were discussed.
Notwithstanding the above, the study has proven beyond reasonable doubt, that indeed, there are still problems and challenges faced by institutions responsible for traditional leadership succession in the country. Such as challenges were not only created by the erstwhile oppressive regimes of colonialism and apartheid but have been continued by the new government. With the enactment of pieces of legislation which recognise and uphold institutions of traditional leadership, many problems have arisen. Sithole (2008:17) shares a similar view, though narrowly on the issue of the role of traditional leadership. The conclusion drawn in this study is that, not only is the role of traditional leadership affected but many aspects such as succession and customary practices have been tempered with as well.
38 5.2 MAJOR FINDINGS OF THE STUDY
Based on the study, it is therefore established that: Firstly, there is an inescapable linkage between traditional leadership succession issues and the democratic dispensation. Developmental activities surrounding the traditional leadership institutions have influenced current challenges relating Traditional leadership succession today. In this regard , the contravention of customary law by members of royal families and long term regency identified as challenges above, are reflected on the matter of appointment of Kgosi Nyalala Pilane in Moruleng by Lentswe II. For example, this same issue of appointment of Kgosi Nyalala in Moruleng has been a centre of debate regarding the issue of customary law. This, however, prompted the BBK in Moruleng to consider secession as an option and to further resolve not to pay allegiance to Kgafela as has always been the case from time immemorial. Secondly, it was further established in this study that although the post - 1994 era brought life and vibrancy within institutions of traditional leadership, the era has also provoked conflicts between Constitutional imperatives and customs and traditions. The case of Ms Nomaxhosa and Ms Shilubane are practical examples.
Thirdly, in terms of the role of traditional leadership in the 21 st century, it was established in this study that there is an overwhelming interest demonstrated by communities in order to influence debates around the legitimacy of the rightful Kgosi. For example, the Bakgatla have demonstrated such passion and as a result, this is where the involvement of politicians comes in. Challenges relating to tradition leadership succession are precipitated by the fact that the role of traditional leaders is recognised and upheld. These challenges are clearly spelt out in pieces of legislation passed by the democratic South Africa, which, among others, include the Governance Framework Act, No 43 2003 as amended, the Communal Land Rights Act and the Municipal Structural Act. In terms of this legislation, the participation of traditional leaders is recognised and in a nutshell, their role is indispensable.
Lastly, the most critical objective which this study set out to achieve relates to the fundamental question of what actually legitimises a traditional leader. Based on the previous cases debated upon, both in Court and in the Commissions, which the researcher happened to have participated, it was found out in this study that the rightful heir of traditional leadership is firstly, determined on the basis of seniority from the 39 genealogy of the family tree. Secondly, customary law of the community in question must be followed to identify such person. Lastly, the Constitution should take precedence and the rightful heir be identified and installed.
Among the BBK, history maintains that proper procedures were followed until 1993 when Tidimane Ramano retired and the question of who should succeed him came to the fore. This resulted in debates of customary law vis a vis legislative framework. In essence, the unresolved traditional leadership cases among the Bakgatla demonstrate that had error had been committed, and such error started since the reign of Kgosi Nyalala Pilane and has continued till date. As a result, it was established in this study that any appointment not done in accordance with legislation and customary law, which included seniority is flawed and the person appointed should therefore not be the rightful heir to the throne and be considered illegitimate.
5.3 RECOMMENDATIONS o Genealogies of all traditional communities must be updated on a regular basis. o Government should continue to monitor the usage of money in the Traditional Council Trust Accounts through the office of the Auditor general as provided for in the Northwest Provincial Framework Act No 2 of 2005.
o The college of Traditional leaders should be re-opened in the province.
o Identification of the successor to Bogosi must strictly be the responsibility of the Royal family concerned in accordance with the customary law of succession of the community.
40 REFERENCES
AMOATENG, A.Y. 2007. 'Presentation of Preliminary findings on Harnessing Traditional Leadership in Southern Africa'. HSRC, Johannesburg.
BEKKER, J.C. & C. RAUTENBACH, 2010. 'Nature and sphere of application of customary law in South Africa'.
BREUTZ, P.L. 1945. 'The Tribes of Rustenburg and Pilanesburg District'. para 259: 699.
CELE, S.B. 2004. 'The role of Traditional Leaders in the Democratic South Africa; closer look at the relations between traditional leaders and local government Councilors. SALGA KZN.
COMAROFF, J. & COMAROFF J. 2003. Reflections on liberalis: Social & Identities.
Commission on Traditional Leadership Disputes and Claims, 20 August 2013. Interviews.
CONSTITUTION of the Republic of South Africa, (Act No. 108 of 1996).
Constitutional Court of South Africa. 2008. Case CCT 03/07 (2008) ZACC 9. Date of Access: 27 August 2015.
DAVID, B. & PAUL K. 2007 'Political Thinkers: from Socrates to the present' United States, Oxford University Press, New York.
DONKERS, A. & MURRAY, R. 1997.'Prospects and Problems facing Traditional Leaders in South Africa' in de Villers B (ed) The Rights of Indigenous People: A Quest for Coexistence. Pretoria: HSRC.
DLPG (Department of Local Government & Traditional Affairs). 2000. 'White Paper on Traditional Leadership and Institutions' https://www.google.co.za/search?hl=en ZA&source=hp&biw=&bih=&q=Cooperative+gorvenac Date of Access: 16 July 2015.
41 HABSBURG, 0. 2010. 'Monarch v/s Republic' The Conservative Tradition in European Thought, Copyright: Educational Resources Corporation. stlouiscatholic.blogspot.com/ .. ./monarchy-vs-republic-by-otto-von.html Date of Access: 28 August 2015.
KEULDER, C. 2000. 'Traditional Leaders: State, Society and Democracy' Gamsberg :Macmillan.
KHONOU, S.F. 2009. 'Traditional Leadership and Independent Bantustans of South Africa': Some Milestone of transformative Constitutionalism beyond Apartheid. North West University, South Africa.
KHUNOU, S.F. & MASENG, J.O. 2013. 'Traditional Leadership towards the Political Changes and Constitutional revolution in South Africa: North West University.
KOELBLE, T.A. & LIPUMA, ED. 2005. 'Chapter: Traditional Leaders & democracy Cultural Politics in the Age of Globalization'; University Press.
MANDANI, M. 1996. 'Citizen and Subject: Contemporary Africa and the Legacy of late Colonialism; Princeton University Press.
MBENGA B.K. 2014. Inaugural Lecture: 'Participation of the Bakgatla ba Kgafela of Rustenburg District in the South African (Or Anglo-Boer) War of 1899-1902.
MBENGA, B. & MANSON, A. 2014. 'Land, Chiefs, Mining' South Africa's North West Province since 1840. Wits University Press, South Africa.
MBENGA, B. & MANSON. A. 2011 . 'People of the Dew' A history of the Bafokeng of Phokeng -Rustenburg Region, South Africa, from Early Times to 2000, Jacana Media (Pty) Ltd, Auckland Park, South Africa.
MERAFE R. 2012. Interviews: Commission on Traditional Leadership Dispute Claims Mmabatho.
MOHLAMME, J.S. 1996. 'Traditional Leaders of the Bakgatla baga Kgafela and their succession story': Vista University.
MONGA, C. 1996. 'The Anthropology of Anger: Civil Society and Democracy in Africa' United States of America. 42 N. Ntibinyane, 2014. Botswana Guardian: 'Is Kgafela Kgosi Kgolo in South Africa' http://www.botswanag uardian .co.bw/news/941-is-kgafela-kgosi-kgolo-in-sa . html, Date of Access: 27 August 2015. National Assembly, 2015. Proceedings: Questions and Answers Sitting. www.politicsweb.co.za/ .. ./jacob-zumas-reply-to-parliamentary-guestions-full Date of Access: 11 March 2015.
Oral History discussion March 2014
ROBINS, S.L. 2005. 'Limits to Liberation after Apartheid, Citizenship, Governance & Culture' : James Currey Oxford.
SCHEPERA, I. 1945. 'Ditiragalo tsa Morafe wa Batswana.
SITHOLE, M.P. 2009. 'Traditional leadership, democracy and Human Right' a theoretical quagmire; Journal Article; HSRC library, Pretoria.
SEBEGO, S. 2013. Briefing: Bakgatla ba Kgafe on the Senior Traditional Leadership dispute: Rustenburg .
SOANES, C. 2005. 'Oxford South African Pocket Dictionary' Oxford University Press Southern Africa (Pty) Ltd , Cape Town : South Africa.
The Mail Local Newspaper, 2013. TSHEHLA, B. 2005. 'Traditional leaders role in justice and crime prevention ', SA Cri me Quarterly No 11 March :Institute for Security Studies.
United Nation, 2007. Workshop on Harnessing Traditional Governance in Southern Africa. Johannesburg: South Africa.
WEBER, M. 2009. 'The theory of social and economic Organization' Free Press: New York.
WELMN, J.C. & KRUGER, S.J. 2001 . Research methodology: For the business and administrative sciences. 2nd Edition. Cape Town: Oxford University Press Southern Africa.
43