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A LEGAL HISTORY OF TRADITIONAL LEADERSHIP IN SOUTH AFRICA, BOTSWANA AND LESOTHO Thesis submitted in fulfilment of the requirements for the degree of Doctor of Laws in the Faculty of Law at the North-West University (Potchefstroom Campus) Khunou Samuel Freddy Student No: 119421 50 UDE (SEC) (Moretele College) B Juris (Unibo) LLB and LLM (UNW) Promoter: Prof W Du Plessis Date: October 2006 ACKNOWLEDGEMENTS o I wish to express my sincere gratitude to Prof W Du Plessis for her advice on the design, structure and content of this thesis. It is through her prodigious knowledge, expertise and experience that I managed to craft this thesis. I also wish to thank the Law Librarians of the Libraries of Universities of Free State, North-West (Potchefstroom and Mafikeng Campuses), Botswana, Lesotho and South Africa for their support during the writing of this thesis. A special thanks is also extended to the former University of North-West for providing me with sabbatical leave to execute this thesis. o It is also my sincere wish to extend my gratitude to Chief Mzimela, the Chairperson of the National House of Traditional Leaders for his insight and perspective put forth for the development of this work. I would be churlish if not woefully dishonest if I do not take this opportunity and thank the President of the Congress of Traditional Leaders of South Africa (CONTRALESA), Chief Patekile Holomisa for the invaluable contribution he made to the development of this work through his participation in various conferences on Traditional Leadership and Governance and his presentations. I also take this opportunity to thank Chief Thari Pilane for providing me with the necessary information and literature relevant to this academic discourse. o I will be amissed if I could not take this opportunity to express my appreciation to Prof R Mqeke, Law Faculty, Rhodes University, for his invaluable comments and the contribution he made on a section dealing with South Africa. 1 also wish to thank Chief Tumelo Seboko, the President of Customary Court of Appeal (Botswana) for reading a section on Botswana. His unremitting efforts and comments gave me an opportunity to redirect this section accordingly. My gratitude is also extended to Prof CM Fombad, Senior Lecturer at the University of Botswana for his willingness to make comments on a section pertaining to Botswana. I am also indebted to Dr NL Mahao, Executive Dean, Law Faculty, North- West University (Mafikeng Campus) for his advice and comments on a section dealing with Lesotho. o I am inevitably indebted to Mr JI Moletsane, Senior English Lecturer, Department of English (North-West University-Mafikeng Campus) for his maiden edition of this thesis. I find it important to thank Mr Michael Masoko and Ms Ruth Gaebee for typing this work. The patience, time and energy they invested in this work are highly appreciated. o Lastly, I would like to thank my mother, Magret Keaboifa Khunou for her support and motivation. It was within the ambit of her support that I gathered courage and commitment to pursue this thesis. The contribution of my brother, Herman Khunou is also greatly appreciated. DEDICATION This thesis is dedicated to my mother Magret Keaboifa Khunou, my late brother Edwin Makgweng Khunou and late grandmother Nkoko Mpheka Kotsedi. DECLARATION I duly declare that this thesis for the Degree of Doctor of Laws at the North-West University (Potchefstroom Campus) hereby submitted has not previously been tendered by me for a degree at this institution or any other University. I further declare that this thesis is my own work in design, structure and execution and that all materials and sources contained herein have been acknowledged. Khunou Samuel Freddy Date Title: A LEGAL HISTORY OF TRADITIONAL LEADERSHIP IN SOUTH AFRICA, BOTSWANA AND LESOTHO Keywords: Traditional leadership, Legal History of Traditional Leadership, Traditional Authorities, Traditional Courts, Male Succession, Polygamy, Patriarchy, Colonialism, Apartheid, Homeland System, Indirect rule, Democracy, Constitution, Transformation, Local Government, Legislation, Proclamation, Gender Equality, Land Administration, Traditional Communities, District Councils, Municipal Council. Aim of the study: The main aim of the study is to examine and pursue research regarding the history and role of law in the disintegration of the institutions of traditional leadership in South Africa, Botswana and Lesotho in order to make recommendations regarding the challenges and opportunities facing traditional authorities in these countries. The traditional systems, roles and functions of these institutions are traced from the pre-colonial era up to the period of democratic regimes in these countries. This study is based on the premises that the jurisprudence of the institution of traditional leadership is as old as mankind and that this institution is rooted in the rural soil of African communities. Research Methodology: This study is based on legal comparative research with reference to South Africa, Botswana and Lesotho. A literature survey of the most important sources dealing with history, legislation and policy documents was undertaken. Conclusion and Recommendations: The institution of traditional leadership is one of the oldest traditional institutions of governance in South Africa, Botswana and Lesotho. During the pre-colonial era traditional authorities constituted an important component in the traditional system of the administration of the traditional community. Traditions placed a great amount of responsibility on traditional leaders to look after the best interests of their communities. When the colonial government took over the reigns of these three countries, they changed the pre-colonial form and nature of traditional authorities. These colonial governments exercised control over traditional leaders and allowed minimum independence in their traditional rule. The post-colonial governments of South Africa, Botswana and Lesotho retained the institution of traditional leadership. The Constitutions of these countries provide the legal framework for the recognition and functioning of the office of traditional leaders. However, it has been noted in this study that the relationship between the traditional leaders and the governments of these countries has been a mixture of conflict and cordiality. One of the reasons for this uneasy relationship between the traditional leaders and the central governments of these countries is that the status, authority, power and functions of traditional leaders have been reduced considerably when new institutions such as Local Governments, Land Boards, District Councils and Village District Councils were given powers and functions previously exercised by traditional leaders. The post-colonial transformation of traditional leadership in these three countries has led to a steep decline in the authority of traditional leaders. In order to encourage active participation of the traditional leaders in the new democratic structures and bodies, the institution of traditional leadership must be adapted to the changing political, social and economic environments. Rural local government bodies and the national governments of these countries should not view the institutions of traditional leadership as competitors for political power. The post-colonial governments of South Africa, Botswana and Lesotho should introduce traditional leaders as equal partners in the development and advancement of rural communities. In order to achieve this goal the governments of these countries should empower and capacitate traditional leaders so that they do not become misfits in the new constitutional and democratic settlements. vii TABLE OF CONTENTS CHAPTER 1: INTRODUCTION 1.I BACKGROUND 1.I .I PRE-COLONIAL PERIOD 1.I .2 COLONIALISM 1.I .3 POST-COLONIALISM 1.I .4 DEMOCRATISATION OF TRADITIONAL LEADERSHIP 1.2 AIM OF STUDY 1.3 RESEARCH METHODOLOGY SECTION A: SOUTH AFRICA CHAPTER 2: PRE-COLONIAL SOUTH AFRICA 2.1 ORIGIN AND NATURE OF TRADITIONAL LEADERSHIP 2.2 POLITICAL MORPHOLOGY OF TRIBES 2.3 WEALTH AND MEANS OF PRODUCTION 2.4 ADMINISTRATION OF JUSTICE 2.5 CONCLUSION CHAPTER 3: COLONIAL SOUTH AFRICA 3.1 HISTORY OF COLONIALISM AT THE CAPE viii 3.1 .I DUTCH COLONIALISM 3.1.2 LIFE IN THE FRONTIER 3.1.3 BRITISH CAPE COLONIALISM 3.1.4 BRITISH RULE AND FRONTIER WARS 3.1.5 THE GREAT TREK 3.2 REPUBLIC OF NATAL 3.2.1 VOORTREKKERS AND BRITISH ENCROACHMENT 3.2.2 BRITISH AND THE ZULU'S KINGDOM IN NATAL 3.2.3 REALM OF ADMINISTRATION OF JUSTICE 3.2.4 MISSION AND TRADITONAL LEADERSHIP 3.2.5 CAPITALISM 3.3 VOORTREKKER REPUBLICS 3.3.1 ESTABLISHMENT OF A NEW STATE OF TRANSVAAL 3.3.2 FORCED LABOUR AND CAPITAL PUNISHMENT 3.3.3 DISCOVERY OF GOLD 3.3.4 ORANGE FREE STATE REPUBLIC 3.3.5 ANGLO BOER WAR 3.4 UNION OF SOUTH AFRICA 3.4.1 BACKGROUND 3.4.2 LABOUR SEGREGATION AND PRAGMATIC BLACK POLITICS 3.4.3 POLITICS OF LAND AND TRADITIONAL LEADERSHIP 3.4.4 BLACK ADMINISTRATION AND LEGISLATION 3.4.4.1 Black Affairs Act of 1920 3.4.4.2 Black Administration Act of 1927 3.4.4.3 Black Representation Act of 1936 3.4.4.4 Native Trust and Land Act of 1936 3.5 REGIME OF APARTHEID 3.5.1 POLITICAL ISSUES 3.5.2 BLACK AUTHORITIES AND TRADITIONAL LEADERSHIP 3.5.2.1 Purpose of Black Authorities Act 3.5.2.2 Traditional Authority 3.5.2.3 Regional Authority 3.5.2.4 Territorial Authority 3.5.2.5 A Critique of the Black Authorities Act 3.5.3 HOMELAND AFFAIRS 3.5.3.1 STRATEGIC CREATION OF HOMELANDS 3.5.3.2 INDEPENDENT BLACK STATES 3.5.3.2.1 Transkei 3.5.3.2.2 Bophuthatswana 3.5.3.2.3 Ciskei 3.5.3.2.4

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