Executive Overview of Recognition Architectures

The Traditional and Khoi-San Leadership Act 3 of 2019 (TKLA) establishes statutory mechanisms for the recognition and withdrawal of recognition of certain traditional and Khoi-San communities, leadership positions and leaders, and for the establishment and recognition of governance structures that support them (preamble; Chapter 2, especially ss 3–18; and the withdrawal provisions in ss 4, 6, 9 and 11). Where the Act requires recognition, it ordinarily formalises that recognition through publication by notice in the Gazette or a Provincial Gazette (e.g., s 3(3) for kingship/queenship; s 3(6) for traditional communities; s 5(3) for Khoi-San communities; s 7(6) for leadership positions; s 8(3)(a) for certain traditional leaders; s 10(5)(a) for Khoi-San leaders; and s 58(5)(a) for the Minister’s recognition decisions on Commission recommendations). For recognised leaders, the Act also provides for the issuing of certificates of recognition in specified cases (e.g., s 8(3)(b), s 10(5)(b), s 12(3)(b) and s 13(4)(a)).

The Act must also be read with its interpretive cautions and principles. In particular, recognition of a traditional or Khoi-San community or leader may not be construed as bestowing any special indigenous, first nation or similar status (s 1(5)), and recognised institutions must transform and adapt customary law and customs to comply with the Bill of Rights, including equality and non-discrimination and the progressive advancement of gender representation in succession (s 2(1)).

Within this statutory scheme, the Act continues to provide for recognition of traditional communities and their leadership structures (including kingships/queenships, traditional communities and headmanships/headwomanships) (s 3), while also providing a statutory framework for the recognition of Khoi-San communities and their internal branches (s 5), and the recognition of the relevant leadership positions and incumbents (ss 7–14), as well as the councils and houses through which governance and representation are structured (ss 16–18 and ss 26–50).

Part 1: Recognition of Traditional Community Structures

Question 1.1: What are the statutory criteria and procedural mechanisms for the recognition of a Kingship or Queenship?

The Act provides that traditional communities that are grouped together may be recognised as a kingship or queenship if the cumulative criteria in s 3(1) are met. These include that the constituent communities are recognised as traditional communities (s 3(1)(a) read with s 3(4)–(6)); that each has a recognised traditional council with a defined area of jurisdiction (s 3(1)(b) read with s 16); that each has a recognised senior traditional leader (s 3(1)(c) read with s 8); that the communities recognise as their king or queen a specific recognised senior traditional leader who in terms of custom and customary law is of a higher status than the other senior traditional leaders (s 3(1)(d)); that they recognise themselves as a distinct group with a proven history of existence from a particular point in time to the present and distinct from principal traditional communities and other traditional communities (s 3(1)(e)); that they have a system of traditional leadership at kingship or queenship level (s 3(1)(f)); and that they have distinctive cultural heritage manifestations (s 3(1)(g)).

Procedurally, an application for recognition as a kingship or queenship is submitted to the President by the traditional communities concerned and must be accompanied by a resolution of each traditional council indicating that such council forms part of the kingship or queenship being applied for (s 3(2)(a)). The application must also be accompanied by an application for the recognition of the position of a king or queen of those communities (s 3(2)(b) read with s 8 and s 7(3)(a)). The President may, after consultation with the Minister, recognise the kingship or queenship by notice in the Gazette (s 3(3)(a)). Before recognition, the President may cause an investigation by the Minister to determine compliance with the criteria (s 3(3)(b)(i)) and may direct consultations with the relevant Premier, the provincial house, the National House and the senior traditional leaders concerned, within a period determined by the President (s 3(3)(b)(ii)–(iii)).

Question 1.2: How is a Traditional Community distinguished and recognised under the Act?

Section 3(4) provides that a community may be recognised as a traditional community if it meets the criteria there set out. These criteria include that it has a system of traditional leadership at a senior traditional leadership level recognised by other traditional communities (s 3(4)(a)); that it observes a system of customary law (s 3(4)(b)); that it recognises itself as a distinct traditional community with a proven history of existence from a particular point in time to the present, distinct and separate from other traditional communities (s 3(4)(c)); that it occupies a specific geographical area (s 3(4)(d)); that it has distinctive cultural heritage manifestations (s 3(4)(e)); and that, where applicable, it has a number of headmanships or headwomanships (s 3(4)(f)).

Procedurally, a community that meets these criteria may apply to the Premier concerned for recognition as a traditional community (s 3(5)(a)). The application must be accompanied by an application for recognition of the position of a senior traditional leader of that community (s 3(5)(b) read with s 8 and s 7(3)(b)). The Premier may, after consultation with the relevant provincial house and by notice in the relevant Provincial Gazette, recognise the community as a traditional community (s 3(6)). The Premier may also cause an investigation to determine whether the community complies with the criteria in s 3(4) and the guiding principles in s 2 (s 3(11)).

Question 1.3: Under what circumstances is a Headmanship or Headwomanship recognised?

The Act provides that a headmanship or headwomanship may be recognised if it meets the criteria in s 3(7). These include that it has a system of traditional leadership at headmanship/headwomanship level recognised by the relevant traditional community (s 3(7)(a)); that it consists of an area within the area of jurisdiction of the traditional council of the relevant traditional community (s 3(7)(b)); and that it will contribute to the more effective and efficient administration of the relevant traditional council (s 3(7)(c)).

Procedurally, a portion of a traditional community that meets the criteria may request the relevant traditional council to apply to the Premier for recognition of that portion as a headmanship or headwomanship (s 3(8)(a)). If the traditional council is of the view that the criteria are not met, it must inform the community and the Premier accordingly and provide reasons (s 3(8)(b)). The Premier may, after consultation with the relevant traditional council and by notice in the Provincial Gazette, recognise the headmanship or headwomanship (s 3(9)).

Part 2: Recognition of Khoi-San Communities and Structures

Question 2.1: What is the statutory framework for recognition of a Khoi-San community, and what is the role of the Commission and the Minister?

Section 5 provides for the recognition of Khoi-San communities. A community may apply to be recognised as a Khoi-San community if it meets the criteria in s 5(1)(a)(i)–(vi), including a history of self-identification as a unique community distinct from others (s 5(1)(a)(i)), observance of distinctive established Khoi-San customary law and customs (s 5(1)(a)(ii)), being subject to a hereditary or elected Khoi-San leadership system with structures exercising authority in terms of customary law and customs (s 5(1)(a)(iii)), having distinctive cultural heritage manifestations (s 5(1)(a)(iv)), having a proven history of existence from a particular point in time to the present (s 5(1)(a)(v)), and occupying a specific geographical area or various geographical areas together with other non-community members (s 5(1)(a)(vi)). The Premier may cause an investigation to determine whether the criteria and guiding principles are met (s 5(2)) and may, after consultation with the relevant provincial house, recognise the community by notice in the relevant Provincial Gazette (s 5(3)).

The Act also creates a Commission on Khoi-San Matters (s 51) and provides that, for a defined period, applications for recognition as contemplated in s 5 must be lodged with the Commission and dealt with in accordance with the procedures set out in s 58 until the period referred to in s 57(2)(a) has expired, after which applications are lodged with the Premier in terms of s 5 (s 5(1)(a) proviso). During the Commission pathway, the Commission investigates and makes recommendations to the Minister on the recognition of Khoi-San communities and related matters (s 57(1)(a) and s 57(1)(d)). Following the recommendation and the Premier-comment process in s 58(2), the Minister must make a decision (s 58(3)) and, subject to that decision, the Minister must recognise a Khoi-San community (and related recognisable entities) by notice in the Gazette (s 58(5)(a)).

An application for recognition as a Khoi-San community must be accompanied by an application for the recognition of the position of a senior Khoi-San leader of that community (s 5(1)(b)(i) read with s 10 and s 7(3)(b)). It must also be accompanied by a list of all community members containing the detailed information required by s 5(1)(b)(ii), including identification particulars and documentary requirements, contact details, and a signature acknowledging association; the Act further provides that a person who has signed such a list may not be a member of any other Khoi-San community (s 5(1)(c)).

Question 2.2: How are Khoi-San branches recognised?

Section 5(4)–(8) provides for recognition of branches of a Khoi-San community where applicable. A branch may be recognised if it is recognised by the Khoi-San community as a branch of that community (s 5(4)(b)(i)), consists of not less than 10 per cent of the total number of community members as reflected in the member list (s 5(4)(b)(ii)), will contribute to a more effective and efficient administration of the Khoi-San council (s 5(4)(b)(iii)), and recognises the senior Khoi-San leader in terms of customary law and customs (s 5(4)(b)(iv)).

Procedurally, a Khoi-San council may apply to the Premier of the province where the council is situated for recognition of a branch (s 5(5)(a)). If the branch is situated in another province, the Premier of the province where the council is situated must request the Premier of the province where the branch is situated to recognise that branch (s 5(5)(b)). Where a Khoi-San community consists of branches in different provinces, recognition is done by the relevant Premiers by notice in the Provincial Gazettes of the provinces where the branches are situated (s 5(8)).

Part 3: Recognition of Leadership Positions and Incumbent Leaders

Question 3.1: What leadership positions are recognised by the Act, and what is the difference between recognising a position and recognising an incumbent?

Section 7(1) sets out the leadership positions contemplated by the Act. The traditional leadership positions are king or queen, principal traditional leader, senior traditional leader, and headman or headwoman (s 7(1)(a)(i)–(iv)), with the position of principal traditional leader applying only to a person deemed to be such a principal traditional leader as defined (s 7(1)(a) proviso read with the definition of “principal traditional leader” in s 1). The Khoi-San leadership positions are senior Khoi-San leader and branch head (s 7(1)(b)(i)–(ii)).

The Act distinguishes between recognition of a leadership position as a position and recognition of the person who occupies that position. Section 7(2) provides criteria that apply whenever a leadership position is to be recognised, including the proven history of existence and acceptance of the position within the community, the history of functions and powers of the position under customary law and customs, recognition of the community, and the history of hereditary or elected leadership as applicable (s 7(2)(a)–(e)). Where there is evidence or an allegation that a leadership position does not comply with these criteria, the President or Premier must cause an investigation by an investigative committee and consider the report (s 7(4)–(5)), and recognition of a leadership position must be by notice in the Gazette or Provincial Gazette (s 7(6)). Separately, sections 8 to 14 set out processes for the identification/election and recognition of the incumbents who fill those positions, including publication and certificates of recognition in specified cases (e.g., s 8(3), s 10(5), s 12(3) and s 13(4)).

Question 3.2: What is the process for recognising a King or Queen as an incumbent leader?

When the position of a king or queen is to be filled, the royal family must, within 90 days after the need arises, identify a person who qualifies in terms of customary law and customs to assume the position, taking into account the grounds referred to in s 9(1) (and certain council-related grounds referenced in s 8(1)(a)(i)) (s 8(1)(a)(i)). The royal family must then apply to the President for recognition of the person identified as king or queen and provide the particulars and reasons for the identification (s 8(1)(a)(ii)). The President may, after consultation with the Minister and the Premier concerned, recognise the person as a king or queen, taking into account whether a kingship or queenship has been recognised (s 8(1)(b) read with s 3).

When recognition occurs, the President must publish a notice in the Gazette recognising the person, issue a certificate of recognition, and inform the National House (s 8(3)(a)–(c)). If there is evidence or an allegation that identification was not done in terms of customary law and customs, the President must cause an investigation by an investigative committee that includes at least one member of the National House, and the committee must report on compliance and, if not compliant, who should be identified or whether a new election should be held (s 8(4)(a)). The report must be referred to the royal family for comments where the committee finds non-compliance (s 8(4)(b)), and the President may then recognise a person after considering the report and comments (s 8(5) read with s 8(3)).

Question 3.3: How are Principal Traditional Leaders recognised as incumbents?

The Act provides for the recognition of a successor to a principal traditional leader where applicable. Where the successor is to be identified, the royal family must identify a qualifying person within 90 days and apply for recognition with particulars and reasons (s 8(1)(a)). The Premier may recognise the successor to a principal traditional leader, taking into account whether a principal traditional community still exists (s 8(1)(c)). When recognition occurs, the Premier must publish a notice in the Provincial Gazette, issue a certificate of recognition, and inform the relevant provincial house (s 8(3)(a)–(c)).

Question 3.4: What is the process for recognising Senior Traditional Leaders, Headmen and Headwomen as incumbents?

When the position of senior traditional leader is to be filled, the royal family must, in the event of hereditary succession, identify a qualifying person within 90 days, taking into account relevant statutory grounds (s 8(2)(a)). When the position of headman or headwoman is to be filled, the process depends on whether hereditary succession applies: in hereditary cases, the royal family identifies the successor (s 8(2)(a)); where hereditary succession is not applicable, the person must in terms of customary law or customs be identified or elected by the community concerned within 90 days (s 8(2)(b)). The royal family (hereditary) or the traditional council (identified/elected headman/headwoman) must apply to the Premier for recognition and provide the particulars of the person (s 8(2)(c)), and the Premier must recognise the person (s 8(2)(d)).

When recognising these incumbents, the Premier must publish a notice in the Provincial Gazette, issue a certificate of recognition, and inform the relevant provincial house (s 8(3)(a)–(c)). If there is evidence or an allegation that identification/election was not done in terms of customary law and customs, the Premier must cause an investigation by a committee that includes at least one member of the relevant provincial house (s 8(4)(a)), and the further steps in s 8(4)–(5) apply.

Question 3.5: Which Khoi-San leadership positions are recognised and how are Senior Khoi-San Leaders and Branch Heads recognised as incumbents?

The Act recognises the Khoi-San leadership positions of senior Khoi-San leader and branch head (s 7(1)(b)). Section 10 provides the process for recognising incumbents in these positions. Where the position is hereditary, the royal family must identify the hereditary successor within 90 days, taking into account the grounds referred to in s 11(1) and certain disqualification grounds (s 10(1)(a)). Where succession is by election, the Khoi-San council must elect a senior Khoi-San leader or a branch head within 90 days, with due regard to customary law and customs and relevant grounds (s 10(1)(b)). The royal family or Khoi-San council must apply to the Premier for recognition of the identified or elected person (s 10(1)(c)).

The Premier must, subject to s 10(6)–(8) where applicable, recognise the person by notice in the Provincial Gazette, issue a certificate of recognition (including the term of office for an elected person), and inform the Minister and the relevant provincial house (s 10(5)(a)–(c)). A branch head elected under s 10(1)(b) is elected for a period of five years, coinciding with the term of the Khoi-San council (s 10(2)). Where a branch head resides in a province other than the province where the Khoi-San council is situated, the Premier of the province within which the branch is situated must, after consultation with the Premier of the province where the Khoi-San council is situated, recognise the branch head by notice in the Provincial Gazette (s 10(6)).

Part 4: Recognition of Regents, Acting Leaders and Deputy Leaders

Question 4.1: How is a Regent recognised?

Section 12 provides for recognition of a regent where the hereditary successor to specified leadership positions is a minor. In such a case, the royal family must, within 90 days of the death of the relevant leader, identify a regent, taking into account the statutory grounds referred to in s 12(1)(a)(i), and inform the Premier concerned of the particulars and reasons (s 12(1)(a)). The Premier must, with due regard to customary law or customs and subject to the section, recognise the regent (s 12(1)(b)). Recognition must be published by notice in the Provincial Gazette, a certificate of recognition must be issued, and the relevant provincial house must be informed (s 12(3)(a)–(c)). The recognition must be reviewed at least every two years (s 12(1) proviso), and the regent performs the functions and is entitled to the salary and allowances attached to the relevant position (s 12(4)).

When the successor ceases to be a minor, the regent must relinquish the position and the rightful successor must be recognised in accordance with the applicable recognition provisions for that position (s 12(8)(a)–(c)).

Question 4.2: What constitutes an Acting Leader, and how is an acting leader recognised?

Section 13 provides for recognition of acting traditional and Khoi-San leaders in specific circumstances. These include where a successor has not yet been identified or elected (s 13(1)(i)), where identification/election is being dealt with under the investigation provisions of s 8(4) or s 10(7) (s 13(1)(ii)), or where the incumbent leader is unable to perform functions for more than three months due to illness, study, or another lawful purpose (s 13(1)(iii)(aa)–(cc)). In these circumstances, the royal family (for traditional leadership offices) or the royal family/Khoi-San council (for Khoi-San offices) must identify a suitable acting person within 90 days of becoming aware of the circumstances, taking into account the relevant statutory grounds (s 13(1)(a)–(b)).

Once identified, the acting person must be recognised by the Premier by notice in the Provincial Gazette; the Premier must issue a certificate of recognition and inform the Minister in the case of an acting king or queen, and inform the relevant provincial house in the case of other acting leaders (s 13(4)(a)–(b)). Acting recognition must be reviewed at least every two years (s 13(4) proviso), and it lapses automatically when the substantive leader is recognised or resumes functions as set out in s 13(8).

Question 4.3: How are Deputy Leaders recognised?

Section 14 provides for recognition of deputy traditional and Khoi-San leaders under defined circumstances, primarily where the relevant leader occupies certain full-time offices or employment (s 14(1)(a)–(f)). In the case of hereditary senior traditional leaders and headmen/headwomen, the leader must, with the concurrence of the royal family, identify a deputy within 90 days of the relevant circumstance arising, taking into account statutory grounds (s 14(1)). For hereditary senior Khoi-San leaders, a similar obligation applies (s 14(3)). The royal family must inform the Premier of the particulars and reasons for the identification within seven days (s 14(5)).

The Premier may recognise the deputy and must issue a certificate of recognition and inform the relevant provincial house; the recognition automatically lapses when the leader ceases to occupy the position that triggered deputy recognition (s 14(6)). The recognition must be reviewed at least every two years (s 14(9)). A deputy recognised under s 14 is entitled to the salary and allowances attached to the position and performs the functions, and the leader in whose stead the deputy is recognised is not entitled to salary and allowances for the duration of the deputy recognition (s 14(10)).

Part 5: Recognition of Governance Councils

Question 5.1: How are Kingship/Queenship Councils, Principal Traditional Councils and Traditional Councils established and recognised?

Section 16 provides for the establishment and recognition of a kingship or queenship council, a principal traditional council and a traditional council. Once the President has recognised a kingship or queenship, or a community has been deemed to be a principal traditional community, or the Premier has recognised a traditional community, the relevant entity must establish the appropriate council within two years (or a further period determined by notice) (s 16(1)). The Act provides for council composition requirements, including a formula published by the Minister for the number of members (s 16(2)(a)), a minimum one-third representation of women subject to possible adjusted thresholds (s 16(2)(b)), and a membership structure comprising 60 per cent selected traditional leaders and community members (selected in accordance with the community’s customs by the king/queen/principal traditional leader/senior traditional leader, subject to s 16(3) where applicable) and 40 per cent elected members (s 16(2)(c)(i)–(ii)).

The Premier must recognise the relevant council by notice in the Provincial Gazette and define its area of jurisdiction; the notice must contain the names of members and the mapped area of jurisdiction must be published under the notice (s 16(5)(a)–(c)). The Act provides that the term of office of members (excluding the ex officio chairperson) is not more than five years and must be aligned to the term of office of the National House, with specific transitional expiry dates and cycles set out (s 16(4)(a)(i)–(ii)).

Question 5.2: What is a Traditional Sub-Council and how is it recognised?

Section 17 provides for traditional sub-councils. The Premier may, at the request of a traditional council, establish a traditional sub-council where a traditional community occupies two or more non-contiguous geographical areas within a province and where establishment will improve effective administration (s 17(1)(a)). The Premier must recognise the sub-council by notice in the Provincial Gazette as part of the main traditional council and define and map its area of jurisdiction, publishing the map under the notice (s 17(2)). Composition requirements include at least one-third women (s 17(3)(a)) and a 60/40 selection/election structure (s 17(3)(b)(i)–(ii)).

Question 5.3: How is a Khoi-San Council established and recognised?

Section 18 provides for Khoi-San councils. Once a Premier or the Minister has recognised a Khoi-San community in accordance with s 5 or s 58 respectively, that community must establish a Khoi-San council within two years (or such further period as the Premier may determine by notice) (s 18(1)). The Premier must recognise the Khoi-San council by notice in the Provincial Gazette and indicate its administrative seat (s 18(3)). The jurisdiction of a Khoi-San council applies only to members of the recognised Khoi-San community (s 18(4)). The Act provides for composition in a 60/40 structure including the senior Khoi-San leader as ex officio chairperson and, where applicable, branch heads and other selected members, with elected members forming 40 per cent (s 18(2)(b)(i)–(ii)), and incorporates by reference certain governance requirements applicable to councils (s 18(5) read with s 16).

Part 6: Houses and the Commission

Question 6.1: How is the National House of Traditional and Khoi-San Leaders established and constituted?

The Act establishes the National House of Traditional and Khoi-San Leaders (s 27(1)) and provides that the houses of traditional and Khoi-San leaders include the National House, provincial houses, and local houses (s 26). The National House is composed of senior traditional leaders and senior Khoi-San leaders elected from provincial houses in accordance with s 28 and s 29, with additional provisions for provinces where a provincial house has not been established (s 28(2)). The Act requires at least one-third women membership in the National House subject to a possible lower threshold determined by the Minister after consultation (s 28(3)).

Procedurally for elections to the National House, the Minister must request Premiers to notify provincial houses to elect members (s 29(1)), elections must occur within prescribed time periods and be managed by the Premier or a person designated by the Premier (s 29(2)–(4)), and the Premier must submit elected/designated persons’ particulars to the Minister (s 29(6)); where a provincial house fails to elect, the Premier must designate members to serve (s 29(7)).

Question 6.2: What is the statutory status of Provincial Houses and Local Houses?

Provincial houses may be established by provinces in terms of provincial legislation, subject to the Act (s 49(1)), and the provincial legislation must include specified matters such as representation (including women), terms of office, membership where applicable of both senior traditional and senior Khoi-San leaders, and administrative and financial support (s 49(2)). The Act itself does not, in these provisions, prescribe a single national “recognition by gazette notice” process for provincial houses; rather, it sets minimum national principles and requirements that provincial legislation must incorporate (s 49).

Local houses may be established by a Premier by notice in the Provincial Gazette for a municipal area where there are one or more traditional councils or Khoi-San councils (s 50(1)). All senior traditional leaders and senior Khoi-San leaders residing in the area are members (s 50(3)), and the Act further provides scenario-based composition rules depending on the number of councils/sub-councils/branches in the area and includes branch heads and chairpersons of traditional sub-councils in specified circumstances (s 50(4)), as well as rules where a traditional council area spans multiple municipalities (s 50(5)).

Question 6.3: What is the Commission on Khoi-San Matters and what does it do in the recognition system?

The Act establishes the Commission on Khoi-San Matters (s 51). It must investigate and make recommendations to the Minister on the recognition of Khoi-San communities, hereditary and elected senior Khoi-San leaders, and branches and branch heads (s 57(1)(a)–(d)). Applications for recognition may be lodged with the Commission in terms of s 56(1) during the period contemplated in s 57(2)(a), and the Commission must complete investigations and recommendations within the timeframes contemplated in s 57(2). Recommendations are processed through the referral-for-comments steps with the relevant Premier and submission to the Minister (s 58(2)), after which the Minister makes a decision (s 58(3)) and, subject to that decision, recognises by Gazette notice (s 58(5)).

Part 7: Withdrawal of Recognition

Question 7.1: How is recognition of a Kingship/Queenship, Traditional Community, Headmanship/Headwomanship, Khoi-San Community, or Branch withdrawn?

The Act provides for withdrawal of recognition of traditional community structures in s 4 and for Khoi-San communities and branches in s 6. For example, withdrawal of recognition of a kingship or queenship may be considered where the majority of traditional communities under its jurisdiction request the President to withdraw recognition, supported by resolutions and grounds (s 4(1)), and the President must cause an investigation before deciding (s 4(2)). Withdrawal of recognition of a kingship or queenship is done by the President by notice in the Gazette after consultation with specified institutions and office-bearers (s 4(3)). Withdrawal of recognition of a traditional community is done by the Premier by notice in the Provincial Gazette following the processes and consultations required by s 4(5)–(6), and withdrawal of recognition of a headmanship/headwomanship is done by the Premier by notice in the Provincial Gazette after consultation (s 4(8)–(9)).

In relation to Khoi-San communities and branches, withdrawal may be considered where a Khoi-San council requests withdrawal, or where Khoi-San councils request a merger into a single Khoi-San community (s 6(1)(a)–(b)); withdrawal is effected by the Premier(s) by notice in the Provincial Gazette(s) subject to the consultations and investigations contemplated (s 6(2)–(3)), and mergers are recognised by notice with specified consequences (s 6(4)). Across these withdrawal provisions, recognition must be withdrawn if so ordered by a court (s 4(12) for traditional structures; s 6(5) for Khoi-San communities/branches).

Question 7.2: Under what grounds is recognition of incumbent leaders withdrawn?

For traditional leaders (king/queen, principal traditional leader, senior traditional leader, headman/headwoman), section 9 sets out mandatory and discretionary grounds for withdrawal, including conviction with a sentence of imprisonment for more than 12 months without the option of a fine (s 9(1)(a)(i)), being declared mentally unfit or mentally disordered by a court (s 9(1)(a)(ii)), and, for these traditional leaders, no longer permanently residing within the relevant area of jurisdiction (s 9(1)(a)(iii)). Recognition may also be withdrawn if the leader has been removed from office in terms of the code of conduct or has transgressed customary law or customs on a ground that warrants withdrawal (s 9(1)(b)(i)–(ii)), and must be withdrawn if ordered by a court (s 9(1)(c)). Section 11 provides parallel mandatory/discretionary grounds for withdrawal of recognition of a senior Khoi-San leader or branch head, including conviction (s 11(1)(a)(i)), mental unfitness (s 11(1)(a)(ii)), removal under the code of conduct (s 11(1)(b)(i)), transgression of customary law or customs warranting withdrawal (s 11(1)(b)(ii)), and court order (s 11(1)(c)).

Part 8: Comparison of Traditional and Khoi-San Recognition Requirements (as provided in the Act)

The Act uses different criteria sets for recognition of traditional communities and Khoi-San communities. Traditional community recognition requires, among other things, occupation of a specific geographical area (s 3(4)(d)), whereas Khoi-San community recognition allows occupation of a specific area or various areas together with non-members (s 5(1)(a)(vi)). Khoi-San recognition requires a detailed signed membership list and prohibits dual membership across Khoi-San communities (s 5(1)(b)(ii) and s 5(1)(c)), while section 3 does not prescribe an equivalent membership-list instrument for traditional community recognition. Sub-structures also differ: headmanship/headwomanship recognition is tied to an area within a traditional council’s jurisdiction and administrative efficiency (s 3(7)), while branch recognition is tied to intra-community recognition, a 10 per cent membership threshold and administrative efficiency for Khoi-San council administration (s 5(4)(b)(i)–(iii)).

Part 9: Disputes and Investigations regarding Recognition

Question 9.1: How are disputes regarding recognition resolved?

Section 59 provides for the handling of traditional leadership disputes (s 59(1)) and sets out a procedure for disputes relating to kings/queens and various traditional leadership and community recognition matters (s 59(2)). Such disputes must be dealt with by the President in the case of a king, queen, kingship or queenship, and by the Premier in other cases (s 59(2)). The President or Premier must cause an investigation by an investigative committee that includes at least one member of the National House for disputes concerning a king/queen/kingship/queenship, and at least one member of the relevant provincial house for other disputes, and the committee must report and recommend within 60 days (s 59(2)(a)). The report must be referred to the royal family or relevant traditional council for written comments within 60 days (s 59(2)(b)), and the President or Premier must then decide and inform the parties in writing (s 59(4)).

Question 9.2: What is the statutory role of the Royal Family in recognition processes?

The Act assigns the royal family a central role in identifying successors and certain temporary incumbents in accordance with customary law and customs, and within prescribed timeframes. For example, the royal family must identify incumbents for the positions of king/queen and principal traditional leader (s 8(1)(a)), and, where hereditary succession applies, identify successors for senior traditional leaders and headmen/headwomen (s 8(2)(a)). The royal family also identifies regents where a hereditary successor is a minor (s 12(1)(a)) and identifies acting leaders in the circumstances set out (s 13(1)(a)–(b)). Where the royal family fails to act in specified contexts, the Premier may identify a suitable person after consultation (e.g., s 12(2) for regents; s 13(2) for acting leaders).

Conclusion

Read together, the TKLA provides a structured statutory scheme for recognition of (i) traditional and Khoi-San communities and certain internal groupings (ss 3 and 5), (ii) leadership positions (s 7), (iii) the incumbents who occupy those positions (ss 8–14 and s 10), and (iv) the councils and houses through which governance and representation are organised (ss 16–18 and ss 26–50), with supporting functions for the Commission on Khoi-San Matters during the period contemplated in s 57(2) and the decision-making and gazetting role of the Minister under s 58(5). Throughout, the Act links recognition and governance to constitutional principles (s 2), formal notice mechanisms (e.g., ss 3(3), 3(6), 7(6), 8(3), 10(5), 16(5), 18(3) and 58(5)), and procedures for withdrawal and dispute resolution (ss 4, 6, 9, 11 and 59).