Introduction
Traditional leaders appear to be enjoying a legislative comeback with parliamentary approval of the Communal Land Rights
Bill and the Traditional Leadership and Governance Framework Act. Yet some say traditional structures are inimical to
democracy and will threaten the extension of the civil rights benefits of 1994 to all people in the country. For others,
including traditional leaders, they are the only form of indigenous African leadership and therefore a base from which to
develop home-grown notions of democratic governance. However, what the debates about these laws appear to have missed is
that the structures of traditional leadership are not the same as traditional institutions, which include the systems and
practices of community based land administration.1 The structures are mere pinnacles of deeply rooted institutions that make up and frame the daily realities of millions of rural (and many urban) South Africans. A focus only on structure does not therefore bring us closer to resolving the complexity of whether, and how, to marry traditional and western forms of governance, including land administration.
The issue has not been an easy one to consider partly because the colonial and apartheid governments encouraged traditional institutions to fulfill and/or facilitate multiple functions at local level that are the legal duty of government departments at other levels of the society. These functions include:
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facilitation (or organization) of services and their administration - a function that overlaps with municipal government;
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facilitation of, and/or provision of, welfare - a function that overlaps with the private and public sector providers of welfare and pensions;
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resolving and adjudicating disputes - functions that overlap with the justice system;
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land administration including use of land, allocation, demarcation, rules for transacting in land and land taxes or fees - functions associated with municipalities and property regulating organisations such as Deeds Offices, Surveyor Generals Offices and the surveying and conveyancing professions.
This paper is concerned primarily with the functions of land administration. Its purpose is to describe the current land administration practices as understood by traditional structures with a view to unpacking some of the components of the existing African tenure arrangements in KwaZulu-Natal. This, it is hoped, will help to create a base to understand how communal land systems operate, regardless of which structure governs them, in order to support practices that secure tenure effectively.
Footnote
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An institution is an established law, custom, practice, system or social organization. LEAP uses the term to denote the combination of structures and the rules, practices and systems by which they work. Structures can be legislative and administrative, and formal and informal, such as government departments, committees and traditional authorities. The term leadership in this research refers to those who direct and guide the structures, most notably the inkosi and members of the tribal council.
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