Real Estate Investor Magazine South Africa December / Jan 2016 | Page 55

These provisions provide that a municipality can
conclude an agreement with a traditional council which
would allow a traditional council to take over some of
the land planning and land use powers and functions
that are vested in the municipality. In cases where the
municipality does not conclude this type of agreement
with a traditional council, the traditional council would
be required to provide proof of land allocation in terms
of customary law.
What are the concerns with the SPLUMA
Regulations?
Concerns over the legal recognition of traditional councils
The SPLUMA Regulations give powers to traditional
councils as defined in section 3 of the Traditional
Leadership and Governance Framework Act of 2003
(the Framework Act). The Framework Act deems the
pre-existing tribal authorities to be traditional councils
if they comply with two transformation requirements.
The first is that 40% of traditional council members
must be elected. The second is that one third of
traditional council members must be women. Many
traditional councils across the country have not met
these requirements, with traditional council elections
either being flawed or non-existent.
This means that most traditional councils are not
validly legally constituted, and so may not have the
legal capacity to exercise the powers granted to them
in terms of the SPLUMA Regulations.
Traditional councils are given wide-ranging powers in
relation to land-allocation, -planning and -use
Regulation 19(2) empowers traditional councils to
provide proof of a customary land allocation to anyone
living in that traditional area that makes an application
for development and land use. This would mean that
traditional councils would be able to define the content
of customary law and creates the potential for local
land allocation to be taken over by traditional councils.
To focus land planning and land use in traditional
councils does not hold true to many rural people living
in the former homelands.
Lack of accountability measures
It is unclear from regulation 19 how traditional councils
will be held accountable for the land use management
powers and functions that they could perform in respect
of service level agreements, or for the responsibility
of providing proof of customary land allocations
(where there is no service level agreement). The land
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development and use application of any person living
in a traditional area is still dependent on the actions of
a traditional council. This is because the Regulations
require that the council first provides proof of a land
allocation, or assume that the traditional council
will be in control of the initial allocation process,
in order for a person to submit their application.
Effective mechanisms for holding a traditional council
accountable to ordinary people and local government
are therefore missing in the Regulations.
The SPLUMA Regulations could cause confusion about
the powers of traditional councils
Regulation 19 specifically states that traditional
councils will not have decision-making powers in
relation to land planning and land use. However, the
regulation still allows for some powers and functions
to be outsourced to traditional councils. Exactly what
these powers and functions are remains unclear as the
Regulations do not elaborate on this. This lack of clarity
has the potential to cause significant confusion among
municipalities, traditional councils and communities,
who are unlikely to agree on what land planning and
management powers can or cannot be granted to
traditional councils.

RESOURCES
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DEC/JAN 2016 SA Real Estate Investor

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