Traditional Authorities and State Functions in South Africa: A Complex Relationship of Private Participation?

• Published in: Potchefstroom electronic law journal Vol. 26; no. 1; pp. 1 - 38
• Main Authors: Rautenbach, Christa, Ferreira, Gerrit
• Format: Journal Article
• Language: English
• Published: North-West University (Potchefstroom Campus) 23.11.2023; North-West University
• Subjects: customary law; Law; private participation; public-private partnerships; state functions; traditional authority; traditional leaders; state functions; private participation; customary law; democratisation; Traditional leaders; public-private partnerships
• ISSN: 1727-3781; 1727-3781
• DOI: 10.17159/1727-3781/2023/v26i0a16229

This contribution explores the relationship between traditional authorities and state functions in South Africa. The authors argue that traditional leaders, while not organs of the state, have functions similar to state functions, especially on a local government level. The authors suggest that this relationship can be characterised as a form of private participation in exercising state functions, although it does not amount to full privatisation. The recognition of traditional law systems in the Constitution and relevant legislation provides a legal basis for this relationship. The authors also examine the role of public-private agreements in enhancing legal certainty and clarity. Finally, the authors consider the potential benefits of transforming traditional authorities into state organs, aiming to promote the development of traditional communities and enhance the delivery of essential services.