After the conquest of various indigenous tribes by settlers and colonialists, the institution of traditional leadership was transformed from being at the centre of power in traditional communities to being the proxies of the colonial government.
It is no surprise, therefore, that legislation such as the Bantu Authorities Act, gave us the current iteration of traditional leadership, chosen by the state to do its bidding. After 1994, government cemented these leadership positions with their own legislation such as the Traditional Leadership and Governance Framework Act.
The most contentious aspect of the act is section 24, which gives traditional councils the power to enter into agreements with third parties, such as mining companies, on behalf of the community. The effect of this section will remove property rights from individuals and give them to a council. This is an injustice that may include deprivation of land.
These agreements are subject to certain conditions such as consultation and a vote at the said consultation by a majority of those in attendance. Organisations such as the Amadiba Crisis Committee, made up of members from the famous Xolobeni community, are opposed to giving the power to control their property to councils with their own sectional interests.
Section 24 of the Bantustan Act lists the conditions to which agreements are subject. In the Constitutional Court judgment in Baleni v Minister of Mineral Resources, which relied on the Interim Protection of Informal Land Rights Act, it noted that for the deprivation of communally owned land, consent and not only consultation, is required.The act requires a mere majority vote .