An examination of the recognition of communities and partnership agreements under South Africa's Traditional and Khoi-San Leadership Act

In 2021 the South African legislature enacted into force the contentious Traditional and Khoi-San Leadership Act 3 of 2019 under the guise of recognising leaders of the Khoi San, who generally are regarded as the 'first people' in South Africa. This article provides a critical analysis of key provisions in the Act: the recognition of traditional communities and the power of traditional councils to conclude partnership agreements. It reveals that the Act differentiates between the Khoi-San and other South African indigenous groups in the recognition of traditional communities. Khoi-San councils exercise jurisdiction over individuals who voluntarily affiliate to the Khoi-San community, while in other communities traditional councils are conferred jurisdiction over land and the people that live thereon. Furthermore, the Act does not address existing concerns regarding the concentration of powers in traditional councils, but rather bolsters the powers of traditional councils to conclude agreements on behalf of communities. The article argues that voluntary affiliation should be centred as a requirement for the formation of all communities and that the power to conclude partnership agreements must be reconsidered.