Section
4 of the Traditional Leaders Act [Chapter
29:17]
provides as follows;
“4
(1)
Subject to subsection (2), in the event of the office of a chief
becoming vacant through the death of the chief, or his removal or
suspension from office in terms of this Act, the President may
appoint an acting chief to preside in his stead ...
Section
4 of the Traditional Leaders Act [Chapter
29:17]
provides as follows;
“4
(1)
Subject to subsection (2), in the event of the office of a chief
becoming vacant through the death of the chief, or his removal or
suspension from office in terms of this Act, the President may
appoint an acting chief to preside in his stead for such period or
periods as the President may fix.
(2)
An appointment in terms of subsection (1) shall cease to have effect
-
(a)
On the date the President, in terms of subsection (1) of section
three,
appoints
a chief for the community concerned; or
(b)
On the cancellation of the suspension of the chief of the community
concerned in terms of subsection (3) of section seven;
or
(c)
When the President cancels the appointment.”…,.
Section
4(1) of the Traditional Leaders Act [Chapter
29:17]
is not consistent with the provisions of section 283(c)(i) of the
Constitution. In terms of section 2(1) as read with section 10 of the
Sixth Schedule of the Constitution “any law, practice, custom or
conduct inconsistent” with the Constitution “is invalid to the
extent of the inconsistency”….,.
Section
283 of the Constitution, which provides for the appointment of
Chiefs, provides as follows;
“283
An
Act of Parliament must provide for the following, in accordance with
the prevailing culture, customs, traditions and practices of the
communities concerned -
(a)
The appointment, suspension, succession and removal of traditional
leaders;
(b)The
creation and resuscitation of chieftainships; and
(c)
The resolution of disputes concerning the appointment, suspension,
succession and removal of traditional leaders; but -
(i)
The appointment, removal and suspension of Chiefs must be done by the
President on the recommendation of the Provincial Assembly of Chiefs
through the National Council of Chiefs and the Minister responsible
for traditional leaders and in accordance with the traditional
practices and traditions of the communities concerned;
(ii)
Disputes concerning the appointment, suspension and removal of
traditional leaders must be resolved by the President on the
recommendation of the Provincial Assembly of Chiefs through the
Minister responsible for traditional leaders;
(iii)
The Act must provide measures to ensure that all these matters are
dealt with fairly and without regard to political considerations;
(iv)
The Act must provide measures to safeguard the integrity of
traditional institutions and their independence from political
interference.”
Section
283(c)(i) provides for the appointment of a chief by the President
“in accordance with the traditional practices and traditions of the
communities concerned.” While
sections 3 and 4 of the Traditional Leaders Act [Chapter
29:17]
distinguishes the procedure for the appointment of a Chief and Acting
Chief, the Constitution only mentions the appointment of a Chief.
In
terms of section 340(1)(c) of the Constitution, the power to appoint
a substantive office holder includes the power to appoint a person to
act in that office; therefore, according to the new Constitution the
procedure provided for the appointment of a Chief applies to the
appointment of an Acting Chief. Section 340(1)(c) reads;
“340
(1)
Except as otherwise provided in this Constitution, a power under this
Constitution to appoint a person to an office includes a similar
power -
(a)…,.
(b)…,.
(c)
To
appoint a person to act in that office;”…,.
