The Traditional Leadership and Governance Framework Act of 2003 said the apartheid-era tribal authorities of old could be the traditional councils of the future, provided that 40% of their members should be elected and a third should be women.
Twelve years later, no elections have taken place in Limpopo.
In other provinces, elections have often been so deeply flawed that courts and government circulars have warned that the failure to comply even with these requirements has put the legal standing of existing traditional councils in jeopardy.
Yet the government continues to pay the salaries of chiefs and councillors, and treat them as the only structures authorised to make decisions about mining deals and investment projects on communal land. Under the proposed law, they will continue to wield unconstitutional power within rural boundaries drawn under colonial and apartheid rule.
We face regular explosions of anger and frustration from people whose ancestral graves, fields, livelihoods and homesteads were destroyed by mining activities licensed by traditional councils and leaders without community consent.
. Last month, the people of Mapela in Limpopo burnt down the empty house and office of Kgosi David Langa after he agreed to close a high school built and paid for by the community so that Anglo American Platinum could have the land.
. The houses of traditional leaders in Bakoni in Limpopo and Bethanie in North West were burnt down when the government ignored complaints about the lack of accountability for mining revenue.
. A group trying to assert their right to land returned to them under the land restitution programme came under attack in Ekuthuleni in KwaZulu-Natal last August when a traditional leader challenged their ownership and mobilised people to whom he had allocated their land against them. The homesteads of two elderly community leaders were destroyed.
. In 2012, members of the Bakgatla-ba-Kgafela royal family were interdicted from calling a meeting to discuss widespread and growing alarm about secret mining deals.
The Bakgatla are worth an estimated R15 billion based on the platinum mining taking place on their land around Moruleng in North West, but without any accounting from the traditional council, they can only guess their wealth.
When they asked a court to order that their tribal books of account be audited, as required by law, the judge refused on the basis that, as mere community members, they had no legal standing before the court.
The judge went further. He awarded punitive legal costs against them for bringing the application in the first place, proving that people who dare to call traditional leaders to account risk bankrupting themselves in the process.
Now Cabinet has decided to sweep its failures of accountability over the new bill under the carpet, rather than attempting to address them.
The bill seeks to go back in time by repealing the framework act and giving the tribal authorities of old a second chance to reconstitute themselves as traditional councils.
Also, in clause 70(3), it reasserts the controversial tribal boundaries created under the 1951 Bantu Authorities Act as the domains of today’s traditional leaders.
If it succeeds, this bill will deny 18 million South Africans living within the former Bantustans the option of escaping their imposed status as tribal subjects.
The bill makes it clear that the only communities government will recognise officially are those governed by traditional leaders. Customs and traditions are deemed to exist only insofar as they fall within the domain of traditional leaders.
Why has Cabinet chosen to bolster the power of traditional leaders rather than enforce the property and citizenship rights of the poorest and most vulnerable South Africans?
The answer relates in part to the mining interests of senior politicians and their families. As long as they benefit from the opaque mining deals brokered by traditional leaders, it is in their interests to keep the deals secret and silence opposition from those whose land is being ravaged in the process.
Claassens is chief researcher at the Centre for Law and Society at the University of Cape Town