As South Africa marks the 30th anniversary of the adoption of its democratic constitution, it is important to focus on the thorny issue of traditional leaders in our democracy. Researchers Peter Delius and Mahmood Mamdani have long argued that the precolonial African polities were not the static, ethnically bounded, despotically governed units colonial law constructed them as. The 2019 Mistra publication Traditional Leaders in a Democracy, edited by Mbongiseni Buthelezi, Dineo Skosana and Beth Vale, argued that the problem is not traditional leadership as such, but the ways in which the system has been distorted under colonialism and apartheid. This remains a live question today: who governs and controls the rural areas, and what does democracy, which has been generally considered through the lens of urban-based liberation politics, mean for those who live outside the urban areas? This conundrum has affected the ANC since its 1912 formation, when traditional authorities were among its founding members. South Africa’s leading land and traditional authority expert Lungisile Ntsebeza pointed out in a 2020 paper that a distinction arose between compliant and progressive chiefs influencing the ANC throughout the liberation struggle and into democratic governance, never quite resolving into coherent policy. In her chapter in the Mistra publication, Sindiso Mnisi Weeks has argued that by consolidating power in senior traditional leaders — most of them men, all unelected — the post-1994 legislative framework foreclosed the negotiating space women had historically used to navigate their material insecurity. In section 211(1) the constitution recognises the institution of traditional leadership “subject to the constitution”, leaving it to parliament to resolve through legislation. A pattern has emerged of legislation favouring expanded traditional authority powers, followed by constitutional challenge and court invalidation, followed by legislative delay — with community-led action, often working through the courts, doing most of the substantive democratic work. Skosana’s chapter in the Mistra volume argues that the democratic government provided conditions hospitable to the survival of traditional leaders through legislation such as the Traditional Leadership & Governance Framework Act of 2003, the Communal Land Rights Act of 2004 and the Traditional Courts Bill of 2012. More recently there have been several developments bearing witness to the established legislature/judiciary tango. For example, the Traditional & Khoi-San Leadership Act signed by President Cyril Ramaphosa in November 2019 came into effect on April 1 2021, replacing the Traditional Leadership & Governance Framework Act as the principal legislation governing traditional leadership structures. A major gap in the new piece of legislation, according to civil society, is that it removed the requirement in the Traditional Leadership & Governance Framework Act that traditional councils that do not include 40% elected and one-third women be declared invalid. On May 30 2023 the Constitutional Court ruled in a unanimous judgment that the Traditional & Khoi-San Leadership Act is unconstitutional because parliament “overwhelmingly failed in facilitating public participation”, giving parliament 24 months to re-enact the law in a manner consistent with the constitution or to pass a fresh law.A major gap in the new piece of legislation, according to civil society, is that it removed the requirement in the Traditional Leadership & Governance Framework Act that traditional councils that do not include 40% elected and one-third women be declared invalid. The action was brought by an alliance of rural communities, land rights organisations and individual community members, who also argued that the act gave new and extended powers over land to traditional authorities and did not provide a single mechanism that would allow a community to hold a traditional authority to account. Parliament failed to meet the May 2025 deadline set by the Constitutional Court for new legislation. Despite criticising government and parliament, the court granted a further two-year extension, suspending the declaration of invalidity of the Traditional & Khoi-San Leadership Act until May 29 2027 and allowing additional time for the act to be concluded. On November 29 2024 the department of co-operative governance & traditional affairs published the draft replacement Traditional & Khoi-San Leadership Bill 2024 for public comment. Civil society’s assessment is not encouraging, its primary concern remaining the threat to informal land rights and the powers of traditional councils over communal land. We cannot claim to have consolidated our democracy while millions live under a system the Constitutional Court found constitutionally deficient, administered by councils whose majority members are chosen neither by the communities they govern nor by any process compatible with the constitution. • Abba Omar is director of operations at the Mapungubwe Institute for Strategic Reflection.