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24 April 2017 11:39 (South Africa)
South Africa

Judges and the rise of traditional leaders and customary law: A new legal frontier

  • Marianne Thamm
    marianne-thamm.jpg
    Marianne Thamm
  • South Africa
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In the past 20 years the power, role and political significance of traditional leaders in South Africa has risen considerably. And while the Constitutional Court has sought to deal with Customary Law in a flexible, philosophical and creative fashion, lower courts have tended to apply this law in a rigid fashion, often out of step with the Bill of Rights and the constitutional rights of communities. This week the Judicial Services Commission meets to interview five female candidates, four for a position on the Constitutional Court. With government trying to enhance and entrench the role of traditional leaders in the country the appointment matters, a lot. By MARIANNE THAMM.

The Judges Matter Coalition met last week to discuss various developments in democratic South Africa particularly with regard to Customary Law and traditional leadership issues. These have been catapulted to the forefront of the political agenda as government works on a variety of new policies enhancing the power of traditional leaders. This week the Judicial Services Commission meets in Johannesburg to interview a shortlist of four female candidates for a a vacant position on the Constitutional Court as well as one position for the vacant position of Deputy President of the Supreme Court.

The Judges Matter Coalition consists of 22 civil society organisations including the University of Cape Town's Democratic Governance and Rights Unit (DGRU), Rape Crisis, the Centre for Applied Legal Studies, and which are assisting with the transformation of the judiciary. The Coalition will provide members of the JSC with information on all the candidates with regard to judgments they have written as well as possible questions they might want to ask during the interview process. As traditional leaders and Customary Law are a hot political issue, the Coalition focused on this during a one-day workshop with partners in Cape Town last week.

Last month President Jacob Zuma approved a recommendation by the Independent Commission for the Remuneration of Public Office Bearers that the country's some 5,000 headmen and women receive standardised annual salaries of R84,125, which will set the fiscus back R407 million and which will have to come from provincial budgets. The president has for several years been wooing traditional leaders who are seen to be the bedrock of rural ANC support.

In 2003, the South African Law Reform Commission proposed the recognition of traditional courts to repeal the Black Administration Act of 1927 and to bring Customary Law and these courts in line with the country's Constitution allowing for citizens to opt out of the jurisdiction of traditional courts.

Legislation such as the Traditional Framework Act and proposed legislation such as the hugely controversial Traditional Courts Bill, which was returned to parliament after vehement opposition from women's rights groups and opposition parties, Traditional and Khoi and San Leadership Governance Bill (which will be tabled in parliament) as well as the Restitution of Land Rights Amendment Bill, all want to establish specific powers for traditional leaders which legal experts say, in some instances, is unconstitutional.

While the Constitutional Court has found progressive, creative and flexible ways of including Customary Law in the country's system of laws, the legislature and the executive have attempted to “invert” this, placing the position of traditional leaders above customary law which in some cases has proved more democratic than statutory law.

The Constitutional Court emphasises that traditional leadership is not a thing in itself. It derives from Customary Law. The Con Court recognises Customary Law as a system first and then that system provides for traditional leaders. The legislature and executive have turned this around saying that the constitution recognises traditional leaders and that Customary Law is an adjunct” said attorney in Constitutional litigation, Wilmien Wicomb.

If we are searching for a thread which might tie the judiciary to President Jacob Zuma's line of thinking in this regard then it might be found in a minority dissenting judgement by Chief Justice Moegeng Moegeng (along with Judge Bess Nkabinde) in the 2013 Pilane and Another vs Pilane and Another case.

In this instance members of a traditional community in Mothabe village from the North West (where the Chief Justice began his career as a high court prosecutor) and which comprised of the Bakgatla-Ba-Kgafela Traditional Community were dissatisfied with the administration of the village by official governance structures. The applicants sought to secede Mothlabe Village from the Traditional Community. Leaders of the community obtained three High Court interdicts preventing the holding of meetings by the splinter group. But the Constitutional Court upheld the claim of those who sought to meet and set aside the interdicts. Justice Thembile Skweyiya, in a majority judgement, said that no right of the established leaders had been infringed.

However, in a dissenting judgment, Chief Justice Mogoeng Mogoeng and Justice Bess Nkabinde held that the applicants had no authority under Customary Law or any relevant statute to convene a meeting as planned.

Moegeng wrote tellingly: “Traditional leadership is a unique and fragile institution. If it is to be preserved, it should be approached with the necessary understanding and sensitivity. Courts, Parliament and the executive would do well to treat African customary law, traditions and institutions not as an inconvenience to be tolerated but as a heritage to be nurtured and preserved for posterity, particularly in view of the many years of distortion and abuse under the Apartheid regime. Bearing in mind the need to help these fledgling institutions to rebuild and sustain themselves, threats to traditional leadership and related institutions should not be taken lightly.”

Customary law and traditional leadership issues are the new legal frontiers of South African law and matters pertaining to this will increasingly come before the courts. Speaking at the workshop Wicomb said that the inversion by the executive of what the Constitutional Court says is critical “to the kind of problems we are facing”.

If we can recouple traditional leadership with Customary Law then we can regain many of the accountability mechanisms of Customary Law,” she told those gathered.

She said that there had recently been an “extraordinary increase in violence within traditional communities which we think is as a result of the last 20 years and the impunity of traditional leaders. At the moment I am dealing with three cases where traditional leaders have used force and real violence against community members. In one case in Limpopo the chief actually has his own violent army which operates with impunity, abducting and assaulting anyone who dissents. This kind of thing is happening more and more. It is extraordinary that this kind of thing could be happening today”.

Wicomb said 2013 had marked an important year when the creative and philosophical manner in which the Constitutional Court had been interpreting Customary Law clashed with a legislature and executive “hell bent on giving more and more power to traditional leaders”.

Two judgments – the Pilane case and the later the Sigcau matter – in which the Constitutional Court unanimously set aside a decision by President Zuma, acting on the advice of the Commission for Traditional Leadership Disputes Claims, to appoint Zanozuko Tyelovuyo Sigcau as king of the amaMpondo aseQaukeni – brought this to the fore. In both these cases, said Wicomb, the Constitutional Court was faced with a form of Customary Law that was more democratic and in line with the Constitution than parliament's codification of it.

So the Customary Law of that community about decision making, about having meetings, about choosing leaders, that customary law was more democratic than what the Framework Act has provided,” she said.

Wicomb said that Customary Law was one area of law that has seen the most “radical development” in the first 20 years of the Constitutional Court.

The Con Court has done extraordinary things in developing an understanding of Customary Law and its status. One of the results of this is that the Constitutional Court has said firstly that Customary Law is recognised as a system of laws, not just individual customs, but a system of law, the way common law is a system of law. It is recognised as equal to the common law and, as we shall see, the court is starting to grapple with what the status of Customary Law is vis a vis statute law. Customary Law is a system that has inherent power that gives rise to actual rights.”

What has “really been radical” about what the Constitutional Court has said, offered Wicomb, is “be careful because those Apartheid and colonial governments loved to co-opt traditional leaders to assist them in forced removals in the Apartheid project at large. That same colonial and Apartheid government also used and changed and abused Customary Law. They kind of made it into what they wanted it to be. Because that helped them in implementing the Apartheid project... The irony and the sadness that is never explained is that is pretty much the system we still have today.”

So if lawyers can't turn to Apartheid and colonial text books to find the law, where should should they find it?

That is why the 2008 Shilubana and Others v Nwamitwa was really a landmark judgement. In Shilubana the court was faced with not only finding the content of customary law but in particular finding the content of Customary Law in changing circumstances. One of the principles of Customary Law is that it is flexible. It changes all the time. And that is the same with all other forms of law but Customary Law in particular changes and is even flexible in its application,” she said.

In the Shilubana matter – which was about whether a woman could become a chief of a particular community – the court had to establish the principles of finding the content of Customary Law and found four of these; historical evidence of the custom; what current practice is; that Customary Law had to work in current circumstances and be feasible and finally, that Customary Law is bound by the Constitution and the Bill of Rights.

The court did not give a kind of clinical Right to Equality judgement saying 'of course under the Constitution a woman must be able to become a chief'... The court was at pains to say, 'we as a court are not telling this community what to do. This community itself transformed its custom so that they now, today, want a woman as chief and we are recognising that as the court... We want the community to develop their own law'. So, this was a very important judgment,” said Wicomb.

Hopefully members of the JSC who will be interviewing the candidates this week would have had time to study material by the Judges Matter Coalition on this specific issue as more than 80% of South Africans in the country are subject to Customary Law and traditional leadership.

Judge Mandisa Maya, who was nominated by Zuma, is the only candidate being interviewed for the slot as deputy judge president. In 2012 she was interviewed for a position at the Constitutional Court.

The four candidates for the Con Court vacancy are Acting Justice Leona Theron, who while she has the shortest record over time has made some “solid judgments” with regard to gender and the rights of workers. Theron sat for 10 years as a judge in the KwaZulu-Natal High court before her appointment to the SCA in 2006, an appointment made permanent in 2010. Theron is a favourite of legal NGOS because of her progressive judgments including on customary marriages where she made a groundbreaking decision holding that all customary marriages must be in community of property.

Judge Zukisa Tshiqi has, some experts feel, the weakest record in terms of the complexity of her judgements. Tshiqi was appointed as judge of the SCA in 2009. She is from the Eastern Cape and acted in the Con Court from November 2014 to May 2015. She has also acted as a judge in the Labour Appeal Court and has lectured in Labour Law.

Judge Daya Pillay has also written complex and interesting judgments on race and gender. She has not previously acted in the SCA or Con Court but is viewed as “independent minded”. She is currently a high court judge in Pietermaritzburg and has about 15 years experience as judge in high court and labour court. She also has the support of legal NGOs and activists.

The most senior of the four candidates is Judge Nonkosi Mhlantla who was appointed as high court judge in 2002. 2008 appointed judge of SCA and acted in Con Court from Jan to Dec 2013.

The interviews will take place on 9 and 10 July. DM

Photo: South African President Jacob Zuma (C) takes part in a dance during his traditional wedding to Tobeka Madiba, his fifth wife, at the village of Nkandla in northern KwaZulu-Natal January 4, 2010. The ceremony took place at Zuma's traditional home in Nkandla, KwaZulu-Natal province, where the then 68-year-old president, in Zulu tribal dress, married Madiba, then 37, according to clan custom. REUTERS/Siphiwe Sibeko

  • Marianne Thamm
    marianne-thamm.jpg
    Marianne Thamm
  • South Africa

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