The official legal recognition of the institution of traditional leadership, and the role that traditional leaders should play in the governance of the country, remain two of the most vexing issues in democratic South Africa. A recent Constitutional Court judgment serves as a timely reminder of the complex history of traditional leadership in South Africa. While the Court resolved the case by focusing on the shockingly bad legal advice given to President Jacob Zuma, it does indirectly raise pertinent questions about how traditional leaders are “made” and “unmade”.
Last week, in the case of Justice Mpondombini Sigcau v President of the Republic of South Africa and Others, a unanimous Constitutional Court declared invalid a notice issued by President Jacob Zuma in 2010 purporting to remove the incumbent ikumkani or king (Justice Mpondombinio Sigcau) of the amaPondo and to recognise Zanozuko Tyelovuyo Sigcau as King instead. This was done in accordance with recommendations of the Commission on Traditional Leadership Disputes and Claims.
The history of the dispute illustrates the complex role of traditional leaders in South Africa. As the judgment points out, the amaMpondo people played a significant part in the history of resistance to colonial oppression. Under the leadership of Faku, who ruled from 1824 to 1867, the amaMpondo defended themselves in the Mfecane wars and extended their sphere of influence. Their land was only colonised in 1894. Moreover, in 1960, during Apartheid, the people rebelled in the “Pondoland Uprising”.
The original dispute stems from a split of the amaPondo kingdom into the amaMpondo aseQaukeni (referred to as the Eastern Pondo) and the amaMpondo aseNyandeni (referred to as the Western Pondo).
In 1937, after the then ikumkani, Mandlonke died without leaving a male heir, and competing claims to the kingship developed between two of Mandlonke’s brothers, Botha and Nelson Sigcau. The dispute was “statutorily settled” when Botha Sigcau was recognised as the “paramount chief” of the Eastern Pondo in terms of the Black Administration Act. In other words, the colonial government “resolved” the dispute by declaring Botha Sigcau to be ikumkani.
In academic literature (but not in the Constitutional Court judgment) the hated Black Administration Act looms large in many discussions of traditional leadership disputes in the twentieth century. The Apartheid government often used such disputes to promote more pliant traditional leaders and punish traditional leaders who resisted Apartheid rule. Traditional leaders were also entangled in the administration of the pass laws, for which they were paid. This adds a further layer to the already complex dynamic surrounding traditional leadership in South Africa.
As I pointed out before, traditional leaders are not democratically elected and if they were to play any role in the governance of certain areas of the country, this would be in conflict with the notion of democracy, a founding value of the South African state, enshrined in section 1 of the Constitution. Yet many South Africans still live under traditional leadership and some traditional leaders wield considerable power. This power stems from the powers derived from deeply entrenched customs (often politely ignored by city folk), from the way in which patriarchal power buttresses traditional rule and also from the relative wealth of traditional leaders in their communities.
Because traditional leaders are paid handsomely by the state (as they were during the Apartheid years) and because they may levy all kinds of informal “taxes” on their subjects, it may have serious financial implications for someone like Justice Mpondombinio Sigcau to be removed as king. No wonder he fought his case all the way to the Constitutional Court. I assume he would not have had the funds to pursue this legal battle if he were not a relatively rich man. His wealth was obviously accumulated because of his status as a king.
Luckily for him, the money was not completely wasted, due to the shockingly bad lawyers in the Presidency. Whether it will ultimately help him to retain his kingship is another matter.
The problem in this case was that when President Zuma removed Justice Mpondombinio Sigcau as king, he relied on the amended provisions of the Traditional Leadership and Governance Framework Amendment Act to give effect to the decisions of the Commission on Traditional Leadership Disputes. This was wrong as the provisions of the old (unamended) Act applied to the Commission’s decision. The lawyers in the Presidency may have been unaware of the ordinary rule of our law that statutes operate only prospectively and not retrospectively and that one cannot rely on an Act retrospectively.
The distinction between the old Act and the amended Act was of some substance as in terms of the old unamended Act President Zuma did not have any discretion in giving effect to the decisions of the Commission. Under the amended new Act the Commission can only make recommendations regarding the recognoition or removal of kings or queens and the final decision lies with the president. The procedure for dealing with the Commission’s recommendations under the new Act also differs from that of the old Act. For that reason it would have been obvious to any half competent lawyer that:
“The implementation of the Commission’s decisions under the old Act could thus not be done under the provisions of the new Act. In argument it was suggested that reference to the provisions of the new Act in the notice was a mistake. The problem with this, however, is that nowhere in the papers does the president say that it was a mistake. Because of the material differences between the old Act and the new Act, some of which have been highlighted, it cannot be said that a notice issued under the new Act can be taken to have been issued under the old Act.”
And what happens now? As I understand it, the provisions of the old Act have lapsed and there are no provisions in the transitional section of the new Act to indicate that the provisions of the old Act could continue to apply or that the original decisions of the Commission could still be binding.
I suspect this means that the Commission will have to start afresh with an investigation into the question of whether Justice Mpondombinio Sigcau should be removed as king of the amaPondo. If the Commission confirms its predecessors decision, then President Zuma will have a discretion either to accept or reject the recommendations of the Commission.
The fight is therefore far from over. President Zuma may of course eventually remove Justice Mpondombinio Sigcau as king, but it is not a foregone conclusion. If the honourable king wanted to keep his position, he could take a leaf out of the book of some Apartheid-era traditional leaders and ingratiate himself with President Zuma and the ANC. If he could demonstrate that he were “indispensable” to President Zuma or the ANC, the removal would surely be shelved for the time being.
Which just goes to show: traditional leadership might not be democratic, but this does not mean that those who serve as traditional leaders are not implicated in politics. DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.