Do members of traditional communities have any democratic rights?

The Constitution recognises the institution, status and role of traditional leadership, according to customary law, but requires that this be done in conformity with the other provisions in the Constitution. This is not an easy task, as traditional leadership is, by definition, undemocratic and hence not easily reconcilable with the democratic ethos of the Constitution. In a recent Constitutional Court judgment, sharp divisions emerged between the justices about the constitutional rights of the members of a traditional community who are unhappy with what they see as the authoritarian and nepotistic actions of the recognised traditional leadership of their Traditional Community. 

In Pilane and Another v Pilane and Another the applicants — residents of the Motlhabe village, one of 32 villages that comprise the Bakgatla-Ba-Kgafela Traditional Community in the Pilansberg area of North West Province – challenged a High Court decision to grant three interdicts that restrained them from convening a meeting to discuss possible secession of the Motlhabe village from the Traditional Community and from passing themselves off as recognised traditional leaders. They wanted to secede because they claimed resources did not reach their village but are used for the benefit of those loyal to the Traditional Council and the Kgosi. The secession claim might also have been fueled by a longstanding leadership dispute about who was the true headman of the Motlhabe village.

After receiving advice from two government officials from the Department of Local Government and Traditional Affairs that an application to secede had to be made to, and could be granted by, the Premier in terms of the Framework Act and the North West Act, the applicants decided to invite the residents of the Motlhabe village, as well as four neighbouring villages, to a meeting to discuss the matter. Reading between the lines, this was seen as a direct challenge to the authority of the senior traditional leader or Kgosi of the Traditional Community.

What happened next does not sound like something that one would expect to happen in a democracy: a member of the South African Police Service telephoned the first applicant and advised that he would be arrested if the meeting took place. Respect for freedom of speech and assembly within the framework of the South African law, was not something the Police and Kgosi was going to countenance.  The meeting was then cancelled. Because of a miscommunication the Kgosi approached the High Court for an interdict, believing the meeting would go ahead. As the majority in the Constitutional Court (per Skweyiya J – Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Van der Westhuizen J and Zondo J concurring) explained:

The gravamen of the respondents’ complaint in the High Court was that the applicants were meeting to further what the respondents characterised as an unlawful attempt to secede from the Traditional Community.

The respondents argued that the applicants wanted to call a Kgotha Kgothe – a traditional gathering at which members of a traditional community publicly debate and decide on matters affecting the community, which may include evaluating and criticising the performance of their leaders. They claimed a Kgotha Kgothe may only be convened by the Kgosi or his authorised appointee, like a Kgosana. The applicants disagreed, claiming that it may be convened either at a village or traditional community level and may be convened either by the appointed Kgosana or by the community itself in the absence of the Kgosana where he fails to convene a Kgotha Kgothe. In any case, they said, they wanted to convene a community meeting to discuss secession, which is not the same as a Kgotha Kgothe.

As the majority pointed out, where such a dispute of fact on the papers arise, the a court is obliged (because of the Plascon-Evans rule) to decide the matter on the basis of the averments of the applicants (the repondents in the original High Court application). This is important because if we assume that the applicants had a right to convene a Kgotha Kgothe in terms of customary law, the respondents would be unable to show that they had a clear right that was being threatened and no interdict could be granted to stop their opponents from meeting. On this point alone the High Court was therefore wrong to grant the interdict.

Although this should have been the end of the matter, the majority also addressed the argument that those who organised the meeting tried to pass themselves off as the legitimate traditional leaders of the region by appropriating the identity, authority or powers of the respondents. The argument was that if they did do so, the rights of the respondents would be threatened and the granting of an interdict would have been justified. However, the majority pointed out that:

Both the contents and context of the invitation could only have portrayed the applicants, being would-be secessionists, in a way that emphasised the distinction between them and the respondents…. [T]he terms and tenor of their attempted meeting, as contained in this invitation, speak to the very disassociation from the respondents that they seek.

According to the majority, at the heart of this series of interdicts was an attempt by the Kgosi to curtail the democratic rights of disaffected members of the Traditional Community. The majority linked the right to freedom of expression, association and assembly to the health of our democracy, arguing that “there is an inherent value in allowing dissenting voices to be heard and, in doing so, permitting robust discussion which strengthens our democracy and its institutions”. The majority therefore described the attempt to deny the dissenters this right as “disquieting”, especially “considering the underlying dissonance within the Traditional Community and the applicants’ numerous unsuccessful attempts to have this resolved”.

The minority judgment (authored jointly by Chief Justice Mogoeng and Justice Nkabinde) demonstrates a far less robust approach to the rights of disaffected members of a Traditional Community and displays a rather autocratic approach to dealing with dissenting voices in traditional communities. The tone of the judgment is also surprisingly emotional for a judicial opinion, making no bones about whose side its authors are on:

This application has a long and toxic history. It has its genesis in concerted efforts by the first applicant and his father over the years to assume the headmanship of the Motlhabe community. The basis for this claim was that the current lawfully appointed and recognised headman and his father were, according to the applicants, not the legitimate traditional leaders of that community. When it became apparent that none of the senior traditional leaders of the community of the Bakgatla–Ba–Kgafela in Botswana and South Africa were persuaded by the leadership claim of the first applicant, the latter chose to act as if he were the headman of Motlhabe and virtually ceased to recognise the first respondent as his traditional leader.

The main applicant is chastised because by expressing dissent he “threatened to undermine the position of the Kgosi, the certificate of recognition and the order and sanctity of the hierarchy of the Moruleng traditional community”. The idea that in a democracy, citizens – even those who reside in a Traditional Community – should have a right to express dissent, is not explored in the minority judgment.

The minority then ignores the well established legal rule that when a dispute of fact on the papers arise, a court is obliged to decide the matter on the basis of the averments the respondents (the applicants in the Constitutional Court). Instead, the minority makes a finding that a people’s assembly can only be convened by a particular leader who has the authority to do so and within his or her area of jurisdiction.

The inference is irresistible that what they sought to achieve was to replace the alleged “no longer legitimate leadership” with their own leadership or governance structure, which they described in the invitations as the “Motlhabe Tribal Authority”, thereby approbating to themselves symbols of state in order to claim legitimacy for and to bolster their conduct…. In the circumstances, the respondents, as the lawful authorities were entitled to approach the High Court to resist the usurpation of their rights by the applicants, who had no authority under customary law and the relevant statutes to convene a meeting of that nature and form.

The minority argued that the limitation of the right to freedom of expression and free assembly (a limitation imposed by the court when it granted an interdict) was justified to stop the “unilateral declaration of independence” which threatened the authority of the Traditional Leadership. In language that may remind some of a previous era before the advent of democracy, the minority issues the following dire warning:

Disorderliness is on the rise in this country and traditional communities are no exception. If it were to be permissible, the applicants’ form of secession would have to be led by a legally-recognised leader of the community. Meetings that are meant to pave the way for secession should not be clothed with authority the applicants do not enjoy. … In addition, the convening of a general meeting of almost all the villagers in Motlhabe as well as people from neighbouring villages without any legal authority had the potential of creating factions and disorder which could make the Moruleng community ungovernable. In the circumstances, it cannot be said that the apprehension of harm was not reasonable.

This sharp disagreement in the Constitutional Court on whether to protect the rights of those who wish to express their displeasure with the conduct of leaders undemocratically imposed on them, suggest two radically different views of the role of traditional leadership in our democracy. It may also hint at differences between justices about the value of dissent and the right of those who wish to criticise their leaders (democratically elected or undemocratically imposed).

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