Constitutional Hill

Time for rethink on traditional leaders

Millions of South Africans live much of their lives according to customary law (instead of having their lives regulated via the common law). During the apartheid era, customary law was viewed as second class law. We were told that the law that counted was statute law and, more importantly (for most – white – lawyers and legal academics), the “magisterial”, so called “conceptually refined” and “fundamentally fair” system of common law. When I studied law at Stellenbosch University, we did not study a single aspect of customary law. It was as if customary law (and the millions of people who lived in terms of it) did not exist.

Later I discovered that some of the ideological underpinnings of the Roman Dutch common law were rather suspect, what with its radical assumptions about freedom of contract and a predisposition to favour the powerful and the propertied classes above all others. At the same time it dawned on many that, for better or worse, millions of South Africans lived much of their lives in terms of customary law.

The official view on customary law has thankfully now changed, as the status of customary law in South Africa is constitutionally entrenched. Section 211 of the Constitution provides that the institution, status and role of traditional leadership are recognised subject to the Constitution. As the Constitutional Court has made clear in the case of Alexkor v Richtersveld Community, customary law must now be regarded as equal with the common law and as an “integral part of our law” and “an independent source of norms within the legal system.” Like any other source of law, customary law has a status that requires respect. Customary law must also not be judged through the lens of the common law.

But what happens if traditional customary law rules – interpreted and applied in its proper context and not with reference to the common law – conflicts with other provisions in the Bill of Rights? This question came to mind when I read about claims by Princess NomaXhosa Sigcawu from the East Cape that she had been overlooked to lead the AmaGcaleka Kingdom and that this was unconstitutional. 

NomaXhosa said her mother, Queen Nozizwe, had been her father (King Zwelidumile Sigcawu’s) senior wife.  Because she had been a baby when he died, King Xolilizwe, her older brother from another mother, had been made king.  When King Xolilizwe died in 2006, one of his sons, Mpendulo, took the throne. The Princess claims that this move – based on the customary law rule in that community that only the oldest male heir could become King or Chief – discriminated against her on the basis of her sex or gender.

This case differs from the case of Shilubane and Others v Mwamitwa, where the Constitutional Court recognised the fact that a traditional community itself could change the rules to allow the female children of chiefs to take up the reigns, despite a previous custom that only the oldest male child could do so. This is because in the case of Princess Sigcawu, the community had not changed the custom and is resisting her attempts to become the Queen.

Commenting on the case, Chief Patekile Holomisa, Congress of Traditional Leaders of South Africa (CONTRALESA) president, said custom dictated who should be a royal leader. “Legitimacy of ubukhosi is derived from custom, not from the Constitution and the Bill of Rights,” he said, referring to kingship. “It is not automatic that a woman as the first-born is a successor. If a traditional council decides to go against the custom, the court can allow that, but we do not accept it.”

As the Constitutional Court makes clear, this view by the President of CONTRALESA is not sustainable. Several provisions in the Constitution affirm that – like common law – customary law is now subject to the Constitution and cannot contravene the Constitution. Moreover, although Courts should try and respect the right of communities that observe systems of customary law and should try and respect their right to develop their law as they wish, where a custom discriminates against women or infringes on the rights of individuals, a court had a duty to declare that custom unconstitutional and to amend it.

There is a serious debate raging in academic circles and also amongst judges on how to deal with this issue. On the one hand, courts – especially the Constitutional Court – is acutely aware that customary law has been disregarded and disrespected in the past and that courts should now recognise the fact that customary law is a living law that can change over time. It is not the rigid and inflexible system of fossilised rules, written down by white colonialists and enforced by white judges during the apartheid era, and courts should be sensitive to this and, where possible, should allow the customary law to be develop by the relevant community themselves.

On the other hand, the courts have a duty to develop customary law rules to bring them in line with the spirit, purport and object of the Bill of Rights. Where customary law rules discriminate against women, they must be developed or declared unconstitutional. As the Court said in Shilubana:

courts must be cognisant of the fact that customary law, like any other law, regulates the lives of people. The need for flexibility and the imperative to facilitate development must be balanced against the value of legal certainty, respect for vested rights, and the protection of constitutional rights.

Whether a court will show deference to customary law and wait for it to develop organically, or whether it will intervene will depend on several factors.  These factors would include:

the nature of the law in question, in particular the implications of change for constitutional and other legal rights; the process by which the alleged change has occurred or is occurring; and the vulnerability of parties affected by the law.

It is clear that a customary law rule that prohibits women from becoming traditional leaders like chiefs or queens, unfairly discriminates against women. It is based on patriarchal notions about the “proper” roles of men and women in society and is often justified on the basis that a chief or a king can only become one if he was fathered by a chief or a king. As women cannot father any children, they cannot and should not become chiefs or kings.

This view perpetuates the notion that men – because they father children – have a higher status in society than women. Although very few women will therefore directly be affected by this customary law rule (as very few women are actually the daughters of chiefs or kings), the rule would have far-reaching consequences for many women living in traditional communities exactly because it is based on patriarchal assumptions about the general subordination of women to men and because it reinforces and perpetuates this subordination.

I would therefore argue that in this case, the court should not wait for the community to develop the customary law rule to bring it in line with the requirements of gender equality, but should intervene (if asked to do so) to declare this customary law rule unconstitutional.

This is a pressing problem for another reason. There is a dirty little secret at the heart of traditional leadership which is never spoken about or acknowledged by Contralesa. The fact is that many traditional communities are controlled by Chiefs who were appointed as proxies of the apartheid government to exercise control on behalf of the apartheid state and they will not want to diminish their power and prestige by amending customary law rules to recognise gender equality. The very system of traditional leadership has been completely subverted by colonialism and apartheid and is far removed from the kind of benign system which made King Moshoeshoe such a revered leader more than hundred years ago.

Maybe it is time to recognise that our whole system of traditional leadership as it has evolved, is deeply problematic and not really compatable with a system of democratic governance. On the one hand one is acutely aware of the need to respect the traditional beliefs and cultural practices of millions of South Africans whose way of live was so fundamentally circumscribed and for ever changed by colonialism and apartheid.

On the other hand the system of customary law and of traditional leadership has been fundamentally subverted and corrupted by the colonial authorities and the apartheid state – often (but not always) with the collusion of traditional leaders. Some Chiefs or other traditional leaders do not always act in the best interest of the community and according to rules of customary law that protect everyone in the community as a member of the community.

Such unscrupolous and unelected leaders often borrow from customary law those parts that suit them and then also rely on common law or statute law rules based on a more individualistic view of the world in order to subvert the very system of rules which organised communal living, which (it could be argued) used to operate for the benefit of all. Instead many traditional leaders now act to cement their own hold on communities and to enforce completely unacceptable and bastardised forms of customary laws on their subjects. This leads to much hardship and suffering on the part of their “subjects” and seems to be in conflict with principles of democracy and the demand for respect of the inherent human dignity of all.

Maybe it is time for the government to return to the original policies regarding traditional leadership adopted by the ANC when they were still in exile and to do away with the undemocratic and often oppressive system of traditional leadership. I suspect this will not happen, but I also suspect customary law will only be able to take its rightful place as an equal and important body of law alongside the common law – as required by the Constitution – when traditional leadership structures are fundamentally reformed and democratised. The current system is undemocratic and (often) oppressive and has no place in a Constitutional democracy. 

  • Zoo Keeper

    I agree

    I believe these are no longer relevant to a constitutional democracy. All our laws and systems have to fall under the concept of a constitutional democracy and traditional leaders are no longer technically relevant.

    Unfortunately, much Apartheid used them to keep the rural masses at bay, so does the ANC. Don’t expect any changes.

    I did enjoy the declaration of CLARA as unconstitutional which would have condemned rural occupiers of cummunal land to serfdom. I wonder if anybody’s laid a land claim against the Zulu King for the great land theft of the early 1990’s?

  • Simphiwe

    I agree with you Prof. I would, however, add that Chief Patekile Holomisa is also an advocate. The statement attributed to him is therefore worrying. I just hope that he was “misquoted”.

  • Mzokuthula

    I do not agrre with you Prof.

    Even thought there are a lot of problems with the customary law rules on the status of women in matters of succession, the rules of customary law have become too much entrenched into the communities that follow them. This will create a vaccum if customary law is erased from our legal system. In addition, the reason for the survival of customary law upto this time is becasue it is better to apply to them to those communities that follow them ( Customary law forms the most effective social control set of rules than common law in traditional African communities). The rules of customary law must not be erased, but there must be developed to be consistent with the Bill of Rights if they are not. Furthermore, despite the fact that traditional leaders were elected by the apertheid governmet to ease the governance in black South African communities, it must still be noted that the rules that were applied were not foreign to the people but they were to make sure that black people will obey the orders that the traditional leaders got from the apertheid government.

    For these reason, the development of customary law by traditional leaders or by the Constitutional Court is still necessary rather than doing away with it, because there are still a lot of customary law rules that are in line with the Bill Of Rights and are necessary in society.

  • Mikhail Dworkin Fassbinder

    @ Pierre

    “The very system of traditional leadership has been completely subverted by colonialism and apartheid and is far removed from the kind of benign system which made King Moshoeshoe such a revered leader”

    Pierre is right. I have always sensed that pre-colonial leadership was fundamentally benign!

  • Andre

    The law isn’t concerned with trivial matters. That we know. But could anyone here enlighten me please, what chance does an aggrieved soccer team have in a court of law (in Afrique Du Sud) when the same launches an application in a court of law; I refer to those really bad decisions and there have been a few lately? Can a re-play be forced, through a court order? Could a goal be added to the score through a court of law? Fass, your thoughts? Anyone?

  • Brett Nortje

    Can someone please explain to me how S9 of the Constitution and hereditary office are consistent?

  • Mikhail Dworkin Fassbinder

    Andre, I believe most courts would interpret the disputes to which you refer as governed by the FIFA contract, which I am sure would include a provision making the FIFA appointed referee’s decision final and binding. But, it may be possible to argue that such decisions constitute administrative action; see the recent decision of Wallis J in the Naidoo case.

  • Brett Nortje
  • Gwebecimele

    @ Andre

    Blatter has just warned Sarkozy and France for announcing an investigation into the performance of their team at 2010. He threatened them with suspension. Try take FIFA to court u will be booted out of FIFA.

  • jane

    [It is not the rigid and inflexible system of fossilised rules, written down by white colonialists and enforced by white judges during the apartheid era . . . ]

    Pierre, would we not be perpetuating this heavy handed and arrogant attitude (albeit in line with the prevaling zeitgeist) by imposing broad human rights norms derived entirely from Western thinking on a customary scheme whose functioning, origins and subtleties we are not party to?

  • Nelisiwe Beja

    my take on this is that the rules of customary law are somewhere unfair and discriminatory when they givern without the limitations of the South African Contitution because there are instances where they discriminate against women because of their sex or gender ,but I bbelieve that traditional leaders are of importance in our communities as they regulate how some laws concerning tradition should be regulated

  • lincan monyepao

    i do understand the fact that customary law of all the laws is important to many communities in south Africa ,in particular African communities.and from the community within which i live i”m being regulated by the same law.having knowing that every citizen in our democratic country is,in terms of sec 9 of act 108 of 1996 entitled to equality,every law can not discriminate against anyone on the grounds contained in sec 9[3],customary law in particular.section 211[3]of the constitution, however brings about a cogent application of customary law .firstly and perhaps most importantly it must be applied by the courts,only if it is applicable,subject to the constitution.secondly,any legislation that deals specifically with customary law must be applied.some how this calls to mind sec 2 of the constitution which simply states that the constitution is the supreme law of the republic,any law or conduct inconsistent with it must be declared invalid.lets take MALE PRIMOGENITURE for instance,this principle is in conflict with certain sections of the for example,s 9 and 10 of the constitution.doesn’t that make it invalid because it contravenes with the above mentioned sections that are contained in the constitution.if this principle is valid then what about the supremacy of the constitution.but I believe that traditional leaders are of importance in our communities as they regulate how some laws concerning tradition should be regulated.

  • Tony Williams

    Customary law will not go away. Countries like Botswana, Mozambique and Zimbabwe have tried to no avail. Customary law provides a consistent reference point and more importantly is in tune with the norms of society. I believe customary law offers more than some of the laws, values and norms modern society offer. ‘Ubuntu’ lies at the heart of the matter and it was the prescripts of this that shaped such incredible greats as our own Nelson Mandela. South Africa’s transformation from oppression owes much to the traditional value of ‘ubuntu’. The Truth and Reconcilliation Commission (TRC) was founded on this profound principle. Desmond Tutu, the chairman of the TRC exponded on this approach and wept at the human tragedy as more and more horrifying stories of autrocity came to light. Judge Mokgoro of the South African Constitutional Court explained ‘ubuntu’ (humanness) as follows:” While it envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense, it denotes humanity and morality. Its spirit emphasis respect for human dignity, marking a shift from confrontation to concilliation.” If these have no place in our modern society then we are surely past redemption! Western laws perpetuate individualism and consumption and look at the mess our world is in! It took 100’s of thousands of years to create an environment to enable life to be sustained and in less than 200 the West and all its claims to superiority have left future generations with diminishing hope. Climate change must be a huge wakeup call. It was not traditional society that created the mess, on the contrary it has been the arrogance of a system that imortalises wealth and other forms of agrandisement. In any event weak local government will perpetuate the continued existance of this dynamic system. It is constantly changing and reinventing itself. One imediate advantage to customary law is that I have the right to be heard and any such hearing is free: I do not have to pay a lawyer exorbitant fees!!!!! Customary law served communities for 100’s of years and as best I can tell will continue to do so, especially those (approximately 40% of this country’s population) who reside in our deep rural areas. It is a system that genuinely gives people access to resources and processes as the central focus is always community and maintaining the welbeing of such. True there are bad examples of leaders who have abused the system: but then it took one to grab the attention not only of a nation but many. It was those formative days in a society regulated by customary law that laid the foundation to the greatness we have all benefited from.

  • http://N/A Ludumo Njemla

    What i like to knw is that,which steps we suppose to follow when we are electing traditional committes as we community members?(inkosi ne qumrhu lakhe)

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  • mike4ty4

    However, if you just get rid of traditional law entirely, instead of looking at setting up a revised system without all the colonial problematics, then that would seem to leave only the common law as an option, but as is mentioned, this law is highly “individualistic” and it seems that in the World right now, excessive individualism is creating a number of problems, and also this law favors rich classes (which also happen to be “whiter” classes in these countries). So what can be done? What’s the third option that dispenses with the problems in both systems?