‘Bantustan’ courts bill makes millions second-class citizens
Distorted customary law elevates chiefs and denies South Africans in rural areas many of the rights granted to others under the constitution, writes Thandabantu Nhlapo
AS South African voters weigh their options for the local government elections, those living in rural areas may be wondering how municipal authority aligns with traditional authority.
This is in light of proposed legislation that will have a profound impact on their rights, especially under customary law.
The only legal rights that millions of black people in this country have in respect of land that they have occupied for generations derive from customary law. For decades they were denied the common-law right to buy or lease land in most of South Africa.
For them, customary law, and not municipal authority, defines their security of tenure and governs what they may or may not do with their land. In this contested matter of life and death, who decides what is the content of customary law?
The question is not academic. The redrafted Traditional Courts Bill doing the rounds is again mired in controversy precisely because of the powers and central role it proposes to give to traditional leaders, to the detriment of the rights of traditional communities, especially in relation to land.
The government appears to be failing to defuse the inherited conflicts of contrived tribalism and imposed “tribal” boundaries.
Customary law is at the centre of the turmoil. Much to the satisfaction of many South Africans, the constitution consciously lifted African traditional culture by recognising customary law as a component of the legal system on a par with the imported common law. Even more gratifying was the Constitutional Court’s recognition of “living” customary law — that dynamic, flexible and authentic set of norms adapted to the real-life experiences of ordinary people living their lives. This was in contrast to “official” customary law — the rigid, distorted and discredited offspring of colonial and apartheid interference and legislation.
So far so good, but storm clouds are gathering. Ascertaining the content of living law is difficult at the best of times, more so if it is contested and even more dangerously so if it is contested by powerful forces. We are talking here of traditional governance, where the contestation between “living” and “official” custom affects the lives of at least 17 million South Africans in the former bantustans.
Instead of respecting a living customary law based on voluntary allegiance, secure rights to land occupied for centuries and leadership accountability through consultation and consensus, the official pendulum seems to be swinging towards an authoritarian model.
The proposed Traditional Courts Bill takes the “tribal” bantustan boundaries of apartheid as the template for the jurisdiction of traditional courts and traditional leaders. This cements a series of measures that increase the powers of traditional leaders at the expense of their people.
The bill bases the jurisdiction of chiefs on the territories recognised by the Traditional Leadership and Governance Framework Act, which itself adopts the boundaries drawn up in 1951 under the Bantu Authorities Act. Coupled with this, the bill (which at the last count was in its sixth version since January) makes the traditional leader the centrepiece of community life and customary law.
This raising of traditional leaders to a position of sole authority in rural communities has the chilling effect of locking these populations into a system of governance set apart from elected local government, and renders them virtually second-class citizens.
It seems inexplicable that the situation remains unresolved. There are two starkly divergent positions. One accepts customary law as essentially consensual and participatory, giving the lie to colonial and apartheid conceptions of African governance as despotic. The other, which successive drafts of the bill suggest is in the ascendant, is that the chief has sole authority in the affairs of their population, not only with respect to the judicial function, but in community matters as a whole.
Accountability through consultation and consensus-seeking goes out of the window together with any notions of the mantra that inkosi yinkosi ngabantu (a chief is a chief by the people).
In the first version, the legitimacy of a traditional leader derives from the people; in the second version it derives from statute.
But back to the issue of boundaries: recent drafts of the Traditional Courts Bill have tried to downplay this by softening the language, but the link between the jurisdiction of traditional courts and the 1951 bantustan boundaries remains unmistakable. These arbitrary boundaries were central to the apartheid project of creating “independent homelands” at all costs, which included at various times the “creation” of tribes by the governor-general (later the state president) in terms of his powers under the original Native Administration Act of 1927 as “supreme chief of the natives”. These bogus ethnic entities were supplemented by forced removals from so-called “white areas”, as millions were dumped in the homelands. A cursory look at some of the claims lodged with the Commission on Traditional Leadership Disputes and Claims, on which I served, shows the number of people who do not consider themselves part of these created “tribes”.
What has all this got to do with living customary law? The notion of the unaccountable traditional leader who is master of all he surveys conflicts with customary law, where the relationship between the leader and the people was one of stewardship rather than dictatorship. A leader who flouted the wishes of his people would soon find himself without people.
It is puzzling that a democratic government seems to agree that traditional leaders should be so powerful. Indeed, a question arises whether all the chiefs are pushing for this, or just a lobby with an agenda. Litigation in the courts shows the answer may be that many contestations over accountability involve land and mineral rights.
It’s sad that many Africans who welcomed the constitution’s embrace of African values in the form of an evolving customary law are witnessing the perversion of these values — and the consequent withdrawal of support for customary law in the popular imagination — as the powerful make a grab for power and territory.
For one thing, the application of this distorted customary law to traditional governance renders other levels of decision-making invisible. The family and the role of headmen and headwomen were essential counterbalances to chiefly power. This distorted custom also “imprisons” within the territory all those who dispute the legitimacy of the traditional leader, whether they are individuals and families who feel no loyalty to the “tribe”, or former traditional leaders who were demoted and stripped of their land.
The stock answer that these loose ends would be resolved by the Commission on Traditional Leadership does not wash; existing evidence shows this body has only scratched the surface in respect of existing disputes. Worse still, the distortion subjects 17 million to a differentiated and inferior citizenship.
Twenty-two years into democracy, with social stability balanced on a knife’s edge, this is playing with fire and may attract consequences too ghastly to contemplate.
Nhlapo is emeritus professor of private law and former deputy vicechancellor at the University of Cape Town. He previously headed the Commission on Traditional Leadership Disputes and Claims
Official customary law is the rigid, distorted and discredited offspring of apartheid
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