Kings, customary law and constitution
Holomisa’s appointment, king’s pardon may well signal Ramaphosa’s intention to bring customary law to the fore
Treading a tightrope between the past and future
Among photographs of the wedding of recently crowned King Maha Vajiralongkorn of Thailand, are images of his subjects, including new wife, Suthida Tidjai, prostrating themselves and crawling to him where he sits on a throne.
As representations of how perversely outdated and out-of-step traditional and despotic monarchical expressions of statehood are in comparison with understandings of democratic, rights-based practice, these images are unparalleled.
The king is revered by Thais as a deity and may not be insulted due to anti-defamation laws, but Maha or Rama X has also been described in Wikileaks documents as prone to “violent and unpredictable mood swings”.
President Cyril Ramaphosa currently is considering the full pardon and release of jailed AbaThembu King Buyelekhaya Zwelibanzi Dalindyebo.
Following a tortuous journey through our courts, the erstwhile king was jailed in 2015 for a series of crimes that included arson, kidnapping, assault with intent to commit grievous bodily harm, and defeating the ends of justice, committed against some of his subjects 20 years earlier.
Former justice minister Michael Masutha announced in April this year that an application to pardon the king had been received from the king himself and the Congress of Traditional Leaders of South Africa (Contralesa).
These had been processed by the department – including facilitating favourable responses from the victims of Dalindyebo’s crimes, to the pardon application – and submitted to Ramaphosa, recommending the pardon be granted.
The announcement was viewed by many as a tactic to stave off desertions away from the ANC by traditional leaders and their subject communities ahead of the elections.
Masutha did not return to national government in the cabinet announced by Ramaphosa this week, perhaps a victim of his poorly constructed rebuttal of claims he was linked to Bosasa corruption shenanigans. He was replaced by Ronald Lamola.
John Jeffery was retained as one deputy minister, with Nkosi Phathekile Holomisa moved in as a second deputy.
It is likely that, in the new government, Jeffery will retain his justice responsibilities, with Holomisa taking on the prisons portfolio from predecessor Thabang Makwetla.
However, Holomisa’s appointment may well signal Ramaphosa’s intention to bring customary law to the fore in his government.
Holomisa has played a significant role over many years within national and provincial government. He is an advocate of the high court, has been an MP since 1994, and is a leader of the AmaHegebe clan through which role he led Contralesa from 1990 to 2013.
But the move to pardon Dalindyebo and the putative role that Holomisa may play in the new government’s justice ministry, suggest that a wholesale return to a dual system of governance in which tribal and constitutional law are on equal footing in most respects, might very much be on the cards. This dual system is nothing new.
On the contrary, the threads of local traditional leadership acting in service of centralised government are well documented, whether they purported to hold hereditary chieftainship or simply enjoyed the fruits of arbitrary imposition by colonial administrators.
This is not to say that there is no place for traditional authority structures in democratic SA.
As with most starting points for mediating the stark differences in our country, it is crucial to recognise nuance in the forms of customary structures evident in society.
Colonial ideas must be debunked that the African forms of statehood encountered by the colonisers were primitive and barbaric.
But, we should also avoid mis-characterising the historical traditional systems as enduring despite the colonial objective, always working smoothly, honourably in the service of the people. They were anything but honourable and the only people in whose service they were deployed were the colonisers, with colonial forms continuing into the apartheid era.
As asserted by Lord Lugard, the architect of indirect colonial rule in the black areas of the colony, “the first step in building a regime of indirect rule is to endeavour to find a man of influence as chief, and to group under him as many villages or districts as possible”.
Current law, institutional arrangements and even elite collusion build on apartheid and Bantustan precedents which, according to some researchers, bolster and legitimise autocratic and unaccountable traditional relations.
These approaches, at odds with indigenous accountability mechanisms, were highlighted in the Eastern Cape during the challenge against the imposition of a headman by the Cala community, which asserted its right to elect a headman of its choice over and above administrative decisions sanctioned by the Eastern Cape government.
Dr Lungisile Ntlebeza, who has devoted much of his academic research to customary forms, has argued that traditional authorities must “abandon their hereditary status and subject themselves to the process of election by their people”, in order to play a public, political role at local government level.
But, even if one were to ignore – with great difficulty – the racist political underpinnings of customary law in SA and the problematic progression of such forms of government through successive colonial and apartheid administrations into the present democratic era, Dalindyebo’s is the wrong poster image for a new-found respect for traditional rule.
Despite his strong “struggle” credentials under apartheid alongside his father, the highly regarded King Sabata Dalindyebo, under a democratic government Buyelekhaya has flip-flopped from one political position and party to another, seemingly as his mood but certainly as his personal interests have dictated.
His assault of his subjects which contributed to his conviction and jailing was described by Mthatha high court judge Zietske Alkema as “one of the worst cases of assault which could be perpetrated”.
Alkema’s assessment was taken through to the Supreme Court of Appeal when it found that Dalindyebo was a “tyrannical and despotic king” and was guilty of all charges except for culpable homicide.
Traditionalists assert their inherent, unmediated and experiential knowledge of their own cultural practices, decrying critiques from outside the clan.
But the question begs asking: To what extent are the full rights of citizens under the constitution diluted when they are arbitrarily subjected to custom, especially custom which is enforced by despotic means?
Furthermore, how should non-customary subjects – especially urban dwellers with no ties to a traditional authority – respond to this dualism in the law of our country which creates separate categories of citizens with rights?
What might it mean for a non-subject who elects to live within the area of jurisdiction of a traditional leader who rules without any consideration of constitutional prescripts – such as those, for example, in respect of gender or religious rights?
Democratic South Africa was intended to be a unitary state – in geography and certainly, in legal dispensation.
If Ramaphosa pardons Dalindyebo, it will confirm in the worst way possible that there are two types of law in SA – one for the majority of South Africans and another for despotic traditional authorities and their subjects.
This must be an affront to all who strived – and continue to strive – for a society in which all South Africans are free, equal, entitled to the same rights and subjected to the same legal obligations.