By force of law

What is the role of traditional authorities in a modern and democratic setting? Framing the question in these terms might obscure rather than reveal the fundamental question raised by a case the Constitutional Court will hear in March: what is the role of customary law in a democratic setting?

Recasting the question is not an exercise in semantics. It situates traditional authorities as institutions that administer a given set of rules or regulations contained in an overarching body of law—African customary law.

The Constitutional Court case concerns the constitutional validity of the Communal Land Rights Act.

The case is brought by four rural communities in Limpopo, and concerns the scope and powers of traditional authorities over rural communities, particularly regarding the administration of land and allocation of resources.

The characterisation of a custom as law distinguishes it from ordinary cultural practices or traditions. Law imposes obligation (the absence of choice) and consequences (punitive and otherwise) for non-compliance.

Royal conviction
Recently, the king of the abaThembu, Buyelekhaya Dalindyebo, was convicted of serious crimes, including assault, murder and arson. The judgment is remarkable because the crimes were committed by the king himself, the very embodiment of ubuThembu

The crimes were also committed against the abaThembu, the people whose name is used to explain the source and justification of Dalindyebo’s power.

As someone who was raised in the Transkei, where customary law was widely practised, I asked myself whether I ought to be horrified at the conduct of the king; and whether in fact Dalindyebo’s conduct was a manifestation of a deeper problem with an unelected, unregulated and ultimately unaccountable institution.

I concluded that the conduct of the king should come as no surprise; we have been here before. Kaizer Matanzima was a traditional leader, even though of lesser seniority than he claimed. His notorious abuses of power are too numerous to mention.

However, Matanzima’s excesses could be explained by the illegitimacy of the system that produced and granted him power—apartheid. By contrast, apartheid cannot explain Dalindyebo’s crimes. In both cases, however, obligation is imposed on the subjects and there are severe, even deadly, consequences for non-compliance with decisions of customary authorities.

Modernity and tradition
The existence of obligation exposes a tension inherent in a legal system that prizes a plurality of legal systems. Legal systems shape human conduct and behaviour. The co-existence of different legal systems creates a tension between modernity and tradition. Contemporaries often claim that cultural practices such as polygamy signify a return to the Dark Ages. What they ignore is the reality that 20-million South Africans observe a customary law system in one form or another.

These people do not live in the Dark Ages; they live in contemporary South Africa. Their use of traditional systems within an overarching constitutional system shows that what is often presented as a choice between modernity and tradition is in fact a false choice. Modernity and tradition are not mutually exclusive. They intersect, collide and overlap in a number of dazzling ways.

But I am running ahead of myself. Dalindyebo’s abuse of traditional authority reflects a manifest deficit in the theorisation of customary law and authority.

As a consequence, the law is often confused with the institutions designed for its implementation. This confusion does not apply uniquely to customary law: police are often confused with the law, and so too are judges, lawyers, prosecutors and so on.
The separation of customary law from its institutions requires us to engage in a challenging exercise of finding meaning in customary law. That process does not occur in a legal vacuum: it occurs in a context set by the Constitution. The fact of the explicit recognition of customary law by the Constitution places its existence and legal effect beyond dispute.

But that is as far as it goes: setting the base, not the limit. What exactly is the limit? The limit lies in recognising that there is in fact no single system of customary law — customary law cannot exclusively be found in ossified codes or pronouncements of traditional leaders. It is a multiplicity of different systems of laws.

Nuanced approaches
Groups of the amaMpondomise may, for instance, share similar geographic areas with the amaMpondo, but follow different customs. Over time, such customs mutate into law. However, they remain different and require nuanced approaches in application.

Second, customary law is neither old nor static. In fact, customary law is modern and dynamic. It changes with the social context. In the 2008 case of Nwamita, it was argued that the customary law prevented a woman from being appointed as a Hosi, or chief. The Constitutional Court found that customary law, when interpreted in the light of the Constitution, did not countenance gender discrimination. Accordingly, a woman could, under customary law, assume the position of chief.

Third, customary law can be found by observing the social practices of the people affected by it. Those practices occur in the present, not the past. In short, customary law is living law.

If customary law is living law, a question of broader significance emerges. What is its relationship with the Constitution? The Constitution explicitly answers this. The Constitution is the supreme law of the country and any law inconsistent with it is invalid.
Customary law, therefore, has no life separate and distinct from the Constitution. Its existence, authority and force are drawn from the Constitution. In application, therefore, customary law must be suffused with the values of dignity, equality and freedom—values that are central to the country’s project of constitutionalism.

Tembeka Ngcukaitobi is the director of the Constitutional Litigation Unit of the Legal Resources Centre. He writes in his personal capacity

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