“I have stated before that there was really a deliberate attempt … to lead the native away from what was fine in his rights and customs … I want to allow him to develop his own law according to changed circumstances, but starting from a system of law which is his.” – HF Verwoerd, 1955
“It would be wise for government, in its endeavour to modernise and democratise the institution of traditional leadership, to leave these courts as they are and to let them evolve on their own and adapt to changing conditions.” – Nkosi Phathekile Holomisa, 2011
The Traditional Courts Bill presents an opportunity to examine fundamental questions about the construction of identities and the meaning of freedom, justice and equality. These questions were at the heart of the national liberation struggle and have continued relevance.
The colonial and Verwoerdian construction of who we are and how we ought to live and be governed has taught us to be wary without necessarily rejecting legal dualism. But where that dual system is forced on sections of the population and is framed geographically, it not only reminds us of the apartheid system of separate development, it also exposes the complex ways in which the past lives in the present.
The introduction of the Bill, with justification similar to the system it purports to replace, gives us a startling sense of déjà vu. The Bill, it is said, will give more people access to justice – the courts will be run simply and cost-effectively and the “senior traditional leader” will develop customary law according to custom.
Essentialist notion of custom
Students of history will recall the words of Ernest Stubbs, president of the Native Court of Appeal (Natal and Transvaal), who in 1929 argued for “a system of judicature … embodying a simple, convenient form of procedure, stripped of legal niceties and technicalities, designed to meet the needs of the situation … designed to suit the psychology of the native”.
The Bill is being considered against the backdrop of a long struggle by the national liberation movements that emphasised the “national”. This was not to deny the existence of “other” identities, but rather to contest the erasure of African people’s claims to common humanity and identity by apartheid’s construction of them as tribal subjects.
Yet the Bill goes beyond legitimising traditional courts insofar as a singular and essentialist notion of custom is advanced. Practically, this results in freezing identities and undermining meaningful citizenship for large numbers of African people.
Questioning the Bill does not deny the relevance of African customary law – for some. But the notion of “traditional” also carries dangers. Beninese philosopher Paulin Hountondji argues that “‘traditional’ may be misleading because it flattens the cultural legacy” and sometimes leads to the “oversimplification of Africa’s cultural past”.
The similarities between the Bill as it stands today and the Bantustan system are not born of contempt for customary law or alarmist tendencies on the part of those who criticise the Bill. We come to this debate not seeking to cite the Constitution selectively, but as people who read and understand it as a living document.
The Bill is said to be premised on it. The provision from which it arises is the Bill of Rights, especially section 31 on cultural, religious and linguistic communities. No right can be exercised in a manner that is inconsistent with any section of the Constitution.
Chapter 12 deals directly with traditional leaders and their roles. It is argued that it gives grounds for the creation of traditional courts. This is to misread the chapter. It gives due recognition to traditional leadership and makes provision for the integration of customary law in the courts.
This means that, if our justice system was efficient, I could walk into the Johannesburg Magistrate’s Court and ask that my case be tried on the basis of customary law, if applicable. In this way, those who wish to live by customary law have the right to do so, irrespective of their geographical location. Provision for other courts is made, but this is subject to the same limitations as other laws, institutions and practices.
The Bill gives rise to a number of complex issues. Many rural South Africans still await their right to hold title deeds – a basic right, which should have been granted at the dawn of freedom.
There is also the crime of Bantustan atrocities. People who experienced hitherto unspoken crimes, not even examined by the Truth and Reconciliation Commission, are now expected to trust that those who destroyed their homesteads will administer justice fairly. Of the graves scattered in the valleys and hills of so-called western Tembuland, among other places, nothing is said. The women who were taken ukuba bayokondlalela inkosi (to be the mattress for the chief) live with their pain and shame; some have died from it. In some areas the abuse continues. Can we trust that traditional courts will give such people access to justice?
Nomboniso Gasa is a researcher and analyst of gender, politics and cultural issues