There is a dimension to this contest, however, much less noticed than headline battles over President Jacob Zuma, the prosecutions service and the transformation of the judiciary but equally important to millions of South Africans – in some ways more so.
The Constitutional Court is now wrestling increasingly with the practical implications of developing customary law to ensure its continued functioning in a constitutional framework and its judgments are creating precedents, although at times revealing telling divisions on the Bench.
On Thursday, a unanimous court set aside a decision by President Zuma, acting on the advice of the Commission on Traditional Leadership Disputes and Claims, to appoint Zanozuko Tyelovuyo Sigcau as king of the amaMpondo aseQaukeni. Had that decision stood, Sigcau would have taken over the title, and the considerable powers that come with it, from Mpondombini Sigcau, who inherited the position in 1978. The incumbent challenged his ousting and, after losing his case in the high court and Supreme Court of Appeal, died of a stroke in March, before his case was won in the Constitutional Court.
The unanimous judgment is based narrowly on the fact that new legislation governing traditional leadership was retrospectively applied to the dispute. That meant the court did not consider important input from the Centre for Law and Society at the University of Cape Town on the living character of customary law, the involvement of the community in decisions and an outcome in their best interests. When those questions are in play, the top court is more equivocal. In the case of Mayelane vs Ngwenyama and Another, it split over whether to develop Xitsonga customary law to make it a firm requirement that a man must obtain permission from his first wife before he marries a second. The majority, six justices, agreed that customary law must be developed to change a flexible principle already present in Xitsonga practice into a firm rule requiring consent. This decision should offer some protection to women who, like Modjadji Mayelane, the applicant, find themselves in a polygynous marriage to which they have not agreed.
Two dissenting judgments, one by Justice Raymond Zondo and one by Justice Chris Jafta with Chief Justice Mogoeng Mogoeng and Bess Nkabinde concurring, would have left the situation unchanged. In the case of Pilane and Another vs Pilane and Another, the justices were asked to deal with efforts by members of the Bakgatla baKgafela community to hold meetings to express their dissatisfaction with their chief over his handling of benefits from platinum mining. By a majority of eight to two, the court found that the rights of free speech and association applied in traditional communities too, and that the meetings should not have been interdicted. Mogoeng and Nkabinde again dissented, saying the meetings could "[undermine] traditional structures, leadership, governance and the erosion of the rule of law".
The court has shown real wisdom in managing to articulate traditional law precepts in terms harmonious with the Bill of Rights. As pressure over resources and political influence mounts, these cases will multiply. And when the Traditional Courts Bill and proposals to deal with communal land tenure are up for consideration, the approach of legislators and, where necessary, judges, will hopefully be guided by the progressive majority – and the voices of those living in traditional communities.