/ 24 August 2015

Judges agree on a democratic approach to customary law

By the book: The Constitution provides the country with a legal foundation that protects linguistic rights.
By the book: The Constitution provides the country with a legal foundation that protects linguistic rights.

Customary law is coming in from the cold. Important judgments delivered this month show the courts supporting, as valid law, community practices that shun patriarchal, antidemocratic and elitist elements often synonymous with customary law, and that move towards a society based on constitutional values instead.

One of these landmark decisions came from a full bench of the high court in Bhisho, epicentre of a strongly traditional society with deep customary law roots.

At the heart of the case was a dispute over who should replace headman JH Fani in the Cala Reserve when he retired.

On the one hand stood the Cala community and the “planning committee” whose members were appointed by Fani as his advisory body. Committees such as this have long been associated with the headmen of the area and its members called a community meeting to discuss Fani’s successor.

During debate it became clear that the man who had acted as Fani’s de facto deputy, Gideon Sitwayi, was favoured by the community and he was duly elected. However, when Fani and a member of the planning committee tried to report Sitwayi’s election to the amaGcina Traditional Council the reaction was far from what they had expected.

Affronted by democratic choice
Although the people of Cala Reserve have chosen their own headman for more than a century the traditional council and its leadership were affronted and angry that someone was chosen by the people themselves, rather than by the traditional council. They acted “unlawfully” they were told, and the traditional leadership would go to the reserve to “introduce” the person they had decided would replace Fani.

It became clear that another reason the traditional council did not want Sitwayi chosen was that he was not a member of the royal family.

When the council arrived to introduce their preferred headman the community was informed there was no question of a meeting, nor any chance for questions: they were there to tell everyone who the new local leader would be. The chief said that whether the people of the area liked it or not, “it is the royal family that decides on the headman”, and that while the people of the area might always have chosen their own headman, a “new law” instructed the royal family to make the choice instead.

That “new law” was the Eastern Cape Act. One of the main tasks of the court in its ground-breaking judgment was to analyse what this law actually said, and whether it in fact prevented the long-standing democratic practices of the Cala Reserve people.

Royal choice
Before the matter went to court however, there was a flurry of letters between all the players, including the provincial authorities, and while this was taking place the royal choice of headman was already being paid a salary and plans for his installation were being made.

No compromise being found, the people of Cala Reserve asked for an interdict: they wanted the inauguration stopped so the courts could consider whether the royal’s choice should be set aside.

That application was granted – but the inauguration went ahead anyway, prompting contempt of court proceedings.

The interdict was followed by a high court judgment, this time reviewing and setting aside the royal decision not to follow the people’s will. Dissatisfied with the outcome, the Eastern Cape premier, the local government and traditional affairs MEC, as well as members of the royal family, appealed to a full bench of the high court.

Writing the unanimous decision of the full bench, Judge Clive Plasket quoted a letter that had set out the case of the royals: “In terms of … legislation it is the prerogative of the royal family … to identify … who will be an inkosana or headman, with no provision stipulating the involvement of the respective community of that particular administrative area.”

Traditional democracy
For the community Professor Lungisile Ntsebeza gave uncontested evidence of the long-standing practices of the Cala Reserve which the court accepted as establishing that for more than 100 years the community had elected its own headman, and that this remains the current practice. The practice checked all the requirements that would allow it to be regarded as customary law.

Provincial legislation on traditional leadership made it clear that this institution was to be “transformed”, said the court, so it harmonised with constitutional principles and derived its mandate “from applicable customary law and practice”. Since it was clearly the living customary law and practice in Cala Reserve for the people to choose their own leader, recognition of that practice by the royal family was required.

During argument, counsel for the provincial authorities and the royal family said the royals were not required to take into account the “popular view of the community” and that “no community consultation is envisaged” in the legislation. Counsel then conceded that the effect of this argument was that the people of the region would enjoy greater democratic rights in relation to choosing a headman under homeland rule than under a democratically elected government.

Community’s choice
The three judges agreed that when the MEC decided to recognise a headman chosen by the royal family even though someone else “qualified in terms of customary law”, the MEC’s choice could not stand. The court made short shrift of the MEC’s claim that the people of Cala Reserve “cannot be expected to be treated differently to other communities”. Provincial law clearly allowed differing ways of choosing candidates, said the judges.

“The intention of the legislature was that the customary practices of each community would guide each royal family in the exercise of its power,” they concluded.

In the end the court awarded costs against the royals and the provincial authorities, ruling that the royal’s choice should be set aside as “tainted by irregularity” and that the community’s choice must prevail.

The decision has been widely welcomed by rural organisations as evidence that a democratic approach to customary law and leadership will be upheld by the courts where local communities have indicated this is their preference.

Legal Resources Centre attorney Wilmien Wicomb, who represented the community, said since the judgment she had been inundated with calls from traditional communities wanting to know how they could replace their existing systems with more democratic practices.