African customary law is recognised in South Africa today, subject to its conforming with the Constitution and any legislation dealing with that area of law.   The Constitution also recognises that there is a diversity of cultural practices in various communities and that traditional leadership should be promoted subject to norms of democratic governance.

The coexistence of customary law with constitutional democracy was bound, given its history in South Africa, to be a complex and controversial question. 

Insofar as customary law was recognised under colonial and apartheid rule, it was not, as it had been prior to conquest, a law deriving from communities. It was, instead, a white colonial and apartheid version of this law.¹   It was applied at the lowest level by appointed chiefs and in ascending order by Bantu Affairs Commissioners, the Bantu Appeal Court and on final appeal by the Appellate Division of the Supreme Court. 

This “Bantu Law” tended to remove what democratic processes of consultation had existed in these societies.  The contribution towards development of this law by legal practitioners was minimal. Legal training generally did not include a course in Bantu Law and where it was taught it was usually treated as a static, unchanging law.² 

What change was introduced under colonial and apartheid rule did not emanate from recognition of the living custom of the communities concerned, but through modifications by courts presided over by whites. These tended to emphasise individual male patriarchal power at the expense of women (who, according to Monica Wilson and other scholars, had enjoyed some property rights in pre-colonial societies).  Bantu Law also provided little protection to women who may have been beaten or ill-treated in other ways in marriages under Bantu Law.

The relationship of traditional leaders towards the evolution of democracy at a local government level has been filled with tension as these leaders have sought, with the complicity of the national government, to reclaim rights they enjoyed under apartheid legislation – and even to claim rights going beyond those of that era.  This has been projected within the boundaries of the former bantustans. The Traditional Courts Bill, which was temporarily withdrawn in the face of strong rural opposition but is to be reintroduced, exemplified the attempt to rob people in the rural areas of the rights enjoyed in other parts of the country. It denied the right to opt out of the jurisdiction of a traditional leader, sought to bind communities to customary law and diminished the rights of women as equal citizens insofar as they would not have been allowed to represent themselves in these courts.

A decision of the full bench of the Eastern Cape High Court this week set a brake on these attempts to reimpose bantustan practices in place of democratic governance. The case concerned the right of the Cala Reserve community to elect a headman - an administrative official below the level of a chief - whose position is not hereditary.  The applicable provincial legislation held that a headman had to be a person who qualified for the position “in terms of customary law”.

The argument of the community, through their lawyers, was that this meant that the customary law of the specific community had to be established and applied.  Uncontested evidence was led from Professor Lungisile Ntsebeza showing that the customary law of that community had for over 100 years been to elect their leader.

On that basis, when the previous headman indicated his wish to retire, the community in 2012 elected a new headman.  Chief Gecelo of the Gcina Traditional Council in the Eastern Cape would not accept this and told the community that the Eastern Cape legislation no longer allowed communities to elect leaders.  He, the chief, now had the right to choose any person he considered suited to be the headman of the community, he said.  He then chose a member of his clan, Ndodenkulu Yolelo, to be headman and since then Yolelo has been paid a salary.

The community successfully interdicted Yolelo’s inauguration in April 2014, but the court order was simply ignored, based on his belief that he had no need to abide by decisions with which he did not agree. This led to a warrant for his arrest, ultimately leading to imposition of a fine.

When the Eastern Cape authorities appealed the decision invalidating Yolelo’s appointment before the full bench of the Eastern Cape High Court it highlighted a number of issues.  Should chiefs and headman be accountable to communities or could they act as they wished without concern for the wishes of those who fell under their rule? In particular, where communities had followed a custom of electing headmen, could the chief of the area concerned simply override this?  How was custom to be understood and should the living practices of the community enjoy the status of custom - especially when long established - or could these be displaced by a chief?

Obviously this has considerable significance since a proliferation of unaccountable traditional leaders and headmen has the effect of progressively undermining democratic governance and responsiveness to community needs. 

The premier and the MEC for Traditional Affairs, relied on bantustan type conceptions of the rights of chiefs in relation to communities, in the appeal against the judgment of the High Court.  They denied any need for community consultation prior to appointment of a headman. Their arguments would have seen communities enjoying fewer rights than were theirs under the Transkeian bantustan, where electing headmen had been accepted, at least in the Cala Reserve.  The Premier argued, that the Transkei Bantu Authorities Act of 1965 had “extinguished” the customary law whereby headmen had been elected, so that no consultation was required.  This despite legislation providing that communities had to be consulted over who their leaders should be. 

The full bench, through Judge Clive Plasket, referred to the Eastern Cape legislation providing that when the royal family identifies a person to fill the position of a headman it must be a person who “qualifies in terms of customary law to assume the position in question”.

The court also quoted the evidence of Professor Ntsebeza, where the people of Xhalanga (the Cala Reserve) in opposing the Bantu Authorities Act, continued to insist:

“on their democratic right to elect their leaders, to which they were, by then accustomed and ultimately their views prevailed.

“In the case of Cala, they interpreted this clause to provide registered voters with the opportunity to identify candidates of their choice for election. There may well be other parts of Transkei where a different practice is followed, especially in places such as Mpondoland, where headmen were drawn from the relatives of chiefs. However, the appointment of chiefly relatives was not the general practice in Cala . . . The general practice in Xhalanga, including Cala, was that registered voters identified and elected candidates.”

The court found that this practice was of long duration, reasonable, in conformity with the Constitution and consonant with the value of democratic governance “aimed at the achievement of accountability, responsiveness and openness, that is one of the Constitution’s founding values.   It is also consistent with various fundamental rights, such as the right to dignity, the right to freedom of opinion, the right to freedom of association and the right to make political choices”,  (all qualities founded in constitutional provisions).  

“It is furthermore certain in its content. In other words, the practice of electing headmen in the Xhalanga district is part of the customary law of the Xhalanga community.”

The Premier’s counsel admitted that when Yolelo had been introduced to the community the purpose of the meeting was not to consult the community about the identification of the headman “but rather to inform and introduce the new headman after his identification and recognition” by the chief.

The court held that if this were to be allowed it would mean that the people of the Transkei region “enjoyed greater democratic rights in respect of the identification and appointment of headmen under homeland rule than they do under a democratically elected government.”  The court held that identification of a candidate for headman by the royal family was dependent on the “applicable customary law”.

“The practical implementation of [the legislation] may differ across the province, from place to place, according to the customary law that is applicable in each.   That may mean that in identifying candidates for headmanship, royal families may enjoy varying degrees of discretion: how much discretion a royal family will have to identify candidates will depend on the applicable customary law and the customary law requirements for qualification as a headman in each case.”

While this court decision upholding the democratic rights of a community to elect those with authority over them relates to a long established practice, it is important also to assert that the notion of  “living custom” ought to inform our understanding of customary law more generally.  It may refer to customs of lesser duration that have resulted from changed living conditions.  Unless this is accommodated in the law, it will not relate sufficiently meaningfully to people’s existence.

There is nothing romantic in the recognition of the right to resort to customary law.  It is up to people to choose whether or not they wish their lives to be governed by these norms.  But what that means needs to be in conformity with the need to build a democratic state, in line with constitutional norms. 

The Eastern Cape bench has struck a powerful blow in defence of democratic rights.

¹ It was given various names. For convenience, I only use the term Bantu Law and refer to the courts as Bantu Affairs Commissioners or Bantu Appeal Courts
²Training in customary law is still not a requirement for admission as an attorney or advocate today

Raymond Suttner is a professor attached to Rhodes University and UNISA.  He is a former ANC underground operative and served over 11 years as a political prisoner and under house arrest. He writes contributions and is interviewed regularly on Creamer Media’s website polity.org.za.  He has authored or co-authored The Freedom Charter-the People’s Charter in the Nineteen-Eighties (UCT, 1984) 30 Years of the Freedom Charter (Ravan Press, 1986), Inside Apartheid’s Prison (UKZN Press, 2001), 50 Years of the Freedom Charter (UNISA Press, 2006), The ANC Underground (Jacana Media, 2008) and Recovering Democracy in South Africa (Jacana Media, 2015).  His twitter handle is: @raymondsuttner and he blogs at raymondsuttner.com.