The stunning judgment by a full bench of the high court that overturned an appointment by the Gcina royal family, saying the local community was entitled to choose its own headman,has wide-reaching implications for customary law in the Eastern Cape.
The decision, delivered by three judges in the high court, Bhisho, this week, was welcomed by a coalition of rural organisations in the Eastern Cape who strongly criticised the “undemocratic” appointment of a headman, contrary to the customary law and practice of the people of Cala Reserve.
The story developed when the headman of the reserve retired in 2012. That was followed by a meeting of the “planning committee” – the body associated with the local headman – which suggested a new headman. That choice was affirmed soon afterwards at a local community meeting, but when the name of the proposed new headman – Gideon Sitwayi – was presented to the authorities, they rejected Sitwayi and instead introduced a headman chosen by the royal family and subsequently ratified by the MEC for local government and traditional affairs and by the premier.
The local community, angered that its choice had been ignored, turned to the courts where they challenged the imposition of another headman.
The high court agreed with the community that its democratically chosen leader should have been ratified, but the provincial officials then appealed.
The full bench of the high court delivered its decision on Tuesday, saying the customary law of the Cala Reserve was in fact, that the headman would be chosen democratically.
This has been the practice for more than a century and attempts to undo the practice have never succeeded.
Commenting on the decision Wilmien Wicomb, an attorney from the Legal Resources Centre that represented the community, said she had been “overwhelmed” by the calls she had received since the judgment was delivered.
“We have been inundated with calls from communities wanting to have more information about how they can replace their existing system with the democratic system used” by the community that brought the Cala case.
She said the court’s decision was based on the view, already established by the Constitutional Court, that customary law as laid down in the statutes was not the only form of customary law – it was also alive and able to change.
Wicomb said the judgment also made it clear that even royal decisions had to be lawful and follow customary law procedures, and that the court was entitled to act to set aside royal decisions when they were made using powers that the royals did not have.
“Living customary law, as applied in this case, is not static. The judgment is important because it recognises that communities may follow democratic processes and achieve an outcome that it valid in terms of customary law.”
During argument lawyers appearing for the provincial authorities said it was not a requirement that the royal family had to “take into account the popular views of the community” and that “no community consultation is envisaged by (the law that applied)”.
Judge Clive Plasket, who wrote the decision of the full bench, said the legal team agreed that if this argument were upheld it would mean the people of the Transkei region “enjoyed greater democratic rights” in choosing and appointing headmen “under homeland rule than they do under a democratically elected government”.
The judges also referred to the argument that “the community of the Cala Reserve cannot be expected to be treated differently to other communities”.
This was not so, the court held, and provincial legislation clearly allows for the way headmen were chosen to vary from one community to another.
The judges held, that the way a candidate was identified by the royal family concerned, depended on the “applicable customary law”.
That in turn meant the law varied according to the applicable local practices.
A royal family might therefore have more or less power to “identify” a candidate for headmanship depending on local custom. In this specific case it was a long-standing tradition of the area that the local headman was chosen by the community.
A group of rural community organisations in the Eastern Cape said it had been clear that an appeal against the high court decision to a full bench of the court would be a waste of taxpayers’ money, and that such an appeal “was just plain undemocratic”.
Nevertheless the premier had challenged the initial outcome which held that the people of Cala reserve could make their own choice about who would be their local headman.
“It is sad that in a democratic South Africa the courts had to intervene to prevent the government from denying the people of Cala reserve their democratic right to elect their own headman.
“Once more, this appeal demonstrates how the state is increasingly acting in ways that roll back the democratic gains of 1994.”
The coalition also described the outcome as important for rural democracy through the Eastern Cape and the rest of the South Africa.
“It exposes how some of the traditional governance laws passed by the government effectively ‘retribalise’ the countryside and minimise rural democracy.
“Ultimately the judgment shows that rural governance will never be the same again. It challenges the skewed power balance characterised by the lack of consultation of rural people that we have witnessed over the past 15 years bolstered by government legislation.”
The judgment may well attract attention from critics claiming that the court is going beyond its powers. However, the court begins its decision by clarifying that it is entitled to rule on issues such as those involved in this case.
The judges noted that the function of the judicial arm of government includes deciding disputes as to whether the other arms or organs of state have acted within or beyond the powers given to them by the law.
“This is a function that has … always been entrusted to the courts. No other branch of government is institutionally able to perform this function and, to the extent that it may be suggested that this jurisdiction offends the doctrine of the separation of powers, it is an intrusion into the terrain of the other branches of government that is permitted, expressly, by the constitution.”
This article first appeared in The Daily Dispatch on 20 August 2015