Bringing democracy to traditional law

A court decision has dealt a blow to the manner in which the Eastern Cape government interpreted customary law relating to the appointment of chiefs.

“The Cala Reserve community has had its right to appoint its own headman affirmed, after a full bench of the Eastern Cape High Court unanimously dismissed an appeal by the Eastern Cape premier to overturn a judgment by a lower court on 18 August 2015,” the University of Cape Town announced on Tuesday.

Lungisile Ntsebeza, the AC Jordan Chair in African Studies who also holds the National Research Foundation Chair in Land Reform and Democracy at the university, presented evidence in the case on behalf of the community. He said: “The arguments presented in the judgment have dealt a massive blow to the manner in which the Eastern Cape government interpreted customary law rules relating to the appointment of chiefs and paramount chiefs in the Eastern Cape.”

In 2013, Cala Reserve’s headman resigned. Following their custom, community members called a community meeting and elected Gideon Sitwayi as their new headman. But the amaGcina Traditional Council rejected their choice because he was not a member of the royal family.

Council head Chief Gecelo imposed his choice on the community – one of his clansmen – citing the Eastern Cape Act, which he said instructs the royal family to elect the headman. He apparently told community members: “Nokuba niyathanda okanye anithandi na, yiroyal family ethata izigqibo ngokubekwa kwenkosana [Whether you like it or not, it is the royal family that decides on the headman]”.

Complaints to government were unsuccessful, so the community approached the Legal Resources Centre (LRC), which launched an application on their behalf in the Eastern Cape high court. The court ruled in favour of the community in October last year, but Phumulo Masualle, the premier of the Eastern Cape, appealed the judgment. His appeal was subsequently dismissed.

In his August judgment, Clive Plaskett suggested that the case should act as a model for how to democratise traditional authority, according to the university.

“It turns a traditional practice into one that conforms to democracy, by having its leader elected, and thus abides by the intention of the Governance Act, which stipulates that traditional authority must align with democracy.”

LRC attorney Wilmien Wicomb told the Mail & Guardian that the real importance of the case “is that it forces the actual living practice of communities, the customary law, to be acknowledged when electing leaders”.

“Eastern Cape law holds this as the law but the practice is that the chiefs … identify whoever they please.”

The national implication of the case, if read with Constitutional Court jurisprudence on this issue, “is that a community is allowed to develop their customary law”.

“What this means is that even if a community doesn’t have customary law for electing its own leaders, it can develop one. So it puts the power back in the hands of communities.”

She said the result of communities not being able to elect their own leaders is that these leaders are then not accountable to the community. They are only accountable to a chief.

“The accountability is upwards. Whatever abuses they may have perpetrated, there is no way for the community to hold their leader to account, and remove them if need be.”

She said this was especially a problem when leaders “are sitting on top of vast wealth and the communities struggle to hang on to that”.

“Communities can complain about a leader but only to the royal family and then the chance of anything happening after that is low.”

Fanie Nchapayi, director of the rural development nongovernmental organisation Cala University Students Association, said on Wednesday that he had been in a recent meeting with Cala community members and members from other communities who have had similar problems with electing leaders.

“They are now discussing the nature of leaders who should lead them, characteristics of good leaders. They are putting up a criteria for leaders.”

He said they were empowered to do this by the recent court judgment.

“They would not have done this before but now they know for sure they have power over the leaders that are elected. It is a good thing.”

Cala community leader Douglas Ntamo told the M&G that without the judgment not only the current community members would have been denied their rights “as rural citizens to be part of the decision-making process of our country, but it would have denied the rights of all the generations after us”.

This article first appeared in the Mail & Guardian on 09 September 2015

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