Constitutional Court’s finding against Pilane affirms rural people’s rights

Recently the Mail and Guardian’s legal columnist picked up on the importance of the Constitutional Court’s decision on 28 February 2013 to strike down a set of interdicts prohibiting meetings in the Bakgatla baKgafela traditional community of Mothlabe village in North West province.

At stake in this case is far more than who has the ability to call meetings among the Bakgatla baKgafela. As has been commented, it has broad implications for people’s ability to hold traditional leaders accountable and, ultimately, who can access natural resources, including valuable minerals like platinum.

Recent controversial laws re-enforce the tribal boundaries established under apartheid, although these boundaries are often disputed. If officially imposed chiefs get away with banning meetings – as they have done in various provinces, including the North West and Eastern Cape – this fundamentally undermines people’s ability to hold chiefs accountable within those boundaries.

Several members of the Motlhabe village in the North West province had organised a meeting to discuss their dissatisfaction with the officially recognised chief, Nyalala Pilane. They accused Pilane of using the tribe’s platinum resources for his own benefit.

Like most of the 32 villages making up the Bakgatla baKgafela traditional community, Motlhabe is poor and undeveloped. Over the past few years, most of the 300,000-strong Bakgatla baKgafela community have protested against Chief Pilane, claiming he has exploited their platinum-rich land for his own gain. They claim he treats the tribe’s assets as his own property, registering companies and bank accounts in his own name as opposed to the tribe’s, and unilaterally deciding on mining and investment deals without consulting the wider community. In April 2012, the “tribe” made a cash investment in mining company Platmin of more than R1 billion. Pilane is a director of Platmin.

Pilane has been granted interdicts by lower courts against meetings by community members on the basis that traditional leaders are the only people with the authority to convene meetings in the former homelands, where sixteen million South Africans live. In its judgment, the Constitutional Court made it clear that by banning meetings, traditional leaders violate fundamental constitutional rights of freedom of expression, association and assembly. They also found that banning meetings undermined the principle of accountability, which is vital to a constitutional democracy.

Many voices on Bakgatla customary law argue the Chief’s power was exaggerated under colonialism and apartheid. In contrast to Pilane’s attempts to stifle free expression, meetings and public debate have been intrinsic to the customary practices of the Bakgatla traditional community. They question why accountable and legitimate traditional leaders would need to resort to banning meetings. The Constitutional Court’s ruling deals a blow to autocratic interpretations of the nature of chiefly power.

Beyond striking down the interdicts, the Court held that it was in the interest of justice to provide “clarity on the rights of people living in the (Bakgatla) Traditional Community and in traditional communities more generally”. The Court expressed its “disquiet” at Pilane’s repeated use of threats of legal action, interdicts and cost orders to “silence criticism and secessionist agitation”.

The Court also held that the fact that only some customary structures are legally recognised does not pre-empt the existence of other customary structures and institutions, or their right to hold meetings. The Court’s judgment asserts the right of the meeting organisers to redefine and assert their customary identity as a separate clan (kgoro). This is crucial because it means that laws like the Traditional Leadership and Governance Framework Act (TLGFA) cannot undermine people’s right to define their own identities and to organise meetings around these identities within the former homelands.

Laws like the TLGFA have reinforced the interpretation – endorsed in the Court’s minority judgment – that the only people with the authority to call meetings are those recognised by law as traditional leaders.

The crux of the Pilane case is that rural communities like the Bakgatla have been locked into traditional communities on terms that restrict their ability to access vital resources. The Bakgatla baKgafela people are excluded from the wealth generated from one of the world’s richest platinum deposits. People in Motlhabe have been knocking on government officials’ doors and taking to the streets to demand an explanation of why the monies generated from the platinum lying underneath their land has not gone to helping them access water, electricity, clinics and schools. Whether or not community members in Motlhabe have the right to convene and organise is a matter not only of freedom of association but of their economic survival. The judgment affirms that the 16 million people living in the former homelands are equal citizens on a par with other South Africans, and that their rights cannot be trumped by autocratic versions of chiefly power.

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