Historical evidence crucial for decisions about custom

The eve of Heritage Day presents an opportunity to reflect on how history and its making influence contemporary laws and debates about custom. Legal arguments about chieftainship and customary rights and entitlements often make reference to the past. What is the place of historical research in litigation? How do we construct an accurate view of customary practices as they have evolved over time, in order to make arguments about customary law? And, where might we find the evidence to help us construct such a view?

These were some of the questions that informed a recent seminar on historical research and traditional authority held at the University of Cape Town. The determinations of the Commission on Traditional Leadership Disputes and Claims (Nhlapo Commission) framed most of the discussion, especially in light of the recent judgment of the Constitutional Court in Sigcau v the President of the Republic of South Africa and Others. The commission was established in terms of the Traditional Leadership and Governance Framework Act (Act 41 of 2003) with the stated aim to restore the dignity and integrity of traditional communities and the entire institution of traditional leadership across the country by correcting colonial and apartheid distortions.

A session at the seminar featured former commissioners Thandabantu Nhlapo and Jeff Peires alongside Advocate Geoff Budlender discussing what went wrong with the commission and whether the flaws in its procedure can be retrospectively fixed.

The seminar explored four themes: the nature of chieftainship in the 19th century; archival and other sources on past practices of customary law and traditional authorities; how historical evidence can be usefully applied to contemporary debates on custom, as well as the limits of such evidence; and how to frame legal arguments on customary law using history in court.

What emerged from the discussion is that the Constitutional Court’s incremental development of a living customary law jurisprudence has created the opportunity to put historical evidence before the court. Customs develop in the give and take of people’s daily lives. As a result, traditional leaders are not the final arbiters of tradition, custom and customary law. It is thus essential to place evidence before the courts of how the customs of particular communities have developed historically. Such evidence is often available in publications, but it is mostly up to researchers and lawyers to put it before judges.

Another point emphasised was that “a chief is a chief by the people” and not by the amount of land he controls (the vast majority of chiefs are men). Evidence shows that in the 19th century, people’s allegiance to the chief was not guaranteed. Whether a chief had jurisdiction over a group of people depended on whether that group gave its allegiance to the chief. In this way, the boundaries of communities shifted along with people’s allegiances. Any leader’s authority was also, to a limited extent, territorially based. However, even where a territory fell under a particular chief, whole villages would in some instances hive off and give their allegiance to a different leader.

In considering what evidence can be used to make the case that customary practices, at the levels of chiefdoms and of families, have always been in flux, the argument was repeatedly made that colonial archival records cannot merely be taken at face value. These distorted records require careful analysis to understand the circumstances of their making in order to determine their value as evidence of past customary rules and practices. Evidence held in people’s memories can serve to dispute, correct and fill the gaps of written records, but as an historical source this too has shortcomings. Yet, ultimately, the use of evidence can help us move away from static colonial ideas of ‘timeless custom’ and people living as tribes bounded by unchanging tradition. History is particularly strong in showing processes of change but less strong in pinning down specific indisputable facts. History is sometimes ambiguous. Paying attention to the processes of the making of the history itself can be particularly helpful in litigation.

Other cases related to the Nhlapo Commission and their implications for customary law debates were also explored, including the hotly-contested Venda case. In that case, three senior traditional leaders approached the High Court to challenge the determination by the Nhlapo Commission that the Mphephu Ramabulana are the paramountcy of the Vhavhenda.

What became clear in the discussions is that, firstly, inadequate research has been conducted by the commission. Secondly, the commission’s approach to date of attempting to establish rightful kings and queens by following genealogical lines is wholly misguided. Peter Delius from Wits university and other historians argue that such an approach obscures the fact that, prior to colonial intervention, rules of succession were flexibly applied to legitimate whomever had ascended to leadership by outwitting opponents. Political support was therefore important for the legitimacy of leadership, yet the commission’s determinations pay no attention to these political processes, as argued by the Centre for Law and Society as a friend of the court in the Sigcau case.

In addition, the commission has adopted a one-size-fits-all model in an attempt to standardise paramountcy and chieftainship across the country. This model does not take account of the customary leadership practices of different groups over time. Endless challenges to the commission’s rulings are thus inevitable and have been the case since its inception in 2004.

The conclusion of the seminar was that the determinations of the commission ought to be scrapped in their entirety. The fact that almost every ruling by the commission has been challenged in a court of law demonstrates the scale of the problem. Ultimately, it is essential to take proper cognisance of history in adjudicating on customary practices. It is similarly crucial to base arguments about custom and customary law on sound historical evidence, and to take into account popular support and political processes at play in the present.

* The seminar was jointly hosted by the Centre for Law and Society (CLS), the Legal Resources Centre, University of Cape Town’s Department of Historical Studies and the UCT National Research Foundation Research Chair in Archive and Public Culture, held by Prof Carolyn Hamilton. Among the speakers were Prof John Wright from Wits University and Dr Gavin Capps who heads the Mining and Rural Transformation in Southern Africa Project at Wits. Lawyers who participated included Tembeka Ngcukaitobi, head of constitutional litigation at the Legal Resources Centre, and Moray Hathorn, who had brought the Sigcau case to the Constitutional Court.

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