Silencing rural voices contradicts bottom-up customary decision-making

I am from Shitaci village, a traditional community situated in the former Gazankulu Bantustan in the Vhembe district of Limpopo province.

Shitaci village is part of the communities that, in 1956, were incorporated into the Bungeni Tribal Authority following the promulgation of the Bantu (Black) Authorities Act of 1951. I am the chairperson of the Shitaci royal family and therefore I have extensive practical experience on how customary dispute resolutions operate. I am also an advocate and am currently employed as a legal researcher at the Legal Resources Centre.

In reflecting on a campaign, launched by the rural communities of Limpopo in response to the Traditional Courts Bill (TCB), I wish to argue that when communities unite around a burning issue, they can be heard – even when the authorities try to suppress their views.

I shall begin by giving some context. Traditional communities in Limpopo consist of three ethnic groups distinguished mostly by language: the Northern Sotho (Sepedi), Shangaan (Xitsonga) and Venda (Tshivenda). The incorporation of these communities into the Bantustans has its origin in the 1913 Land Act. The Land Act forced rural people across the country to live on 7% of the land in reserves. In 1936 an additional 6% of the country’s land was allocated for black people to live on, bringing the total to a mere 13%. Black people who had been evicted from land that lay outside the reserves were dumped into the crowded Bantustans.

Following the Land Act, much of the land in Limpopo remained in state hands. Through the South African Development Trust, this land was placed in trust for tribes that fell under those chiefs that were recognised by the apartheid government.

In Limpopo customary dispute resolution takes place at various levels before a headman or a chief is involved, starting at the level of the family or clan, before being escalated to the village forums.

Headmen and chiefs are not in charge of the process. Their role includes ensuring that the resolutions taken by the community members are followed, and that the rules are applied fairly. The headman or chief confirms the decisions taken at the end of the proceedings. These practices continue in the present, and are mainly aimed at reconciliation and maintaining, or even improving, social relationships in the community.

The Black Administration Act (BAA) 38 of 1927 was the first legal interference with these customary disputes resolution mechanisms. The BAA saw to it that selected traditional leaders were promoted to the status of chiefs, that some were given the status of independent headmen, and that others were demoted. In terms of the provisions of the BAA, the chiefs that were recognised by the apartheid government had the authority to adjudicate criminal and civil matters through imposed westernised tribal courts. These courts were held at tribal offices which were established in terms of the Bantu Authorities Act.

Limpopo has many such chiefs who were, and still are, recognised by government. They perform their duties according to the instructions of the government that pays them their salaries.

In 2003, the democratic government promulgated the Traditional Leadership and Governance Framework Act (TLGFA). The TLGFA confirms the tribal boundaries that were established with the 1951 Act and enforced by the apartheid government. It reinforces the powers of those “recognised” chiefs and their crony headmen who continue to exert control over their “subjects” – which include community members who were incorporated, by force, into their jurisdiction by the apartheid government.

The Kgatla Commission (established by the Department of Cooperative Governance and Traditional Affairs to probe disputes and claims relating to traditional leadership in Limpopo) is currently investigating 568 disputes involving senior traditional leaders, headmen and headwomen. These disputes are about the contested tribal boundaries of apartheid and about the succession and recognition of traditional leaders.

In 2008 the government tabled the TCB in the National Assembly but, due to strong opposition, the Bill was withdrawn. In 2012, however, it was re-introduced in the National Council of Provinces. As in other provinces, the rural communities of Limpopo had no information about the Bill because the government had only consulted with state-recognised chiefs in the drafting process. No effort was made to disseminate information about the Bill, and its implications, to people on the ground.

The Legal Resources Centre and the Centre for Law and Society, in collaboration with various organisations and groups that work in different parts of Limpopo, held information dissemination workshops on the TCB with community members. Workshop participants included members of Communal Property Associations, representatives of unrecognised traditional leaders, community-based organisations and land forums from five municipal districts.

At these workshops community members expressed themselves openly on the content of custom, and more specifically on living customary law, including the local dispute resolution mechanisms that their respective communities utilise.

The discussion brought to the surface how the content of customary law is determined, interpreted and applied, as per lived custom. It became clear that chiefs have very specific ceremonial powers but that customary dispute resolution processes are exercised at multiple levels of authority, including at family, village and sub-group levels.

The provincial legislature’s so-called “public hearings” on the TCB were held in three, hard-to-reach urban venues, located far from where rural people actually live. The hearings took place in an intimidating environment. Chairpersons of the hearings consistently interrupted those speakers who were against the Bill and forced participants to give their names, warning them to respect the chiefs when making their comments.

People who identified themselves as coming from royal families and traditional councils were given preferential treatment at the hearings. They were allocated more time to share their views, and were encouraged to talk of the advantages of the Bill. Chiefs were greeted by name, and showed a comrade-type relationship with members of the provincial legislature who were present and who made them feel welcome. The atmosphere was one where ordinary people did not feel that they were on an equal footing with the officially recognised chiefs.

During the hearing at Thohoyandou, a chief was given time at the end of the hearing to respond to what people had said, as if participants had addressed their submissions to the chiefs rather than to the legislature, who should have responded.

At the end of the hearing, a representative from the legislature asked some chiefs to submit forms for petrol reimbursement. Rural community members were not assisted in attending the hearings.

Community mobilisation efforts went a long way toward enabling rural communities to get organised, to understand the contents and implications of the TCB, and to make submissions at the public hearings. If not for these interventions, the views of many communities would have remained largely unknown to parliamentarians and the Limpopo legislature might have voted in favour of the Bill. This shows that rural communities can successfully use parliamentary public participation mechanisms to democratise the legislative process, even against great odds.

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