Contested power and apartheid tribal boundaries: The implications of ‘living customary law’ for indigenous accountability mechanisms

• Jurisdiction: South Africa
• Pages: 174-209
• Citation: 2011 Acta Juridica 174
• Published date: 15 August 2019
• Author: Aninka Claassens
• Date: 15 August 2019

Contested power and apartheid tribal

boundaries: The implications of ‘living

customary law’ for indigenous

accountability mechanisms

ANINKA CLAASSENS*

The interface between customary law and the formal legal system in South

Africa has been the subject of much recent litigation in the South African

Constitutional Court. This contribution describes and ref‌lects on the oppor-

tunities created by the emerging jurisprudence of ‘living customary law’ for

asserting and protecting customary entitlements to land in the face of contro-

versial new laws that bolster the authority of traditional leaders within f‌ixed

jurisdictional boundaries coinciding with the former ‘homelands’. I examine

the exclusionary effect of these boundaries (which determine both land and

identity) on the more f‌lexible and inclusive nature of the ‘nested’ boundaries

typical of customary systems of law. I argue that the new laws attempt to

outsource the governance of the poorest South Africans and, in so doing,

undermine not only their citizenship rights but also indigenous accountability

mechanisms which are inherent in living customary law. I contrast the

contextual and purposive approach to issues of inequality and power adopted

by the Court in pursuit of its stated transformative agenda with the bounded

top-down view of customary law that informs the new traditional leadership

laws. I argue that the ‘living law’ jurisprudence emerging from the Court is

deeply embedded in its broader commitment to situate rights in the real-world

context of unequal power relations. In addition I suggest that the Court’s

approach is fundamentally reshaping customary law, such that the new laws

are bound to fall short of standards established in living customary law and the

broader contextual and purposive approach advocated by the Court.

I INTRODUCTION

A central dilemma for legal strategies in relation to land claims is how to

acknowledge and engage with the customary law arena in ways that

support the resource claims of marginalised people, and yet do not

reinforce patriarchal power dynamics. The problem is compounded by

the extent to which patriarchal elites, in particular traditional leaders, have

* Senior Researcher, Law,Race and Gender Research Unit, Faculty of Law, University of

Cape Town.

174

2011 Acta Juridica 174

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captured the discourse of ‘the customary’ and are able to manipulate it to

their benef‌it. Nhlapo

1

warns that

[p]rotection from distortions masquerading as African custom is imperative,

especially for those they disadvantage so gravely, namely, women and chil-

dren.

His warning echoes that of Whitehead and Tsikata,who say that there are

‘simply too many examples of women losing out when modern African

men talk of custom’.

2

These authors fully appreciate the centrality of

socially embedded customary entitlements in people’s lives. They empha-

sise, however, that the recent ‘swing to the customary’in policy discourse

contains more pitfalls for women than potential.

The danger of traditional elites using the discourse of the customary to

justify versions of custom that exaggerate their power and disadvantage

women is well illustrated by new South African legislation which gives

traditional leaders not only far-reaching powers over communal land and

the people living on it, but also the power to def‌ine customary law. These

laws include the Traditional Leadership and Governance Framework Act

41 of 2003 (Framework Act), the Communal Land RightsAct 11 of 2004

(CLRA), the Traditional Courts Bill of 2008 and provincial traditional

leadership laws enacted pursuant to the Framework Act during 2005 and

2006. All these laws reinforce disputed ‘tribal’boundaries inherited from

apartheid (which for the most part coincide with the former homelands),

and give traditional leaders unilateral powers within them.

3

The new traditional leadership legislation is contested by women’s

groups and rural leaders on the basis that it undermines indigenous

accountability mechanisms, overrides the customary entitlements of ordi-

nary people, and is inconsistent with the Bill of Rights. In this context

four rural communities brought a successful legal challenge to the validity

of the CLRA, arguing that its provisions violate the Constitution, and

that the legislative process used to enact it was f‌lawed. The CLRA was

struck down by the Constitutional Court in May 2010.

4

1

T Nhlapo ‘African customary law in the interim Constitution’ in S Liebenberg (ed) The

Constitution of South Africa froma Gender Perspective (1995) 162.

2

AWhitehead & D Tsikata ‘Policy discourses on women’s land rights in sub-SaharanAfrica:

The implications of the re-turn to the customary’(2003) 3 J of Agrarian Change 104.

3

Before 1994 the apartheid government had created ten separate ‘homelands’or Bantustans

for different ‘ethnic groups’ within the black population. Each was a separate small country,or

on the way to becoming one. The ‘homelands’ were used to justify the fact that black people

were denied the vote and South African citizenship – instead they were meant to belong to the

‘homeland’associated with their mother tongue, for example Zulu, Tswana, Xhosa, Venda,and

Pedi. The re-incorporation of the Bantustans into a unitary South Africa and the extension of

equal citizenship to all was a key condition of the transition to democracy in 1994.

4

Tongoane and Others v Minister for Agriculture and LandAf fairs and Others 2010 (6) SA214

(CC) delivered on 11 May 2010.

175CONTESTED POWER AND APARTHEID TRIBAL BOUNDARIES

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This essay argues that, notwithstanding the danger of the discourse of

the customary being manipulated by elites, customary entitlements are

crucial for poor people both in terms of land claims and in relation to the

power relations that frame resource-claims at the local level. Thus,

attempting to sidestep the customary arena because of the manifest risk of

elite manipulation is not a viable option for strategies that seek to

empower rural people. The focus of such strategies needs to shift,

however, from open-ended support for the customary to interventions

that pay close attention to power relations and, in particular, which voices

dominate and are able to participate in the def‌inition of custom. This in

turn raises the question of how customary law is framed in national

discourse (especially in legislation), and how it is def‌ined and developed at

the local level. Even when national laws are implemented to only a

limited extent, and court judgments are handed down in distant cities,

these laws and judgments often play a signif‌icant symbolic role in framing

power relations at the local level. Hence, local legal empowerment

initiatives require tandem measures to support the access of rural people to

key national arenas, where important developments are taking place that

set apart the former homelands as isolated zones within which traditional

leaders are given sole authority to def‌ine the content of customary law and

rule accordingly.

In this contribution I focus on events and issues unfolding in three

different arenas where customary law is at issue. These are local level

struggles over resources and the content of custom; the national legislative

arena, in which the traditional leader lobby has mobilised the discourse of

the customary to demand and shape new laws that bolster a particular

version of chief‌ly power; and the jurisprudence of living customary law

emerging from the Constitutional Court.

Contrary to the pro-traditional leader stance taken in new legislation,

Court judgments have focused on the protection of marginalised groups

and individuals. This essay discusses far-reaching judgments that recognise

indigenous land rights, strike down discriminatory codif‌ied customary

law and support the development of customary law which, for example,

allows the appointment of female traditional leaders. These judgments,

Alexkor,

5

Bhe

6

and Shilubana,

7

stress the importance of protecting the

vulnerable and redressing injustices of the past.

Many South Africans live their lives at multiple interfaces between

urban and rural, and national and local realities. Inevitably, many of the

disputes litigated in the Court pertain to issues arising at such intersec-

tions. This grounding in the facts of lives that, in practice, span changing

5

Alexkor Ltd and Another v Richtersveld Community and Others 2003 (12) BCLR 1301 (CC).

6

Bhe and Others v Magistrate, Khayelitsha and Others 2005 (10) SA580 (CC).

7

Shilubana and Others v Nwamitwa 2009 (2) SA66 (CC).

176 PLURALISM AND DEVELOPMENT:STUDIES IN ACCESS TO PROPERTY IN AFRICA

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