Law will make kings – and slaves to kings
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AbaThembu King Buyelekhaya Dalindyebo’s official home is nothing like Buckingham Palace. Even though it’s set in an Instagram-perfect Transkei landscape, the Great Place at Bumbane looks more like a middle-class home in Randburg.
The garden needs a bit of work and there’s facebrick overkill. The inside is as unassuming as you can imagine. Yet even if the king doesn’t have that much to boast about in the way of an official residence, he is immensely powerful.
The women who serve him do it all but on their knees, and he has an entourage of male relatives who hover around nervously, ready to laugh or nod their heads on cue.
For a relatively slight, jovial, 48-year-old man, Dalindyebo – a former Umkhonto we Sizwe soldier – is surprisingly fearsome. He’s appealing against a 15-year jail sentence on charges of murder, kidnapping, attempted murder, assault and arson, dating from the mid-1990s when community members claimed he had acted violently against them in their village, which falls under his jurisdiction.
The king’s view is effectively that, no matter what the community members say, it was their fault that violent situations arose in the first place because they had committed offences against him.
There was the case of a man who apparently allowed his goats to wander on to what the king regards as “his” land, and when the man failed to pay a fine, his home was set alight, his wife and children were kidnapped and he was banished.
A more serious case involved a man accused of murder. He was fined in cattle, but failed to pay, apparently because there was also a murder case against him in the magistrate’s court and he was waiting for the outcome of that. His punishment was much like that meted out to the man with the goats.
Both are examples of traditional justice, where kings, chiefs, headmen and the community elders can decide how to deal with breaches of customary law. For a long time, this has been beneficial, but it can also be dangerous, depending on political patronage, the apartheid past and other events over which ordinary people have no control. It can and does give traditional leaders extraordinary power.
The authority of a traditional leader such as the king has already been confirmed by the 2003 Traditional Leadership and Governance Framework Act. Now a new bill is pending that could extend that power, to statutory authority.
The Traditional Courts Bill, which has been honed under a Jacob Zuma administration that specialises in social conservatism, has been met with outrage from civil society even as public hearings around the country receive a mixed response.
The judge who convicted Dalindyebo examined the evidence with the constitution in mind, and found that no one could be kidnapped, banished or have their house burnt down just because they had upset a king. Yet it is possible, if the bill is passed in its current form, that someone like Dalindyebo could become a presiding officer of a traditional court, which will be the compulsory port of call.
The Traditional Courts Bill is not the only bill that may intensify the power of people like Dalindyebo. The National Traditional Affairs Bill is also under way, and it may extend the equivalent of local government powers to traditional leaders, meaning that they become something much more than ceremonial: they could control the purse.
Traditional leaders also want greater political control. Analysts say that’s also why they need the Traditional Courts Bill – to enhance their image. Yet, is it constitutional?
Two weeks ago, a storm erupted around ANC MP and Congress of Traditional Leaders of SA president Patekile Holomisa, who intimated that traditional leaders may try to have the constitution amended regarding the rights of gay people. Lesego Tlhwale, link co-ordinator for Behind the Mask, called for “drastic action” and, like the DA, declared that Holomisa, who is chairman of Parliament’s constitutional review committee, should be suspended. Many others worry that, under the Traditional Courts Bill, gay people will be discriminated against.
It is an issue like that which suggests that the Traditional Courts Bill portends serious challenges for people in rural areas. They will increasingly have no choice but to be subject to a highly specific form of authority.
What is the current situation?
Customary law expert Sindiso Mnisi Weeks, of UCT, explains that right now, customary courts are “not professional institutions but community-based discussion forums”. This means that the broad community can participate in them – or not. The courts, regulated and supported by government, are still an option.
“Resolution is by the community at large. The family court is the lowest level, dealing with, say, marital disputes, where the bride’s family and the groom’s family come together and form a family court. That could just be elders and it’s flexible in that sense.
“The next level up is the ward – basically a sub-village – and at that level, you typically have a headman who’ll be a mediator if he acts on his own. Then there’s the village council, which might have a chief in charge who sits with all the headmen. There are multiple levels and a lot of participation, which is quite important for women.”
Why is the Traditional Courts Bill being drawn up 18 years into our democracy?
It is designed to reform old acts such as the Black Administration Act 38 of 1927 and the Black Authorities Act 68 of 1951. But deputy dean in the department of public law at UCT, Professor Pierre de Vos, explains that when the final constitution was being drafted back in 1994 and 1995, it wasn’t clear how to deal with traditional leadership within the democratic government. So in the end, the constitution uses “wishy-washy language”, but basically provides for only “a symbolic or ceremonial role” for traditional leaders who are not elected and therefore not accountable.
In terms of the current constitution, they do not have a governance role, in spite of the fact that many traditional leaders were used by the apartheid government to enforce its laws in the homelands.
This doesn’t mean that traditional leaders took this lying down. De Vos explains that they had already formed Contralesa in 1987, and in 1996, Contralesa challenged that part of the constitution that insisted that customary law was not allowed to practise unfair discrimination.
What will the Traditional Courts Bill deal with?
Mnisi Weeks explains that its ambit is only around certain offences such as theft and assault. “Not extreme offences,” she says, “and not marriage or the status of a will. But they would, for instance, be able to hear cases of malicious damage to property.”
Regarding the appeal process, which will involve people taking their case to a higher court outside the bounds of the traditional court system, Mnisi Weeks says a decision cannot be appealed as a decision, “but you can appeal a sanction”. Those traditional leaders who are reasonable might look for an apology or a prohibition from doing certain things (much like a suspended sentence) or unpaid labour.
But Nomboniso Gasa, a researcher and analyst on gender, politics and cultural issues, worries that even something like “unpaid labour” could be abused by traditional leaders, who may choose not to sentence someone to work in a widow’s fields, but rather in the chief or the king’s fields where labour practices may be unjust.
Who will be subject to the traditional courts?
Everyone who lives in demarcated zones in the rural areas, whether a peasant ploughing a small patch of ground or a wealthy farmer with several morgen.
Is the Traditional Courts Bill constitutional?
Mnisi Weeks says it is “very far from constitutional”. Her main concern is that while the constitution provides for individual rights, the Traditional Courts Bill subjects everyone to using the traditional courts. She says this is where it “stands in sharp contrast to the Bill of Rights”.
Mnisi Weeks says there are “historical problems in the way in which traditional communities were constituted under apartheid, with many people still challenging geographical boundaries and their identity.
“People who didn’t have chiefs or kings over them will now have someone making decisions over them. There could be an assertion of power to decide matters which have nothing to do with them, which could be a real violation.”
Gasa says that while the premise of the Traditional Courts Bill is the constitution as the supreme law of the land, there is no provision for the establishment of traditional courts. Her view is that these go “far beyond the constitutional provisions”. In particular, where the constitution provides for freedom of speech, “someone who lives in the areas designated as ‘traditional communities’ will not have a choice as to what law must be applicable to them”.
There is concern over how women will be treated, should the bill be passed. Why?
Mnisi Weeks says the bill doesn’t specifically provide for women to participate as members of the courts, and the obligation is instead placed on the presiding officer.
“But who’s going to hold him accountable if he’s a bigot?”
Not only does the bill make provision for women and men to be represented by their spouses, but gives powers to senior traditional leaders to develop customary law, Gasa says.
“Of course, traditional leaders have made the argument that they will not develop customary law alone. They will do this in consultation with the council of advisers. But who is in that council?
“Take the example of Patekile Holomisa, in defence of Zuma during the Sonono Khoza affair.
“He displayed a lack of understanding of a very important principle. He argued that having had a child out of wedlock, Zuma went to do right by that family and paid inhlawulo. Well, this is distortion. In actual fact, in a case of that nature – where a woman is of mature age – a different practice applies.
“Now, if a traditional leader could fudge issues on so basic a level, how much more if we deal with complex issues such as incest? How much more on issues of inheritance and contestation?”
Gasa is concerned that the bill doesn’t address crimes committed against women in the name of culture.
How does the Truth and Reconciliation Commission have an influence on the bill?
Mnisi Weeks says: “The fact is, there hasn’t been a robust debate about traditional leaders and their wrongs.
“It feels like we are sweeping history under the carpet as they are completely embraced as partners in co-operative governance without us having had an honest discussion about how many were complicit during apartheid.”
Gasa, too, worries that “people who committed violations did not stand up and account for those things, so we have a situation where some of the people who are part of traditional leadership committed yet untold offences – and we pay their salaries as taxpayers.
“People have never had a chance to speak about how they’ve been damaged in the same way (Vlakplaas leader Eugene) De Kock did. They live with those scars and haven’t been given any form of recognition for the pain they went through. It’s cruel.
“Homesteads of traditional leaders are built on the graves of other people’s families.”
What about the public hearings?
Gasa, who attended hearings at Bronkhorstspruit last week, says many of those she interviewed were “afraid to speak and feared victimisation”.
“And then, a lot of people who spoke supporting the bill didn’t seem to understand what will be done by the bill.
“We say, let people be told everything and be informed so that they support that which they know.”
Mnisi Weeks says that although the Department of Justice has “repeatedly conceded there are problems”, there is “a very different feel at hearings”.
“People say they have never heard of it, and even politicians have said that a very poor job has been done of advertising it.
“The government hasn’t even bothered to get the message out on the radio. But it has been made to seem ordinary people are not welcome, only chiefs.
“We don’t know what the discussions are within the ANC and its leadership because they haven’t said anything. It’s murky.”