The case heard by the Constitutional Court on Thursday shines a bright light on what senior counsel Geoff Budlender describes to the court as the "disjunct" — between living African customary law and the customary law and authorities that are recognised in legislation.
The case involves a dispute between Nyalala Pilane, the recognised Kgosi or traditional leader of the Bakgatla-Ba-Kgafela in the North West and clan leaders of the Motlhabe village, one of the 32 villages that make up the Bakgatla-Ba-Kgafela.
The clan leaders, unhappy with how their village was being administered by the recognised traditional authorities, planned a meeting to discuss the possibility of seceding from the Bakgatla-Ba-Kgafela.
Kgosi Nyalala Pilane went to court to interdict the meeting. Mmuthi Pilane, who claims to be the village-level leader of his community under customary law, albeit unrecognised by legislation, then appealed the interdicts to the Constitutional Court, saying the interdicts breached the villagers’ rights to freedom of association, freedom of assembly and freedom of expression.
The "disjunct" is one of the issues plaguing the passing into law of the Traditional Courts Bill, on which Parliament will be holding public hearings next week.
And in provinces like the North West, there is an additional dynamic at play: the area covers some of the world’s richest platinum deposits, which raises the stakes when it comes to who owns and who rules the area.
In recent years, there have been intermittent clashes, inside and outside the court room, between disgruntled sectors of different North West communities — who say they are not seeing the benefits of mining in their areas — and the traditional leaders that are recognised by law.
The clashes have meant uncertainty for mining companies. Professor Andrew Manson of the North West University describes how royalty arrangements and black economic empowerment deals have been entered into between mining companies and traditional authorities, only to be delayed or derailed when ownership of the land is disputed or the authority of its legally recognised traditional leaders is challenged.
"To get to the root of all this however, we have to delve into the past, for it is here that a number of unusual circumstances ... have combined to present an anomalous and currently intractable situation," says the professor.
Prof Manson says that, for historical reasons, much of the platinum-rich land in the North West is held in trust for the traditional community, but in the name of its recognised traditional leader.
"The necessity to register land in the name of the dikgosi (the recognised leaders of traditional communities) ... obscured the identity of other buyers and privileged the chiefs’ rights above those of his subjects or followers," he says.
The historical uncertainty over ownership status is made more complex by the Traditional Leadership and Governance Framework Act.
In its transitional provisions, the act maintains apartheid-era demarcations and traditional governance structures, despite their having been distorted during apartheid as a way to control people.
In court papers, Mr Budlender says that, during apartheid and colonial times, rural traditional communities were "straight-jacketed into tribal structures regulated by the state".
"Tribes were made part of the colonial system of indirect rule and, under apartheid, the homeland system. The policy of ‘native control’ informed oppressive and unaccountable systems of tribal governance".
The constitution protects living customary law, says Mr Budlender.
But complicating matters even further is that living customary law is uncodified, inherently organic and changes from region to region, village to village and even family to family.
All these complexities manifested in the case heard by the Constitutional Court on Thursday.
As Mr Budlender recounts the "uncontested" evidence — that when a recognised headman fails in his duties to call a community meeting, clan leaders can, as a matter of customary law, step in — Chief Justice Mogoeng Mogoeng disagreed.
Justice Mogoeng comes from the North West and "grew up in a village". Mr Budlender’s evidence "sounds strange," he says, "but anyway".
Mr Budlender’s opposing counsel in court, Jeremy Gauntlett SC, arguing on behalf of the kgosi, describes the dilemma going forward. When it comes to statute versus living custom, South Africa finds itself in a position that is "inherently transitional".
"What do we do?" he asks. He says the reality is that the institutions recognised in the act "have to continue for at least so long as ... something better can be produced in its stead".
To allow unrecognised leaders to "usurp" the authority of recognised structures was "a recipe for chaos", he tells the court.
Aninka Claassens, an expert in customary law at the Law Race and Gender Unit at the University of Cape Town, says the real problem lies with the framework act.
While it does allow for contestation over boundaries, a successful secession — like the kind that Mr Budlender’s clients wanted to discuss at their meeting — would need the consent of the majority of the entire traditional community.
"Sub-groupings and clans therefore become structural minorities with little power to challenge the ascribed tribal boundaries super-imposed on them by apartheid," she says .
Ms Claassens says a legal challenge to the constitutionality of the framework act was likely in the future.
At the end of the day’s argument Deputy Chief Justice Dikgang Moseneke says: "We are going to have to be very careful with this one".
He says the court would have to use "Solomonic wisdom" — to "keep the baby in the bath, while throwing out all the dirty water".
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