Land, Law and Chiefs in Rural South Africa

Contested histories and current struggles

William Beinart, Rosalie Kingwill, Gavin Capps

• Publisher: Wits University Press
• Year: 2021
• ISBN:
  9781776146826
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

This edited collection illustrates contestations over land and political authority in South Africa's rural areas, focussing on threats to popular rights and how they are being supported.

CHAPTER

1

Constitutional Court Judgments, Customary Law and Democratisation in South Africa

Geoff Budlender

In the Hyundai case (2000),¹ Chief Justice Langa said that the Constitution is located in the historical transition from a society based on injustice and exclusion from the democratic process, to one that respects the dignity of all citizens and includes all in the process of government.² The concept of transition captures two elements of the legal change brought about by the interim Constitution, which came into operation in 1994, and the ‘final’ Constitution of 1996. On the one hand, this was not a process of revolutionary change: the interim Constitution was adopted by the apartheid parliament, and there was legal continuity. The courts continued to exist, the judges stayed in office and existing laws remained in place. But on the other hand, a fundamental transformation was intended: the constitutional transformation aimed to change the nature and purpose of the legal system, so that it would achieve fundamentally different ends from those it pursued under apartheid.

The Constitutional Court was a new apex court, very differently constituted from the existing courts. It was to be the fulcrum of this change in direction. From the outset, the Court repeatedly emphasised the transformational nature of the new Constitution. In the first case the Court heard, Makwanyane (1995), Justice Mahomed emphasised that the Constitution was a decisive break from, and a ringing rejection of, that part of the past that was racist, authoritarian, insular and repressive, and a vigorous commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos.³

This dual task – retaining part of the past, but rejecting ‘decisively’ that which was unacceptable – has given rise to a tension between continuity and rupture. The difficulty of this project is aggravated by the fact that law and legal systems tend to be conservative. When you ask a lawyer, ‘What is the law today?’, the lawyer first tries to find out what it was yesterday – not what it should be tomorrow. Precedent is fundamental in common law legal systems such as ours. It plays an important role in promoting predictability and stability. And so we look to precedent – the past – to find out what the law is today. While we now seldom look to the very distant precedents of Roman and Roman-Dutch law, we still look to precedents developed by the courts, mainly over the last century. The inherently conservative nature of a precedent-based system is self-evident. Although reliance on precedent is a core and necessary element of the legal method, the reflex reversion to precedent is conservative in its consequences. Precedent needs to be reconsidered.

The difficulty of transformation was compounded by the fact that in 1994, the lawyers who operated the legal institutions and profession had been trained within the system that operated during the apartheid era. The law they had studied and practised was not based on the Constitution. Only those who went to law school after 1994 studied constitutional law with reference to the new Constitution. The judges – including the new judges who were appointed – generally had no training in the legal implications of the Constitution. They were required to create new precedents and to develop a new body of law that would permeate all of the fields of law. Even those fields traditionally regarded as ‘non-political’ – for example the law of contract – embody assumptions about power, property and justice that have to be re-examined to see whether they are consistent with the intended new ethos, and the need for law to give effect to it. And of course, the judiciary and the legal profession were overwhelmingly white and male. If the legal system was to be transformed, those who ran it needed to be transformed – yet the starting point was the existing judiciary and profession.

The duality of continuity and rupture is reflected in the Constitution’s approach to customary law. Section 211(3) of the Constitution requires courts to apply customary law where it is applicable, ‘subject to the Constitution’. Section 39(2) requires the courts to develop both the common law and the customary law so as to ‘promote the spirit, purport and objects of the Bill of Rights’. In the field of customary law, the task has been more complex and far-reaching than simply reconsidering existing precedents in the light of the new constitutional order. First, the courts have questioned whether what was previously accepted as precedent truly represented the customary law. Second, they have had to ask whether that correctly reflects current customary law. And third, they have had to consider whether the current customary law is justified in the new constitutional order.

JUDGMENTS AND NEW DIRECTIONS IN CUSTOMARY LAW

I start with an overview of how this process has evolved. It took a surprisingly long time for customary law to reach the Constitutional Court. Richtersveld (2003),⁴ a land restitution case in the Northern Cape, was the first major customary law case the Court considered. That judgment laid down far-reaching principles. Richtersveld was followed by the Bhe case (2004),⁵ which dealt with women’s rights to succession to property, another key issue in customary law; this judgment endorsed and expanded the Richtersveld principles.

Since then a string of decisions have applied and extended these first judgments: Shilubana (2007) dealt with chieftainship;⁶ Gumede (2008) dealt with marriage and divorce;⁷ Tongoane (2010) dealt with customary land rights;⁸ Pilane (2013) dealt with the right of dissent and free association in customary communities;⁹ Sigcau (2013) addressed issues of traditional leadership;¹⁰ and Mayelane (2013) was concerned with marriage.¹¹ Together, they amount to a wide-ranging consideration of key legal questions in customary law: land, marriage, divorce, inheritance, leadership, dissent and association.

When one stands back and looks at what has happened, those judgments arguably constitute the most radical project that the Constitutional Court has undertaken. Ten important principles emerge from the judgments. For present purposes I focus on the Constitutional Court, as the apex court. The principles also find expression in judgments of the High Court and the Supreme Court of Appeal.

1. The judgments establish firmly that customary law and traditional leadership derive their force and authority from the Constitution, and are subject to the Constitution and the rights in the Bill of Rights. The Constitutional Court repeatedly pointed out that the Constitution is the supreme law, and all other law must be consistent with it. Thus, for example, Justice Chaskalson pointed out that there could not be two systems of administrative law, one under the Constitution and the other under the common law: ‘There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.’¹² The same necessarily applies to customary law. Even now, however, we are not altogether clear about the reach of this principle, because section 36 of the Constitution provides that all rights may be limited by law of general application ‘to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom’.

2. Customary law must not be viewed through a common law lens. When one reads the judgments of the courts over the years, one sees judges and lawyers attempting to fit the principles and processes of customary law into common law concepts that they can recognise. For example, when it comes to land rights, lawyers dealing with cases or disputes over customary law repeatedly try to apply concepts that derive from the South African and Roman Dutch law of ownership. Whether they are looking at trusteeship, or the landholding itself, they tend to take the concepts with which they are familiar, and attempt to fit the relevant customary law concept into that category. The Constitutional Court indicated in Richtersveld that this is inappropriate.¹³

3. Customary law evolves and develops to meet the changing needs of the communities in which it is embedded. The Constitutional Court observed Bhe in that the formal rules of ‘official’ customary law have failed to keep pace with changing social conditions, as a result of which they are no longer universally observed. These changes have required that customary rules adapt, and therefore change. The Court has adopted the concept of ‘living customary law’, which is interpreted, applied and, when necessary, amended or developed by the community itself or by the courts. This will be done in view of existing customs and traditions, previous circumstances and practical needs, and the demands of the Constitution as the supreme law.¹⁴ (We tend to forget that the common law also changes over time, as social circumstances change. However, it changes at a glacial pace. I will come back to this later, when I deal with how one knows what the customary law is at a particular time or in a particular community.) The concept of a living customary law recognises that the law may reflect social changes and adapt to circumstances. This is a powerful tool in the process of transformation.

4. The Constitutional Court has reinforced this approach by admitting local practice as a central element of evidence of what the specific content of customary law is. Again, I will come back to this later.

5. Textbooks, old authorities and judgments help to establish the content of customary law. But this is subject to a fundamental and far-reaching qualification initially introduced by the Court in the Bhe judgment: the Court found that customary law had been distorted in legislation, textbooks and court decisions during the era of segregation and apartheid. The Court made plain that these sources have to be dealt with cautiously, because they may reflect distorted versions of customary law. Deputy Chief Justice Langa concluded in Bhe that customary law had been distorted in a manner that emphasised its patriarchal features and minimised its communitarian ones.¹⁵

6. The problem of a distorted account of customary law is aggravated by the static or ‘ossified’ account of customary law in the ‘official’ sources: they do not have regard for the living nature of customary law, and as a result may not reflect what the Court has called ‘true customary law’. As Deputy Chief Justice Langa expressed it in paragraph 86 of Bhe: ‘True customary law will be that which recognises and acknowledges the changes which continually take place’. Justice Mokgoro pointed out, in a prescient passage in her judgment in the early Du Plessis case (1996), that the customary law had degenerated into ‘a vitrified set of norms alienated from its roots in the community’.¹⁶ This form of ‘customary law’ is reflected in old textbooks and court decisions. At best, therefore, and even assuming that there was no distortion at the time they were written, these sources reflect the law as it was at a particular time.

7. For both of these reasons, rules accepted and enforced during an era of authoritarian government may have been inappropriate, outdated, ossified and simply wrong. This has a potentially radical consequence: the old judgments are not necessarily right and are not automatically to be followed; they are to be looked at critically. For example in 1908, in the case of Petlele (1908),¹⁷ the then Supreme Court pronounced itself on the limited ways in which, it said, Africans could hold land under customary law. That was accepted as the law and the judgment was followed in other cases. Now it is possible to say that this position is wrong – either because it was distorted and wrong at the time, or because even if it was correct at that time, the true customary law has changed as social practice and circumstances have changed. This is a radical approach because it calls into question the power of precedent, to which I have already referred. It opens up possibilities of transformation. We can now explore customary practices and gather evidence from communities a...