The Give and Take of Custom
BYLINE: Mbongiseni Buthelezi
HERITAGE DAY presents an opportunity to reflect on how history and its making influence contemporary laws and debates about custom.
Legal arguments about chieftainship and customary rights and entitlements often make reference to the past.
What is the place of historical research in litigation? How do we construct an accurate view of customary practices as they have evolved over time, in order to make arguments about customary law? And, where might we find the evidence to help us construct such a view?
These were some of the questions that informed a recent seminar on historical research and traditional authority at the University of Cape Town.
The determinations of the Commission on Traditional Leadership Disputes and Claims (Nhlapo Commission) framed most of the discussion, especially in light of the recent judgment of the Constitutional Court in Sigcau v President of the Republic of South Africa and Others.
The commission was established in terms of the Traditional Leadership and Governance Framework Act (Act 41 of 2003) with the stated aim to restore the dignity and integrity of traditional communities and the entire institution of traditional leadership across the country by correcting colonial and apartheid distortions.
A session at the seminar featured former commissioners Thandabantu Nhlapo and Jeff Peires alongside advocate Geoff Budlender discussing what went wrong with the commission and whether the flaws in its procedure can be fixed retrospectively.
The seminar explored four themes: the nature of chieftainship in the 19th century; archival and other sources on past practices of customary law and traditional authorities; how historical evidence can be usefully applied to contemporary debates on custom, as well as the limits of such evidence; and how to frame legal arguments on customary law using history in court.
What emerged from the discussion is that the Constitutional Court's incremental development of a living customary law jurisprudence has created the opportunity to put historical evidence before the court. Customs develop in the give and take of people's daily lives.
As a result, traditional leaders are not the final arbiters of tradition, custom and customary law. It is thus essential to place evidence before the courts of how the customs of particular communities have developed historically. Such evidence is often available in publications, but it is mostly up to researchers and lawyers to put it before judges.
Another point emphasised was that "a chief is a chief by the people" and not by the amount of land he controls (the vast majority of chiefs are men).
Evidence shows that in the 19th century, people's allegiance to the chief was not guaranteed. Whether a chief had jurisdiction over a group of people depended on whether that group gave its allegiance to the chief.
In this way, the boundaries of communities shifted along with people's allegiances.
Any leader's authority was also, to a limited extent, territorially based. However, even where a territory fell under a particular chief, whole villages would in some instances hive off and give their allegiance to a different leader.
In considering what evidence can be used to make the case that customary practices, at the levels of chiefdoms and of families, have always been in flux, the argument was repeatedly made that colonial archival records cannot merely be taken at face value. …