Publications
Partners
Port Elizabeth - The government’s attempts to reinforce the role and power of traditional leaders has been delivered two major setbacks this month.
On Tuesday last week, the full bench of the Eastern Cape High Court dismissed, with costs, the appeal by Premier Phumulo Masualle to overturn a judgment giving the community of Cala the right to elect their own headman or local representative.
Two days later, the Constitutional Court issued a unanimous judgment in support of democratic control of land in traditional areas. The court found in favour of the Bakgatla-Ba-Kgafela Communal Property Association (CPA) in the North West, ruling that the CPA should own and administer land won in a restitution claim.
In both cases, provincial and national authorities argued that traditional leaders should be the final arbiters. The judgments come at a time when government is in the process of launching a controversial traditional affairs bill that aims to give additional powers to traditional leaders.
In the Cala case, the local head of the amaGcina Traditional Council refused to accept a leader elected by the community. In a statement that apparently flies in the face of the egalitarian provisions of the Bill of Rights, Chief Gecelo told the community: "Whether you like it or not, it is the royal family that decides on the headman."
This view was supported by traditional, regional and provincial authorities. As a last resort, the Cala residents turned to the Legal Resources Centre (LRC) that took up the matter.
And it was University of Cape Town (UCT) academic, Professor Lungisile Ntsebeza, who grew up in the district, who pointed out that even under current legislation the residents of Cala had the right to elect whomsoever they pleased.
The Traditional Leadership Governance Framework Act, he told the court, states that the royal family can only appoint a headman after taking into account the practice of the community. The practice in Cala, certainly for more than a century, had been to elect their leaders.
If the judgment in this case is not challenged - it seems unlikely to go to the Constitutional Court - Ntsebeza says the Eastern Cape "will have to review the whole system by which they appoint their headmen".
The Constitutional Court decision has even more wide-reaching implications and amounts, as one lawyer noted to "a huge blow for democracy". The ruling in favour of the Bakgatla-Ba-Kgafela community runs counter to the current government position to support traditional leaders and discourage communal property associations in former bantustan areas.
"The judgment sends a clear message that current policy, which proposes to transfer title deeds of land in the former homelands to traditional councils cannot fly constitutionally," says Dr Aninka Claasens, acting director of UCT’s Centre for Law and Society.
"[The judgment] comes down firmly on the side of people having the right to choose the form of land-holding they prefer."
