Please note that this article is an extract from the Legal Resource Centre’s Annual Report 2012
This year has seen the Legal Resources Centre involved in a number of cases dealing with the power of chiefs and headmen and, particularly, with the ability of traditional communities to challenge this authority and determine their own futures. These cases have been litigated in an environment where the powers of traditional leaders are being entrenched through draft law such as the Traditional Courts Bill. Our involvement is aimed at ensuring that the exercise of power by traditional authorities does not deprive people from realising their constitutional rights or living according to their own customary laws.
We attended public hearings and made submissions on the Traditional Courts Bill (TCB). The LRC, as part of the Alliance for Rural Democracy, argued that the aim of the TCB is to enhance the power of traditional leaders while eroding customary mechanisms of accountability and, therefore, should be rejected. The Bill was drafted with the consultation of traditional leaders only. It shows a disregard for customary law used on a day-to-day basis, for the power imbalances that affect women in traditional communities and for the need to bring justice to the rural poor. We are also involved in challenging the Traditional Leadership and Governance Framework Act (TLGFA). This act has the potential to prejudice those living under traditional leadership through granting far-reaching powers to the leaders.
In the Pilane* matter, our clients come from the Motlhabe village in Moruleng, near Rustenburg. Their village is one of 32 which fall under the authority of the Bakgatla-Ba-Kgafela. Our clients are unhappy about various aspects of the leadership under which they fall due to a perceived lack of financial accountability and frustration caused during the process of resolving land claims. Their grievances are exacerbated by the fact that they dispute the legitimacy of the chief, who is not considered to be a member of the community. The lack of ability to participate in decision making as well as lack of employment opportunities, have led to violent protests in the area.
The leaders of the Pilane community began holding public meetings. In these meetings they discussed the possibility of separating from their current traditional leader and seeking independence as a separate traditional community. However, the chief successfully applied to court to prevent them from meeting. We challenged this order with partial success. In July 2011, we obtained an order allowing the community to meet, but only under the name of the current traditional authority instead of the name of their own tribe. We are appealing the matter to the Constitutional Court. A judgment in this court will be important in determining, in cases where communities do not feel that the authority represents their interests, whether they will have the ability to govern themselves independently.
The Centane case is another example of a traditional leader abusing his power. In this matter, a number of people in the community hold Permissions to Occupy (PTOs) certain land, granted to them by the apartheid government. PTOs were a method of granting a form of security to those who could not own land under apartheid as they indicate a right to occupy the land. The land in question is agricultural land, which was no longer used for the purpose of farming. The community decided that the land should be used to provide their children with space on which to start their own homes.
In order to do this, the PTO holders and broader community met and resolved that the land be re-demarcated and allocated to beneficiaries chosen by the PTO holders. The headman attended this meeting, where it was further decided that he would be informed of the choices of beneficiaries. However, the headman then rejected the nominated people, demanding payment of money and gifts of liquor before he would approve the beneficiaries. This caused outrage from the community members, who felt that the headman was abusing his position for personal gain. The dispute was referred to the local tribal authority and then was taken further to the King’s Council. The council found that the headman should not interfere with the land allocation and should try and resolve the issue with the community. Unfortunately, this did not occur and we intervened in order to assist the community in defending the matter in the Centane Magistrate’s Court. The LRC argued that the headman had no ability to bring the matter to the court as he had in the meantime resigned as the headman. Judgement was handed down in favour of our clients. Although this did not settle the broader point about the powers of headmen relating to land allocation where community members have individual PTOs, it resolved the matter practically for our clients.
Please note that since this article was written, the Pilane matter has been heard in the Constitutional Court. See