Book contents
- Frontmatter
- Contents
- Maps
- Acronyms and Abbreviations
- Preface
- Introduction Land, Law and Chiefs: Contested Histories and Current Struggles
- Chapter 1 Constitutional Court Judgments, Customary Law and Democratisation in South Africa
- Chapter 2 Was ‘Living Customary Law’ There All Along?
- Chapter 3 When Custom Divides ‘Community’: Legal Battles over Platinum in North West Province
- Chapter 4 Chiefs, Mines and the State in the Platinum Belt: The Bapo-ba-Mogale Traditional Community and Lonmin
- Chapter 5 Mining, Graves and Dispossession in Mpumalanga
- Chapter 6 The Abuse of Interdicts by Traditional Leaders in South Africa
- Chapter 7 Resisting the Imposition of Ubukhosi: Contested Authority-Making in the Former Ciskei
- Chapter 8 Black Landlords, Their Tenants and the Native Administration Act of 1927
- Chapter 9 Customary Law and Landownership in the Eastern Cape
- Chapter 10 A History of Communal Property Associations in South Africa
- Chapter 11 ‘This is Business Land’: The Hlolweni Land Claim, 1983–2016
- Chapter 12 Restitution and Land Rights in the Eastern Cape: The Hlolweni, Mgungundlovu and Xolobeni Cases
- Contributors
- Index
Chapter 6 - The Abuse of Interdicts by Traditional Leaders in South Africa
Published online by Cambridge University Press: 15 June 2021
- Frontmatter
- Contents
- Maps
- Acronyms and Abbreviations
- Preface
- Introduction Land, Law and Chiefs: Contested Histories and Current Struggles
- Chapter 1 Constitutional Court Judgments, Customary Law and Democratisation in South Africa
- Chapter 2 Was ‘Living Customary Law’ There All Along?
- Chapter 3 When Custom Divides ‘Community’: Legal Battles over Platinum in North West Province
- Chapter 4 Chiefs, Mines and the State in the Platinum Belt: The Bapo-ba-Mogale Traditional Community and Lonmin
- Chapter 5 Mining, Graves and Dispossession in Mpumalanga
- Chapter 6 The Abuse of Interdicts by Traditional Leaders in South Africa
- Chapter 7 Resisting the Imposition of Ubukhosi: Contested Authority-Making in the Former Ciskei
- Chapter 8 Black Landlords, Their Tenants and the Native Administration Act of 1927
- Chapter 9 Customary Law and Landownership in the Eastern Cape
- Chapter 10 A History of Communal Property Associations in South Africa
- Chapter 11 ‘This is Business Land’: The Hlolweni Land Claim, 1983–2016
- Chapter 12 Restitution and Land Rights in the Eastern Cape: The Hlolweni, Mgungundlovu and Xolobeni Cases
- Contributors
- Index
Summary
The Constitutional Court's judgment in Pilane (2013) struck down a set of interdicts obtained by a senior traditional leader prohibiting meetings of certain members of Motlhabe village, one of the communities or settlements falling within the area of the Bakgatla-ba-Kgafela traditional council in North West Province, ostensibly on the strength of his customary law powers as a traditional leader. The Pilane judgment held that the use of interdicts by traditional leaders to ban meetings or gatherings of dissenters violates the latter's constitutional rights to freedom of expression, association and assembly.
The judgment was received as a major legal victory not only for the Bakgatla-ba-Kgafela traditional community but also for traditional community members across South Africa, vindicating their constitutional freedoms and customary rights in the face of the increasing abuse of chiefly power (Mnwana 2014: 27 and in this volume). However, the judgment was all but ignored by many traditional leaders and local courts. Interdicts and other court orders continued to be sought and obtained by traditional leaders to silence and restrain their critics, rather than engage in meaningful dialogue or use customary dispute resolution forums.
This chapter gives an overview of recent examples of the use of interdicts and other restrictive legal tactics by traditional leaders across several rural communities of the North West, Limpopo and Mpumalanga provinces against their own community members, seemingly in order to assert their claims to authority and in the process stifling debate and dissenting voices that challenge their authority.
Recourse to formal legal measures to validate versions of customary law that directly violate fundamental constitutional freedoms is a significant development considering the emphasis in the 1996 Constitution on striving for parity between common law and customary law. This is demonstrated, for example, by the recognition in the Constitution that the Bill of Rights ‘does not deny the existence of any other rights or freedoms that are recognised or conferred by … customary law … to the extent that they are consistent with the Bill’ and by the courts’ constitutional obligation to ‘apply customary law when that law is applicable’ (sections 39(3) and 211(3)). Moreover, as will be shown by the examples set out below, recourse to formal legal procedures often conflicts with pre-existing customary dispute resolution mechanisms that aim to build community consensus or at least social equilibrium.
- Type
- Chapter
- Information
- Land, Law and Chiefs in Rural South AfricaContested histories and current struggles, pp. 121 - 140Publisher: Wits University PressPrint publication year: 2021