Chapter 6 - The Abuse of Interdicts by Traditional Leaders in South Africa

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.