Traditional Authority in South Africa: Reconstruction and Resistance in the Eastern Cape

Abstract

This article examines two contradictory conceptions of customary law, as either fundamentally democratic or autocratic, and their impact on the constant reconstruction of and resistance to chiefly authority in modern-day South Africa. In the last 15 years or so South Africa has witnessed a strong legislative agenda to centralise the power of senior traditional leaders. The new traditional authority laws’ ahistorical, authoritarian understanding of customary law – as something to be defined and imposed on rural communities by senior traditional leaders – is directly opposed to the Constitutional Court’s interpretation of customary law as something to be determined with reference to practice from and acceptance by the people whose customary law is under consideration. This article studies the net result of these contradictory processes on local contestations over chiefly power in the Eastern Cape. It displays the state’s concerted efforts to impose a model of traditional authority that empowers senior traditional leaders, even in contexts where local communities strongly contest this model, arguing that it contravenes their custom and history, as well as their democratic rights. The article highlights the enduring legacy of apartheid constructions, and the powerful role of contemporary governments in their recreation. New laws are an important tool in this process. They entrench an apartheid model of traditional leaders and minimise rural democracy. It is only with serious efforts of community mobilisation and legal education and support that local communities can successfully access the courts to challenge the actions taken by an alliance of chiefs and state. Ultimately, our analysis highlights an understudied link between the functioning and legitimacy of chiefs in democratic states and the autocratic or democratic conception of the customary law underlying the powers of such chiefs.