Customary law interpretation: Dissenting judgment

Customary law — Traditional Leadership and Governance Framework Act — Commission on Traditional Leadership Disputes — statutory interpretation — the steps the President is required to take in order to immediately implement the decision of the Commission on Traditional Leadership Disputes.

Media summary

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

“On Tuesday 11 September 2018, the Constitutional Court handed down judgment in an application for leave to appeal against a decision of the Gauteng Division of the High Court of South Africa, Pretoria (High Court), regarding a dispute about the steps that the President was obliged to take in terms of the Traditional Leadership and Governance Framework Act 41 of 2003 (unamended Act) in implementing a decision of the Commission on Traditional Dispute and Claims (Commission). The decision of the Commission was about a dispute over a traditional leadership position relating to the position of king or queen of amaMpondo aseQaukeni. The application was brought by Ms Wezizwe Feziwe Sigcau against the Minister of Cooperative Governance and Traditional Affairs and the President of the Republic of South Africa. The original dispute was about who was entitled to be the king or queen of amaMpondo aseQaukeni. The application before the Constitutional Court was incidental to the original dispute. The question to be determined was what the steps were that the President was required to take in order to immediately implement the decision of the Commission concerning the original dispute.

On the question of who was entitled to be the king or queen of amaMpondo aseQaukeni, the Commission decided that Zanozuko Sigcau was entitled to be the king and rejected Mpondombini Sigcau’s contention. The Commission communicated its decision to the President in terms of section 26(2)(a) of the unamended Act.

Section 26(2)(a) of the unamended Act provided that the Commission had to convey its decision to the President within two weeks of taking it, “for immediate implementation in accordance with section 9 or 10 where the position of a king or queen is affected by such a decision…”. Section 9 provided that whenever the position of a king or queen was to be filled, the royal family should identify the person who, in terms of customary law, was entitled to be the king or queen and notify the Premier of the Province of such name and give the name to the President and the Minister of Cooperative Governance and Traditional Affairs and the President would be obliged to recognise that person as king or queen unless there were allegations that customary law had not been complied with in identifying that person. In the latter event, the President would be required to act in terms of section 9(3) and could refer the matter to the National House of Traditional Leaders, or refuse to issue a certificate of recognition, or refer the matter back to the royal family for reconsideration and resolution.

After receipt by the President of the Commission’s decision, he caused a notice to be published in the Government Gazette and a certificate to be issued recognising Zanozuko as the king of amaMpondo aseQaukeni. This decision of the President was subsequently set aside by the Constitutional Court in Sigcau 1 but the Commission’s decision was not set aside. The basis for setting aside the President’s notice and certificate of recognition was that the President had acted under a wrong Act, namely the amended Act instead of acting under the unamended Act.

After the Constitutional Court’s judgment in Sigcau 1, the President wanted to implement the decision of the Commission. A dispute arose between the President, on the one hand, and Wezizwe Feziwe Sigcau and LMM Sigcau on the other, about what the steps the President was required to take to implement the Commission’s decision. Wezizwe Sigcau and LMM Sigcau contended that the President took the view that the whole section 9 process had to be followed to implement that decision, whereas the President took the view that only the steps of publishing the section 9(2)(a) notice in the Government Gazette and issuing the section 9(2)(b) certificate of recognition in favour of the person decided upon by the Commission as the king or queen needed to be taken. In a review application brought by the President in the High Court to clarify what his obligations were in this regard, the High Court held that all that the President was required to do was to take the two steps mentioned above. Wezizwe Sigcau and LMM Sigcau then brought an application for leave to appeal against that decision and argued that the whole section 9 process should be followed.

In a majority judgment written by Zondo DCJ (with Cachalia AJ, Dlodlo AJ, Goliath AJ, Jafta J, Khampepe J, Madlanga J and Petse AJ concurring) the Deputy Chief Justice held that the phrase “for immediate implementation in accordance with section 9 or 10 where the position of a king or queen is affected by such a decision” in section 26(2)(a) meant that the President had to put the Commission’s decision into effect or put it into operation in accordance with section 9 or 10 where the position of a king or queen is affected by such a decision, in so far as may be applicable. He said that the way to do that in the present case was for the President to publish the section 9(2)(a) notice in the Government Gazette and issue the certificate of recognition in favour of Zanozuko as king of amaMpondo aseQaukeni.

The Deputy Chief Justice held that, if section 26(2)(a) meant that the President had to follow the whole section 9 process the President would be failing immediately to put the Commission’s decision into effect or into operation as required by section 26(2)(a) of the unamended Act. He held that it could not be that section 26(2)(a) required that the whole section 9 process be followed where there was already a decision of the Commission on who was entitled to be the king or queen in terms of customary law. He said that, in part, this was so because just as the royal family was required to base its identification of the person on customary law, the Commission, too, was required to base its decision on customary law. Zondo DCJ further said that he saw no reason why, in a case where the Commission had already made a decision based on customary law on an issue, it would be necessary for the royal family to effectively repeat the same exercise when the decision of the Commission had not been set aside. To read section 26(2)(a) to mean that the whole section 9 process had to followed could result in there being two conflicting decisions on who is entitled to be the king or queen each of which the President would be obliged to implement. The one would be the royal family’s decision which section 9 said the President was obliged to give effect to and the other would be that of the Commission which the President was also obliged to implement in terms of section 26(2)(a) of the unamended Act. In the end Zondo DCJ concluded that leave to appeal should be granted, the appeal should be dismissed and no order as to costs should be made.

In a dissenting judgment by Froneman J, Froneman J would have granted leave and upheld the appeal. Froneman J held that the text of the legislation is reasonably capable of a different reading than the one adopted by the majority judgment. Froneman J reasoned that the Constitution seeks to redress the previous distortions of customary law through sections 211 and 212 by elevating the status of customary law to a system that works alongside the common law and international law, subject only to the Constitution. Accordingly, Froneman J concluded that an interpretation of section 26(2)(a) of the unamended Act to the effect that the President must comply with the entirety of section 9 and 10 is textually sound and it gives due and proper recognition to customary law communities to develop customary law in their own way in accordance with the constitutional values.

In the result the order of the Court was that leave to appeal is granted, the appeal was dismissed and there was no order as to costs.”

Note: Footnotes omitted and emphasis added

FRONEMAN J:

Introduction

“The world changes, revolutionaries die, and the children forget . . .
Nizilibel’uba nizalwa ngobani?”

[67] The question that arises in this matter is whether the President, when implementing the Commission’s decision in terms of section 26(2)(a), is required to comply with the entirety of sections 9 and 10 or whether he merely has to issue the notice and certificate in terms of section 9(2) of the unamended Act.

[68] In the main judgment the Deputy Chief Justice concludes that the latter course is the correct one. I disagree. The text is reasonably capable of a different reading. The context and place of customary law under our Constitution then assumes great importance. The main thrust of the applicants’ argument before us was that we should allow customary law to take its own course and not repeat the historical mistake of imposing it in distorted form from above. There is force in that argument, as I will attempt to show.

[69] The facts are not in dispute. I gratefully adopt the main judgment’s exposition.

Historical context and constitutional redress

[70] This Court has recognised the deeply harmful effects that the distortion of custom by colonial and apartheid authorities has had on a community based development of customary law. In Alexkor, affirmed in the minority judgment in Bhe, the Court said that:

“[A]lthough customary law is supposed to develop spontaneously in a given rural community, during the colonial and apartheid era it became alienated from its community origins. The result was that the term ‘customary law’ emerged with three quite different meanings: the official body of law employed in the courts and by the administration (which . . . diverges most markedly from actual social practice); the law used by academics for teaching purposes; and the law actually lived by the people.” (Footnotes omitted.)

[71] The Constitution seeks to redress the previous distortions of customary law. Sections 211 and 212 elevate the status of customary law to a system that works alongside the common law and international law, subject only to the Constitution:

“Recognition
(1) The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution.

(2) A traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendments to, or repeal of, that legislation or those customs.

(3) The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.

Role of traditional leaders
(1) National legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities.

(2) To deal with matters relating to traditional leadership, the role of traditional leaders, customary law and the customs of communities observing a system of customary law—
(a) national or provincial legislation may provide for the establishment of houses of traditional leaders; and
(b) national legislation may establish a council of traditional leaders.”

[72] While these sections are the starting point for the protection of custom, they should be read with sections 30 and 31(1) of the Constitution which protect the right to participate in all aspects of cultural life. These sections hold that:

“Language and culture
Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.

Cultural, religious and linguistic communities
(1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community—
(a) to enjoy their culture, practise their religion and use their language; and
(b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.”

[73] The Court recognises customary law as being a form of “living law”. It has held that a flexible and fluid approach to interpretation that is alive to the changing traditions of the particular people who practice the specific custom must be favoured over one that views customary law as fixed. Shilubana established that the starting point for interpreting customary law should be the history and long standing traditions of the community. Courts must “consider the traditions of the community concerned” and it was emphasised that this means that courts must look at “the practice of a particular community [that] is relevant when determining the content of a customary-law norm”.

[74] In Shilubana it was further held that:

“It is important to respect the right of communities that observe systems of customary law to develop their law. This is the second factor that courts must consider. The right of communities under section 211(2) includes the right of traditional authorities to amend and repeal their own customs. As has been repeatedly emphasised by this and other courts, customary law is by its nature a constantly evolving system. Under pre-democratic colonial and apartheid regimes, this development was frustrated and customary law stagnated. This stagnation should not continue, and the free development by communities of their own laws to meet the needs of a rapidly changing society must be respected and facilitated.”

[75] The flexible nature of customary law, while profoundly different to other legal systems, has been lauded as an enriching factor in our law. In Bhe, the Court held that:

“The positive aspects of customary law have long been neglected. The inherent flexibility of the system is but one of its constructive facets. Customary law places much store in consensus-seeking and naturally provides for family and clan meetings which offer excellent opportunities for the prevention and resolution of disputes and disagreements. Nor are these aspects useful only in the area of disputes. They provide a setting which contributes to the unity of family structures and the fostering of cooperation, a sense of responsibility in and of belonging to its members, as well as the nurturing of healthy communitarian traditions such as ubuntu. These valuable aspects of customary law more than justify its protection by the Constitution.”

[76] If we are serious about giving customary law its rightful place under the Constitution, it would be prudent to allow it to develop in its own intrinsic way in accordance with the fundamental values and rights protected in the Constitution.

Relevant provisions of the unamended Act

[77] The unamended Act created a Commission of Inquiry which was tasked with addressing conflicts over claims to traditional leadership positions. Section 25 established the powers of the Commission. The following subsections are relevant:

“(2)(a) The Commission has authority to investigate, either on request or of its own accord—
. . .
(ii) a traditional leadership position where the title or right of the incumbent is contested;
. . .
(3)(a) When considering a dispute or claim, the Commission must consider and apply customary law and the customs of the relevant traditional community as they were when the events occurred that gave rise to the dispute or claim.”

[78] Section 26(2)(a) of the Act provides that:

“A decision of the Commission must, within two weeks of the decision being taken, be conveyed to—
. . .
(a) the President for immediate implementation in accordance with section 9 or 10 where the position of a king or queen is affected by such decision.”

[79] Section 9 is of importance here. It reads:

“(1) Whenever the position of a king or a queen is to be filled, the following process must be followed:
(a) The royal family must, within a reasonable time after the need arises for the position of a king or a queen to be filled, and with due regard to applicable customary law—
(i) identify a person who qualifies in terms of customary law to assume the position of a king or a queen, as the case may be, after taking into account whether any of the grounds referred to in section 10(1)(a), (b) and (d) apply to that person; and
(ii) through the relevant customary structure—
(aa) inform the President, the Premier of the province concerned and the Minister, of the particulars of the person so identified to fill the position of a king or a queen;
(bb) provide the President and the Minister with reasons for the identification of that person as king or queen;
(cc) give written confirmation to the President that the Premier of the province concerned and the Minister have been informed accordingly;
(b) The President must, on the recommendation of the Minister and subject to subsection (3), recognise a person so identified in terms of paragraph (a)(i) as king or queen, taking into account—
(i) the need to establish uniformity in the Republic in respect of the status afforded to a king or queen;
(ii) whether a kingship or queenship has been recognised in terms of section 2A; and
(iii) the functions that will be performed by the king or queen.

(2) The recognition of a person as a king or a queen in terms of subsection (1)(b) must be done by way of—
(a) a notice in the Gazette recognising the person identified as king or queen; and
(b) the issuing of a certificate of recognition to the identified person.

(3) Where there is evidence or an allegation that the identification of a person referred to in subsection (1) was not done in terms of customary law, customs or processes, the President on the recommendation of the Minister—
(a) may refer the matter to the National House of Traditional Leaders for its recommendation; or
(b) may refuse to issue a certificate of recognition; and
(c) must refer the matter back to the royal family for reconsideration and resolution where the certificate of recognition has been refused.

(4) Where the matter that has been referred back to the royal family for recognition and resolution in terms of subsection (3) has been reconsidered and resolved, the President on the recommendation of the Minister must recognise the person identified by the royal family if the President is satisfied that the reconsideration and resolution by the royal family has been done in accordance with customary law.”

Discussion and analysis

[80] The main judgment concludes that the “immediate implementation in accordance with section 9 or 10” of the Commission’s decision would be undermined if the whole process of referral to the royal family had to be followed. But that begs the question of what the proper process under section 9 is. Textually it can be the full process of referral to the royal family, or merely the notice and certificate procedure of section 9(2).

[81] One of the arguments in favour of the mere “notice and registration” procedure is that it brings immediate finality to the dispute. Another is that it is inconceivable that it was envisaged that the royal family route could nevertheless, after the Commission’s decision, override that decision. While that approach is undoubtedly attractive, some caution is necessary.

[82] First, history warns us that so-called final determinations not grounded in community approval are unlikely to last. This case is a good example. The current dispute has run for some eighty years. What makes us so certain that this Court’s determination will be the end of the road?

[83] Second, we should be wary of the assumption that allowing the royal family to be consulted in terms of section 9 will necessarily result in an outcome at odds with the Commission’s decision. If a correct understanding of the composition of the royal family and its traditional democratic role of looking after the interests of its subjects is given proper thought and currency by all, that need not be the case. The composition of the royal family should not be determined by a particular faction. It should be inclusive. The royal family must, in its traditionally democratic ways, determine the future king or queen in the interests of its subjects and not in the material interests of a particular faction. None of these important aspects for the development of customary law in accordance with the Constitution have yet been given appropriate attention.

[84] So, there is something to commend making haste slowly. If both current factions understand that they must act as a royal family for the benefit of all their subjects and not merely for themselves or their particular faction, is it not premature for a court to deny customary law the chance to identify a king or queen in its own “living” way?

[85] In Bhe, Langa DCJ held:

“Quite clearly the Constitution itself envisages a place for customary law in our legal system. Certain provisions of the Constitution put it beyond doubt that our basic law specifically requires that customary law should be accommodated, not merely tolerated, as part of South African law, provided the particular rules or provisions are not in conflict with the Constitution. . . . It follows from this that customary law must be interpreted by the courts, as first and foremost answering to the contents of the Constitution. It is protected by and subject to the Constitution in its own right.”

[86] The constitutional protection of customary law “in its own right” and as a set of norms that “first and foremost answer to the contents of the Constitution” has important implications. It requires the proper investigation of the applicable rules of customary law within its own context. It also means that legislation must not be given broad interpretations over issues that fall within the domain of custom and traditional societies.

[87] In Shilubana, it was held that a court must “consider the traditions of the community concerned”. Courts must “respect the right of communities that observe systems of customary law to develop their law”. But it is a two-way process. Customary law must also “answer to the contents of the Constitution”. And the Constitution protects fundamental rights and a system of democratic government that ensures accountability, responsiveness and openness. So, just as the courts and the other arms of government must provide customary law with the space to develop in accordance with its traditions, so must the custodians of customary laws, traditional leaders and their subjects alike, ensure that those fundamental values of the Constitution are given content in customary law. And that should not be difficult to do. Colonialism and apartheid prevented customary law from giving content to its own inherently democratic and participatory processes. Those shackles are no longer there.

[88] Not only, then, is an interpretation of section 26(2)(a) of the unamended Act to the effect that the President must comply with the entirety of sections 9 and 10 textually sound, but it also gives due and proper recognition to customary law communities to develop customary law in their own way in accordance with constitutional values. “Living” customary law also means giving life to the Constitution by traditional communities. It is a huge responsibility, but courts and other arms of government should allow time for traditional communities to fulfil it. Section 9(1)(a) seems suitably geared to achieve exactly that.

[89] What if the traditional communities fail to develop their customary law in accordance with constitutional values?  Well, then the President must follow the process under section 9(3) and (4).  Admittedly that is a longer process than the finality the main judgment favours, but it has the dual virtues of being both consistent with the text of the Act and in keeping with traditional notions of consultation and participation.

[90] I would thus grant leave and allow the appeal with costs, the costs to include those of two counsel.