PER - Pioneer in peer-reviewed, open access online law publications

Author:

Samuel Freddy Khunou:

Affiliation: Faculty of Law, NWU Mafikeng South Africa

Email Freddy.Khunou@nwu.ac.za

Date published: 18 October 2017

Editor Prof Paul du Plessis

How to cite this article

Khunou SF "The Customary Anatomy of the Traditional Governance of the Bafokeng Traditional Community: The Implications of the Constitutional Recognition of Hereditary Headmanship" PER / PELJ 2017(20) - DOI http://dx.doi.org/10.17159/1727-3781/2017/v20i0a3270

Copyright

.

DOI http://dx.doi.org/10.17159/1727-3781/2017/v20i0a3270

Abstract

Keywords

Hereditary headmanship; traditional governance; customary law; Interim Constitution; 1996 Constitution; legislation; homelands; Apartheid; genealogical seniority; family group; traditional ward; Bill of Rights

.

……………………………………………………….

1 Introduction

This article seeks to examine and discuss the customary practice of the traditional governance of the Bafokeng community in the North West province of South Africa with an emphasis on the community's custom of hereditary headmanship. Historical evidence indicates that the Bafokeng community has over centuries been ruled by hereditary chiefs and headmen in terms of their living customary law. The custom of the Bafokeng hereditary headmanship determines which of the sons of the incumbent headman should succeed.1 In other words, the headmanship of the Bafokeng community is determined on the basis of hereditary succession in accordance with the genealogical seniority of the particular royal family of the headman concerned.

Although it is the practice among the Bafokeng community and many black communities in South Africa that a son of the community's headman succeeds his father, there are exceptions to this general usage. The customary law of the Cala reserve community in the Eastern Cape Province, for example, requires its headmen to be elected by members of the community.2 It is against this backdrop that this article aims to establish whether or not the Bafokeng customary rule of hereditary headmanship is consistent with the Constitution of the Republic of South Africa, 19963 and the applicable legislation on traditional leadership.4

2 Background

Thornhill and Selepe posit that members of the Bafokeng community ("the people of the dew") are the descendants of the Sotho-Tswana people who travelled southwards from central Africa over a period of 200 years.5

Mbenga indicates that one version of the Bafokeng community's oral tradition asserts that in some distant period, possibly during the 17th century, the Bafokeng people separated from the Hurutshe lineage and formed their own independent chiefdom.6 According to Bammann, the Bafokeng's kgosi7 was Nape, who ruled with the support of the hereditary headmen at the time when the Bafokeng entered the territory which was later called the western Transvaal. It is possible to trace a chronologically accurate genealogy of the hereditary chiefs and headmen of the Bafokeng community, however, only from Kgosi Mokgatle (1834-1891) onwards.8

The Bafokeng community settled in Phokeng, its capital village (near the present modern town of Rustenburg), after they broke away from the Hurutshe.9 Enduring the vicissitudes of the difaqane or mfeqane10 and the arrival of the voortrekkers11 in the region of Phokeng in the first four decades

of the 19th century, the Bafokeng community retained the institution of hereditary headmanship. The Bafokeng practice of hereditary headmanship also continued to be in existence during the turbulent years of the Zuid-Afrikaansche Republiek (ZAR)12 or the Republic of Transvaal (TVL), when the Boer government recognised their successive chiefs and headmen. In 1885 the TVL Volksraad enacted Law 4 of 1885, which recognised the laws and customs of the hereditary leadership of the black communities in the Republic of TVL. It also gave the State President power and authority over chiefs.13 However, despite the Boer government's ruthless oppression of the chiefs throughout TVL, the hereditary leadership of the Bafokeng and other black communities survived.

In 1910 the Tswana communities of the TVL became part of the Union of South Africa.14 Following the establishment of the Union government, the white authorities allowed, among other customs, the continued existence of the Bafokeng customary rule of hereditary headmanship. This recognition was confirmed in section 2(7) of the then Native Administration Act,15 which

continued during the apartheid era.16 Despite the repressive nature of the apartheid system, the Bafokeng hereditary headmanship continued to survive and enjoyed the recognition of the apartheid regime, albeit subject to some forms of manipulation and the introduction of some control measures. On 6 December 1977, as a result of the implementation of the so-called homeland policy of the apartheid government, Bophuthatswana became an independent Tswana "country" through the enactment of the Status of Bophuthatswana Act.17 Accordingly, the Tswana people (including the Bafokeng community) became "citizens" of the newly created Bophuthatswana.18

In 1978, the Bophuthatswana parliament enacted the Bophuthatswana Traditional Authorities Act19 to recognise, among other customs, the system of hereditary headmanship of its Tswana traditional communities. Again the Bophuthatswana legislative enactment recognised the Bafokeng custom of hereditary headmanship. As it will be shown below,20 in 1994, when the homelands and apartheid regime were abolished,21 the democratic

government recognised the institution of traditional leadership throughout the new South Africa. It is against this backdrop that Molotlegi correctly stated that the Bafokeng community has been ruled according to the custom of hereditary leadership for many generations and they continue to do so even today.22

The Bafokeng community is currently led by Kgosi Leruo Tshekedi Molotlegi whom the Bafokeng commonly refers to as King rather than as chief or kgosi.23 The community is wealthy, having become rich as a result of the platinum deposits on its land. The community is referred to by the mining industry and mass media as "Bafokeng Inc" and sometimes as "the richest tribe in Africa." However, the community's preferred designation is the "Royal Bafokeng Nation".24 Kgosi Molotlegi relies on traditional structures such as hereditary headmanship to lead and govern the Bafokeng community. The system of hereditary headmanship and the traditional governance structure of the Bafokeng community are not unusual in the communities recognised as traditionally governed in South Africa. The patriarchal hereditary system of the Bafokeng community is common to Tswana communities in both South Africa and Botswana.25

3 The political and traditional divisions of governance

3.1 The family group (kutle or kgoro)

The Bafokeng community and other Tswana communities in South Africa and Botswana are divided into several different groups, which ultimately derive from the relationships established by blood and marriage. The smallest of these groups is the family, consisting of a man, his wife and their own or adopted children.26 Shaw wrote that the most elementary political and social unit of the Bafokeng community is the household.27 The Tswana

customary family law is founded on the principle that family ties must be strengthened and are essential to the healthy development of the entire community. The Bafokeng believe that nothing must be allowed to weaken family ties. As a result, family affairs are largely left to the family itself to handle, while the headman of a traditional ward is merely notified of the events as they happen.28

The family head (or household head) has legal, social and religious authority over his family. Although every household is to some an extent a distinct legal and administrative group, the most effective social unit is the family group (kutle or kgoro). The family group consists of several different households usually claiming descent in the male line from a common grandfather or great-grandfather.29 The head of the family group is the mogolwane or "common elder",30 who deals with matters concerning the whole group.31

The members of the family group are subjected to the administrative control of the mogolwane. This man occupies his position either by right of birth as the senior male member in line of descent or because he has himself founded the group. However, these days the Bafokeng practice permits a senior woman to act as the mogolwane of a particular family group. However, the mogolwane is not formally appointed or even formally recognised by the superior traditional authority.32 Instead, the mogolwane is entitled to respect from the members of his or her family group. He or she is expected to keep them in order and must be consulted by them in all their important undertakings.33 In turn, the family group has a family council which is a loosely organised body embracing in general all the adult members of the family group.34

The gathering of the family group is held at the family kgotlana,35 if there is one, or else in one of the homesteads belonging to the group, generally in that of its mogolwane, who also summons the people either at his own instance or on the advice or request of some other members. The adult members of the family group (the family council) meets to discuss matters such as betrothal and marriage negotiations, the arrangement of feasts, the settlement of estates, the disposal of property, the fate of a widow, or other matters concerning the family group.36

The family council also assist the mogolwane to settle disputes arising within the family group. Its right to deal with such disputes is explicitly recognised in the saying: fa gare ga bana ba mpa ga go tsenwe.37 However, the mogolwane has no means of enforcing his decision except through general domestic discipline or by handing the matter over to the higher authorities such as the kgotla38 under the authority of the hereditary headman.39

3.2 The traditional ward (kgotla)

The more inclusive political, administrative and social unit of the Bafokeng community is the traditional ward (kgotla).40 A number of family groups living together in the same village or part of a village make up a traditional ward, which is under the authority of a hereditary headman. Generally, the traditional ward consists of different family groups which are usually related by blood or marriage (kutle or kgoroana).41 Schapera states that every person in the tribe42 belongs to a traditional ward. Any stranger or alien family

joining the Bafokeng community is placed within one of the traditional wards.43 The foreigners assigned to specific wards by the kgosi may be related to other members of the traditional ward by marrying into it. For this reason, members of the same ward regard themselves as a body of related people. As a result, a man calls the people of his traditional ward ba ga etsho.'44 Accordingly, members of the same ward are regarded as friends and neighbours.45

The Bafokeng community is divided into 72 wards, each of which is under the authority of a hereditary headman. The headman is much more important than his counterparts at the family group and household levels. It is through the headman that all communication with the kgosi takes place.46 Everything happening within the ward must come to his knowledge before it passes on to the kgosi. He is expected to see that members of his ward observe the customary law and customs of the community.47

By virtue of his office, the headman also acts as the recognised adviser to the kgosi. He must keep the kgosi informed of the grievances and the proposals of the people in his ward.48 To ensure that a headman of the Bafokeng community has his finger on the pulse of the ward, he is assisted in the execution of his duties by a minimum of four bannakgotla49 and/or basadikgotla50 and his wife (the mmakgosana).51 This system allows women to have representation in the process of decision-making and ensures that some form of democratic governance is practised.52

The headman is also responsible for keeping the kgosi's office informed of births, marriages and deaths, and of the pressing issues or specific problems in the traditional ward. He is also required to supply character references for members of his traditional ward seeking jobs. According to Thornhill and Selepe, a headman of the Bafokeng community is expected to be a role model to the ward and a bearer of the community's traditions and customs.53

In addition, a headman has well-defined judicial powers, and his authority is compulsory and legal.54 Each traditional ward has its own kgotla (ward court) where cases are tried.55 If the headman is unable to resolve disputes, he refers the aggrieved party to the Royal Bafokeng traditional court, which sits at the Civic Centre in Phokeng.56 It must be stressed that in all instances, the court emphasises the need for reconciliation between the parties. However, if the aggrieved party is unable to seek redress in the traditional court, the party can then seek redress through the formal Magistrates' Courts.57

It is also important to note that in most Tswana communities a kgosi decides cases with the advice of his council. However, the Bafokeng community follows a different tradition in the sense that the kgosi seldom decides any cases himself. This task is delegated to a number of judges (banna ba lekgotla)58 appointed by the kgosi and his council.59 This practice is undoubtedly in line with the principle of the separation of powers.60 This is so, because the kgosi of the Bafokeng community does not have unlimited powers and is always sensitive to the need to refrain from undue interference in the functional independence of other branches of the traditional government.

3.3 The village (motse)

The Bafokeng community is comprised of 29 villages (metse).61 As already noted above, each village is divided into the traditional wards under the authority of the respective hereditary headmen. Depending on the size of the village, various traditional wards are grouped together into a village, with their senior ward headman acting as the headman of the village.62 However, the Bafokeng community has introduced a system of councillors who were and still are elected democratically among the villagers. The traditional structure of the elected councillors constitutes the Executive Council (EC), which has the status of the local authority and is supported by the committees responsible for portfolios such as economic development, health and education.63

It is for this reason, among others, that Molotlegi maintains that the traditional governance of the Bafokeng community espouses the principles of democracy through the mechanisms of the system of electing the village representatives to the EC.64 It must be stressed that the Bafokeng community also elects women to the positions of the EC. This practice ensures that there is a gender representation in the EC and the traditional structures in general.65

3.4 The community (morafe)

Finally, all the levels or local territorial divisions of the Bafokeng community are grouped under the hereditary kgosi, who has authority over all the constituent sections. All of these levels, namely the households, the family groups, the traditional wards and the villages, form the morafe or the setshaba66 of the Bafokeng. Therefore, the Bafokeng traditional community is the largest political and administrative unit within which the kgosi exercises chiefly authority with the assistance of his hereditary headmen.67

The kgosi of the Bafokeng is the most senior traditional leader of the community. To this end, the Bafokeng traditional authority is invariably vested in a nuclear group, consisting of the senior traditional leader (the

kgosi), hereditary headmen, other royal elites, the bommadikgosana, the bannakgotla, the basadikgotla and the elected members of the community.68 At the community level, there is also a Supreme Council (SC) which is made up of the EC, the headmen, the bannakgotla and/or the basadikgotla. The kgosi convenes the SC whenever important decisions affecting the community need to be discussed. However, the Royal Bafokeng Administration (RBA) manages the community's infrastructure and basic services. It is effectively the local municipality of the community. The Royal Bafokeng Holdings (RBH) manages the community's mineral assets and investment portfolios.69

The highest ranking decision-making body in the Bafokeng community is, however, the kgotha-kgothe.70 This is a general meeting of all the adult members of the Bafokeng community which is held twice annually, whenever there is an important matter to discuss and debate.71 This body also discusses major issues that affect the community and where the kgosi and his headmen have sought input from the community. The mandate of the kgosi and the headmen comes from consultation with the kgotha-kgothe. As a result, the input of the kgosi and the headmen on any given matter can be overturned by the people at the kgotha-kgothe.72

Quite evidently, the kgotha-kgothe ensures that there is accountability, responsiveness and openness in the traditional governance of the Bafokeng community. It is in the Kgotha-kgothe that the community exercises its right to make political, social and economic decisions. The principle involved in decision-making in the Bafokeng community is usually one of inclusiveness and transparency.73

4 The nature of customary law and hereditary headmanship

Before one can deal with the nature of the hereditary headmanship of the Bafokeng community, it is important to define what custom or living customary law is. Tobin cites Bekker defining customary law or custom as:74

An established system of immemorial rules which had evolved from the way of life and natural wants of people, the general context of which was a matter of common sense, coupled with precedents applying to special cases, which were retained in the memories of the chief and his councilors, their sons and their sons' sons, until forgotten, or until it becomes part of the immemorial rules.

According to Rautenbach and Du Plessis, living customary law consists of various customs and usages traditionally observed among the indigenous African people of South Africa and forms part of the culture of those people.75 Essentially, the term "living customary" law is used to refer to the practices and customs of the people in their day-to-day lives. It is primarily based on their world view, which is largely influenced by the political, social and economic conditions of their lives.76 Equally so, the custom of hereditary headmanship of the Bafokeng community forms part of their day-to-day lives.

In the case of Pilane v Pilane, the Constitutional Court confirmed the recognition and existence of customary law of a traditional community as follows:77

... the true nature of customary law is as a living body of law, active and dynamic, with an inherent capacity to evolve in keeping with the changing lives of the people whom it governs ...

However, the living customary law differs from community to community. It is against this backdrop that Jobodwana asserts that the customary law of a community (for instance, the Bafokeng community) is a body of customs and traditions which regulates various kinds of relationships between members of that particular community. Hence, the living customary law of the Bafokeng community is recognised as obligatory by its members.78

Jobodwana further argues that the acceptance of living customary law means that customs must conform to actual patterns of behaviour. In other words, living customary law derives its strength and validity from its acceptance by members of the community as being binding on them. For instance, members of the Bafokeng community have accepted the customary rule of hereditary headmanship as binding on them. For this reason, the living customary law of the Bafokeng community is an expression or a product of patterns of behaviour among its members and a mirror of accepted usage or practice.79

In terms of the customary practice of the Bafokeng community, the headman succeeds automatically to his office by right of birth. There is a Tswana adage that says kgosi ke kgosi ka a tsetswe.80 Equally so, this Tswana adage applies to the position of the headman who is also required in accordance with the customary rule of hereditary succession of the Bafokeng community to be born to the position.81 Breutz confirms the Bafokeng custom of hereditary leadership when he notes that the chieftainship82 of the Bafokeng community is hereditary.83

Succession to the position of the headmanship of the Bafokeng community is also hereditary. As a rule, the headmanship is vested in a particular royal family and the headman according to customary law is appointed to the post.84 This means that a headman of the Bafokeng community is not elected but he acquires his position by virtue of birth in accordance with the customs and customary law of the community. It must nevertheless be stressed that even the hereditary headman must be acceptable to the ward.

Having a headman who is not acceptable to the ward could create an intolerable situation.85

Therefore, generally the Bafokeng customary rule of hereditary traditional leadership is important to ensure the continued existence of the community, the welfare of its members and their relationship with the ancestors.86 As Olivier et al correctly observe, a kgosi is a direct link with the ancestral spirits of the traditional community. It is for this reason, among others, that his position is inherited. The same rule applies to the position of a headman of the Bafokeng community. Generally, a headman of the Bafokeng community is also regarded as a direct link to the ancestral spirits of a traditional ward. This belief is ingrained in the living customary law of the Bafokeng community.87

5 The scope of antagonism and protagonism

There is much confusion and controversy surrounding the role of the traditional leaders, especially the hereditary headmen and chiefs, within the new democratic order in South Africa. The role and status of hereditary traditional leadership (such as the hereditary headmen of the Bafokeng community) is judged to be inherently undemocratic as it is hereditary.88 The fault-finders with the institution of traditional leadership contend that the customary rule of hereditary traditional leaders is undemocratic since they are not elected. As a result, some of the critics suggest that hereditary traditional leadership should be allowed to die and propose that chiefs and headmen should be elected.89 The sceptics further argue that the institution of traditional leaders is a patriarchal organisation that has no place in an open and democratic South Africa founded on human dignity, the achievement of equality and the advancement of human rights and freedoms.90

However, despite these concerns and misgivings, there is ample justification to support and recognize customary law and traditional structures and even to grant them an elevated status. For instance, Nicholson holds the view that the distortion of traditional leadership in the legal and political discourse is a consequence of a lack of understanding of customary law and the system of traditional authority on the part of the colonialist and apartheid politicians, combined with attempts to establish

traditional structures within a modern westernised legal context.91 According to Ozoemena, customary law was distorted and the version that was observed and applied by the courts was not based on the living law of the black people but on precedents and texts. As a result, customary law was interpreted and applied from the perspective of British and Roman-Dutch law principles.92

Sesay expresses the opinion that democracy as a concept and system of government is perhaps the most commonly used, "abused" and misunderstood word in political discourse. Hence, traditional structures such as the hereditary headmanship of the Bafokeng community may be construed to be undemocratic just because the word "democracy" is misunderstood.93 It is against this background that the proponents of traditional leadership argue that instead of looking at the institution as undemocratic perhaps it would be more appropriate to look at it from the African perspective. In this context, they maintain that it is crucial to balance tradition and modernity in a way that does not denigrate one structure in comparison with the other.94

Traditional leaders are seen as the custodians of the morals, values and cultural systems of the traditional communities in South Africa. Therefore, the institution of hereditary leadership remains important in the preservation of African life and good traditional governance. For instance, as already indicated above, the Bafokeng system of traditional governance embraces a range of mechanisms for ensuring that people's concerns, opinions and ideas are an internal part of policy-making. There are also checks and balances so that no hereditary headmen or any other branch of traditional government of the Bafokeng community can act on its own. Thus, the hereditary headmen of the Bafokeng community are answerable to the kgosi, traditional wards, village, community (kgotha-kgothe), the EC and the SC. Hence, Molotlegi contends that democracy is not a new or revolutionary concept to the Bafokeng community. As a result, he laments that it is a pity that the traditional leaders and democratically elected officials are often perceived to be at opposite ends of the spectrum in terms of the forces that legitimise their power. 95

6 The constitutional recognition of hereditary headmanship

6.1 The 1993 constitutional design of hereditary headmanship

Despite the criticisms levelled against the institution of traditional leadership (including the Bafokeng hereditary headmanship), the Constitution of the Republic of South Africa 200 of 1993 (Interim Constitution)96 took a different direction and recognised the role and status of the institution. This constitutional recognition was entailed in the Constitutional Principle XIII of the Interim Constitution, which provided that:97

The institution, status and role of traditional leadership, according to indigenous law, shall be recognized and protected in the Constitution. Indigenous law, like common law shall be recognised and applied by courts, subject to the fundamental rights contained in the Constitution and the legislation dealing specifically therewith.

Section 181 of the Interim Constitution reinforced Constitutional Principle XIII by providing for the recognition and continued existence of the traditional leadership and indigenous law (customary law) of all the traditional communities in South Africa. This constitutional provision endorsed the recognition of the traditional leadership as follows:98

In the context of the above, the recognition of traditional leadership also extended to the recognition of the living customary law of the traditional communities in South Africa. For this reason, the Bafokeng custom which recognizes the system of hereditary headmanship was guaranteed and protected by the Interim Constitution. The Interim Constitution in fact affirmed the continued existence of the hereditary headmanship of the Bafokeng community.

6.2 The 1996 constitutional structure of traditional leadership

The final Constitution99 is compatible with Constitutional Principle XIII of the Interim Constitution.100 Section 211 of the Constitution gives effect to the continued existence and the recognition of the traditional leadership and customary law as follows:101

(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.

According to Bank and Southall,102 the Constitution is based primarily upon notions of liberal and constitutional democracy. South Africa's constitutional democracy simultaneously provides a framework for the recognition of legally constituted traditional authorities, which include the hereditary headmanship. The final Constitution therefore did not abolish the custom of the hereditary headmanship of the Bafokeng community. In fact, the Constitution endorses the practice of the hereditary headmanship of the Bafokeng community. As I will demonstrate later, although the Constitution recognises the hereditary institution of traditional leadership, the

headmanship of Bafokeng is still required to be in line with the Constitution and the Bill of Rights such as the right to equality.

Most importantly, the recognition of the institution of traditional leadership and customary law took centre stage in a number of the Constitutional Court cases which put the constitutional status and role of traditional leadership and customary law beyond doubt. For example, in Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa,103 the Constitutional Court recognised the institution, status and role of traditional leadership. In so doing, the Constitutional Court further stressed that:104

In our view, therefore, the NT [the Constitution] complies with CP Xlll by giving express guarantees on the continued existence of traditional leadership and the survival of an evolving customary law. The institution, status and role of traditional leadership are thereby protected. They are protected … by means of entrenchment in the NT and any attempt at interference would be subject to constitutional scrutiny.

In view of the above, the Constitutional Court enjoined that the institution of traditional leadership (and its concomitant hereditary headmanship) are protected and its continued existence is guaranteed in the Constitution. It follows that the founding fathers and mothers of the Constitution realised the importance of the institution of the traditional leadership within the new constitutional order. In addition, through section 211(2) the Constitution envisages the continued existence of traditional authorities, which may perform functions subject to any applicable customs.

Therefore, the Constitution acknowledges the originality and distinctiveness of customary law as an independent source of norms within the legal system of South Africa. It is through the Constitution that the status of customary law in South Africa is constitutionally entrenched. This means that the Bafokeng hereditary headmanship is constitutionally permitted to perform its functions in terms of the applicable customs of the community, but always subject to the Constitution.105

Section 211(3) of the Constitution has the effect of raising customary law to the same status as common law. Therefore the courts are enjoined to apply

customary law when it is applicable.106 The Constitutional Court in Alexkor Ltd v Richtersveld Community held that:107

...while in the past indigenous law was seen through the common law lens, it must now be seen as an integral part of our law. Like all law it depends for its ultimate force and validity on the Constitution...

One of the inferences to be drawn from the above conclusion of the Constitutional Court is that no particular culture, and thus no particular system of personal law, is to be given preference over any other. In other words, customary law must be accorded the same respect as common law. As such, the practice of hereditary the headmanship of the Bafokeng, as an essential component of the customary law of the community, should also be treated with respect.

In recognising the significance of customary law the Constitutional Court went further to state that:108

...in applying indigenous law, it is important to bear in mind that indigenous law is not written. It is a system of law that was known to the community, practised and passed on from generation to generation. It is a system of law that has its own values and norms. Throughout its history, it has evolved and developed to meet the changing needs of the community. And it will continue to evolve within the context of its values and norms consistently with the Constitution...

In actual fact, the Constitutional Court emphasises the significance of the customary law and practices of the traditional communities such as the Bafokeng community within the framework of the new constitutional scheme. According to Ntlama,109 Langa DCJ (as he then was) substantiated the importance of the constitutional protection of customary law values and principles in the new South Africa in the case of Bhe v Magistrate, Khayelitsha, where he pointed out that:110

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...

In Shilubana v Nwamitwa,111 the Constitutional Court held that customary law is protected by and subject to the Constitution in its own right:112

... Customary law, like any other law, must accord with the Constitution. Like any other law, customary law has a status that requires respect ... It is a body of law by which millions of South Africans regulate their lives and must be treated accordingly...

In order to determine the content of living customary law, the Constitutional Court in the Shilubana case set out factors to be considered. These factors must be taken into account by the court when there is a dispute over the legal position under customary law. The first factor entails a historical enquiry into the past practice and the traditions of a particular community. In this particular case the traditional leadership was conferred on a woman, as that was the wish of the specific community.

On the basis of the historical enquiry of the living customary law of the Bafokeng community, it seems that the traditional wards of the Bafokeng community have from time immemorial being under the authority of hereditary headmen.113 It is also a historical fact that in the Bafokeng community the headmanship passes from father to son. The court must also consider the current practice of a particular community. The practice of the Bafokeng hereditary headmanship is evident from the fact that even at the present juncture the headmen of the community are still the hereditary leaders. The second factor which the court must consider is the fact that it is important to respect the communities that observe the system of customary law as they develop their law.114

As stated above, the Bafokeng community has developed its custom of hereditary leadership by including the bommadikgosana and the elected councillors into the traditional governance of the community. In one way or another, this development of the community's custom promotes a system of

democratic representation in traditional governance and advances the cardinal principle of gender equality in all the branches of the traditional government of the Bafokeng community.

The third factor enjoins the court to weigh up the application of the custom of the community against any negative impact that it may have on the people who live in it and against the value of legal certainty. It is apparent that the custom of the hereditary headmanship of the Bafokeng community is certain, has no negative impact on the community, and has been accepted and legitimised by the individual members of the community. The Bafokeng community has never rejected the practice of the hereditary succession of the headmen and there is no evidence to suggest that it may do so in future.

Section 2 of the Constitution provides that the Constitution is the supreme law of the Republic, that law or conduct inconsistent with it is invalid, and that obligations imposed by it must be fulfilled. As a result, a crucial question which cannot be avoided is whether the customary rule of the Bafokeng community, which requires headmen to be appointed from a particular royal family, is consistent with the Constitution? The answer to this question must be sourced from the Constitution itself.

As indicated above, the constitutional recognition of the traditional leadership in South Africa demonstrates without any shadow of doubt that the founding fathers and mothers of the Constitution acknowledged the role and the status of traditional leadership within the new constitutional dispensation. Therefore, it may be assumed that they did not consider the institution of traditional leadership to be inconsistent with the Constitution.

Section 211 of the Constitution unequivocally recognises and places traditional institutions such as the Bafokeng institution of hereditary headmanship, its leaders and their system of customary law within the protective purview of the Constitution. This constitutional recognition is intended to restore the dignity of the traditional authorities that define not only the Bafokeng community but many black communities which rely on hereditary headmanship and traditional governance to run their affairs. That is why the Constitutional Court in Pilane v Pilane115 went further and described such a traditional institution as fragile and emphasised that matters concerning it must be treated with sensitivity.

6.3 Hereditary headmanship and the Bill of Rights

The Bill of Rights is a cornerstone of democracy in South Africa. Moreover, the Constitution enshrines the rights of all people in the country and affirms

the democratic values of human dignity, equality and freedoms.116 The recognition of the institution of the traditional leadership (including the hereditary headmanship of the Bafokeng community) is subject to the Constitution and the provisions of the Bill of Rights.117 For instance, section 8(1) of the Constitution makes the Bill of Rights applicable to all law (including customary law) and binds the legislature, the executive, the judiciary and all organs of state.

In this context, the Bill of Rights applies to the traditional authorities because they are deemed to be organs of state in terms of section 239 of the Constitution.118 In addition, the Bill of Rights also applies to the customary law of the Bafokeng community. For this reason, no law (including the customary law of the Bafokeng community) ought to limit any right enshrined in the Bill of Rights. The Bill of Rights is based on the premise that a person has rights because he or she is an individual human being. On the other hand, the underlying principle of customary law is social solidarity.119

For this reason, the group plays a prominent role in customary law. This means that any individual of the Bafokeng exists as a member of a community. According to Bekker, under customary law individual rights are subject to the interests of the group. However this customary arrangement does not mean that individuals do not have rights. Hence, the family and community form a framework within which individuals exercise their political, economic and social rights within the broader scheme of traditional governance.120

On the other hand, government is obliged to respect African culture and tradition. The Constitution further provides for the recognition of customary law and respect for South Africa's diverse cultures. This obligation is met by two sections in the Bill of Rights, which protect a right to culture. In particular, sections 30 and 31 of the Constitution make provisions for the recognition of language and culture.121 For instance, section 30 of the Constitution recognises the right to culture and provides that:122

Everyone has the right to use 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.

This provision is reinforced by section 31 of the Constitution, which also protects the right to culture by providing that:123

(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;

(b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.

(2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provisions of the Bill of Rights.

Although the state is obliged to treat all cultures equally, a group's right to practise its culture may not be used as a reason for depriving an individual of his or her fundamental rights. Hence, both sections 30 and 31 expressly provide that the right to culture may be exercised only in a manner consistent with the Bill of Rights. In view of the above, the issue to be discerned is whether the customary rule of the Bafokeng community, which permits the practice of hereditary headmanship, is consistent with the Bill of Rights? Sibanda cites Bennett asserting that from a constitutional point of view the recognition of the Bafokeng custom of hereditary headmanship is central to the right to culture. Traditional leaders, including the hereditary headmen of the Bafokeng, are the custodians of culture. Therefore they are expected and obliged to protect the individual's and the community's right to culture.

In addition to sections 30 and 31 of the Constitution, the importance of the Bafokeng customary law of hereditary headmanship is further reinforced by section 39(2) of the Constitution. This constitutional provision requires a court when developing customary law to promote the spirit, purport and

object of the Bill of Rights. Quite evidently, the courts are constitutionally obliged to develop and promote the right to culture, which means, among other things, the Bafokeng community's right to practise their cultural life of traditional governance. In addition, section 39(3) of the Constitution states that the Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation to the extent that they are consistent with the Bill of Rights.

The Bafokeng community transformed its custom and practice of hereditary headmanship to comply with the Bill of Rights in preventing unfair discrimination, promoting equality and seeking to progressively advance gender representation in traditional governance. The system of the bommadikgosana, the basadikgotla and the elected councillors introduced more women into traditional governance than ever before. The participation of women in the traditional governance of the Bafokeng community is clearly in line with section 9 of the Constitution124 and the Promotion of Equality and Prevention of Unfair Discrimination Act.125 These changes did not affect the position of hereditary headmanship, though.

The Bafokeng headmen are, however, not above the law and their powers are always subjected to checks and balances reinforced by various

mechanisms of traditional structures. For example, they are bound by customary law of the community to follow the advice of the bannakgotla, the bommadikgosi, the councillors and the community at the kgotha-kgothe. This approach is based on the fundamental Tswana adage that says: Kgosi ke Kgosi ka morafe.126 This wise saying binds the hereditary headmen of the Bafokeng community. I would argue that the customary law protects the principle of gender equality within the institution of hereditary headmanship without tampering with the institution itself. This form of traditional governance organises community life on the foundation of basic human principles such as respect, sense of community and a sense of commitment to one's neighbours as well as oneself.127 Hence, the Bafokeng community has a robust system of traditional structures which promote the individual fundamental rights within the entire community. It is within this context that the Bafokeng community system of traditional governance may be said to have developed in a democratic manner. It is therefore consistent with the Constitution and the Bill of Rights.

7 The legislative environment of the traditional leadership

7.1 Legislation and the recognition of hereditary headmanship

Section 212(1) of the Constitution stipulates that national legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities. In line with this constitutional imperative, the national parliament enacted the Traditional Leadership and Governance Framework Act,128 which is intended to regulate traditional institutions at the national level. This piece of legislation entrenches and guarantees the customary role and the powers of the traditional leaders within the new constitutional order.

The Preamble to the Framework Act records, among other things, that the state must seek to restore the integrity and legitimacy of the institution of traditional leadership in line with customary law and practices; and that the Constitution recognises the institution, status and role of traditional leadership according to customary law, and a traditional authority that observes the system of customary law. The Preamble to the Framework Act enjoins that the institution of traditional leadership must derive its mandate and primary authority from applicable customary law and practices and strive to enhance tradition and culture.

It is against this background that the Framework Act empowers the royal families of traditional communities to identify candidates for headmanship and the Premier to recognise headmen or headwomen in a particular province.129 The royal family of the Bafokeng community is therefore empowered to identify a suitable person for the position of hereditary headmanship and it can therefore be inferred that the customary rule of hereditary headmanship of the Bafokeng is in compliance with the Framework Act. The Framework Act consciously requires the state to respect, protect and promote the institution of traditional leadership and will therefore be statutorily obliged also to respect, protect and promote the hereditary headmanship of the Bafokeng community.130

At provincial level, each province is mandated to enact its own provincial legislation in line with the Framework Act and the Constitution. In the North West province, where the Bafokeng community is found, the provincial legislature has enacted the North West Traditional Leadership and Governance Act,131 which recognises traditional leadership and the institutions of the headmanship of the traditional communities throughout the North West province.

In so doing, it echoes the spirit and the object of the Framework Act in a direct manner. The North West Legislation favours the recognition of diverse customary law and practices. For instance, it provides that customs, traditions or customary laws relating to traditional leadership will continue to

operate, subject to the Constitution and the Framework Act.132 It is evident that the North West Legislation did not abolish any of the current practices for the appointment of headmanship and does not preclude hereditary headmanship. The Act does, however, include the possibility that women may be appointed as headmen.

In line with the Framework Act and the North West legislation, the Bafokeng community established the Bafokeng traditional council. According to Cook, this statutory body is made up of eleven community members, five elected by the community and six appointed by the kgosi. The Bafokeng traditional council together with the SC chaired by the kgosi debates and ratifies all major financial and policy matters for the community.133

The creation of the Bafokeng traditional council represents the fusion of democracy and tradition. Therefore, it is quite manifest that the entire traditional leadership of the Bafokeng community complies with the Constitution and the Framework Act read in conjunction with the North West Legislation.

8 The cultural dichotomy between the Bafokeng and Cala Community

The Bafokeng and the Cala reserve community in the Eastern Cape Province are divided not only by language and geographical locations but also by their traditions and customs. For instance, contrary to the custom of the Bafokeng community, which permits hereditary headmanship, the custom of the Cala reserve community allowed and still allows them to elect a candidate to be a headman. This customary right was confirmed in the case of the Premier of Eastern Cape v Penrose Ntamo.134

The facts of this case are briefly as follows:135 In 2013, the headman of Cala reserve community, JH Fani, who had served since 1979, tendered his resignation. As had been their custom, the residents of the Cala reserve called a community meeting and elected Mr Gideon Sitwayi (a sub-headman and Fani's de facto deputy) as their new headman. However, the amaGcina traditional council rejected their choice because Sitwayi was not a member of the royal family. Chief Gecelo, head of the amaGcina

traditional council, imposed his own choice, Mr NJ Yolelo (a clansman) on the community.

Gecelo cited the Eastern Cape Traditional Leadership and Governance Act136 which, he said, instructs the royal family to elect the headman and told the Cala reserve community that: Nokuba niyathanda okanye anithandi na, yiroyal family ethata izigqibo ngokubekwa kwenkosana (whether you like it nor not, it is the royal family that decides on the headman). The community made various complaints about the council's appointment to the Premier of the Eastern Cape, the Member of Executive Council (MEC) for Local Government and Traditional Affairs, and the Qamata Regional Traditional Council.137 When they were unsuccessful, they approached the Legal Resources Centre (LRC), which launched an application on their behalf in the Eastern Cape High Court against the decision of the MEC for Local Government and Traditional Affairs (acting on the delegated authority of the Premier of the Eastern Cape province) to recognise Yolelo as the headman of the community. On 9 October 2014, the Eastern Cape High Court found in favour of the Cala reserve community and declared that the customary law of the Cala reserve community requires its headman to be elected by the members of the community in accordance with the community's customs and customary law. Subsequently, the Premier appealed against the decision of the court of first instance.

However, the appeal was dismissed by a full bench of the Eastern Cape High Court, which found that the practice of the Cala reserve community was reasonable in that it is not in conflict with the applicable legislation or the Constitution, and it was consonant with the values of democratic governance aimed at the achievement of accountability, responsiveness and openness. The court further held that the practice of the Cala reserve community was consistent with various fundamental rights such as the right to dignity, the right to freedom of opinion, the right to freedom of association and the right to make political choices.138

Based on the above decision of the full bench of the Eastern Cape High Court, the question which immediately arises is whether the practice or

custom of hereditary headmanship of the Bafokeng community negates the community's right to freedom of opinion and the right to make political choices? It is quite evident that the Bafokeng community has chosen to be governed by hereditary headmen from time immemorial. Therefore, the question of election does not arise in the case of the Bafokeng.139 Much as the Cala Reserve community has chosen to be ruled by elected headmen, the Bafokeng community has chosen to be governed by hereditary headmen.

It can be argued that the Bafokeng community has already exercised its right to make political choices and the right to freedom of opinion by accepting and legitimising the customary rule of hereditary headmanship. The Cala judgment does not apply to the custom of hereditary headmanship of Bafokeng community and other communities in South Africa which follow a similar custom or practice. The Eastern Cape High Court ruling does not have a general application, but it was meant specifically for the Cala reserve community and other communities which follow customs similar to those of the Cala community, as the court decided on living customary law and living customary law that applies only to a specific community at a specific time.140 This case again illustrates how important it is that the courts should establish what the particular living customary law of a specific community is before arriving at a decision, incuding in a dispute relating to the appointment of headmen and traditional leaders.

9 Conclusion

It is cogently evident from the above that the headmen of the Bafokeng community rise to power through birth-right, and that this practice is entrenched in the custom of the community. On the other hand, the elected headmen in the Cala reserve community get their authority by means of a popular vote which also is based on custom and usage. It has been demonstrated that the powers and the authority of the hereditary headmen of the Bafokeng community are sourced from the living customary law of the community, the Constitution, the Framework Act and the North West Legislation.

Critics of the institution of traditional leadership must take care not to rush to the conclusion that traditional structures such as that of the Bafokeng hereditary headmanship are undemocratic and therefore inconsistent with the Constitution and the Bill of Rights. The Bafokeng system of traditional governance has proved that hereditary headmen are subjected to checks and balances by means of the traditional structures which play an oversight

role over their traditional authority. It was further been indicated that the structures provide for democratic elections and provide a role for women. It is hoped that other traditional communities which practise the system of hereditary headmanship will take a leaf out of the book of the Bafokeng democratic model of traditional governance and adjust their structures to also provide a role for women within the structure, for example, even though it may not necessarily be within the institution of headmanship.

Bibliography

Literature

Anon Bantu Authorities and Tribal Administration

Anon Bantu Authorities and Tribal Administration (Information Service of the Department of Native Affairs Pretoria 1958)

Anon 2000 Insight @ ipt

Anonymous "Role of Traditional Leadership – Part I" 2000 (October) Insight @ ipt 1-14

Bammann The Bafokeng

Bammann H The Bafokeng: History, Culture, Religion and Education in Perspective from the First Three Hermannsburg Missionaries until 1940 (Lif Verlag Wien 2014)

Bank and Southall 1996 J Legal Plur

Bank L and Southall R "Traditional Leaders in South Africa's New Democracy" 1996 J Legal Plur 407-430

Bekker and Boonzaaier "Traditional Leadership"

Bekker J and Boonzaaier CC "Traditional Leadership and Governance" in Bekker JC et al (eds) Introduction to Legal Pluralism in South Africa (LexisNexis Butterworths Durban 2006) ch 8

Bekker and Boonzaaier 2008 CILSA

Bekker JC and Boonzaaier CC "Succession of Women to Traditional Leadership: Is the Judgment in Shilubana v Nwamitwa Based on Sound Legal Principles?" 2008 CILSA 449-462

Bekker 1994 THRHR

Bekker JC "How Compatible is Customary Law with Human Rights? Some Preliminary Observations" 1994 THRHR 440-447

Bennett Customary Law

Bennett TW Customary Law in South Africa (Juta Cape Town 2004)

Breutz Tribes of Rustenburg

Breutz PL The Tribes of Rustenburg and Pilanesberg Districts (Government Printers Pretoria 1953)

Bujo African Theology

Bujo B African Theology in the 21st Century: The Contribution of the Pioneers Vol 2 (Paulines Nairobi 2006)

Cook 2011 Current Anthropology

Cook SE "The Business of Being Bafokeng: The Corporatisation of a Tribal Authority in South Africa" 2011 Current Anthropology 151-159

Holomisa Double-Edged Sword

Holomisa P A Double-Edged Sword: A Quest for a Place in the African Sun (Lotsha Cape Town 2007)

Isaaks Guide to Botswana

Isaaks AC A Guide to Botswana, Lesotho and Swaziland (Butterworths London 1983)

Jobodwana 2000 SAPL

Jobodwana ZN "Customary Courts and the Human Rights: Comparative African Perspectives" 2000 SAPL 26-49

Khunou Legal History of Traditional Leadership

Khunou SF A Legal History of Traditional Leadership in South Africa, Botswana and Lesotho (LLD-thesis North West University 2007)

Khunou "Origin and Nature of Traditional Leadership"

Khunou SF "The Origin and Nature of Traditional Leadership in South Africa: A Precolonial Perspective" in Collier G (ed) African Cultures and Literatures (Rodopi Amsterdam 2013) 293-320

Khunou and Nthai 2011 De Rebus

Khunou SF and Nthai S "Are Traditional Councils Replicas of Tribal Authorities or New Institutions Altogether?" 2011 (Jan/Feb) De Rebus 32-36

Koyana 2000 Speculum Juris

Koyana DS "Chieftainship and Headmanship are not Hereditary" 2000 Speculum Juris 144-160

Manson and Mbenga 2003 JSAS

Manson A and Mbenga B "The Richest Tribe in Africa: Platinum Mining and the Bafokeng in South Africa's North West Province, 1965-1999" 2003 JSAS 25-47

Mbenga "Acquisition of Land"

Mbenga B "The Acquisition of Land by Africans in the Western Transvaal: The Case of the Bafokeng of the Rustenburg District" Unpublished contribution delivered at the First Annual Edward Patrick Lebone Molotlegi, Memorial Lecture, Phokeng (1 October 1997 Phokeng)

Mojapelo 2013 Advocate

Mojapelo P "The Doctrine of Separation of Powers: A South African Perspective" 2013 (April) Advocate 37-46

Molotlegi "Role of Traditional Leadership"

Molotlegi LT "The Role of Traditional Leadership in South Africa" Unpublished contribution delivered at the University of Pretoria (10 September 2003 Pretoria)

Moodley Customary Law

Moodley I The Customary Law of Intestate Succession (LLD-thesis University of South Africa 2012)

Moumakwa Botswana Kgotla System

Moumakwa PC The Botswana Kgotla System: A Mechanism for Traditional Conflict Resolution in Modern Botswana: Case Study of the Kanye Kgotla (Master's Thesis in Philosophy of Peace and Conflict Transformation University of Tromso 2011)

Nicholson "Critical Analysis"

Nicholson C "A Critical Analysis of the Role of Traditional Leadership in Modern South African Law" Paper presented at the Third International Conference on Therapeutic Jurisprudence (7-9 June 2006 Perth) 1-11

Ntlama 2012 PER

Ntlama N "The Application of Section 8(3) of the Constitution in the Development of Customary Law Values in South Africa's New Constitutional Dispensation" 2012 (15)1 PER 24-44

Olivier et al Indigenous Law

Olivier NJJ et al Indigenous Law (LexisNexis Butterworths Durban 1995)

Rautenbach and Du Plessis "Final Nails"

Rautenbach C and Du Plessis W "Final Nails in the Customary Law Coffin?" in Fenrich J et al (eds) The Future of African Customary Law (Cambridge University Press Cambridge 2011) 336-360

Schapera Handbook of Tswana Law

Schapera I A Handbook of Tswana Law and Custom (Frank Cass London 1938)

Sepeng History of the Bakwena Ba Mogopa

Sepeng GP History of the Bakwena Ba Mogopa and the Baphalane (Archival Records of South Africa, Source: A 327 Vol 27)

Sesay "African Governance Systems"

Sesay A "African Governance Systems in the Pre- and Post-Independence Periods: Enduring Lessons and Opportunities for Youth in Africa" Unpublished contribution delivered at The Mandela Institute for Development Studies (11 July 2014 Johannesburg)

Shaw State Formation

Shaw BP State Formation, Nation Building and the Tswana of Southern Africa (Master of Arts in African Affairs Dissertation Duquesne University 1975)

TARG "Administrative and Legal Position" Vol VII

Traditional Authority Research Group "The Administrative and Legal Position of Traditional Authorities in South Africa and their Contribution to the Implementation of the Reconstruction and Development" Vol VII (Unknown Publisher and Place 1996)

Thornhill and Selepe 2010 J Public Admin

Thornhill C and Selepe MM "The Role of the Royal Bafokeng Administration in the Promotion of Municipal Service Delivery" 2010 J Public Admin 162-174

Tobin Indigenous Peoples

Tobin B Indigenous Peoples, Customary Law and Human Rights: Why Living Law Matters (Routledge London 2014)

Tummala Politics of Preference

Tummala KK Politics of Preference: India, United States, and South Africa (CRC Press London 2015)

Vorster "Institution of Traditional Leadership"

Vorster LP "The Institution of Traditional Leadership" in Bekker JC et al (eds) Introduction to Legal Pluralism in South Africa: Part I Customary Law (LexisNexis Butterworths Durban 2002) 127-138

Case law

Alexkor Ltd v Richtersveld Community 2004 5 SA 460 (CC)

Baloro v University of Bophuthatswana 1995 4 SA 197 (BSC)

Bhe v Magistrate, Khayelitsha 2004 2 SA 544 (CC)

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 1996 4 SA 744 (CC)

Penrose Ntamo v The Premier of the Eastern Cape (ECB) (unreported) case number 194/14

Pilane v Pilane 2013 4 BCLR 431 (CC)

Premier of the Eastern Cape v Ntamo 2015 6 SA 400 (ECB)

Shilubana v Nwamitwa 2009 2 SA 66 (CC)

Van Breda v Jacobs 1921 AD 330

Legislation

Black Administration Act 38 of 1927

Bophuthatswana Traditional Authorities Act 23 of 1978

Constitution of the Republic of South Africa 200 of 1993

Constitution of the Republic of South Africa, 1996

Free State Traditional Leadership and Governance Act 8 of 2005

Gauteng Traditional Leadership and Governance Act 4 of 2010

KwaZulu-Natal Traditional Leadership and Governance Act 5 of 2005

Law 4 of 1885 (Transvaal Volksraad)

Law of Evidence Amendment Act 45 of 1988

Limpopo Traditional Leadership and Institutions Act 6 of 2005

Mpumalanga Traditional Leadership and Governance Act 3 of 2005

Native Administration Act 38 of 1927

Northern Cape Traditional Leadership, Governance and Houses of Traditional Leaders Act 2 of 2007

North West Traditional Leadership and Governance Act 2 of 2005

Traditional Courts Bill [B1-2017]

Traditional Leadership and Governance Act 4 of 2005 (Eastern Cape)

Traditional Leadership and Governance Framework Act 41 of 2003

Traditional Leadership and Governance Framework Amendment Act 23 of 2009

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

Promotion of Equality and Prevention of Unfair Discrimination Amendment Act 52 of 2002

Restoration and Extension of South African Citizenship Act 196 of 1993

South Africa Act of 1909

Status of Bophuthatswana Act 89 of 1977

Internet sources

Editors of Encyclopaedia Britannica Date Unknown http://global.britannica.com /EBchecked/topic/632827/Voortrekker

Editors of Encyclopaedia Britannica Date Unknown Voortrekker http://global.britannica.com /EBchecked/topic/632827/Voortrekker accessed 12 June 2015

Ozoemena 2016 http://www.nylslawreview.com/wp-content/uploads/ sites/16/2014/11/Ozoemena.pdf

Ozoemena R 2016 Protecting Constitutional Democratic Values, Traditional System and Institutions in the New South Africa http://www.nylslawreview.com/wp-content/uploads/sites/16/2014/11/Ozoemena.pdf accessed 6 June 2016

Suttner 2015 http://www.polity.org.za/article/eastern-cape-courts-affirm-communitys-democratic-right-to-elect-headman-2015-08-21

Suttner R 2015 Eastern Cape Courts Affirm Community's Democratic Right to Elect Headmen http://www.polity.org.za/article/eastern-cape-courts-affirm-communitys-democratic-right-to-elect-headman-2015-08-21 accessed 15 May 2016

UCT Communication and Marketing Department 2015 https://www.uct.ac.za/usr/press/2015/MassiveBlow_27Aug2015.pdf

UCT Communication and Marketing Department 2015 "Massive Blow" Dealt to Eastern Cape over Customary Law - UCT Researcher https://www.uct.ac.za/usr/press/2015/MassiveBlow_27Aug2015.pdf accessed 21 May 2016

List of Abbreviations