Who controls the land and minerals in the former Bantustans of South Africa - chiefs, the state or landholders? Disputes are taking place around the ownership of resources, decisions about their ...exploitation and who should benefit. With respect to all of these issues, the courts have become increasingly important. The contributors to Land, Law and Chiefs in Rural South Africa capture some of these intense contestations over land, law and political authority, focussing on threats to the rights of ordinary people. History and customary law feature strongly in most disputes and succession to chieftaincy is also frequently disputed. Judges have to make decisions in a context where rival claimants to property or office assert their own versions of history and custom. The South African constitution recognises customary law and the courts are attempting to incorporate and develop this branch of jurisprudence as 'living customary law'. Lawyers, community leaders and academics are called on to assist in researching cases around restitution, land rights and customary law. The chapters in this collection discuss legal cases and policy directions that have evolved since 1994. Some chapters analyse the increasing power of chiefs in the South African rural areas, while others suggest that the courts are giving support to popular rights over land and supporting local democratic processes. Contributors record significant pushback from groups that reject traditional authority. These political tensions are a central theme of the collection and thus serve as vital case studies in furthering our understanding of rights and restitution in South Africa. Who controls the land and minerals in the former Bantustans of South Africa - chiefs, the state or landholders? Disputes are taking place around the ownership of resources, decisions about their exploitation and who should benefit. With respect to all of these issues, the courts have become increasingly important. The contributors to Land, Law and Chiefs in Rural South Africa capture some of these intense contestations over land, law and political authority, focussing on threats to the rights of ordinary people. Judges have to make decisions in a context where rival claimants to property or office assert their own versions of history and custom. The South African constitution recognises customary law and the courts are attempting to incorporate and develop this branch of jurisprudence as 'living customary law'. Lawyers, community leaders and academics are called on to assist in researching cases around restitution, land rights and customary law. The chapters in this collection discuss legal cases and policy directions that have evolved since 1994. Some analyse the increasing power of chiefs in the South African rural areas. Others suggest that the courts are giving support to popular rights over land and supporting local democratic processes. These political tensions are a central theme of the collection.
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.
South Africa forms the arena of a protracted ‘“fight for ubukhosi” – a struggle by chiefs for the recognition of the institution of chieftainship and of chiefly power’ (Mager and Velelo 2018: 15). ...With the transition to democracy, as part of the political negotiations, iinkosi succeeded in ensuring that traditional leadership was recognised in the 1996 Constitution ‘according to customary law’ (Southall and Kropiwnicki 2003; Oomen 2005; Ntsebeza 2011).¹ Though constrained by the Constitution, their influence on the government has increased considerably, particularly through the vehicle of the Congress of Traditional Leaders of South Africa (CONTRALESA).
The fight for ubukhosi
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