Opinions

Historical evidence crucial for decisions about custom

  • Posted on October 24, 2013

The eve of Heritage Day presents an opportunity to reflect on how history and its making influence contemporary laws and debates about custom. Legal arguments about chieftainship and customary rights and entitlements often make reference to the past. What is the place of historical research in litigation? How do we construct an accurate view of customary practices as they have evolved over time, in order to make arguments about customary law? And, where might we find the evidence to help us construct such a view?

These were some of the questions that informed a recent seminar on historical research and traditional authority held at the University of Cape Town. The determinations of the Commission on Traditional Leadership Disputes and Claims (Nhlapo Commission) framed most of the discussion, especially in light of the recent judgment of the Constitutional Court in Sigcau v the President of the Republic of South Africa and Others. The commission was established in terms of the Traditional Leadership and Governance Framework Act (Act 41 of 2003) with the stated aim to restore the dignity and integrity of traditional communities and the entire institution of traditional leadership across the country by correcting colonial and apartheid distortions.

A session at the seminar featured former commissioners Thandabantu Nhlapo and Jeff Peires alongside Advocate Geoff Budlender discussing what went wrong with the commission and whether the flaws in its procedure can be retrospectively fixed.

The seminar explored four themes: the nature of chieftainship in the 19th century; archival and other sources on past practices of customary law and traditional authorities; how historical evidence can be usefully applied to contemporary debates on custom, as well as the limits of such evidence; and how to frame legal arguments on customary law using history in court.

What emerged from the discussion is that the Constitutional Court’s incremental development of a living customary law jurisprudence has created the opportunity to put historical evidence before the court. Customs develop in the give and take of people’s daily lives. As a result, traditional leaders are not the final arbiters of tradition, custom and customary law. It is thus essential to place evidence before the courts of how the customs of particular communities have developed historically. Such evidence is often available in publications, but it is mostly up to researchers and lawyers to put it before judges.

Another point emphasised was that “a chief is a chief by the people” and not by the amount of land he controls (the vast majority of chiefs are men). Evidence shows that in the 19th century, people’s allegiance to the chief was not guaranteed. Whether a chief had jurisdiction over a group of people depended on whether that group gave its allegiance to the chief. In this way, the boundaries of communities shifted along with people’s allegiances. Any leader’s authority was also, to a limited extent, territorially based. However, even where a territory fell under a particular chief, whole villages would in some instances hive off and give their allegiance to a different leader.

In considering what evidence can be used to make the case that customary practices, at the levels of chiefdoms and of families, have always been in flux, the argument was repeatedly made that colonial archival records cannot merely be taken at face value. These distorted records require careful analysis to understand the circumstances of their making in order to determine their value as evidence of past customary rules and practices. Evidence held in people’s memories can serve to dispute, correct and fill the gaps of written records, but as an historical source this too has shortcomings. Yet, ultimately, the use of evidence can help us move away from static colonial ideas of ‘timeless custom’ and people living as tribes bounded by unchanging tradition. History is particularly strong in showing processes of change but less strong in pinning down specific indisputable facts. History is sometimes ambiguous. Paying attention to the processes of the making of the history itself can be particularly helpful in litigation.

Other cases related to the Nhlapo Commission and their implications for customary law debates were also explored, including the hotly-contested Venda case. In that case, three senior traditional leaders approached the High Court to challenge the determination by the Nhlapo Commission that the Mphephu Ramabulana are the paramountcy of the Vhavhenda.

What became clear in the discussions is that, firstly, inadequate research has been conducted by the commission. Secondly, the commission’s approach to date of attempting to establish rightful kings and queens by following genealogical lines is wholly misguided. Peter Delius from Wits university and other historians argue that such an approach obscures the fact that, prior to colonial intervention, rules of succession were flexibly applied to legitimate whomever had ascended to leadership by outwitting opponents. Political support was therefore important for the legitimacy of leadership, yet the commission’s determinations pay no attention to these political processes, as argued by the Centre for Law and Society as a friend of the court in the Sigcau case.

In addition, the commission has adopted a one-size-fits-all model in an attempt to standardise paramountcy and chieftainship across the country. This model does not take account of the customary leadership practices of different groups over time. Endless challenges to the commission’s rulings are thus inevitable and have been the case since its inception in 2004.

The conclusion of the seminar was that the determinations of the commission ought to be scrapped in their entirety. The fact that almost every ruling by the commission has been challenged in a court of law demonstrates the scale of the problem. Ultimately, it is essential to take proper cognisance of history in adjudicating on customary practices. It is similarly crucial to base arguments about custom and customary law on sound historical evidence, and to take into account popular support and political processes at play in the present.

* The seminar was jointly hosted by the Centre for Law and Society (CLS), the Legal Resources Centre, University of Cape Town’s Department of Historical Studies and the UCT National Research Foundation Research Chair in Archive and Public Culture, held by Prof Carolyn Hamilton. Among the speakers were Prof John Wright from Wits University and Dr Gavin Capps who heads the Mining and Rural Transformation in Southern Africa Project at Wits. Lawyers who participated included Tembeka Ngcukaitobi, head of constitutional litigation at the Legal Resources Centre, and Moray Hathorn, who had brought the Sigcau case to the Constitutional Court.

Mbongiseni Buthelezi is senior researcher in the Rural Women’s Action Programme at the Centre for Law and Society, University of Cape Town.

Source: Custom Conteseted website

The article ‘Historical evidence crucial for decisions about custom’ on http://www.customcontested.co.za is licensed under a Creative Commons Attribution 2.5 South Africa License. Please see the copyright terms for more information: http://www.customcontested.co.za/about-custom-contested/copyright-notice/

comments powered by Disqus
  • The electrical engineers have a stringent system of recording certificates to ensure that
    they can refer to them quickly when needed to.
    Who would figure that one radar set that generates and sends out microwaves would
    enter the households. Nathan Milton is the author of this
    article on Commerical Electrical Contractors.

    Look at my weblog ... http://www.yelp.com/biz/queens-electrician-queens

    By Lakeisha on 25/04/2014
  • Periodical inspections by our electrical engineers is especially important for commercial electrical services.
    Once voltage reaches a particular threshold, while identified from the surge protector in
    use, the device works from the blocking the voltage or shorting it to the ground in order to manage the voltage supplied to an electric system.
    Companies who apply for NICEIC recognition must ensure their training and work meets designated
    standards to achieve approved electrical contractor
    status, including all work being certified to British safety Standards.


    Also visit my weblog :: [url=http://www.yellowpages.com/queens-village-ny/mip/queens-electrician-454954252]electrician in queens
    ny[/url]

    By Alisia on 25/04/2014
  • The electrical engineers have a stringent system of recording certificates to ensure that they can refer to them quickly when needed to.
    An electrical contractor is the most essential requirement whenever a new commercial or a
    residential building is being constructed or renovated. The annual license fees run between
    $100 and $200, depending on the particular NC electrician license that is sought.


    my webpage ... http://www.yellowpages.com/queens-village-ny/mip/queens-electrician-454954252

    By Clarice on 26/04/2014
  • So, if you require the services of a professional electrician,
    make sure that you get in touch with Mc -
    Call Enterprises Inc. Exhibits included the Elihu Thomsons Theater of
    Electricity and Charles Hayden Planetarium. Electrical contractors who practice without a legal permission or do not hold a license must never be hired and taken risk with.


    Also visit my webpage electricians in queens ny

    By Reuben on 26/04/2014
  • It’s a shame you don’t have a donate button! I’d without a doubt donate to
    this brilliant blog! I guess for now i’ll settle for book-marking and adding your RSS feed to my Google account.
    I look forward to fresh updates and will
    share this site with my Facebook group. Talk soon!


    Here is my web blog ... [url=https://www.youtube.com/watch?v=-qI0Cc1t5Fo]New York
    Bed Bug Exterminator Cost[/url]

    By Adell on 27/04/2014
  • Hi! Do you use Twitter? I’d like tto follow you if that would be okay.
    I’m undoubtedly enjoying your blog and liok forward to new posts.


    Also visit my weeb page ... Bed Bug Exterminator New York

    By Deangelo on 27/04/2014
  • Hi, I do believe this is a great site. I stumbledupon it ;
    ) I will return once again since I saved as a favorite it.
    Money and freedom is the best way to change, may you be rich and
    continue to guide other people.

    Feel free to surf to my blog - bed bug extermination nyc

    By Kirk on 27/04/2014
  • I usually do not leave many remarks, however i did a few searching and wound up here Historical evidence crucial for decisions
    about custom - Opinions - Archival Platform. And I actually do have a couple of
    questions for you if it’s allright. Could it be only me or does it
    look as if like a few of these responses look as if they are left by
    brain dead folks? tongue laugh And, if you are posting on other places, I’d like to follow everything new you have
    to post. Would you make a list of all of all your public
    sites like your Facebook page, twitter feed,
    or linkedin profile?

    Also visit my weblog: bed bug exterminator manhattan ny

    By Patsy on 27/04/2014
  • Way cool! Some very valid points! I appreciate you pnning this post
    and the rest of the site iss really good.

    Also visit my blog post; bed bug extermination nyc

    By Juana on 28/04/2014
  • Greetings! Very helpful advice within this post! It’s the little canges that
    will make the greatest changes. Thanks a lot for sharing!


    Also visit my site ... https://local.yahoo.com/info-168154475-alpha-bed-bug-exterminator-nyc-new-york

    By Darren on 29/04/2014
  • I got this webseite from my friend who shared with
    me on tthe topic of this website and nnow this time I am visiting thios wweb site and reading very informative content at this place.


    my site ... Bed Bugs Treatment NYC

    By Eloy on 29/04/2014
  • I am really impressed with your writing skills as well as with the layout on your weblog.
    Is this a paid theme or did you modify it yourself?

    Either way keep up the excellent quality writing, it is
    rare to see a great blog like this one today.

    Feel free to visit my web-site: New York Bed Bug Exterminator Cost

    By Remona on 29/04/2014
  • Thanks for sharing your thoughts. I really appreciate your efforts
    and I will be waiting for your next post thanks once again.

    Feel free to surf to my web-site ... bed bug exterminators nyc

    By Alfonso on 08/05/2014
  • I’m not sure why but this blog is loading incredibly slow for me.

    Is anyone else having this issue or is it a problem on my end?
    I’ll check back later annd see if thhe problem still exists.


    Alsso visit my blog: www.youtube.Com

    By Kraig on 09/05/2014
  • Oh mmy goodness! Incredible article dude! Thanks, However I am encountering problems with your RSS.
    I don’t kno why I can’t subscribe to it. Is there anybody getting the same RSS issues?
    Anyone that knows the answer wkll you kindly respond?
    Thanx!!

    Also visit my weblog [url=http://www.insiderpages.com/b/15257538258/bed-bug-retriever-dogs-astoria]Queens Bed
    Bug Exterminator Cost[/url]

    By Isis on 14/05/2014
  • We’re a group of volunteers and opening a new scheme in our community.
    Your site offered us with useful infgo to work on.
    You’ve performed an iimpressive task and our whole
    neighborhood can be thankful to you.

    Feel free to visit my weblog: www.Youtube.Com

    By Jens on 15/05/2014
  • Good day! This is kind of off topic but I need some guidance
    from an established blog. Is it very difficult to set
    up your own blog? I’m not very techincal but I can figure things out pretty fast.
    I’m thinking about creating my own but I’m not sure where to start.

    Do you have any tips or suggestions? Appreciate it

    Here is my web blog furniture layout

    By Leonardo on 16/05/2014
  • Someone essentially assist to make significantly articles
    I might state. This is the first time I frequented
    your web page and up to now? I amazed with the research you
    made to create this particular put up incredible. Magnificent process!


    Here is my blog :: facebook home

    By Austin on 17/05/2014
  • Magnificent goods from you, man. I’ve understand your stuff previous to and you’re just too wonderful.

    I really like what you’ve acquired here, really like what you’re stating and the way in which you say
    it. You make it entertaining and you still care for to keep it
    wise. I cant wait to read much more from you.
    This is really a terrific site.

    Visit my webpage :: carpet cleaning machines

    By Tasha on 18/05/2014