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Customary law and the courts

Customary law and the courts

Customary law and the courts

Public Protector, Busisiwe Mkhwebane, will release her report into the missing Bapo-Ba-Mogale mining royalties by the end of April.

Mkhwebane visited the community near Brits in North West on 27 March 2017, regarding her probe into the so-called “D account”. The account, into which mining companies pay royalties for communities on whose ancestral land they mine, had once accumulated R617 million, but currently has less than R1 million. The transparency and accountability issues around these accounts have been the subject of a number of court cases, and the actions of the communities who are demanding accountability as well. Some of the judges who have been in the thick of these cases will be interviewed for positions on the bench next week for the North West High Court. This may be a timely review of what that court has been up to in the ongoing battles for control over the lucrative mining rights in the region, and what attitude the JSC will take to this candidate’s record.

One candidate, Ms Tebogo Djaje, has been nominated for a position on the North-West bench. She has had occasion to look at the Bapo-Ba-Mogale Traditional Council leadership disputes, which in turn actually hinge around access to the D accounts. She found there that the Applicants were elected as members of the First Respondent during the elections which took place on 8 January 2014, in accordance with section 6 of the North West Traditional Leadership and Governance Act 2 of 2005 (“NWA”). The traditional council then suspended the applicants. She found the decision of the traditional council was; “irrational, procedurally unfair and falls to be set aside.” [Paragraph 18]

In the case of a number of other judgments, the role of the courts has been unfortunate. A local traditional leader has successfully obtained several court interdicts to stop community members from being allowed to meet, including six interdicts against meetings of the ‘royal family’.  In one of Judge Ronald Hendricks’ cases the community placed a newspaper advertisement calling on members of the Bakgatla-Ba-Kgafela Royal Family to attend an urgent meeting. The traditional leader, Kgosi Nyalala Pilane sought to interdict the meeting.

The community then brought a counter-application to compel the applicants to submit financial documents, and to refer the matter to the Premier to appoint a commission of inquiry into allegations of financial maladministration by the Kgosi. The effect of the judgement was that only the traditional leader can call a meeting of the community, even when it is a meeting to hold that very leader to account. According to Aninka Classens and Boitumelo Matlala:

“Judge Hendricks found that Nyalala Pilane, being ‘the nominated representative of the kgosikgolo in South Africa, has the necessary standing and clear right as a member of the royal family, as defined in terms of Bakgatla custom and law, to bring this application. This is a disconcerting and novel interpretation of customary law – that membership of a royal family, and chiefly status depends on the discretion of a ‘paramount’ based in another country. … Judge Hendricks’s interpretation has far-reaching consequences for the concept and exercise of chiefly accountability.”

The Constitutional Court has asserted the validity of customary entitlements to land and minerals rights in the Alexkor case of 2003, which dealt with the ownership status of both land and mineral rights in the Richtersveld. The Court rejected the ‘official customary law’ found in statutes emanating from our discriminatory past in favour of an inclusive construct of ‘living customary law’ that embodies actual practice and develops as communities ‘change their patterns of life’ (Alexkor v Richtersveld 2003, para 52; Bhe v Magistrate 2004; Shilubana v Nwamitwa 2008; Pilane v Pilane 2013).

In a majority decision the Constitutional Court upheld an appeal against the interdicts and set them aside. The Court held that the interdicts infringed basic rights to freedom of expression, assembly and association, as well as the constitutional principle of accountability. The majority judgment by the late Justice Skweyiya also took notice that; “numerous matters of a similar nature involving the respondents [Kgosi Nyalala Pilane and the traditional council] have appeared before the courts”.

In a minority decision the Chief Justice and Justice Nkabinde dissented, saying they would have upheld the decision of the court below.

In the light of recent assertions that the JSC must take a more progressive view in relation to judicial appointments, what will the JSC decide? Will they rebuke the applicant for his upholding the interdicts, given that they infringed basic rights to freedom of expression as well as the constitutional principle of accountability? Or will the arguably more conservative view of the Chief Justice on traditional leadership prevail? And how will the new Commissioners enter this fray?

The Judicial Service Commission interviews take place from the 3 – 7 April 2017. Ms Tebogo Djaje and Judge R Hendricks are scheduled to be interviewed for positions at the North West Division of the High Court on Wednesday, 5 April. Judge Frans Legodi who will be interviewed by the JSC for the position of Judge President of the Mpumalanga Division of the High Court on Tuesday, 4 April 2017, has also ruled on a case concerning this matter.

You can watch the interviews LIVE on the Judges Matter website.


Ref: Claassens A, & Boitumelo M, 2014. “Platinum, poverty and princes in post-apartheid South Africa: new laws, old repertoires”, New South African Review 4 (2014), 117.

Ref: Pilane and Another v Pheto and Others (582/2011) [2011] ZANWHC 63 (30 September 2011)

Ref: Mafate and Another v Bapo Ba Mogale Traditional Council and Others (M139/2015) [2016] ZANWHC 44 (22 September 2016)

Ref: Daily Maverick: What’s mine is mine: How the Bapo Ba Mogale got robbed of R800 million



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