Traditional leaders have launched a campaign for the codification of African customary law in South Africa, arguing that it can no longer be treated as subordinate to Roman-Dutch law.
The call was made at the inaugural African Customary Law Seminar convened by the University of Fort Hare, where King Sigcawu said the relegation of customary law to a secondary status reinforced a colonial mindset.
“We cannot continue with the treatment of our Customary Law as subservient to Roman-Dutch Law as though we are still under colonialism and apartheid.”
Sigcawu said customary law was central to the identity and social structures of indigenous African communities.
“In the African context, Customary Law defines the character of our being as indigenous people. It defines our way of life, our norms, values and traditions.
“That therefore means relegating African Customary Law into a secondary law is to reinforce the colonial mindset that our practices as Africans are backward and subordinate to western ways,” Sigcawu said.
The gathering was attended by AmaRharhabe King Jonguxolo Vululwandle Sandile, traditional leaders from across the province, acting vice-chancellor Prof Njotini, academics and legal practitioners.
The university was thanked for putting “its full muscle and resources” behind the initiative.
Sigcawu said one of the greatest frustrations for traditional courts was that their decisions could be overturned by magistrates’ courts without consultation.
“Today, a traditional authority may take a decision on a case, tomorrow the party which is not satisfied with the judgment can go to the western court establishment in town.
“Without any verification of facts that led to the judgment, a magistrate can single-handedly overturn the judgment. It can do so without consulting even that traditional authority court which made the judgment because of the disdain for our African Customary Law,” he said.
He said the hierarchy between the two systems had to end.
“In a nutshell, we call for the elevation of African Customary Law and its practice to the same level as Roman-Dutch Law.
“Our indigenous court system must not be subjected to approval of its decisions by other courts as though subservient to them.”
Sigcawu argued that before colonialism, African societies were governed by indigenous laws rooted in collective survival, while western systems had introduced a greater emphasis on individual survival, sometimes at the expense of society.
He said the shift had weakened traditional family structures.
“In our indigenous societies, the extended family structure provided a sense of belonging for everyone, and the promotion of a nuclear family structure by western laws has cast many out of the family system we know.
“Today we have orphans, homelessness and people going to bed without food because one’s extended family is created to be out of reach. Ubuntu is decimated out of our collective consciousness.”
Traditional leaders, he said, were “inundated with dispute resolution in our communities on a daily basis and are using our indigenous legal knowledge and system which has been established from time immemorial”.
“We therefore cannot sacrifice what works and go to queue on court rolls because our Customary Law has been disabled.”
Sigcawu outlined five areas he said should guide the process: beginning the codification of customary law within a constitutional democracy; creating greater convergence between kingdoms, academia and the judiciary; ensuring the process reflected how customary law was actually practised in communities; using customary law to rebuild the family structure and Ubuntu; and identifying constitutional obstacles, “even if it means changes in the constitution”.
The seminar programme focused heavily on those themes.
Acting dean of law Prof Moses Retselisitsoe Phooko delivered the welcome before AmaRharhabe King Vululwandle Sandile formally opened the event.
Contralesa provincial chair Nkosi Mwelo Nonkonyana, a high court advocate and MP, delivered a keynote address titled Consolidating Living Customary Law within South Africa’s Constitutional Jurisprudence.
A panel discussion on bridging living customary practices, traditional courts and the statutory judiciary was facilitated by Dr Nombulelo Lubi-si-Bizani.
Panellists included Prof Dial Ndima; Nkosi Langa Mavuso, deputy chair of the National House of Traditional and Khoisan Leaders; Nkosikazi Nobongo Ngonyama of the Eastern Cape House of Traditional and Khoisan Leaders; indigenous law expert and Icamagu Institute director Dr Nokuzola Mndende; and advocate Mpho Mhlanti.
The discussion explored tensions between customary law, traditional courts and the formal judicial system.
An open assembly was later moderated by Dr Anel Odendaal before closing remarks and a vote of thanks by King Sigcawu.
Sigcawu said the initiative should ultimately extend well beyond the Eastern Cape.
“We must come out of this assembly with practical steps. The process may have started in Eastern Cape, but the ultimate goal is to leave no one outside.
“There will have to be an outreach through the length and breadth of our country to ensure that all kingdoms and traditional leaders are engaged,” King Sigcawu said.
Daily Dispatch