Victory for democracy in rural Eastern Cape

A full bench of the Eastern Cape High Court yesterday delivered a judgment that affirms and promotes the struggles of rural communities to democratize traditional areas. The case was brought by the people of Cala Reserve, a ward falling under the jurisdiction of Chief Gecelo of the Gcina traditional council in the Eastern Cape.

When the serving headman of the Cala Reserve community indicated in 2012 that he was ready to retire after serving the community for 23 years, the community organised to elect a new headman. Soon after, however, the Chief showed up and explained that the new laws of the democratic government, in particular the Eastern Cape Traditional Leadership and Governance Act, no longer allows communities to practice the custom of electing leaders. Instead, he now has the right to choose any person to lead the community. He chose a member of his own clan, Mr Ndodenkulu Yolelo, to be headman.

The Cala Reserve community was outraged. They proceeded to write letters of complaint to the regional traditional council, the MEC for Traditional Affairs and the Premier to complain. They pointed out repeatedly that the customary law of the Cala Reserve community for more than 100 years was to elect their leader and that under the Constitution they should be allowed to continue to do so. All the complaints fell on deaf ears.

In 2014, when the community heard that Mr Yolelo was about to be inaugurated as headman despite their objections, the Legal Resources Centre (LRC) assisted them in bringing an urgent court application to stop the inauguration and at the same time challenge the Premier for not rejecting Yolelo as a candidate.

The LRC, on behalf of the community, argued that the Eastern Cape Traditional Leadership and Governance Act requires that headmen be identified who qualify “in terms of customary law”. That means that the customary law of the specific community must be established and applied. In the case of the Cala Reserve community, that customary law is to elect their leader.

When a warrant of arrest was served on Yolelo for contempt of the Court, he … told the Court that he believed he could ignore an order that he did not agree with.

The community successfully interdicted Yolelo’s inauguration in April 2014, but he ignored the order and went ahead anyway. The Court repeatedly summoned Yolelo to come and explain why he ignored the order, but he refused. When a warrant of arrest was finally served on him for his contempt of the Court, he sent a lawyer who told the Court that he believed he could ignore an order that he did not agree with. The Court disagreed and fined him R10,000 for his behavior and ordered him to pay the legal costs of the community.

In the meantime, the community also won their challenge against the Premier for not rejecting Yolelo’s nomination. The Premier and the MEC appealed the judgment, however, apparently committed to ensuring that democracy has no place in traditional areas of South Africa.

The appeal was heard by three judges in Bhisho on 7 August 2015. On the day, more than a hundred people from other rural communities in the Eastern Cape who struggle with unaccountable and unresponsive traditional leadership, picketed outside the courtroom in support of the Cala Reserve community. The issue they raised is that traditional leadership that used to be accountable to communities — a chief is a chief through the people — is now accountable to government who pays their salaries. In the process, the values of democracy, accountability and negotiation that are fundamental to customary law have been replaced by a system of unelected, unaccountable leaders who are increasingly being given the powers to act like independent governments of their own.

Before the three judges hearing the appeal, the premier’s lawyers argued that the customary law of election of the Cala Reserve community was ‘extinguished’ by the Transkei Bantu Authorities Act of 1965. That Act provided that communities must be consulted about who their leaders should be. The post-constitutional legislation we have today, requires no consultation.

The Court, in its judgment noted that the Premier “…conceded that the effect of this argument was that the people of the Transkei region enjoyed greater democratic rights in respect of the identification and appointment of headmen under homeland rule than they do under a democratically elected government”. This, the Court, went on to say, cannot possibly be the position in a constitutional democracy. Rather, the community’s argument for their democratic custom “…advances, rather than retards, the promotion of democratic governance and the values of an open and democratic society by recognising the customary law of local communities in the identification of those who will govern them on the local, and most intimate, level. This, in turn, is a recipe for legitimacy of local government”.

The Court confirmed that in identifying traditional leaders, the customary law of the community must be found and applied. It dismissed the Premier’s appeal with costs.

In the case of Cala, that custom has for a hundred years been to elect leaders. However, the Court noted that customary law can and does change and that new versions must be found and recognised. The effect is not only that communities with existing democratic versions of customary law must fight to assert that custom, but that communities that have lived with undemocratic versions for generations, can and should develop that customary law, if they so choose, to become more democratic.

The Cala Reserve community has shown what can be done with bravery, resilience and a commitment to rural democracy.

Wicomb is a lawyer with the Constitutional Litigation Unit of the LRC. She was the instructing attorney in the case.