The Indigenous Constitutional System in a Changing South Africa Digby S Koyana Adjunct Professor, Nelson R Mandela School of Law, University of Fort Hare

1. MAIN FEATURES OF THE INDIGENOUS CONSTITUTIONAL SYSTEM In the African scenario the state comprises a hierarchy of component jural communities1. In hierarchical order, from the most comprehensive to the smallest, the jural communities are: the empire, the federation of tribes, the tribe, the district or section and the ward. The most common and simplest structure found amongst many peoples was the tribe, which consisted of a number of wards. The comprehensive jural community could be enlarged by the addition of tribes or tribal segments through conquest or voluntary subjugation. It is this way that empires, such as that of Shaka in Natal, were founded2. In such cases, the supreme figure of authority would be the king, and those at the head of the tribes, the chiefs, would be accountable to him. Junior chiefs in charge of wards would in turn be accountable to the chief, and there would naturally be yet more junior “officials”, relatives of the chief of the tribe, who would be in charge of the wards. The tribe itself has been described as “a community or collection of Natives forming a political and social organisation under the government, control and leadership of a chief who is the centre of the national or tribal life”3.

The next question relates to the position of the chief as ruler in indigenous constitutional law. In principle the ruler was always a man. There are exceptions such as among the Lobedu tribe, where the ruler has regularly been a woman since 18004. Regarding the question of succession to the ruler, the principle of patrilineal succession or succession in the male line was applied5. Thus we see that the present-day constitutional law principle of succession to the seat of power by virtue of a system of elections conducted at fixed intervals, was unknown in indigenous constitutional law, as was the case in Europe in the olden days.

In the case of a tribe that stood on its own (as was the case with the Pondo and the Xhosa and the Thembu tribes of Transkei, which were not part of a federation of tribes under one

 1 A.C. Myburgh: Papers on Indigenous Law in Southern Africa. J.L. Van Schaick, 1985, p.1 2 Vorster, Van R Whelpton, & Van der Walt. 3 Report of the South African Native Affairs Commission 1903-1905. Section 212, page 41. 4 See Vorster et. al, op. cit. 14. 5 Vorster et. al., op. cit. 15. 66

THE INDIGENOUS CONSTITUTIONAL SYSTEM IN A CHANGING SOUTH AFRICA powerful ruler) the chief exercised the functions of chief justice, and chief executive6. In this regard Kerr asserts, with reference to a statement by the Rev. H.H. Dugmore who lived and worked among the Xhosas: “The laws originate in the decisions of the chief and his council, but the same council forms the great law-court of the tribe, in which the chief sits as judge, and afterwards enforces the execution of his own sentences or perhaps inflicts the awarded punishment with his own hand”7.

There was no formal or systematic approach to a process of law-making8 so that unwritten customary law was the guide in legal matters. However, there is evidence of instances of law making having taken place among tribes. Thus Moshesh (Moshoshoe I), Chief of the Basotho, prohibited killing for witchcraft, while Sarili, Chief of the Xhosa, passed a decree of considerable importance relating to private law.9 The main asset of the nation, the land, was closely associated with the ruler and he and his subordinates allocated land to the people for residential and agricultural purposes. There was no question of sale of land.

The council played an eminent role in the indigenous constitutional set up. This emerges from statements by missionaries and senior officials who lived and worked among tribes for very long periods. Thus the Revd. Richard Ross, who had lived and worked for twenty-four years with the tribe he spoke of, said that “the supreme power is in the chief and councillors. The chief cannot legally act alone”10. And Mr. J. Orpen, Acting Governor’s Agent with thirty-five years’ experience in Basutoland, cited three cases in which Moshesh sought to alter certain customary law rules. The change became established only in the one instance where he had obtained the consent of the people. In the other two cases which were regarded as “his individual commands” the result was, to a great extent, utter failure11. Kerr then concluded that “in old customary law the sovereign was the chief in council”12. This conclusion is supported by Myburgh13 who states that no proposed measure could become law unless it was adopted by the recognised body as a whole14.

6 See Kerr. The Customary Law of Immovable Property and of Succession, Grocott & Sherry, Grahamstown. 3 Ed. 1991 7 Kerr op.cit. 25. 8 Kerr: Op. cit. ibid 9 He decreed that in the case of the death of a wife no cattle should be claimed or recovered by the husband from her guardian thereby altering an old rule of customary law which provided for such recovery. See Kerr: op.cit. 26 10 Kerr, op. cit. 26 11 Kerr, op. cit. ibid. 12 Ibid. 13 Papers on Indigenous Law, op. cit. 14 See at 61.

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There is a difference of opinion on the question as to whether or not the chief was above the law, i.e. was he accountable in law. On the one hand it is contended that “the chief was traditionally below the law and could indeed be tried by his own council”15. A chief’s subordination to the law did not apply during periods of dictatorship such as that of Shaka and Sekhukhune16.

On the other hand it is contended that although sovereignty is vested in the chief in council, the chief had many of the attributes of a monarch such as existed in England in the early days. One of these was that “the chief could do no wrong.”17 This stand-point is supported by Myburgh18 who states that as a rule no judicial proceedings can be instituted against him19. Kerr, like Wilson, also relies on the authority of the 1883 Commission.20

My perspective is that is that the chief was above the law. Nowhere in the 1883 Commission’s Report is it stated that the chief was subject to the law or that he could be tried by his council. It is therefore difficult to see what the proponents of the opposite view really rely upon as there is not even a single example given of a chief who was ever tried by his councillors.

When pressed with questions, the respondents in the 1883 Commission21 stated that the chief was not above the law because he must act on a decision reached with the councillors. He was capable of doing wrong and when he exceeded his power he faced reaction from the councillors. That reaction included a fine being imposed upon the chief councillor by whom, it was averred, he must have been misled22 or a transfer of their allegiance by the citizens, to another chief. When thus left alone (or with very few citizens) he would then be ridiculed as “a ruler of pumpkins”23. The citizens could even take up arms against him and “assegai” him24. More support for the view that the chief faced only a reaction for any wrong he did is

15 See Monica Wilson: Freedom for my People – The Biography of Z.K. Matthews. Rex Collings, London 1981 p. 231. 16 Monica Wilson, op. cit. ibid. See also I. Shapera: A Handbook of Tswana Law and Custom, OUP 1938; Report and Proceedings of the Government Commission on Native Laws and Customs, Government Printer, Cape Town, 1883 p.82 ff. 17 Kerr, op. cit. 28. the author notes that freedom from the law was shared by the sons of the chief but was not extended to minor chiefs who were subordinate to a paramount chief, nor to their sons. 18 op. cit 19 See at 56. cf. The Black Administration Act No. 38 of 1927, Section 4. 20 p.82 ff. 21 See p. 82 ff. 22 1883 Commission p. 82 par 1200. 23 Vorster et. al. op. cit. 15. 24 op. cit.

68 THE INDIGENOUS CONSTITUTIONAL SYSTEM IN A CHANGING SOUTH AFRICA given by Professor Peires25. The author relates that Tshiwo, a senior chief, told Khwane when he installed him as chief of the Gqunukhwebe of Ciskei: “You may throw your spears against me myself if I do you wrong.”26 Furthermore, it is indeed difficult to see how chiefs could be regarded as being “below the law” and capable of being tried by their councillors because the chiefs regard themselves and are likewise regarded by their people as having derived their positions from the ancestral spirits, something similar to “the divine right of kings” that was asserted by Charles the Great in Europe. In all the circumstances Kerr27 is quite correct in his persuasion28. The fact that resort had to be had to extra-legal remedies such as armed resistance, secession or civil war whenever a chief acted in a way which, had he been a subject tribesman, would have made him accountable in law, leads one to the conclusion that, whereas the chief like any other human being, is capable of doing wrong there was no legal check upon his actions.

Perhaps the statement that “the chief can do no wrong” is an over-simplification which could confuse unsophisticated respondents. Bennett adds weight to this contention when he says that an African leader did not exercise absolute rule and anyone who became tyrannical would soon face revolt or secession.29 As we shall see in 2 below, the disruption of the system started with chiefs being subjected to the law when they lost their status and power to the governors of the Provinces, and later to the Governor-General of South Africa who became chief, nay supreme chief, of all natives.

The councillors were always males. In principle the ruler was head of the council, so that there could not normally be a meeting of the council without him. Decisions were not taken by means of a vote, and the general principle was that of consensus. In those circumstances it is clear that the ruler, the chief, was not a dictator. Thus Vorster concludes: “The indigenous system of government can possibly best be described as a monarchical system with elements of a democratic system”30. The democracy of the council could be found in the fact that in it different sections of the people were represented by their leaders.31

25 See Peires: The House of Phalo. A History of the Xhosa People during the days of their Independence – Raven Press, 1981. 26 See at 28. 27 See also W.J.G. Mears: A Study in Native Administration: The Transkeian Territories 1894-1943, p. 85 28 op. cit. 28. 29 See Bennett: “The Constituional Base of traditional rulers in South Africa” Traditional Authority and Democracy in Southern Africa, eds F. M. d’Engelbronner-Kolf, M. O. Hinz and T. L. Sindano, New Namibia Books 1998. 30 Vorster, et. al. op. cit. 17. 31 Myburg, op. cit. 57.

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Indigenous law did not stipulate any specific number for the body of men that the council was composed of. However, there was often a “leading councillor” or “favourite councillor” or “prime minister” who was usually appointed as councillor on the day the chief got circumcised.32 For the rest there could be any number of councillors ranging between five and ten.33 When the chief acted without consulting the council or against the express advice of the council, the chief councillor was punished by the other councillors by being “eaten up” or fined. This was because there was a presumption that the chief would have consulted the chief councillor, “and it must have been by his advice that the chief did wrong.”34 The homestead of the chief councillor was never far away from that of the chief and this facilitated contact between them.35 Furthermore, if an offender being chased or otherwise sought after took refuge at the chief councillor’s homestead, he would be assured of safety from any manner of assault or ill-treatment.36 Many councillors rose to their positions gradually and informally as their contributions at public gatherings increased in weight. Several factors made a councillor a people’s representative and a public man: age, courage or warlike achievement, skill in public debate, exceptional ability in unravelling the intricate subtleties of law suits during cross-examination, and any other relevant attribute.37

Finally, there was a system of diplomatic and protocol arrangements which served the needs of the times. First, chiefs did not meet personally but communicated by means of trusted councillors.38 Secondly, there were no embassies but friendly ties and mutual respect were promoted through marriage. Thus Alexander relates: “The chiefs of the Gcaleka married the daughters of the Sotho and the daughters of the Thembu and the daughters of the Mpondo … You ask why we do that? We do that so that we should not quarrel, that we should not fight”.39

Thirdly, a very effective manner of establishing friendly relations was through exchange of gifts. Chiefs received gifts from colonial officials and they, in turn, slaughtered oxen and

32 1883 Commission, par. 1199 p. 82. 33 1883 Commission, ibid para 1201. 34 1883 Commission, ibid para 1200. 35 1883 Commission p. 83 para 1205. Nowadays, it is usual that the Prime Minister and Cabinet Ministers reside in one ministerial complex. 36 1883 Commission ibid para 1207. 37 Brookes: The History of Native Policy in South Africa from 1930 to the present day, p. 250. Enquiries have shown that even now this is still one of the ways in which men rise to the position of councillor. 38 Peires op. cit. 28. 39 Quoted by Peires op. cit. 43.

70 THE INDIGENOUS CONSTITUTIONAL SYSTEM IN A CHANGING SOUTH AFRICA gave them elephant tusks as presents.40 The gifts had to be substantial, and trifling gifts were regarded as insults to chiefly dignity.41

As part of a process of restoring calm and stability the British authorities also gave recognition to the sovereignty of those African chiefdoms or principalities that had not been wrecked and destroyed by the wars of conquest. An example can be seen in the diplomatic activity that thrived between the British authorities and the principalities of Transkei. The British government sent diplomatic agents to deal directly with the various chiefdoms. It appears that in some instances the diplomatic agents actually resided within the principalities, so that they could, after the style of all diplomatic representatives, take up with the local authorities such matters as they were called upon to take up and also receive messages from the local authorities for transmission to the government in Cape Town. Naturally they would, also after the style of all diplomats, watch over the interests of their citizens – traders, missionaries etc. – and report to Cape Town as soon as the necessity arose. One such resident-diplomat was Mr. J.C. Warner who served in the Glen Grey District.

When the British authorities gave up direct rule and control over Transkei, the system of diplomatic representation was stepped up as the primary means of contact and negotiation between the government and the authorities in the various principalities. For instance, the Governor, Sir Phillip Wodehouse, wrote to the British Secretary of State for Colonial Affairs and informed him of the Cape government’s decision to give up the large tract of land between the Kei river and the Bashee river The government relinquished all rights of sovereignty over it, and the tribes would (once again) be governed by their own chiefs and according to their own customs. However, for the benefit of the tribes as well as “for our own” (benefit) each tribe would be guided and aided by a British resident.42

This relationship between the Cape government and the Transkeian chiefdoms lasted for several years. Warner, having been transferred from the Glen Grey District, became the diplomatic agent stationed at Idutywa (Gcalekaland). His son, Mr. E.J. Warner, was stationed at Southeyville, near Cofimvaba, and was the diplomatic agent for the Tembu tribe. Captain Cobb was the Fingo diplomatic agent for the districts of Butterworth, Tsomo and

40 Peires, op. cit. ibid. 41 Ibid. 42 See Theal, op. cit. p.54. See also F.J. Travers (Col.): Amended conditions for occupation of the territory between the Kei and the Bashee Rivers. King Williamstown. 20.8.1864. (Cory Collection, Rhodes University).

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Ngqamakwe and Mr. William Fynn became the diplomatic agent “resident with Kreli”, Paramount Chief of the Gcalekas.43 The office of British resident was held by Mr. J.C. Warner, with all other diplomats reporting to him, until October 1869. In that year the office of British resident was abolished and the various diplomatic agents henceforth reported directly to the government in Cape Town.44 These diplomatic agents played an active role in the conclusion of treaties between the colonial government and the various tribes.

Diplomatic representatives were used throughout Transkei, as far as distant Pondoland. With the aid of these diplomats treaties were signed with Paramount Chief Faku in 1844 and 1850 respectively.45 The diplomats were not necessarily always stationed in the respective principalities, and it happened at times that a particularly gifted official would act as a roving ambassador and be sent to difficult areas to condition the authorities concerned to the process of negotiations. Thus it was an eminent official in the person of Sir Theophilus Shepstone who was sent specially, in 1844, to negotiate and conclude treaties with the Paramount Chiefs Faku and Kreli of Pondoland and Gcalekaland, respectively.46 The treaty signed with Faku in 1850 was arranged by Mr. Walter Harding, who was sent specifically to Pondoland as a roving ambassador. This treaty was concerned with the important question of the fixing of the boundary between Natal and Pondoland.47

A significant development in connection with the full recognition of the sovereignty of the Transkei chiefdoms by the British authorities occurred when the Transkei Penal Code of 188648 was passed by the Cape Parliament. A concerted endeavour was made to give effect to the numerous treaties that had been concluded, inter alia, the treaty entered into by the Cape Governor, Sir Peregrine Maitland, with Paramount Chief Faku of Pondoland in 1844 whereby the colonial authorities bound themselves to punish refugee thieves who had escaped from Pondoland after committing crimes there.49 It was felt that without such legislation the treaties would have had no legal effect. Section 3 of the Draft Penal Code gave effect to all of the treaties. It made everyone liable to punishment under the Code for an act or omission of which he or she was guilty under any Native Chief by virtue of the treaty entered into between the Chief and the government of the Colony of the Cape of Good Hope.

43 ibid. 44 ibid. 45 Theal: op. cit. pp 62-64. 46 op. cit. ibid. 47 The district of Harding, which lies fairly between the Transkei districts of Umzimkulu and Bizana, owes its name to this official. Likewise the district of Port Shepstone owes its name to Sir Theophilus Shepstone. 48 Act 24 of 1886. 49 See section 3 of the Draft Penal Code.

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It is interesting to compare and contrast the diplomatic activity that took place in Transkei with similar activities that took place in relation to the Mutapa State which was a great power to be reckoned with among the Shona in Zimbabwe during the period 1400 – 1902. The clearest information in this regard is given by the distinguished Zimbabwean scholar, S.I.G. Mudenge.50

The author illustrates that throughout its history the Mutapa State maintained close relations with foreign communities. Court envoys were sent from the capital to the provincial rulers and vice versa.51 These ambassadors were known and described by the Portuguese who, from their base in Mozambique, travelled to Zimbabwe and had contact with the tribes, these tribes included the Mutapa whom they also tried to colonise. As to the role of the ambassadors, the author quotes the Portuguese writer, Dos Santos, who said of Mutapa envoys sent to the Portuguese: “he (the King) sends four ambassadors chosen for the purpose, whom the Kaffirs call mutumes. One of these represents the person of the King upon this journey, and only while it lasts do the Kaffirs show him the same respect and reverence. The second mutume is called the King’s mouth or muromo, it being his office to speak and do the King’s embassy. The third is called the King’s eye, his office being to watch all that is done upon this journey and embassy, both good and bad, in order to relate it all to his King upon his return to court, and also to see how much and what kind of cloth is delivered to him. The fourth mutume is called the King’s ear, his office being to listen to what is said upon this embassy both on the part of the King and on the part of the captain of Sofala, and to observe if the ambassadors add to or deduct from their embassy.52

The author proceeds to note that although it is not specifically mentioned how and why each officer was chosen, from their functions it may legitimately be deduced that the muromo or mouth must have been a man with the gift of the gab – a polished, eloquent and persuasive speaker. The eye or meso, to be effective, had to be an observant fellow, quick to detect anything. Intelligence gathering would have come quite naturally to him. The ear or zheve was probably a quiet and aloof type, the sort of person who is perpetually underestimated but with the memory of an elephant to remember all that was being said.

50 See Mudenge: A Political History of the Munhumutapa c 1400 – 1902. Zimbabwe Publishing House 1988. 51 See at page 143. 52 ibid.

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To conclude, therefore, the diplomatic activity in Zimbabwe from year 1400 onwards was more advanced than the diplomatic activity in Transkei in the last century in that the Mutapa State had a formal or semi-formal diplomatic contingent which matched reasonably well with the Portuguese diplomatic contingent. However, the Cape-Transkei diplomatic activity was in other respects more advanced than that of the Portuguese-Mutapa activity in that the Cape government sent and the Transkei authorities received resident white diplomats quite apart from roving ambassadors such as Sir Theophilus. Furthermore, the Cape and Transkei authorities formalised their diplomatic discourses on important matters by drawing up treaties which bore witness to the full recognition of the sovereignty of the Transkei states by the British authorities – which recognition they, for good reason, denied the United Transkei when she needed it desperately after taking independence from South Africa in 1976. The good reason was of course the taint of apartheid by which the 1976 independence was overshadowed.

The system, embracing as it did the doctrine of concentration of powers with all legislative, executive and judicial authority in the hands of the traditional ruler, worked very well for its people. This was observed and recorded by learned colonial researchers. A revealing document in this regards is the Report of the Cape Government Commission on Native Laws and Customs 1883. Reporting on the role of the traditional authorities in the sphere of the administration of justice, Mr. Ayliff, a British lawyer on the Commission, urged that customary criminal law and procedure as practiced by chiefs in presiding over all cases from the most petty to the most serious should be properly researched and codified, so that it could continue to be used, naturally by the chiefs and the white magistrates who were being brought into the rural areas. He went on to say:

The power of the chiefs is subject to checks and balances, and councillors maintain an equipose between the authority of the chiefs and the rights of tribesmen. Law suits are conducted as decorously as any I have seen in our own courts, and disturbances are not tolerated.

There can be no better confirmation of the complete suitability of the system for the constituency for which it was designed.

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2. DISRUPTION OF THE INDIGENOUS SYSTEM 2.1 Wars of Dispossession It was expedient for the colonists to disrupt the indigenous systems and replace them with those foreign to the people. The control of the land and of the people had to be taken away from the traditional leaders and the system had thus inevitably to be broken down. The colonists used brute force to break down all physical resistance to their authority by the inhabitants, and the missionaries sought to establish schools and churches all over the country. These would bring about a new generation of blacks who would naturally drift away from the indigenous systems and follow newly found ways of speaking, dressing, socialising, working, etc., and the indigenous system would thus, it was hoped, be rendered to oblivion. History books detail the numerous wars that were fought in the Eastern Cape, the first area of prolonged armed conflict, later in the Free State, Natal and Transvaal, in order to achieve this goal. For this study the example of the Ciskei and Transkei regions will suffice to show the modus operandi in the whole of South Africa.

Rev. John Appleyard, Wesleyan Missionary in the Peddie area of Ciskei, compiled a diary of events during one of the many gruesome wars that were fought between the Xhosa people and the colonial forces in the War of the Axe 1846 – 1847.53 A major strategy employed by the colonists towards the achievement of their goal of disruption was the recruitment of the Fingoes to fight on their side instead of the side of the Xhosas who had received and accommodated them when they had arrived (escaping from persecution by King Shaka of the Zulu). King Sandile of the Xhosas, together with smaller chiefs Pato, Kama and others of the AmaGqunukhwebe, feature prominently in the diary together with Fingo Chiefs Njokweni of the amaZizi, Mabandla and Nkwenkwezi of the amaBele and Jama of the amaKuze.54 The journal shows the viciousness of the attack that was waged against the Xhosa people: “Intelligence came in from Colonel Somerset. They have burnt nearly all the kraals between the Fish and the Keiskamma rivers, captured about six or seven hundred cattle, and 100 goats, and killed a few Kafirs.”55 The Journal further shows that King Sandile was himself a general conducting battles on the battlefields. It tells of a man who was appointed by the King to watch for the most favourable opportunity in which the colonial troops might be attacked unexpectedly, and to give the signal of attack by firing of a gun. Excellent opportunities

53 See John Frye (ed.): The War of the Axe and the Xhosa Bible: Journal of the Rev. J.W. Appleyard. C. Struik (Pty) Ltd. Cape Town 1971. 54 See pages 2, 53, 54. 55 One can read between the lines and see without being told that in those circumstances it could not be just a few people killed!

75 SPECULUM JURIS 2013(1) arose and the man made three attempts to fire off the gun, but he failed in all three instances, and gave up.

Apparently the chances of killing a whole battalion were enormous on that occasion, and Appleyard describes the failure of the signal to attack as “a most remarkable interposition of Divine Providence”.56 And reporting on a battle that took place near the Brack River on 8 June 1845, the Journal reveals that throughout that day 300 to 500 of King Sandile’s men were killed or severely wounded, while the only casualties on the colonist’ side were two killed, a Fingo and a white Corporal, with twelve white soldiers wounded, including 3 officers. The homestead of Stokwe, the Chief of the area, was burnt down. As usual the victorious colonial contingent would have burnt down all the people’s homesteads and crops in the vanquished area and would have captured all their cattle and goats. This, of course, was no doubt the pattern of attacks in the many wars that followed in the rest of South Africa after the defeat and subjugation of the amaXhosa was completed. Chief Maqoma and many others were arrested for their resistance and banished to Robben Island.

The vanquished, dispossessed and homeless people in the Ciskei region and other areas of South Africa where the conquerors’ military might had been unleashed with the same ferocity had no option but to seek work in the cities and on the farms and the mines that subsequently offered employment on a cheap labour basis. This was the background to the emergence of huge sprawling black townships like Mdantsane and Zwelitsha in Ciskei and Soweto and Mamelodi in Gauteng, and Kwamashu and Langa in Durban and Cape Town respectively. The indigenous system had begun to suffer untold disruption and there seemed to be no way in which the remnants of the traditional leaders could put the pieces together and restore the status quo.

2.2 The Missionaries Having achieved a measure of stability with the Xhosas that side of the Kei, the colonial authorities took time to deliberate on the major question presented by the Xhosa-speaking people across the Kei, a large population made up of several tribes, each under its own chief, with Kings (so called Paramount chiefs) in the larger areas of Pondoland, Thembuland and Gcalekaland, and in each case with a well established and vibrant legal system catering sufficiently for the needs of the people. The task ahead was not an easy one and they thus gave the missionaries and traders and magistrates a period of thirty years within which to

56 See p. 53.

76 THE INDIGENOUS CONSTITUTIONAL SYSTEM IN A CHANGING SOUTH AFRICA assume positions all over Transkei and proceed with the spade work in the task of acclimatising the people to the western way of living.57 The missionaries have indeed played a very prominent role in the shaping of events in Colonial Africa as a whole. It is noteworthy that the missionaries from England, for example, were the agents of powerful political groups in England, representing the industrial and mercantile class.58

The leader of the groups and founder of the London Missionary Society (LMS) was Wilberforce, who is reported to have once said: “Christianity […] teaches the poor to be diligent, humble, patient and obedient and to accept their lowly position in life. It makes the inequalities between themselves and the rich less galling because under the influence of religious instruction, they endure the injustices of this world with the hope of a reward in the next.”59 The Missionaries have been blamed for having facilitated the conquest and dispossession of Africans and advancing the interests of imperialism while posing as the friend of the African. In this regard Dr. Phillip, a superintendent of the LMS, is recorded to have said: “While our missionaries are everywhere scattering the seeds of civilisation […] they are extending British interests, British influences and the British empire. Wherever the missionary places his standard among a savage tribe, their prejudices against the Colonial Government give way, their dependence upon the colony is increased by the creation of artificial wants […] Industry trade and agriculture spring up”.60

The Missionaries met with much success in Transkei. By 1879 the time was seen to be ripe for the Colonial authorities to march in and annex the Transkeian Territories to the Cape and thus to Great Britain.61

This shows how fast the process of disruption of the indigenous system was advancing.62

57 In the meantime the process of westernisation under direct rule was gaining momentum in the Ciskei area and this is how the gap between these two areas began. 58 See W.M. Tsotsi: From Chattel to Wage Slavery. Lesotho Printing & Publishing Co. 1981 at p.31. 59 G.R. Mellor: British Imperial Trusteeship, quoted by W.M. Tsotsi op cit. ibid. 60 See W.M. Tsotsi op cit 31.- 61 By the time colonisation began the impact of the missionaries had become so telling that a prominent member of the Cape Parliament felt that the converted class could pose a threat to white interests. That was none other than Cecil Rhodes who, while piloting the Glen Grey Bill through the Cape Parliament, declared: “I have travelled through the Transkei and have found some excellent establishments where the natives are taught Latin and Greek. They are turning out Kaffir parsons, most excellent individuals, but the thing is overdone …. They are turning out a dangerous class. The country is over-stocked with them. These Kaffer parsons would develop into agitators against the Government …” 62 For the advent and early growth of missionary work in Natal for instance see Alan Mountain: The Rise and Fall of the Zulu Empire. KwaNtaba Publications, Cape, 1999. The writer deals with contact between the Zulu King Dingaan and the missionaries, the first one to arrive and endeavour to set up a missionary station

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2.3 Cattle Disease Two major events, which contributed to the weakening of the Xhosa nation and making its people beggars in the land of their birth, were the cattle disease of lung-sickness followed by the deliberate cattle killing manipulated by strangers via a girl called Nongqawuse.

The first event began in September 1853.63 The dreaded cattle disease, which had already killed off hundreds of thousands of cattle in Europe, was brought to South Africa in September 1853 by a Dutch ship carrying Friesland bulls to Mossel Bay, a small port between port Elizabeth and Cape Town. Starting off as little more than a dry, husky cough, lung sickness slowly tightened its grip on the hapless beasts it destroyed, bringing them a lingering and uniquely horrible death. The cough gradually increased in severity, forcing the animals to stretch forward with their front legs wide apart, their heads extended and their tongues protruding, gasping for air. Yellowish fluid crept over their lungs which stuck to their ribs, and as the disease spread, the cattle putrefied from the inside out, becoming first constipated and then diarrheoatic. In their final agony, the beasts were unable to move or lie down at all. Their nostrils dilated for lack of air, their muzzles frothed with saliva until, unable to eat, they wasted away and died mere skeletons.

The people’s losses from lung sickness ran at about 5,000 cattle a month, and in some areas approximately two out of every three cattle died. Some homesteads escaped relatively lightly, but others lost absolutely everything they had. Chief Phato lost 2,400 out of 2,500 cattle. His Great Son Dilima lost 60 out of 70, his brother Kope 130 out of 150, and his brother-in-law Stokwe all of 110. A passing official described the scene in Phato’s country, later a stronghold of the Cattle-Killing movement, and said:

The utmost destitution prevails throughout the country we traversed; they have lost nearly all their cattle … Those who have a few cattle are slaughtering them rather than run the risk of losing them by lungsickness.64

having been Captain Allen Gardiner. After the death of his wife Gardiner decided to leave the Royal Navy in England and devote the rest of his life to converting “primitive peoples” to Christianity. 63 See J.B. Peires: The Dead Will Arise. Ravan Press 1989 page 70 ff. 64 Peires op cit 71, quoting Grahamstown Journal, 26 March 1855, Imperial Blue Book 2096 of 1856 and Ayliff J-McLean, 26 May 1856 among other sources.

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2.4 Nongqawuse and the Cattle Killing On a certain day in April 1856 in the Willowvale district of today, the heart of the Gcaleka Kingdom, two young girls, Nongqawuse and Nombanda went from home to frighten the birds away from the cultivated fields. Nongqawuse then heard her name called by two strangers standing in a small bush adjoining the garden. After giving their names, they entrusted her with the following singular message: Tell that the whole community will rise from the dead; and that all cattle now living must be slaughtered, for they have been reared by contaminated hands because there are people about to deal in witchcraft. There should be no cultivation, but great new grain pits must be dug, new houses must be built, and great strong cattle enclosures must be erected. Cut out new milk sacks and weave many doors from buka roots. So says the chief Napakade, the descendant of Sifuba-sibanzi. The people must leave their witchcraft, for soon they will be examined by diviners.”65

Some elders investigated and also heard the voices but others did not. Nevertheless the story was eventually believed and rampant killing of cattle began. Hundreds of cattle were killed every day. The believers were ordered not to eat the meat of any cattle killed the previous day, so that every day fresh cattle were slaughtered and yesterday’s remaining meat thrown away. Rotten flesh lay putrefying around the homesteads. All along the road to East London Magistrate Vigne observed “large numbers of skeletons lying in the veldt”. It is clear that such cattle had been summarily killed, rather than ritually slaughtered. The emphasis of the Cattle-Killing at this point was not on sacrifice but on getting rid of the impure beasts.

Those Xhosa who preferred to sell their cattle drove them to the markets of King William’s Town and East London, or sold them to the firmly unbelieving Mfengu.66 Cattle which previously would have realized £3 (R6.00) or £4 (R8.00) were sold for less than the value of their hides. In some cases 11 shillings was taken for a cow and 15 shillings (R1,50) for a full- grown ox. One Xhosa drove 15 or 16 oxen into East London and offered them for sale “at a nominal price” but was unable to dispose of them (even at such low prices, the threat of lung sickness made many buyers hesitate). Instead of taking them elsewhere, the owner simply drove them to a neighbouring hillock where he slaughtered the lot, flayed the carcasses and sold the hides. Bishop Gray reported the mood in King William’s Town on the eve of the First Disappointment: “They sell an ox for 10 shillings (R1.00) or 12 shillings (R1.20). When they cannot sell them, they kill them. Goats they sell for two shillings (R4.00)or 3

65 Op cit 79. 66 Peires op cit

79 SPECULUM JURIS 2013(1) shillings (R6.00). Chickens for 2d (one Cent) or 3d (1 ½ Cent). Mealies they throw away.” The chiefs reacted more slowly than their subjects. Those who normally followed the lead of the colonial authorities moved first. Some, for example Toyise, forbade their followers to kill their cattle.

More must be said to follow up the statement above by Jeff Peires that “those who normally followed the lead of the colonial authorities moved first” to kill their cattle. The booklet “Nongqawuse’s Prophecy”67 is helpful in this regard. In discussion between two girls Nosisi and Thembi about the cattle killing, Nosisi says: Do you know what some people are saying?” she asked. “They are saying that this whole story about the spirits is a trick of the English. It’s just another way they have found to weaken us, so that they can steal our land without first having to fight us.” “What do you mean?” said Thembi. “How can it help them if we sacrifice -?” “What they really want,” said Nosisi bitterly, “is for all the Xhosa to leave their land and go to work on the farms of the English invaders. But while we can live comfortably on our own land, why should we go and work for them? Why should we labour so that they can take the food we grow, especially when it grows on land they have stolen from us? Of course we won’t! It’s only if we can no longer get enough food from our own land, that we will be forced to look for work somewhere else, so that we can buy the food we need. And of course that means we will go and work for the English, and leave our land unguarded for them to take.

The next thing that happened is that Nongqawuse disappeared, the booklet reveals. Thembi is recorded as having asked frantically: “Where is Nongqawuse?” A young man replied: “[…] She has been taken away by the English, far away, to protect her from the anger of the people”.68

In the latter part of his book69 Peires re-visits the cattle killing movement under the heading: “Everything you always wanted to know about the cattle killing”70. As to who the strangers were that were seen by Nongqawuse, they were in fact, as is believed by many Xhosas, actually the agents of Sir George Grey, or possibly even Grey himself, in disguise.71 The essential objectives of Sir George, Sir Harry Smith and Colonial rule in general were to destroy the political and economic independence of the Xhosa, to bring them under British law and administration, to make their land and their labour available to the white settlers, and

67 Karen Press, Centaur Publications, Pietermaritzburg 1990. 68 See at p.43. It is averred that her grave is on a farm in the district of Port Alfred – certainly not anywhere in her native land of Willowvale. 69 Supra. 70 Chapter 10. 71 See at 310.

80 THE INDIGENOUS CONSTITUTIONAL SYSTEM IN A CHANGING SOUTH AFRICA to reshape their religious and cultural institutions on European and Christian models72. This, of course, was likewise the objective of the wars of dispossession. All that it proves is that there are many ways of killing a cat.73

2.5 Proposed White Occupation and White Government For Transkei Circa 1860 The colonial authorities first attempted a wholesale white occupation and the establishment of a white government in the area of Transkei, just as was done with Natal, the Orange Free State and the Cape. The grand scheme was that British Kaffraria (i.e. Ciskei and bordering districts like Queenstown) would have its boundary extended from the Kei River to include present-day Transkei. This whole area would then form a new government independent of the Cape Government in Cape Town74 with its seat in King William’s town or Mthatha. The principal agents for this proposal were the cape Governor of the time, Sir Phillip Wodehouse, J.C. Warner, diplomatic agent resident in Emigrant Thembuland, and Sir Walter Currie, diplomatic agent resident with King Sarili in Gcalekaland. The people of Transkei would then have to live on white farms and in Mdantsane/Soweto style townships. The proposals were flatly rejected at every turn by the Transkeian kings who insisted on remaining on their land with their people as before. Having received intimation in May 1864 that Sarili was preparing to attack the Police and drive whites away, Sir Walter Currie and Sir Philip Wodehouse, both trusted British officials in the Cape, together with Sir Percy Douglas who was commander-in-Chief of the British armed forces in the whole of South Africa, advised the British Government later in 1864 that “the occupation of the Transkeian Territory by Europeans would cause increased military expenditure by Great Britain. This led to what came to be lamented by the colonists as “the abandonment of the Transkei”.

72 op cit 313. 73 Support for the view propounded by Peires and the Karen Press booklet supra at footnote 15 is overwhelming. For instance Penelope Andrews in her article: Spectators at the Revolution? Gender Equality and Customary Law in a Post-Apartheid South Africa, refers to an 1865 Commission of the British Colonists which published its findings. The Commission, in its highly superficial and quite prejudiced assessment of the African people, complained that the polygamous tribesman, who of course included the traditional leader, had too much land, leisure and sex. Instead of working for an employer as was his proper destiny, he fattened in ease on the labour of his wives. (This Commission also fathered the odious and ill informed statement that African women are treated like slaves. That has been repeated with blind confidence by white scholars from time to time after that, and has played into the hands of newly-born black gender activists who are seeking the liberation of African women from the perceived oppression of customary law.) The “too much land” had therefore to be taken from Africans and belong to whites, the Africans had to work for an (White) employer, and the Africans of course could not counter the statistics by establishing and publishing how much sex the French, British and Germans have! 74 See Theal op cit p.70

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In this regard Theal wrote a whole chapter75 entitled “The abandonment of the Transkei”. He describes the matter in no uncertain terms: The hopes that were raised throughout South Africa and particularly in British Kaffraria, by the Governor’s speech at the opening of Parliament in 1864, that the vacant ground (sic) beyond the Kei would at last be allotted to European settlers, and the influence and power of the civilized race in the country be thus increased, were doomed to be disappointed. An opportunity such as can never occur again of pushing forward the border of the white immigrants, was unfortunately thrown away.

2.6 Annexation: Transition from Independent Kingdoms to “Transkeian Territories” and the birth and role of the Council System The period between 1880 and 1894 was devoted to the annexation of the various kingdoms so that if the land could not be taken over by whites, the people living on it should at least be governed by them76. Saunders77 says that the independent Transkeian states so annexed were Fingoland (1879); Griqualand East (The Bhacas) (1879); Western Pondoland (annexed in 1884); Thembuland (annexed in 1885); Gcalekaland (Xhosas proper) (1885); Bomvanaland (1885); Xesibe (1886); Rhode (1887) and Eastern Pondoland (1894).

After annexation the next thing to consider was the system of government to be applied to the vast area of Transkei. The British authorities decided on the Council system. Each of the 26 Transkeian districts had its own council for local government supervised by the magistrate of the district. The councils began in the districts of Butterworth, Tsomo and Nqamakwe in the year 1895, following the passing of the Glen Grey Act78 by the Cape Parliament. Councils were established all over and in 1930 they were brought together as the United Transkeian Teritories General Council (UTTGC) with its seat in Mthatha. Thus were the old Transkei kingdoms united and the foundation of the state of Transkei that was born in October 1976 was laid79 The Council system, of course, was in itself a sophisticated form of indirect rule which will be considered next.

75 Vol. 8 pages 44 – 70. 76 The process of annexation was relatively peaceful but Mears: A Study in Native Administration p.55 states that where it could not be negotiated force was resorted to. W.M. Tsotsi: From Chattel to Wage Slavery p.33, points out that the Gcaleka King Hintsa, successor to Sarili, was shot dead by British soldiers while trying to escape from arrest when he was refusing the annexation process. 77 The Annexation of the Transkei in “Beyond the cape Frontier”. Eds Saunders and Derricourt. Longmans, London 1974. 78 Act 25 of 1894 79 As to the development of Transkei as a political unit under the council system see Mears (a one time Transkei Chief Magistrate who headed the UTTGC): A study in Native Administration – The Transkeian Territories 1894 – 1943 – p.95 ff; the council was a vehicle for peaceful political change as against violent revolution – Brookes: The history of Native Policy in South Africa from 1830 to the Present Day: Nasionale Pers Beperk 1924. See also UTTGC Reports and Proceedings 1948 when the Council carried the motion of councillor Soshankane of Willowvale calling upon the South African Government to grant the franchise to

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2.7 Indirect Rule The post colonial authorities soon realised that they could not sustain the peaceful governance of the massive African constituency of the whole of South Africa on their own. They thereupon decided to enlist the support of the traditional leaders who, after all, were the ones the people understood and listened to better than them. This they did by introducing the policy of indirect rule, whereby they would carry out their governance through the chiefs themselves.

Indirect rule had advantages and disadvantages. On the side of the black majority the advantage was that it opened the way to some kind of return to the indigenous system that had been so severely disrupted by the wars of dispossession and all that came thereafter. It thus presented partial resurgence of the indigenous system. For their part the authorities had to restore, albeit begrudgingly, substantial semblances of a system which they had previously needed to abolish. The fact of the matter is that the chiefly system provided a form of local government which was more acceptable to the views and aspirations of the African constituency than the western-type style of governance. The great disadvantage to the people was that the new policy brought about the restructuring of African political institutions to be in line with the policies of the government of the day.

Some writers take the view that in South Africa, colonial rule affected chieftaincy in different ways, depending on whether the powers of that time were Boer or British. In the Boer republics of the Orange Free State and the South African Republic (the Tansvaal), the people lost most of the land to white farmers and became their labourers, while in the British colonies of the Cape Colony and Natal a more sophisticated “native policy” was evolved.80

According to Maloka, ‘It is the policy developed in these British Colonies, rather than in the Boer republics, that formed the basis for the Union of South Africa’s segregationist policies, founded on the manipulation and use of African pre-colonial institutes [institutions].’81

When we study the modus operandi of the various colonies closer, we cannot hesitate to differ with Maloka and say that the differences were more apparent than real. The overriding tactic employed by both the Boers and the British was the promotion of the governors of the

all provinces and to place all voters on one and the same voters’ roll. Similar motions were passed in other years. 80 See Maloka 1995 (38) 81 ibid

83 SPECULUM JURIS 2013(1) various colonies to chiefs above all chiefs in each colony. In the Transvaal, this was in terms of Law 4 of 1885, which provided that the new (white) chief could depose chiefs at will. In the exercise of these powers the lieutenant governor’s deposition of a chief was upheld by the court in Mathibe’s case.82 In Natal, the statute gave the lieutenant governor ‘full power to appoint and remove subordinate native chiefs’, and divide and amalgamate tribes.83 As a result of this legislation, the appointment of an heir to a deceased member of the royal family, contrary to the rules of succession laid down by customary law, was upheld by the Supreme Court in 189484. The Gape governor had similar powers but these powers were strongly criticised by the Cape Supreme Court in cases that came before it.85

Apart from the devastating contrivance of the new white chief, many elements of chieftainship were dissolved (or conserved and reconstructed) in line with the imperatives of the new dispensation. One of the ways in which the indigenous system was harmed was through the creation of a magisterial system throughout South Africa, including the rural areas which were under indigenous rule. Resident magistrates, who controlled the districts, were responsible to the government and governor or new chief, not to the indigenous chief. the status of the indigenous chief was reduced to that of a policeman: he stopped trying cases, but brought people to the magistrate for trial. Instead of collecting taxes for running his state, he chased people to pay taxes to the magistrate and governor. Under those circumstances the people’s allegiance to their chief could not but be undermined.86

The demeaning role that indirect rule assigned to the custodians of the indigenous constitutional system was aptly described by W.J.G. Mears in his thesis on Native Administration 1894-1943 when he declared: “It should not be thought that the policy of indirect rule is a (policy of) laissez faire. Chiefs are subordinate, not sovereign authorities. They are agents, not principals”.87

After the formation of the Union in 1910, the fiction was entrenched whereby the governor general (later the state president when South Africa became a republic in 1960) was made the supreme chief of all blacks in South Africa. This was in terms of the Black Administration

82 Mathibe v The Lieutenant (No. 7) TH 557. 83 Natal Ordinance of 1849. 84 Siziba v Mseni (1894) 15 NLR 237. 85 See, for example, Sigcau v The Queen (1895) 12 SC 256. 86 See also Koyana: Administrative Functions of Traditional Leaders” in Traditional Authority and Democracy in Southern Africa. eds F.M. d’Engelbronner-Kolf, M.O. Hinz and J.L. Sindano New Namibia Books 1998 pp 119-130. 87 Unpublished doctoral thesis, University of South Africa 1947.

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Act of 1927. The reasons for this enactment, as assessed from the parliamentary debates leading up to it, are the same as those which prompted the pre-Union Boer and British colonies to pass similar legislation. Introducing the bill, Tielman Roos, Minister of Justice, declared: […] the supreme chief gets the power in the fullest sense of the word that a chief would have if there was one chief for all the natives. I regard it as the very greatest importance that those powers should be conferred upon the Governor-General not only in respect of natives who are living under the tribal system, but also over detribalised and exempted natives […] who in many cases are the principal agitators in South Africa today. If you have the power to remove them from one place where they do mischief to a place where they do not do mischief, what a useful provision that would be.”88

Not surprisingly, therefore, the South African case law that followed, in which the application of this act was challenged, was about the removal (i.e. deportation) of ‘agitators’ from one area to another by the Governor General in his capacity as supreme chief of all blacks. Many chiefs who did not subscribe to government policy were affected by these deportations and were replaced by compliant members of their families. Thus senior Tembu Chief Dalakuba Joyi of Mthatha district was banished for many years and got back home only after the attainment of democracy. The Black Administration Act therefore made chiefs to be visibly below the law, with one chief, the Governor General, being the one and only chief above all blacks, chiefs included, as intended by the makers of the Act.89

To conclude, therefore, the disruption of the indigenous constitutional system was effected by several means including wars of dispossession throughout South Africa. In Natal fierce battles like the Battle of Isandlwana and the Battle of Blood River (Ncome) are generally known. The wars waged by the Boers in the Free State were summarised by W.M Tsotsi, President of the All African Convention at its conference in Bloemfontein in 1952 when he said: Four score and ten years ago a harassed and simple people left the Cape in a vain attempt to escape from British rule. In the one hand they carried a bible from which they piously read “Thou shalt

88 Parliamentary Debates, Cape Town 1927. 89 In Lesotho the fate of the chiefs was somewhat similar: the Natives Courts’ Proclamation of 1938 separated the newly-established customary courts from the chiefs’ courts. The chiefs became merely administrators for the government. The cases were tried by the Customary Court President who was a full time, learned civil servant paid by the government. More importantly, the Proclamation laid down that the chief could be brought before the court and tried! – see W.C.M. Maqutu: Contemporary Constitutional History of Lesotho 1990. It is disheartening to note that a chief could be tried before a customary court – this makes the position of these chiefs far worse than that of their South African counterparts whose power to try cases never against each other but between their citizens, was endorsed by Act 38 of 1927.

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not kill”; in the other they carried a gun with which they mercilessly killed the defenceless blacks they came across in the Free State and Transvaal.90

The role of the missionaries, the great cattle disease, the cattle killing followed by annexation of Transkei, indirect rule and the introduction of a “remote control” type of indirect rule: Bantu Authorities and self-government caused by national and international pressure for change of policy in South Africa – all these factors collectively were intended to secure the continued comfort and security of white rule in South Africa. Little did anyone know then that they were by a twist of fortune going to be the very basis for the resurgence of the indigenous constitutional system and traditional authorities in the new South Africa.

3. RESURGENCE OF THE TRADITIONAL AUTHORITIES AND THE INDIGENOUS SYSTEM The era of indirect rule all over Africa in general and in South Africa in particular was unexpectedly overtaken by the advent of multi-party democracy. There suddenly had to be a change of direction and a change of emphasis, and the indigenous constitutional system has emerged and re-asserted itself in an admirable manner.

At first it seemed as if the Governments of the liberated Africa were on a collision course with traditionalism and were going to stamp it out with vehemence similar to that with which the colonial authorities had moved against it on their arrival. Thus in Namibia, just after the attainment of independence and during the Traditional Authorities Bill Debates in January 1995 Prime Minister Hoge Geingob argued: If they [the kings and chiefs] are going to have power, there is going to be a conflict of two power bases, legitimate political power which is represented by us in Government after independence, and the chieftainship who will also try to control a certain power base. There will be conflict. We are not going to have the unity we are fighting for.91

90 The event alluded to is of course the Great Trek. Regarding the “harassed and simple people” description of the Voortrekkers by Tsotsi one is reminded of an even more stinging description of the Boer by Olive Schreiner, herself a devoted member and admirer of the Boer fraternity. She says: “I have been blamed for an excessive love of the race, and an unwillingness to see its faults: but I hardly think this is true. The Boer has to the full the defects of his qualities; that scintillating intellectual brilliance and versatility, so common and so charming in the Frenchman and the Irishman, the Boer, even when highly cultured, seldom has: he is deep and strong rather than broad and brilliant: indomitable when he does act, it takes much to rouse him into action; he is slow and often heavy. And the Boer race has its Judases, as all other races have; nor do I know of a more sorrowful sight than the descendant of the old Boer, speaking English often with so foreign an accent as to be laughable, yet playing the part of the extreme Anglo-Saxon…” See Olive Schreiner: Thoughts on South Africa, African Book Society, Johannesburg 1976 p.20. On other pages her great love and praise for the Boers does indeed surface. 91 See F M d’Engelbrunner – Kolf et al op.cit. 67.

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Fears of similar eruptions were evoked in South Africa by Traditional leaders against the government, who expressed deep discontent with the way they were being treated92.

Sooner than later, however, the whole picture changed and traditional authorities, all over Africa, with the advent of multi-party politics, gained prominence and reasserted their position almost with ferocity. In Uganda the Baganda monarchy which had been summarily abolished was officially restored and recognised. In Zimbabwe traditional leaders were welcomed to Parliament and customary courts, which had been abolished, were re-instated. This became the pattern all over Africa. The reasons for this change of direction in Africa were aptly given by Wazha Morapedi93. Firstly, African leaders believed that traditional institutions should be recognised and play some role in governance. Secondly, in some cases it was believed that traditional leadership could add legitimacy to the ailing nation state. Thirdly, state governments determined that traditional authority could not be wished away in any event.94

Various theories have been advanced by various writers, such as Mamdani, Van Rouveroy, Van Nieuwal and others on the reasons why the indigenous system has managed to bounce back in this manner.95 However, I contend that while colonialism and apartheid were forever bent on pursuing their agendas clearly to the detriment of the system, they could not avoid it and in the last analysis, as Ntsebeza puts it, the system has “existed because of colonialism and apartheid in particular”.96 Colonialism and apartheid turned out to be their springboards and when the new dispensation of multi-party democracy came they were poised to strike and

92 See e.g. Congress of Traditional Leaders of South Africa v Minister for Local Government, Eastern Cape, and Others, 1996(2) SA 898. They complained against the Local Government Transition Act 209 of 1993: its application to rural areas in the Eastern Cape deprived them of their powers in terms of various legislation which powers they said were in some way entrenched in substantive provisions of the constitution. See also long memorandum from Nkosi S.P. Holomisa, President of the Congress of Traditional Leaders of South Africa to Dr. Nelson Mandela, President of the Republic of South Africa dated 6 May 1998 expressing various concerns of the Traditional Leaders. The memorandum concludes by saying: “We know from your public and private declarations that you are committed to the proper treatment of this institution (of traditional leadership) ….. we see attempts by various arms of your government, deliberate or inadvertent, to undermine this institution” – See Holomisa: A Double Edged Sward: A Quest for a Place in the African Sun. Lotsha Publications and booksellers Cape town 2 ed. 2010 pp 146 f.f. 93 See W. Morapedi: “Customary Law in Twenty-first Century Botswana”; in The Future of African Customary Law by J. Fenrich, P. Galizzi and T. Higgins (eds) Cambridge University Press 2011. 94 See at 249. See also L. Ntsebeza: Democracy compromised Chiefs and the Politics of Land in South Africa. HSRC Press, Cape Town 2006 at 273. The writer points out that in its recognition of traditional authorities the ANC had learnt a lesson from Mozambique. There Frelimo had initially abolished the institution and thereby driven the traditional leaders and their people to the camp of opposition party Renamo. They then had to turn back and give them recognition and support. 95 See exhaustive review by Ntsebeza supra 18-20. 96 Ntsebeza o/cit. 21.

87 SPECULUM JURIS 2013(1) continue to do so with renewed vigour. I would summarise the main basis and features of the resurgence of the indigenous constitutional system in South Africa as follows: 1) Land Allocation The most fundamental basis for the continued (even if earlier on unnoticed) staying power of the indigenous system all over South Africa was the chiefs’ control of the land allocation process in rural areas, the reserves. This is ably pointed out by Ntsebeza97 who says that it is this control, and not at all their popularity, that was for all time the source of their authority over their people. The people had to have homesteads and arable allotments and the colonial and apartheid authorities just did not have the human resource of their own to do that function. The indigenous leader was ever there, willing and able to do it relatively free of charge, there was no need to look elsewhere. That position remains unaffected by the new dispensation of multi- party democracy – for the rural areas it is business as before!

2) Traditional Courts In their recent publication entitled “The Future of African Customary Law.”98 J. Fenrich, P. Galizzi and T. Higgins devote three long chapters by three writers to the Role and Power of Traditional Authorities.99 In the first of these chapters100 Koyana discusses Traditional Courts in South Africa and demonstrates the enormous power they wield to date. Originally established by the much criticised Black Administration Act101 the courts are now explicitly recognised by the new constitution in section 166(e) and 16(1) of schedule 6.

Taking Transkei as an example, there are altogether 28 magisterial districts in that region of the Eastern Cape Province. Each district has its own customary courts and the number of courts in each district corresponds with the number of traditional authorities. This means that each traditional authority has its own customary court, presided over by the head of the traditional authority, who may be a chief or headman. Some of the large districts like Ngcobo, Mqanduli, Mthatha, Lusikisiki, and Gatyana, have 10 traditional authorities and therefore 10 customary courts each. Each of these districts has only one magistrate’s court. The smaller districts have on average three

97 op.cit. 22. 98 Cambridge University Press New York 2011) 99 pp 227 – 294 100 Chapter 10 101 Act 38 of 1927.

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traditional authorities and therefore three customary courts each. Each traditional authority/customary court is a combination of several administrative areas each with its own headman and sub-headmen. The headmen of the administrative areas that constitute the traditional authority are the councillors of the court. They facilitate the judicial process by informing parties from their administrative areas of the dates of hearing, and by asking questions during trials they act as prosecutors and lawyers for all parties. That much organised is the system! Traditional courts have been the principal venue for the majority of South Africans to seek justice since well before the arrival of Europeans. They continue to function today because of the many benefits they have over the state court system for average citizens. Customary law courts are inexpensive, uncomplicated, and ubiquitous throughout the country. Cases are heard in the litigants’ own language before local leaders. Traditional courts have seen their credibility affirmed by the constitution and numerous statutes and regulations. Valid criticisms of the customary law court system remain, and further harmonisation with the constitution and prevailing human rights norms seem inevitable. However, for the foreseeable future, traditional courts will continue to play a major role in the South African justice systems.

The preference for the traditional courts as the fora for resolving the disputes of the majority of the people of South Africa has been observed and highlighted by the judges of the High Court of South Africa in cases that have come before them. Thus in S v Kwinana, the court expressed approval of the procedure adopted in the traditional courts in these words: It brooks no doubt that the old tribal court, being part of the people’s traditions, is best understood by them and hence best respected and it is thus proper that the authority and techniques of such courts should be maintained as far as possible.102

This statement was quoted with approval by the court in the case of Bangindawo and Others v Head of the Nyanda Regional Authority and Another.103 All this demonstrates how correct Mr. Ayliff’s observation was way back in 1883 when he showered praises on the customary courts and the way they conducted their business.104

102 S v Kwinana 1985 (3) SA 369 (Tk) – per Davies A.J.A. 103 1998 (3) SA 262, 273 (Tk) – per Madlanga J. 104 p.9 supra.

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3) Traditionalism that was never conquered A major contributory factor to the readiness of traditional systems to “bounce back” with such a ferocity once the time was ripe is that traditionalism among blacks was admittedly diluted in a sense but was never really conquered or demolished by colonialism, indirect rule and apartheid. I first take the Zulu and the Xhosa people as examples to illustrate this point. These two alone constitute the larger percentage of the black population of South Africa and even the most well educated among them believe in and do participate in the customs and traditions of their people, as in the days of old.105

Secondly the Zulu people have for ever remained proud of their gallant fight with their assegais against the gun-wielding colonial armies, culminating in their unforgettable victories in pitched battles like the Battle of Isandlwana in 1879. Those battles were fought in order to preserve the way of life of the Zulu people and the victories had the effect of achieving that. Indigenous systems could not therefore just disappear thereafter. For their part the Xhosas had the good fortune of “the abandonment of Transkei”.106 This abandonment, which was greatly lamented by the white settlers, meant that the people were left to pursue the indigenous constitutional and administrative measures in a territory larger than Swaziland or Lesotho by two parts to three, larger than Holland and larger than Switzerland, with a population recorded as three million already way back in 1976. Traditionalism and traditional authorities therefore continued to be the order of the day as it did before the advent of the colonists, and interventions like the missionaries, the cattle killing and the schooling systems that were adopted could not change much of the status quo. Indirect rule of the British-orientated governments, and “grand apartheid” measures of the Nationalist party regime107 simply strengthened, albeit unwittingly, and gave more legitimacy to the traditionalism that was never conquered in the first place.

105 No black doctor’s or lawyer’s or judge’s or accountant’s daughter will agree to being married without the customary lobola being paid for her and the accompanying customary ceremonies, alien to her counterparts with whom she graduates at Wits or Natal or Western Cape University, being performed. No Xhosa boy omits to undergo the customary circumcision in the veldt, once he completes matriculation. And so on and so forth! 106 Discussed in 2.5 supra under the heading: Proposed white occupation and white government for Transkei. 107 e.g. the odious Black Authorities Act No. 68 of 1951 as amended which re-established on existing lines and entrenched traditional/tribal authorities and defined powers and duties for them. See Francois de Villiers: Selected South African Legislation on Customary Law and Traditional Authorities. Konrad-Adenaur- Stiftung 1998 p. 37 ff.

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4) Congress of Traditional Leaders The Congress of Traditional Leaders, generally known as Contralesa, was born at the right time in the year 1987. It began with chiefs who opposed apartheid and worked with the ANC as it was fast becoming clear that to do so would no longer be a punishable offence under the old treason laws, and in fact the unbanning of the ANC was getting closer and closer. Once the unbanning was announced in 1990, they began to encompass all traditional leaders and to fight for the fullest recognition of the institution of traditional leadership. Very soon Contralesa was very organised and launched huge court cases against the government.108 They agitated in various ways, and also wrote a strong memo to President Nelson Mandela (as he then was) in 1998109. Contralesa became unstoppable in its forward march and at one time its president, Nkosi Holomisa, was summoned and admonished at high level by the ANC of which he was a member. In a Prologue to his book “A Double Edged Sword110 he writes: Traditional leaders of South Africa should be proud of being the descendants of their forebears. They should celebrate the resilience they showed in surviving colonialism, apartheid and modern democracy. They should cherish the role played by their organisation, the Congress of Traditional Leaders of South Africa, in ensuring continuity from the past, to the present and the future111.

The above are some of the main factors responsible for the resurgence of the indigenous constitutional system in South Africa, viewed together with the rest of Africa. Factors created by colonialism and apartheid themselves – land allocation system, traditional court systems dating back to 1927 which the authorities never controlled despite legislation112 and the traditionalist system that was never broken down with the abandonment of the Transkei, were the very building blocks for the furious resurgence of traditional authorities and the indigenous system. It only needed well-educated nationalist minded politician chiefs like Matanzima, Buthelezi and more recently Holomisa and Nonkonyana, to mention but a few, to push the process to a satisfactory conclusion and obtain formal recognition through state legislation

108 See footnote 92 supra. 109 Footnote 92 ibid. 110 Supra. 111 See at p xxx 112 The traditional courts by far exceeded their jurisdiction limited to petty offences specified in the schedule to the Act, and they tried cases of rape, assault with intent to do grievous bodily harm, imputation of witchcraft etc., and there is nothing the authorities ever did to stop that – see exhaustive study by Koyana & Bekker: The Judicial Process in the Customary Courts of Southern Africa, Unitra 1998.

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followed by enormous changes to the structures of the past. This will be discussed below.113

4. LEGISLATIVE RECOGNITION OF THE INDIGENOUS SYSTEM AND THE CHANGE TO STRUCTURES 4.1 African Countries The legislative recognition of the indigenous system is not peculiar to South Africa – it became the order of the day all over Africa. In Ghana the Chieftaincy Act of 2008 implemented the constitutional mandate and instituted specific measures aimed at ensuring that the institution and its role were respected. Under the Act became an offence punishable by a fine, a term of imprisonment or both, to knowingly use disrespectful or insulting language against a chief or otherwise insult him either by word or conduct, or to deliberately refuse to honour a call from a chief to attend to an issue.114 This is just one of many examples from African countries.

4.2 South Africa 4.2.1 Legislation In 1995, at the height of its drive for the recognition of traditional leadership and its institutions, Controlesa requested government to set up a Commission of Enquiry to investigate and recommend to government on action to be taken on legitimate and not-so- legitimate traditional leaders. One of the outcomes of this request was the passing by Parliament of the Traditional Leadership Governance and Framework Act.115 The Act recognised various grades of traditional leaders: Senior Traditional Leaders (Chiefs), and headmen/headwomen. In response to the call by Contralesa the government established in terms of section 25 of the Act, a Commission on Traditional Leadership Disputes and Claims and it was called “The Nhlapo Commission” after its Chairperson, Professor Tandabantu Nhlapo. That commission disposed of a number of claims relating to kingship and some

113 Holomisa and Nonkonyana are now middle-aged LLB graduates and former students of the University of Transkei of the 1980’s who have previously run successful practices as advocates of the Transkei Division of the High Court of South Africa. Objecting to the passing of the customary Law of Succession and Regulation of Related Matters Bill into law in August 2008 Nonkonyana described the legislation as “immoral” and said Contralesa was shocked and dismayed by the Act of Parliament. The Act abolishes the old established customary law rule of succession whereby the eldest son becomes automatic heir and steps into the shoes of his deceased father. He takes onto his shoulders of course not only his assets but also his liabilities and family duties. These include looking after the aged mother, disabled members of the broad family, and unmarried sisters and children they get at home, to mention but a few. He becomes “the BOB card” of all these people. 114 E.K. Abotsi and P. Galizza “Traditional Institutions in Governance in Modern African Democracies” in: Jeanmarie Fenrich, P. Gazilli and Tracy Higgins (eds) “The Future of African Customary Law”, Cambridge University Press New York 2011 at 280 ff. 115 Act No. 41 of 2003, as amended.

92 THE INDIGENOUS CONSTITUTIONAL SYSTEM IN A CHANGING SOUTH AFRICA consideration to them will be given below. When the Commission’s term ended after 5 years it was succeeded by the present Commission generally called CTLDC or Commission on Traditional Leadership Disputes and Claims. The enabling legislation for it was the 2009 amendment116 which made CTLDC the successor in law to the Nhlapo Commission as it existed immediately before the amendment of the Act.

Parliament also saw fit to introduce a new category of traditional leadership: The principal traditional leader, in terms of section 14 of Act 23 of 2009, amending section 13 of Act 41 of 2003. This category comes immediately below that of king and queen, and therefore just above senior traditional leader. All disputes and claims that were before the old commission were deemed to have been lodged with the new commission. This enabled the new commission to finalise some half-a-dozen or so kingship claims that had not been finalised by the old commission – it had completed just about twenty kingships. The new commission was thus also enabled to receive some 170 odd claims and disputes for senior traditional leadership and headmanship/headwomanship positions in its Eastern Cape wing, and over 500 claims and disputes for Mpumalanga. Each province established a Provincial Committee for Disputes and Claims in terms of S26A. The number of Committee members is determined by the Premier, and each Committee is chaired by a member of the National Commission who emanates from that Province. At the time of writing it is the Eastern Cape and Mpumalanga that already established Provincial Committees during the latter part of 2011.

A comparison of the 2003 legislation and the 2009 amendment shows the following important differences: 1. See 25(1) 2003 Act: The Commission has authority to investigate and decide on paramountcies even on its own accord, unrequested. See 25 (1) 2009 Act: - has authority to investigate and make recommendations to President/Premier on disputes referred to it. 2. See 25 (2) (vii) 2003 Act: where good grounds exists, the Commission could consider events that may have arisen before 1 September 1927 to reach a decision. See 25(2)(viii) 2009 Act: The Commission can consider only claims and disputes dating from 1 September 1927.

The 2009 legislation therefore tends to restrict the powers of the Commission to some extent.

116 Act 23 of 2009.

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4.2.2 Determinations The Nhlapo Commission completed a total of 17 claims for kingship. Their findings were termed Determinations and they were neatly typed and bound in one large volume that ran to 666 pages. On page 667 the Commission records that their investigations with the kingship of Modjadji, Bakgolokwe and AmaBomvana were not completed because the term of the Commission came to an end. These and any other kingship claims remain the responsibility of CTLDC (National) established in terms of Act 23 of 2009117.

I now summarise the outcome of a few Determinations from which one can see the extent, if any, to which Contralesa’s objective of “setting the record straight” about traditional leadership in South Africa has been achieved. One hopes the modus operandi of the Nhlapo Commission will appear clearly in these Determinations.

4.2.2.1 Amampondo Kingship This kingship is located in the area covering the Natal South Coast border through the Transkei interior up to the Mthatha River. The area between the Natal Border and the Umzimvubu River (Port St Johns) is called Eastern Pondoland and the area from Umzimvubu to Mthatha River (Mthatha city) is called Western Pondoland. The East was for long under the kingship of the Sigcaus, the Great House heirs of the original Pondo King Faku. The western section was all along ruled by the Ndamases, the Right Hand House of the said Faku, from the year 1865.

King Tutor Ndamase (previously called Paramount Chief), President of Transkei during the 1980’s, was a descendant of Ndamase, the first born son of the right-hand house of King Faku. Faku’s headquarters were in Eastern Pondoland. After successfully defending his country against an attack by Shaka around 1828, he crossed to the west of the Mzimvubu River and established his Great Place near Mngazi river in Port St Johns, Western Pondoland. He was ruler of the whole united Pondoland and died in 1867. A quarrel arose between Ndamase and Mqikela, right-hand house and great house heirs of Faku in year 1845, and Ndamase crossed the Mzimvubu River to settle in the west. That was with Faku’s blessings. Mqikela succeeded Faku in 1867. He did not cooperate with the colonial authorities while Ndamase, and later his son and successor Nqwiliso did so cooperate. In 1878 they elevated Nqwiliso from Senior Traditional Leader (Chief) to the status of Paramount chief of Western Pondoland, and there were thenceforth two Kings in Pondoland. Notably, when Ndamase

117 Supra.

94 THE INDIGENOUS CONSTITUTIONAL SYSTEM IN A CHANGING SOUTH AFRICA settled across the Mzimvubu River with his contingent who had assisted him when he asserted his equality with Mqikela, the western area was already inhabited by other Mpondo communities or “tribes” like amaKhonjwayo who paid allegiance to Faku. Due to Ndamase’s seniority they did pay allegiance to him. Nqwiliso, and later Tutor Ndamase, became Kings of western Pondoland under those circumstances.

The Commission, having reviewed this position at some length, ruled that the dual kingship created by the Cape Colonial Government in elevating Nqwiliso in 1878 was not in accordance with the customary law of the amaPondo. Ndamase was therefore just inkosi, a chief, not ikumkani, a Paramount chief. In terms of the Framework Act he was therefore a senior traditional leader pure and simple.

4.2.2.2 AmaXhosa Kingship The position of the amaXhosa is similar to that of the amaMpondo. The old King Phalo, whose headquarters were in the Willowvale area of Transkei, had a first born son of the right hand house called Rharhabe. The Commission found that Rharabe was authorised by Phalo, to go and settle and oversee the other amaTshawe Clan (Xhosa) communities living west of the Kei river – the Ciskei118. Of course there were other communities he found there – amaGqunukhwebe, amaNtinde, amaGwali, imiDange, amaMbalu and amaHleke, but they all agreed to pay allegiance to the more powerful Tshawe group. The nature of the traditional leadership of Rharhabe and subsequent Ciskei rulers was therefore that of inkosi, a chief, a senior traditional leader, below that of King.

In 1961, at the height of the South African Government’s promotion of the policy of separate development and establishment of various independent homelands, Archie Velile Sandile, a sixth generation descendant of Rharhabe, was elevated to the position of Paramount Chief/King, thus equal to the Great House King in Willowvale District, Transkei. Bangilizwe Maxhobayakhawuleza Sandile succeeded Archie Velile. In respect of him the Commission found as it had done with AmaMpondo and demoted him to senior traditional leadership. Shortly after the Determination he died, bearing the pain of both his illness and of the demotion.

118 Determination p.133.

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4.2.2.3 Abathembu Kingships The huge destricts of Mthatha, Mqanduli and Ngcobo, each with no less than ten traditional authorities and traditional courts, comprise what is historically known as Thembuland proper. The equally large districts of St Marks (Cofimvaba) Xalanga (Cala) and Glen Grey (Lady Frere) comprise the area historically called Emigrant Thembuland or AbaThembu beseRhoda.

Around 1840 Mtirara, the eldest son of Thembu King Ngubenchuka, was installed as King. His great place was at Rhodana, Glen Grey district, western Thembuland. His sons were Ngangelizwe in the Great House, and Rhaxothi Matanzima in the Right Hand house. In 1876 Ngangelizwe was officially recognised by the Colonial Government as King (Paramount Chief) of all the abaThembu. He was succeeded by Dalindyebo, then Jongilizwe, then Sabata Dalindyebo, father of present King Buyelikhaya Dalindyebo. The Great House leaders were now living in Bumbane, Mthatha district.

In the west Rhaxoti of the Right Hand House became recognised as leader of the chiefs who were in that area. He was succeeded by Mhlobo, then came Mvuzo, then Kaiser Daliwonga Mathanzima. K.D. Mathanzima worked well with the National party government which was on a drive to promote the policy of separate development and create self-governing and independent states. In 1966 he was elevated to King (Paramount Chief) and attained equal statues with Sabata Dalindyebo. This the Commission rejected and declared him a senior traditional leader as it did with the amaMpondo and amaXhosa.

4.2.2.4 Kingship of Batlokwa BaMota Sekonyela was the leader of the Batlokwa. He lived in Jwalaboholo near present day Ficksburg. He was attacked and defeated by Moshoeshoe I in 1853. He fled to the area of Bloemfontein. He later lived in Herschel where he died in 1856.119 Some Batlokwa then went to Lesotho, others to Mt Fletcher and Matatiele. In Mt Fletcher Batlokoa ba Lehana today hold senior Traditional Leadership via Chief Lehana. Daniel Letlaka, also a Motlokoa, left Matatiele in the 1920’s to work in Cofimvaba where he fathered the Letlakas that are now well known in the Eastern Cape and Natal. Others had remained in Jwalaboholo,

Mota was Sekhonyela’s younger brother. Koos Mota, son of Mota, later led some followers from Jwalaboholo and requested land for residence in Qwaqwa from the then Orange Free State Boer Republican government in 1872. He was granted permission to settle there with

119 Determinations p. 12.

96 THE INDIGENOUS CONSTITUTIONAL SYSTEM IN A CHANGING SOUTH AFRICA his followers as subjects of the Orange Free State. They were later known as Batlokoa baMota. In 1985 Wessels Mota, a descendant, was made Paramount chief after general chieftainships had been created in what was now a homeland. That was in 1985 and in terms of section 2(1) of the Qwaqwa Authorities Act.120

The Commission ruled that the status of Koos Mota who went with some followers from Jwalaboholo to Qwaqwa, together with his successors, could according to the customary law of the Batlokwa and the Framework Act, be only that of morena (Chief, senior traditional leader) below that of Morena e Moholo: Paramount chief, King. He was therefore demoted to senior traditional leadership.

4.2.2.5 “Kingship within Kingship” Claims There was also a class of claims which can be termed kingships within kingships, such as the AmaKwayi and the AmaKhonjwayo.

 Xhosa The Amakwayi group led by Messrs Mthobeli and Vela Balfour claimed that they, the descendants of Mkwayi, were the rightful incumbents for kingships of the Gcaleka. AmaKwayi were the undisputed line of kings for centuries over the amaXhosa, until in the fifteenth century the AmaTshawe clan fought and defeated them in open warfare, with the heroic assistance of the amaNgwevu clan, and took over the kingship. The Commission ruled that war was the norm at the time and they would not therefore interfere with the position at this point. The present line of amaTshawe would therefore continue undisturbed.

. Mpondo West The Amakhonjwayo group were led by Nkosi Dumisani Gwadiso, a law graduate and presently ambassador for South Africa in North Africa. They crossed the Umzimvubu River from Eastern pondoland and settled in Western Pondoland in the fifteenth century before the Ndamases did so. They then fell under the rule of the more powerful Ndamases in the West, and they recognised the Sigcaus of Eastern Pondoland as their greater kings all along. Now they cliam kingship for themselves parallel to that of the Sigcaus of Eastern Pondoland.

The Commission found that there was no evidence of them ever having established a kingship after crossing the Umzimvubu in the fifteenth century, and dismissed their claim.

120 Act 6 of 1983.

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. Mpondo East Here the dispute was between Mpondombini Justice Sigcau and Tyelovuyo Zanozuko Sigcau. These two descended from the Great House and the Right Hand House of King Marelane, descendant of Faku, the founder of the Mpondo nation.

Faku was the king of the whole Pondoland, till he died in 1867. His son Mqikela then took over as son of the Great House. He was succeeded by his heir Marelane. Marelane died in July 1921. he was in effect succeeded by Mandlonke, a son of the Qadi (supporting house) to the Great House – he had no son in that house. After a regency Mandlonke began to rule in 1935. Mandlonke soon died without issue in 1937. A succession dispute thereupon arose between Nelson and Botha, sons of Marelane, grandsons of Mqikela, great grandsons of Faku.

Botha Sigcau was first son of Marelane but belonged to the right hand house. Nelson argued that a right hand house son never succeeds and he, as the only surviving son of the Qadis (supporters or affiliates) of the great house of Marelane, was the one to succeed. Botha Sigcau was educated and supportive, and was favoured by the powers above. After a 1938 Commission which was solicited by Botha had recommended in his favour he was thereupon installed by the Governor General as Paramount Chief of Eastern Pondoland in terms of Section 23 of Act 38 of 1927. Nelson resorted to the courts in pursuit of his claim to paramountcy but he lost out in the celebrated case of Sigcau v Sigcau 1944 AD 67.121 In Nelson’s line there was a son, Zwelidumile, whose son was Tyelovuyo. Botha got a son Mpondombini Justice whose accession to paramountcy/kingship, on the death of Botha, was contested in vain by Zwelidumile in 1979. Zwelidumile died and before the Nhlapo Commission Zwelidumile’s son Tyelovuyo revived the old battle started by his great grandfather Nelson of the Qadi’s to the great house against Botha of the right hand house – this time with success.

The Commission held that because of the prevailing political climate of the time it suited the government to place in positions of authority people who were pliable and easy to manipulate such as Botha. the dissatisfaction of amaMpondo with the installation of Botha over Nelson was probably part of the reasons for the Pondo Revolt of 1960, they said122. Mpondombini

121 See discussion by Koyana: Customary Law in a Changing Society, Cape Town, Juta 1980 p.103. 122 See Determination p. 407.

98 THE INDIGENOUS CONSTITUTIONAL SYSTEM IN A CHANGING SOUTH AFRICA was dissatisfied with the finding of the Commission and revived the Sigcau vs Sigcau 1944 A.D. saga in the highest courts. The outcome is presently awaited but it is predictable. This aspect of the Eastern Pondoland kingship dispute is also well covered by Dial Ndima: The Law of Commoners and Kings: Narratives of a rural Transkei magistrate.123

The deposed Rarabe, Western Tembuland and Western Pondoland kings were then allowed to remain kings for the remainder of their lifetimes, but their successors would be principal traditional leaders in terms of section 14 of Act 23 of 2009. At the time of writing that has already become the case with the Rarabe and Western Tembuland king who have had to be replaced as a result of having died, so soon after the Determinations.

5. CONCLUSION The distinguishing feature of the indigenous constitutional system is the concentration of legislative, executive and judicial powers in the traditional ruler. He also has power over the land and land distribution for residential and agricultural purposes. Such concentration is, however, more symbolic than real because of the role of the people’s representatives, the councillors, in respect of all three spheres. The democracy built into the system through the important role of the councillors without whom so to speak the ruler’s hands were and are tied, was promptly observed and professionally explained by learned British researchers like the famous lawyer Mr. Ayliff.124 Regrettably, less capable observers saw the system as being dictatorial and thus criticised it. In so doing, they misled many overly westernised black democrats who fail to understand what Mr. Ayliff so easily understood, and they agitate for the abolition of all traces of the indigenous system and the role of traditional leaders in society, on the basis that the system is bad because it does not even cater for election of the leader from time to time along western democratic lines.

Section 2 deals with the disruption of the indigenous constitutional system. The so-called voyages of discovery were followed by the scramble for Africa. Various means were employed, which were aimed at securing control of the African continent by the Dutch, British, French and Portuguese in particular. With reference to South Africa the means employed are dealt with in part 2 of this study. The wars of dispossession were the most powerful of the means employed.125

123 University of South Africa Press 2004 at 55. 124 His apt observation and recommendation are quoted at the end of section 1 supra. 125 The ghost of the gruesome wars of dispossession surfaced in the Parliament of the new South Africa 17 years after the successfully negotiated political settlement had taken place. The settlement had tried to address the

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Section 3 deals with the enormous recognition given to traditional authorities by the apartheid government in its bid to ease the pressure mounted on it for change, by world opinion and the liberation forces. The idea was to show that black people were happy because they were governing themselves and the exiles could well go home and join the parliaments under their chiefs there and co-exist with white South Africa rather than contest it. Quite a number of exiles actually did so, and did cautiously pursue the ideals of their organisations within the controlled framework of the system. The hard core liberation forces did not yield and they branded the numerous traditional leaders who cooperated as puppets of the regime. Now during those difficult days of the armed struggle against white rule traditional leaders had to go along with the good and the bad of apartheid legislation or join liberation forces and get out of the country: there was no question of fighting the system from within.126 Yet this difficult time was the very reason for the resurgence of traditional authorities and a partial return to the ways of the old days.

The end of the apartheid era and the advent of democracy in 1994 came with the legislative recognition of traditional authorities and the promotion of their indigenous systems. Section 4 deals with this. The recognition was given via the Traditional Leadership Governance and Framework Act 41 of 2003. But here once again, as during the apartheid era, the recognition was not carte blanche; it was not given like a “basela”; an automatic gift. A “cleansing process” was initiated by Contralesa, whereby the Commission for Traditional Leadership Disputes and Claims demoted some kings to traditional leadership status and simply replaced

position that the majority of black people and all their traditional leaders were left with only 13% of the land area of South Africa by the 1913 and 1936 Land Acts. President Jacob Zuma had said in his State of the Nation Address on 9 February 2012 that the “willing buyer – willing seller” policy was not yielding results and was being reviewed. Dr. Mulder, opposision MP who is a descendant of the former colonists and of the makers of the 1913 and 1936 Land Acts, infuriated the majority balck parliamentarians and the militant youth political organisations by saying that blacks do not have a legal or historical claim to 40% of the land area of South Africa. In his reply the President, obviously referring to the wars of dispossession, said “we should not be forced to go into the question of how the land of South Africa got to be owned by Whites”. What a pity Dr. Mulder did not simply stick to the Freedom Charter, that “South Africa belongs to all who live in it”, criticise any talk now of land having been stolen by whites as inappropriate, and leave out all talk of percentages of ownership by race groups. He only reverted to the protection of the Freedom Charter in his reply to a volley of attacks for his utterance – rather late in the day. 126 Ntsebeza op. cit. 157 ably demonstrates this by comparing Kings Sabata Dalindyebo and K.D. Matanzima. Matanzima accepted Tribal Authorities, he never wavered, (became) a loyal and reliable servant of the apartheid regime, ….. showed determination, decisiveness and indeed ruthlessness in his collaboration with the government, he says. On the contrary Sabata’s strategy of opposing apartheid by operating within that very system boomeranged. He demonstrated ambiguity, and when placing the traditional robe of office around Matanzima’s shoulders to make him Paramount Chief what he would have dearly loved to do was “to place the noose of a hangman’s rope around his long neck instead” as he knew so well that what he was doing was assisting in the diminutition of his own powers, which it in fact did. Ntsebeza’s quote is from W.M. Tsotsi’s unpublished manuscript titled Out of Court: The Memoirs of a Black Lawyer in Apartheid South Africa 1950 – 1960.

100 THE INDIGENOUS CONSTITUTIONAL SYSTEM IN A CHANGING SOUTH AFRICA some that were not demoted, such as King Mpondombini Sigcau. Numerous purges may well be expected among the countless chieftainship and headmanship claims that the Provincial Committees have begun working on.127 The difference in the degree of rumbling and dissatisfaction may possibly be because the new CTLDC is not set to curb numbers of traditional leaders where there was otherwise no dispute, but to determine who the legitimate one is.

Contralesa has cautiously welcomed the findings of the Nhlapo Commission – after all, the proliferation of kingships all over the country was one of the reasons they wanted the Commission.128 However, all indications are that they, like Dickens’ Oliver Twist, are asking for more. Noteworthy is the recent demand by King Buyelekhaya Dalindyebo to be given a formal invitation by government, not just a telephone call, for going to the centenary celebrations. Holomisa129 also complained that “today there is not a single royal house wherein the current incumbent is a direct descendant of the original progenitor of the line.130 Reference to “our ancestors” is frequent in his book. His views tie up well with Nkosi Advocate Nonkonyana’s assertion that their aim in forming Contralesa was to reinstate the pride and dignity of the institution of traditional leadership and further that the institution governed the people democratically and that was disrupted by the advent of colonisation.131

All indications are therefore that Contralesa is doing fairly well in its drive to get South Africa to take serious cognisance of the indigenous constitutional system if not yet to move closer to it. The positive response of the people’s government to the calls of the traditional rulers of the majority of the people of the country, and thus to the wishes of that majority, is very welcome. How one wishes the attitude would be the same in respect of the obvious needs of the traditional rulers and their people with reference to the law relating to marriage and the law relating to succession, to mention the most worrying.

127 The Eastern Cape alone has just about 170 claims. It is no secret that Transkei and Ciskei leaders KD Matanzima and L.L. Sebe were wont, after the style of the apartheid government, to remove uncooperating chiefs and replace them with “good” ones so as to reduce opposition and secure majorities for themselves in Parliament. Like the old Nhlapo Commission, therefore, the new CTLDC is not going to leave everybody smiling and rumblings can well be expected by the time they complete their task. 128 See Holomisa op. cit. XXVII. 129 ibid. 130 at XXVII – Prologue. See also Holomisa: Submission to the Constitutional Assembly, 15 March 1995, on ‘The Constitutional Role of Traditional Leaders” reproduced as in WSU Law Journal 2005. It is of course an over-statement to say that not a single one is a direct descendant of the original progenitor. 131 See Nonkonyana: unpublished paper read at the Traditional Leadership and Rural Local Government Conference held at Indaba Hotel, Johannesburg, November 2005.

101