Chiefly Succession and Democracy in South Africa: Why History Matters

Abstract

This article examines the way in which disputes about the ranking of chiefdoms and succession to high chiefly office have been handled in the democratic era. It focuses particularly on the extent to which these processes have been in alignment with South Africa's democratic Constitution. It discusses the prevalence of disputes about succession and their crippling impact on local development. It argues that the current rule-based approach to adjudicating succession claims is not rooted in pre-colonial practice and custom. Its genesis lies rather in the colonial appropriation of customary law, which reified rules rather than processes and ignored the critical role that popular support played in determining succession. The article examines two case studies concerning the Pedi kingship. The cases were first adjudicated by the Traditional Leadership Disputes Commission and then appealed to higher courts. They have the advantage of relatively rich historical sources and research. In both cases, the Commission and the courts largely adopted a rule-based approach, not considering historical evidence or the role of popular struggle or support. The democratising imperatives of the Constitution have been ignored in relation to the millions of South Africans who live under the system of traditional leadership, and the political and legal dualism that underpinned apartheid remains intact. The article concludes that undoing this violation of constitutional values requires a wide-ranging debate about democracy, constitutionalism, traditional leadership and the potential wellsprings of living customary law.