EC community wins important court battle over long standing custom

01 Feb 2016 | Admin Author

An Eastern Cape community has won an important legal battle against the Bisho Government which reaffirms their Constitutional right to choose their own headman.

On Thursday, the Bhisho High Court ruled in favour of the community of Cala Reserve in a review application brought on their behalf by the Legal Resource Centre.

The application was brought after they claimed that the Eastern Cape Premier failed to heed a series of complaints that their custom of electing their leader was not followed in the appointment of a headman two years ago.

The dispute goes back to when the previous headman resigned and the community, who had their own successor in mind, were unhappy with the appointment of another person, Ndodenkulu Yolelo, who was appointed by traditional leader, Chief Gecelo, with the support of the Bhisho government

LRC attorney, Wilmien Wicomb, says the judgment affirmed the customary practice of the community which she says is interesting for two reasons.

See the full statement below:

In the Bisho High Court today (Thurs) , judgment was given in a review application brought by representatives of the community of Cala Reserve, represented by the Legal Resources Centre. The application was brought after the Premier of the Eastern Cape refused to heed a series of complaints by the community that their custom of electing their leader was not followed in the appointment of their headman.

The judgment affirmed the customary practice of the community and found in their favour.

The community maintain that the custom of their village is to elect a headman democratically and that they have done so for generations. They maintain that the imposition of an unelected headman by the Royal Family is thus contrary to the Eastern Cape Traditional Leadership and Governance Act (Eastern Cape Act) which requires that the customary law of the community be followed, and the Constitution, which protects living customary law. In support of their allegations, they filed an expert affidavit by Professor Lungisile Ntsebeza, who has studied the custom of electing leadership in the area for some years.

The dispute began in late 2012 when the previous headman indicated that he was ready to tender his resignation. While the community had already elected a successor in terms of their custom, in March 2013, Chief Gecelo announced his candidate, Ndodenkulu Yolelo, as the new headman.

The Planning Committee made various complaints to the Premier, the MEC of Traditional Affairs and the Qamata Regional Traditional Council about this unlawful appointment. The response was that under new legislation, the Royal Family had the singular prerogative to choose headmen. However, in terms of the Eastern Cape Act, the Premier is mandated to act upon allegations that an appointment was made contrary to customary law. She did not do so.

The Planning Committee of the outgoing headman approached the Eastern Cape High Court to obtain an interdict against the inauguration of Yolelo, pending an application to review the Premier's failure to recall the appointment of Yolelo.

On 17 April 2014, the Court handed down an order interdicting Yolelo, "from continuing with his planned inauguration as headman of the Cala Reserve scheduled for 25 April 2014" pending the determination of the review. Despite the order, Mr Yolelo proceeded with his inauguration and twice failed to attend a contempt of court application against him. The Court thus set his inauguration aside on 11 September 2014 and issued a warrant for his arrest. He is to appear in Court again on 21 October 2014.

In its judgment handed down today, the court found that the respondents, including the Premier of the Eastern Cape and Chief Gecelo, acted in breach of section 18 of the Eastern Cape Act, which requires customary law to be followed. Based on the evidence that the custom of the Cala Reserve was to elect a leader, the court rejected the argument that the Royal Family's appointment based on bloodline was in accordance with custom. It thus reviewed and set aside the appointment of Mr Yolelo and ordered that the Premier must refer the matter back to the Royal Family. The Royal Family, in turn, will be bound to follow the customary law of the Cala Reserve community.

The court made a declaration that, "the customary law of the Cala Reserve requires its headman to be elected by members of the community, in accordance with custom and customary law."

The judgment is a significant confirmation of the principle that the constitutional protection of living customary law is an affirmation of communities' practices, rather than of the powers and assumed prerogatives of traditional leaders. For the community, it is confirmation of the democratic principles to which they believe they are entitled.