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PREFACE
by Albie Sachs
Did the new democratic, non-racial and non-sexist South African Constitution go far enough in protecting traditional leadership and law? This was one of the liveliest issues raised in the First Constitutional Certification case. Elegant in traditional attire and eloquent in modern argument, two traditional leaders argued that the proposed constitutional text fell short of what the guiding Constitutional Principle required. In rejecting this argument, the Constitutional Court stated that the text gave 'express guarantees of the continued existence of traditional leadership and the survival of an evolving customary law. The institution, status and role of traditional leadership are ... protected. (The drafters) cannot be constitutionally faulted for leaving the complicated, varied and ever-developing specifics of how such leadership should function in the wider democratic society, and how customary law should develop and be interpreted, to future social evolution, legislative deliberation and judicial interpretation'. The court also pointed out that the way was open for traditional leadership to be involved in democratic government without any particular form being prescribed.
Sekhukhune is one area of the country where the 'complicated, varied and ever-developing specifics' of traditional leadership functioning in the wider democratic society can most usefully be studied. An area rich in struggle, it might today be poor in resources, but it is by no means a stagnant backwater isolated from major social movement. People stream backwards and forwards. There are returning migrant workers, educated city dwellers going home, traditional leaders formerly expelled by their own people now reintegrating themselves; there are a host of non-governmental organisation (NGO) personnel who flow in and out, as well as mining and housing development entrepreneurs, company officials building roads, hospitals and schools, electricity supply engineers; and there is Barbara Oomen. A young Dutch lawyer and political scientist, she learnt the Sepedi language and spent the year October 1998 to November 1999 in the area. This book is a narration of some of her experiences. I read it with total absorption, great pleasure and extreme sadness.
The pleasure came from the spirited and seductive manner in which she slips the reader into the situations which she describes. She poses issues sharply and provides an evocative sense of time, place and personality. This is the account of a participant observer in the fullest sense of the term, and we share her sense of engaged scientific involvement.
Her contact with the people included attendance at an infinite number of meetings, as well as formal interviews with prominent individuals and informal discussions with neighbours and friends. Together with two colleagues drawn from the community, Patson Phala and Tsepo Phasha, she conducted an opinion survey based on interviews with a representative cross-section of 500 persons. The views she received were forceful and frequently harsh. She recounts them as part of the lived experienced reality, without purporting to take sides or suggest who was telling the truth or not. Gossip and rumour are part and parcel of the existence of any community, and become intensified when the community is simultaneously interdependent and fragmented.
The fact is that these communities are divided between conservatives and progressives, members of traditional authorities and elected councillors, elders and youth. Women, mostly young but also older, are demanding more space for themselves. The young activists of the 1980s are now prominent in the civic organisations, commonly known as 'the civics'. There is competition over land, over who should settle disputes and how they should do so, over control of government resources for infrastructural development, and over the granting of planning and development permission.
Life in Jane Furse, where there is a supermarket, a garage, a big taxi-rank, running water and some street lighting is quite different from life in the mountain village of Hoepakranz. Yet in both areas the tensions are similar. We are introduced to active encounters between the various protagonists who meet both to establish their own particular positions but also to attempt to harmonise their functions and activities. Typically, the issues are debated in a concrete manner: women school teachers say they will go on strike if they cannot wear trousers; the prospective vanadium mining company wants to know with whom it should deal; debates are held as to what should go into a new tribal constitution. Yet the implicit themes are broad and philosophical, relating to the role of tradition in an evolving democracy. Barbara Oomen's tentative conclusions on these wider questions call for serious reflection.
My sadness at reading these pages derives from a sense of intellectual desolation flowing from the fact that few if any South African scholars are doing this kind of work. Abstract debates are conducted in the press and various legislative bodies. The journals have their quotas of articles on the question. Various political figures touch on the matter, frequently and understandably to advance their own particular interests. But as Barbara Oomen points out, the general tendency is to submerge the lived reality into simplified ideological positions. On the one hand, tradition is trivialized as if it were a rather unfortunate relic of the past that stands in the way of progress and is doomed to disappear in a modern democracy. On the other hand, tradition is romanticised in a manner that gives it a pristine, timeless, pure and sovereign character that is completely incompatible with its actual entanglement and functioning in contemporary society.
Hopefully the excitement and interest of this sharply observed and crisply told study will encourage South African lawyers and political scientists to immerse themselves in our extraordinary rural and urban reality. In the meantime, these chapters will enrich the international debate on broad questions of how best to integrate and harmonise tradition and democracy while fully respecting evolving concepts of human rights.
Albie Sachs
Justice of the Constitutional Court of South Africa
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