Constitution hurts traditional law, says Holomisa

Justice and correctional services deputy minister Sango Phatekile Holomisa has criticised the prescripts governing traditional leadership, saying they emasculate the institution and dwarf its importance and laws.

Holomisa delivered a political lecture titled “The Importance of Traditional Leadership and its Relevance in the Current Dispensation”, which was hosted by the Eastern Cape ANC recently.

“I am more than certain that, had it still been enjoying its health to its full extent, the institution would have been accorded a dignified and meaningful place in the constitution when adopted,” he told his virtual audience.

Holomisa described chapter 12 of the constitution, which covers traditional leadership and customary law, as the “shortest”, and as “embarrassing and vague”.

“It is of very limited usefulness. The provisions that were ... in the interim constitution are rendered permissive in the final and current constitution. This means that the institution exists at the whim of whichever political party is in power,” Holomisa said.

He said what colonial and apartheid regimes could not achieve against the institution in terms of power, SA laws ensured that the current government easily did.

“Now as a result of the obliteration and functions of ubukhosi [traditional leadership] by the constitution, all laws that seek to regularise the institution are incapable of conferring powers on traditional leaders,” he said.

Holomisa said the “so-called traditional courts bill is stuck”.

The contentious piece of legislation was initially introduced in 2008 and reintroduced to the legislature in 2012.

Over the years the bill’s opponents have said the proposed legislation was the ruling party’s way of brown-nosing traditional leaders for the rural vote, and that it would pave the way for traditional leaders to be a law unto themselves.

Holomisa told the audience there was a “fear of elevating” customary laws to the same level as their European counterparts.

“Despite the constitutional diminution of ubukhosi, traditional leaders continue to dispense justice for the benefit of some million rural inhabitants. They continue to administer control and allocate communal land,” he said.

He said traditional leaders were still relevant today in that they formed a link between town- or city-based government community services, such as home affairs and the SA Social Services Agency.

Conscious of their status in the rural settings, Holomisa said, they also sourced funding from the private sector for projects that would empower their rural constituency.

He said the propensity of state reliance in rural settings is “growing in leaps and bounds”.

“Even when our people are provided with toilets — which under normal circumstances should be built by themselves — they will ask of the service provider how much they will be paid for digging the hole of the toilets they will be using themselves.”

Citing social grants, he said men outsourced to the government their financial responsibility towards their young children.

“They [men] are not being pursued with the rigour royal courts employ,” Holomisa said.

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