Journal of Legal Pluralism and Unofficial Law

(1999) JLP 44: 73-103


Group Rights in Post-Apartheid South Africa:

The Case of the Traditional Leaders


Barbara Oomen




South African's first democratic constitution provides that the "institution, status and role of traditional leadership, according to customary law, are recognized". The recognition of indigenous rulers and their administrative and judicial powers may be interpreted as a continuation of former native rule policies as well as a distinctive feature of a modern state. On the one hand, the recognition is linked to the country's colonial and apartheid past, during which ethnic identity was forcibly created and compartmentalized in 'homelands' with imported tribesmen and customary law. On the other hand, the claims of the chiefs form an example of the larger-scale contemporary political demand for the legal recognition of cultural diversity, in the form of minority and group rights. Thus considered, state recognition of chiefs and their subjects poses the same problems of inclusion and exclusion as are faced when any group in society is carved out and granted a separate legal status. An additional problem is that recognition of customary law and traditional leadership by the state is generally based on questionable anthropological assumptions about the social fabric of the rural local community. Traditional leadership is presented as an age-old African form of governance, a community-based and consensus-oriented alternative to the western administration. Now that these notions, and even the possibility of considering the locality as a separate, static unit of analysis, are increasingly problematized within the field of anthropology, the possibility of fixing this fuzzy reality in a legal framework is affected.