FORGING THE LINKS BETWEEN HISTORICAL RESEARCH AND THE POLICY PROCESS 18- 19 SEPTEMBER 1999 UNIVERSITY OF THE WITWATERSRAND “We must now go back to our history”; continuity and change in Mamone, Northern Province Barbara Oomen A symposium hosled by the Hisloiy Woiltshop, the University of the Witwatersrand o “We must now go back to our history”; continuity and change in Mamone, Northern Province Draft paper Wits History W orkshop - B arbara Oomen* July 1999: Two very old men outside the cuslomury court discuss a recent case m which a self-appointed headman who allocated land illegally nm ued to a thomtree, beaten and smeared with vaseline to be doubly anraciive to the red ants. The one shakes his head disapprovingly and draws a circle in his wrinkled hand: : "Mamone is not like this, a separate nation in which the laws o f the land don "t apply”. The other disagrees: "'Of course we are; why else would we have a chiefs ” 1. In t r o d u c t io n After over 5 years o f thorny debate on the future of traditional leadership in South Africa, the government has - justifiably, it seems - resolved to begin by concentrating on the present A Status Quo Report, to be published in 1999, aims to depict the actual position of the traditional authorities Following the perspective that if one can agree on the present it is easier to agree on the future, this report will be ‘workshopped’ with various stakeholders It will serve as a pathfinder for a green and white paper and, ultimately, for a Traditional Authorities Act’. Reflecting reality is never easy, but in this case seems especially daunting After all, one central issue that the policy makers will have to deal with is local diversity, or the tenacity of local dynamics vis-a-vis unifying state policies. Since the inception o f the 1927 Black Authorities Act and the 1951 Black Administration Act the state has sought to impose a common, administratively expedient, mould on traditional authorities. To what extent has this mould, detailed in hundreds o f laws and regulations spawned on the ■tasis of these Acts, come to adequately reflect reality? And, turning to the future, to what extent can policies in a case like this impact on local realities? Between outside influences and internal dynamics, which variables determine the position o f a traditional authority in a rural community? It is with these questions in mind that this paper is written It seeks to describe the position of traditional authority in one community that has seen considerable change over the past years. Mamone In terms of largely external influences it has, like the rest of South Africa, been confronted with the advent o f democracy, with in its wake elected local councils, a general institutional overhaul and changing laws on land, local government and customary law. Internally it has seen the coronation of a new chief^ on the 19'*' o f December 1998, after 19 years of conflict-ridden interregnum. This event has sparked a general process of retraditionalization, a renegotiation of power relations within the community and between local fractions and government institutions, a debate on the Van Vollenhoven Inslilule tor law and adminisiralion in non-western counlries. Leiden University, the Netherlands. Email B.M-Oomcn@law leidenuniv nl As the reader might notice this paper has not yet benefited from generous inputs by other scholars, but all the more so from the unfailing assistance of F Phata in collecting the data on which it is based and the uplitUng helpfrrlness of the people interviewed ̂Some people might whince at the liberal use of the terms ‘‘chief’ and “tribal” aside “traditional leader” and “traditional authority” here I use them as (hey are part of everyday discourse in Mamone, and not in a derogative way value of traditional authority in post-Apartheid South Africa and even a locally-driven restatement of customary law. The account seeks to capture this change and link it to the questions on the relation between policy influences and local dynamics posed above by, after having given some background, focusing on the position of traditional authority in three spheres, land allocation, local government and customary law It is, after all, in these spheres that its position is most strongly debated and contested One caveat must be made: the paper is written ‘in the field’, with Mamone being one of three case studies in a larger PhD-project on traditional leadership in the new South Africa As a first attempt to make sense of piles o f notes of structured and unstructured interviews, collected in the period December 1998-July 1999, its emphasis is on description, rather than analysis. In conclusion I will try to apply the Mamone case to the questions on the complex interlinkage between law, administration and local reality posed above, but these answers will be tentative and surely benefit largely from the discussion in the History Workshop. o 2. M a m o n e Characterised by red sands, agaves and stony kopples, the Mamone traditional authority lies in what used to be Lebowa and is now the Southern part of the Northern province. It strings together three - in the eyes of the population - separate spheres: the fast-growing ‘location-like’ settlement of Jane Purse and surroundings, the traditional village of Mamone and 11 satellite villages. Although accounts differ, the total population in the three spheres is about 40.000 ’ The first of these spheres, Jane Purse, is a small town built around a bustling taxi-rank, a brand new shopping centre and a regional hospital which have led it to rapid growth. It straddles two traditional authority areas: Mamone and Madibong. Jane Purse’ importance as a regional centre is demonstrated by the fact that it is home to the Transitional Local Council, that services the large Greater-Ngwaritsi Makhudu-Thamaga local government area but is housed in a tiny office between record stores and restaurants in Jane Purse Plaza. The local councillors have decided to designate Jane Purse a ‘nodal point’ of growth in the district, thus entitling it to extra rapid delivery. As a result, inhabitants of Jane Purse are in the process of receiving electricity, water, a new hospital and an RDP- housing project whilst a brand new library stands waiting for the first books to arrive. These inhabitants are, as one can expect in such a rural-urban interface, a mixed bag The job opportunities, however meagre, attract people from throughout the wider region plagued by unemployment and apart from the local Pedi one can hear Swazi, SJangaan and even Mozambican Portuguese spoken by the hawkers around the taxi-rank and other newcomers. To the residents of the village of Mamone, who consider themselves the real BapedP, Jane Purse and its adjacent villages form an area for honthok, strangers, who are expected to pay an extra r 450 for a plot of land when they arrive. Although most of the land in Jane Purse still vests in the traditional authority, it is handed out by a headman chairing an elected committee, and many people comment that they live ‘location-style’, having little to do with the traditional authonty ̂Statistics South Africa The I ̂ ^8 report “Situational Analysis: Status Quo Report for the setting of land development objectives for Ngwaritsi TLC”: speaks of -47 000 inhabitants This makes the contrast with the neighbouring Mamone village marked. The mountain on which the village is built, reverberates with history instead of with the Jane Purse township hustle and bustle. Although the gothic-style tribal offices, erected by former Lebowa prime minister Ramodike in 1993, are a stone’s throw away from the TLC olTice in Jane Purse Plaza, they seem to represent another world And from there it is only a few steps over a dusty path to the kgdro, the open area customarily fenced of by ragged branches where the customary court is held In what feels like peeling of another layer and coming to the heart of the tribal matter, one can, from the kgoro. follow a small path winding between mud houses of members of the royal family, to finally reach the heart of the traditional authority: mosale or the royal palace It is this village with its 12.000 inhabitants that supplies the greater Mamone traditional authority with its identity of a “more settled, deeply rooted community’’.'' Its inhabitants are the descendants of the great Sekwati, and Mamone is often quoted, together with Mohlaletse and Madibong, as one of the places where the real Pedi customs are still followed: “ These people are real, raw Pedi’s They can be educated but ihey will still follow their tradition A teacher can be a mukgoma (royal, BO), ihey look the same and they talk the same language You can take a citizen of Mamone to Holland for 10 years, he'll come back being a Mamone citizen. Their language pronounciation doesn't change I can say Mamone and Madibong are close, but they differ with Mohlaletse because most Mohlaletse people are easily changed by other people's behaviour and language And Ihey don't like their place, they'll leave for Jo’burg But not with Mamone; ihey marry in Gauteng but they'll always go back home.”' The third and most disparate sphere in the Mamone traditional auihonty is a patchwork of makulokutwane, satellite villages that string southwards from this ‘heartland’ Some lie on trust farms, added to Mamone by the South African Native Trust in the 1940s and 1950s. Others cany the denomination ‘tribal land’ and lie on communally owned land: as private ownership was ruled out by the bantustan policies, individuals were forced to join forces and put forward a chief to act as trustee o f the land. Sekwati Mampuru, the Mamone chief, fulfilled this task and in certain instances even contnbuted towards the purchase. The satellite villages have distinct identities. In the period 1979 - 1998, when leadership was bitterly contested in Mamone, they often had very little to do with ‘the mother village’ and some of the headmen attained, in the eyes o f their people, the status of chiefs m their own right. The new traditional authonty, as we shall see, seeks to change that and to subject the inhabitants of the satellite villages to the Sekwati rule once again. In doing so, it has to face up to many headmen who are reluctant to give up their position as autonomous rulers and even more inhabitants appalled by the idea of having to pay tribal levies to the chief once again. Baber, R (1996) Current livelihoods in semi-arid rural areas of South Africa Land Labour and Livelihoods in Rural South Africa M Lipion, F Ellis and M Lipion Johannesburg, Indicator Press t olume II: KwaZulu-Natal aiiU Nurlht'rn province: P 271 ’ P Phala, 31-5-1999 ̂See Delius, P (1996) A Lion Amoiutst the Cattle Reconstruction and Resistance in the Northern Transvaal Ponsmoulh, Heinemann However much the three spheres which make up the Mamone traditional authority might differ, some generalizations about its people and their social-economic conditions can be made. Although the area is considered rural, very little people manage to live of the land. Of the people interviewed^ only 36 % of the households have their own fields Recent projects as the new hospital, Jane Purse Plaza and the housing project might have been welcomed by many but meant the ~ uncompensated - loss of fields for others. As there are no more fields and only 21 % of the adults interviewed are employed, people engage in various survival strategies. Some people plough the fields of others in the tema ka lema system. The main source of cash income in the region might well be the government pensions, of which, entire extended households live Most o f the people who are employed work in makguweng, the place of the whites Mamone village, for instance, has long-standing relations with various mining companies, whose public relations officials state that: "we always take Mamone Pedi s; they’re the best” * * Of the citizens of the Mamone traditional authority 90 % are Bapedi, with Swazi and Sjangaan running up next. If going to the initiation school and marrying customarily can be seen as an indication of a traditional lifestyle’, this label applies to the majority of the Mamone residents: 56 % of the couples is married customarily and 70 % of the respondents spent some time getting taught about Pedi customs in the mountain schools. Mamone society can be seen as institutionalised and politicised: many people are members of stokvels, village development forums and other structures Church membership is also high (92 %), with the Apostolian Church (22 %) and the ZCC (20 %) as the main churches in the area Although leaders of all parties faithfully drove up the Mamone mountain to court the royal family before the elections (and S. Mokgoba of the PAC did so on election day!), the area is an ANC-stronghold with 83 % of the people voting for the party. Politicisation runs deep in other ways For instance, the Sekhukhune youth revolt of 1986, described extensively by P Delius,’ has left its traces in many ways, most-notably the large rift between the youth and the elders 3. T r a d it io n a l a u t h o r it y in M a m o n e ; o f s k in s a n d s t a m p s Intergenerational rift notwithstanding, many young people played an important role in the coronation of Billy Sekwati Mampuru 111 on a sunny Saturday in December 1998 They formed a ‘Preparatory Committee for the Coronation of the King' that toiled for a year- and-a-half to find sponsors like mining company Douglas Collery, organise donations from the migrant workers and community members, print yellow t-shirts with Billy's ̂Unless mentioned otherwise, the quantitative data in this paper are derived from a survey research conducted by the author and Palson Phala in which 121 inhabitants of Mamone traditional authority where asked a series of open and closed questions on their socio-economic status and ideas about land, local government, customary law. traditional leadership and development The samples were selected on the basis of statistical data on village size, income and sex received from South African Statistics Of the valid n= 121: men = 47%. women = 53 % Age: Under 30 = 22 %. 30-40 = 21 %, 40-50= 30%. 50-60= 16 “i. 60 + = 12 %. Education No education = 24 %, until st 6 = 24 ® o, si 6-10 = 39 ®o, ten Education = 13 * 19-12-1998 ’ Delius. 1996, A Lion Amongst the Cattle See also Van Kessel. I (1995) 'Beyond Our Wildest Dreams' The United Democratic Front and the transformation of South Africa l.eiden, PhD thesis. Leiden University picture and oversee the brewing of traditional beer and the catenng in the run-up to the big day The commercially-sold video of the 19'*' o f December shows how all important factions of Sekhukhune society were present. When the royal limousine drove up it was greeted by the kaki-clad ZCC-marching band, traditional dancers and drum majorettes. The chief-to-be, dressed in a pink and gold suit that would befit any African dictator, was addressed by a long line of people The tribal elders, who talked about the glorious Mamone history and how they “were here to help and guide the chief’ A female praise- singer who made the point that "the chief is now a garbage-heap, the rubbish of the whole community will land on him”. John Magolego, the eloquent and polished leader of the vigilante organisation Mapogo a Mathamaga, who handed the chief a sjambok and assured him o f protection by the organisation .V anous chiefs, from Contralesa, the Nebo traditional authorities and the House o f Traditional Leaders, who all emphasized the challenges faced by traditional authorities today. After the elaborated speeches the mohumagudi, the strong-willed and formidable matriarch who had led the community for 19 years, put a leopardskin - purchased by the migrants at KwaZulu Muti in Johannesburg for r 3500 earlier that month - around her son’s shoulders After the skin came the stamp: a government olTicial handed over the otTicial certificate of recognition and the stamp that goes with it. Although more than 2500 people attended the ceremony many important local chiefs - like claimants for paramountcy KK and Rhyne Sekhukhune - and politicians - like Mandela and premier Ramathlodi - were conspicuously absent. A reason for that absence could well have been the “lineage of the Pedi Kingdom” conveniently printed on the back of the glossy program of the day. Through a selective presentation of historical facts the new chief was linked in direct line to Thulare, the last relatively undisputed paramount of the Pedi polity who died in 1824 One mam reason for presenting the guests with this version of Pedi history is the Ralushai Commission of Enquiry, which was commissioned by the Northern Province government m 1996 to look into chieftaincy disputes. Although the Ralushai report was finished in 1998 the premier has to date refused to release it because of its political sensitivity. Although it is not clear if the report will actually advise on the issue of paramountcy amongst the Bapedi, many contenders are led to believe it will and anxiously await the outcome of the report A paramount king, after all, earns about 300 000 rand yearly under the new Remuneration of Public Servants Act. As one member of the newly-formed Mamone Commission on Kingship explained: “Kingship is important to us and will create a lot of jobs because of the money involved. If the Ralushai Commission decides negatively we must be prepared to go to the Constitutional Court and fight this all the way” ' It is impossible to, within the scope of this article, give an overview of the motivations of the two Pedi contenders for paramountcy - the Sekhukhune’s and Sekwati - and even more so to comment on their merits The arguments draw back to the two sociological sons of regent Sekwati , who died in 1861: Sekhukhune I and Mampuru Although some This highly popular organisation has often joined forces wiih the more conservative elements in society, like the elders and the traditional leaders, in surpressing the youth See. Oomen, B (1999) “Vigilanie justice in perspective the case of Mapogo a Mathamaga " Acta Criminolouica: South African Journal of rriminoloev 12(3) forthcoming " Meeting Bapedi migrants, Douglas Collery Mines, Wilbank, 19-7-1999 historians speak of Sekhukhune being the older son'^ others emphasize the fact that Mampuru was born out of the candlewife and designated by Sekwati as his heir In present discourse, both contenders have simplified a complex and contested genealogy to the recognition that Mampuru was the senior son of Sekwati. However, the Sekhukhune’s - the clear favourites for the position''* - argue that Mampuru is of alien blood and that he abdicated his position through cowardice in the wars against the B oers.Follow ers of Sekwati, on the other hand, point at the genealogical seniority and the fact that Sekhukhune “sold our land to the boers”. As part of the reawakened Mamone tribal consciou,sness community members have launched a campaign to demand the remains of Mampuru, who was.hanged by the boers in 1883 for the murder of Sekhukhune I. As the mohumagadi says: “'Until today we don't know where his grave is. That skeleton might be out there somewhere, used in a biology class or to tell bad things about him, and we won't even know it” But they are kept at bay by government officials and told to wait - again - for the outcomes of the Ralushai Commission. Whilst the line from Thulare to the young Sekwati might not be as straight as presented on the coronation program, it is clear that the young chief can pride himself in being a successor to great chiefs, known in the whole of Bopedi His grandfather, Sekwati Mampuru II, reigned from 1905 - 1978 (first through a regent) and was known for his bravery and opposition to the bantustan system.'* Billy Sekwati’s sociological father, Malekutu III, died before having given birth to a son He had, however, married a candle-wife - the mohumagadi spoken about earlier - and a member of the royal family 'raised seed' with her and she gave birth to four sons, of whom Billy is the oldest. It was also the mohumagadi who acted as a regent after Sekwati Mampuru II had died A woman ascending the throne caused bitter strife and m the period 1980-1981 Mamone was scene to a bloody war between supporters of the mohumagadi and supporters of one of Billy’s uncles, who claimed that i.ia eiwa keye tshadi pete di wela ka leopeng - a tribe run by a woman is not run correctly Although the bloodshed dwindled after 1981, Mamone remained crippled by the fight over hognsi - traditional leadership - and the regentes kept to the background Although she, as so many chiefs, was a member of the Lebowa parliament - “ it was very nice, we got to shout ‘voetsak, voetsak' at all the laws and the salary allowed me to buy a new house” - she takes pride in the fact that Lebowa pnme minister Phatudi never set a foot in the tribal palace. An indication of this strenuous relation of the powers of the day is the fact Mamone only “received' a tribal office in 1993, long after more co-operative chieftaincies Delius, P (1983). The Land Belongs To Us: The Pedi Polity, the Boers and Ihe Brilish in Nineleenih- centurv Transvaal Johannesburg, Ravan Press 88-93 CfMonnig, H O (1967) The Pedi Pretoria, J 1, van Schaik I speak here of the Sekhukhune’s because two wars are waged simultaneously and in many arenas here firstly, over whom should be the Sekhukhune chief, the present acting chief KK Sekhukhune or his half- brother Rhyne Thulare and secondly, over de elevation of the Sekhukhune chief to the status of paramount ” Interview Mohlaletse, 16-12-1998 Mamone kgoro, 30-5-1999 ' ' Interview Mohumagadi Sekwati, 25-5-1999 "* A biography in Sotho is Nkadimeng, H M (1973) Keosi Sekwati Mampuru Pretoria, J I, Van Schaik "* There are many female regents m the former Lebowa, probably because it was the policy of this bantustan, in contrast toothers, to also pay female regents keeping the throne for their sons The coronation of a new chief caused an ongoing debate on the powers of the various bodies that make up the traditional authonty Let us attempt to chart this shifting balance of power by concentrating on four bodies: the statutory Tnbal Council, the traditional kgord meeting run by bukgoma and hakgomana (royal advisors), the related Commission on the Tribal Constitution and the representatives of the traditional authonty in the satellite villages. The Tribal Council is a direct creation of the Black Authorities Act and the Black Administratton Act On the basis of these Acts the State Prestdent established tnbal councils in the whole of Lebowa. '̂ ̂By decree it was decided that the Matnone Traditional Authority was allowed to have 10 Tribal Councillors, amongst whom representants of some of the kgord’s, political units that are essentially personally organised, of some of the melse, more territonal units, o f the mduna's representing the satellite villages and t according to the statute - three members of the royal family It was this Tribal Council that ran the traditional authority during most o f the eighties and nineties and met in the Tribal Office on Tuesday every fortnight to settle disputes, allocate land and award business licences. We shall look into these local government functions more extensively in a later paragraph, but the coronation of the new chief entailed a revision of these functions As one coimcillor/indana explained to his community: "We were helping the muhumagadi but now the days of acting chiefs are over The owner is here, and you don’t have to take cases to us anymore but can go directly to him” One reason for the revision of functions of the Tribal Council is an unhappiness with Its functioning. In the words of one member o f the royal family: this IS an .Apartheid structure They were used by the former govemmenl and started giving out business licences, vast plots of land and they would pass tnbal resolutions to give out liile deeds without even consulting the tribe They are just operating alone, they ’re not representative, we don’t know who’s in there, we can’t control them and we don’t even know their term of otTice They are giving us a lot of problems”, '̂ One might easily be forgiven for thinking that the kgord, the meeting that is held on Wednesday - outside, with men sitting around the thomtree on treetrunks that are as well-worn as some of the arguments made - where all elderly men are welcome to debate court cases and development issues is an time-honoured tradition Actually, it was only reinstalled in the beginning of 1999, as part of the campaign to "go back to our history” This is the forum ol some of the bakgoma and bakgumana, royal advisors of whom Ntwampe Sekwati, the king’s very vocal and strong-headed younger brother and Mothodi Sekwati, Billy’s senior advisor, are the most important. Using the kgord as a platform, they have kicked off a veritable war to reinstall traditional’ law and order in Mamone It was here that 10111 was formed, the loose organisation of people named after the South African alarm-number, that beats up perpetrators of tribal law And it is in this kgord that many government employees and policemen are shunned away or cut shon in their explanation, thus contributing to the reestablishment of the Mamone power. Although the kgord is increasingly well attended Billy’s brother, who normally chairs it, sees no harm in promoting its qualities and from time to time giving an overview of the cases solved Government Regulation R I M of 1969, Governineni Gazette no 2377 of 2 May 1969 Ss 1 - 9 ‘ Interview N Kgalema, 6-6-1999 successfully by it: “In all these cases we found a successful and an amicable solution, and the people came back to praise us”^^ Related to this effort to reinstall law and order in Mamone is the formation of the Commission on the Tribal Constitution. This body essentially stems from the Preparatory Committee for the Coronation of the King and consists mostly o f teachers, many of whom are also ANC-leaders and members of the royal family Through consultation with all sectors of society they wish to draw up a tnbal constitution, that should be in line with the national one According to the head of the Commission: “We have struggled over hogo. î for a long time Now we have a new chief and we should draw up a constitution with which he can rule us So that if people do something wrong we can refer to it and it is a constitution which they themselves agreed to. We want to avoid some people bribing others Also we want to save people from having to pay for a lawyer Some people ask us how we can draw up a constitution without the chief But the chief can't draw up a constitution; only the community can and then the chief can rectify it You can see in other communities without a constitution that this leads to a lack of respect, clashes and friction Also in our community the youth don’t respect the elders anymore We must go back to the tradition of our forefathers, like in the time of kgdsi Sekwati when there was still respect for law and order At present, meetings on the tribal constitution are held every Sunday, whilst the royal house for the time being keeps a weary distance from the process. The leaders of the Commission also consider installing an advisory body to counsel the king. In addition to the royal advisors, for “in our culture often people who are close to you can’t give you good advice’’.̂ ^ The reader will have noticed that in this account the king so far has been conspicuously absent This is, to a large extent, a reflection of reality in Mamone village. The shy 32-year old Born-again Christian rarely attends any of the meetings above, many of which are conducted in his name. Many royal advisors complain that they only met Billy during his coronation. For the last and first time, because he grew up in Lydenburg before attending the secondary school for chiefs sons in Potgietersrus and studying at UNIN. And he nowadays lives in I.ebowakgomo, the former Lebowa capital at about 100 km from Mamone, officially because he waits for the community to buy furniture for his new house but also “if as a king you stay here in Mamone people will come and ask you questions all the time And some people will try to bewitch you and use muti on you - you can’t trust anyone”. Instead of interacting with the Tribal Council, the Mamone kgoro and the Commission on the Tribal Constitution, the king has taken to visit all the satellite villages. The general aim of these visits seems to be to reinforce the position of village mduna's and to stimulate payment of tribal levies The satellite villages can determine themselves how they choose their headmen and some induna's have inherited the title from their fathers whilst others have been elected But endorsement by the traditional authority is central in Kgoro Mamone, 14-7-1999 Meeting Commission Tribal Constitution, 1.1-6-1999 Interview Douglas Coilery Mines, Witbank, 20-7-1999 Interview B Sekwati Mampuru enforcing their role as land allocators and dispute settlers in the chiefs name, and many of the inctunu's have asked Billy to visit their villages. It is worthwhile to recount one such visit, to Thoto: It’s a bleak winter day when 'Billy’s roadshow’^̂ , consisting of the chiefs bakkie and five other cars drive into the small settlement of Thoto Dozens of old men accompany the king to the meeting humming the low, solemn and sonorous mogobo sung by men coming back from initiation school When Billy reaches the circle of chairs next to the primary school, women in traditional outfits begin to ululate "We are ruled again”, shouts someone After prayers and a quote from Matthew on how chiefs represent God on earth and speeches by various headmen on how they are the only representatives to reach the chief through, Billy addresses his sut^ects. Whilst he used to wear a faded vest to these meetings, he now looks regal in a black shiny suit with golden epaulettes He introduces all the headmen and their councillors present by name, tells the schoolchildren to work hard, promises the community various projects, urges them to take cases to the kgdro and warns them that nobody can speak to him without going through the proper channels. After the applause has died down a corpulent headman stands up and urges the community to pay r 100,- in tribal levies per household, r 50,- for the coronation and r 50,- for the chiefs new villa. Whilst this has been demurely accepted in other villages it causes a grumbling here that lasts all through the singing of "Nkosi Sikelel’l Africa” and the dusty and hasty departure of the dignitaries The powers-that-be in Mamone village are clearly displeased with Billy’s solitary decision to visit the satellite villages and his choice of entourage. “We must talk about Billy just going to the villages on his own, picking up people on the street to go with him”, a tribal councillor complained.” The councillors and bakgoma and hakgomuna attempt to bnng Billy under their sphere of influence again in various ways For instance through removing Billy’s most important companion, the Jane Furse indwia, from his position and stimulating the community to elect a new one.’* Ntwampe Sekwati, Billy’s younger brother, plays a particularly Machiavellian role by urging council and kgdro to protest against Billy’s absence at meetings, and to send him a memorandum of complaints: "you mustn’t take kgosi like Jesus whom you can’t question just praise” ” A problem, according to them, is that the chief can do so many things on his own, like giving permission to hold a circumcisionschool As Billy’s first wife, the candle-wife married by the tribe, died in October 1998 the tribal elders decided to mourn for a year and to not hold any circumcisionschools in the Mamone traditional authority. Billy, however, who was given that statutory power, in a few instances gave out a permit for satellite villages to hold a - lucrative - initiation school Also, it is the chief on personal 0 title that is invited to many meetings by the government and ngo’s on various aspects of the position of traditional leadership and Billy - to the horror of his advisors - has taken to visiting these meetings, and those of the House of Traditional Leaders and Contralesa, alone Called this by some of the participants For the sake of brevity 1 will also use this name Meeting on the Tribal Constitution, 13-6-1999 After the election of a new induna and committee Billy wrote a letter confirming the position of his confidant As inJuna’s are the people to give out land this has lead to considerable legal uncertainty Meeting Tnbal Council 15-6-1999 Northern Province Circumcision Schools Act no of 1996 Although government structures often emphasize and entrench the position of the individual traditional leader - if only through granting him a r 7000 monthly salary - Billy Sekwati feels particularly powerless: “There is no way in which you can control the Bapedi If they want something they’ll use force Or they’ll just say “the nation said . ” and there is nothing I can do Like marrying so soon after my first wife's death I didn't want to but there was nothing I could do I'm the ruler of the people but I can’t select them or send the bad ones away”^ A case in point is the marrying of a new candle-wife. Billy, as a born-again Christian, is married to a teacher and does not necessarily want to marry again. But the community has decided that, although the late candle-wife already gave birth to a heir, she has to be replaced by someone of the right family as soon as the mourning is over. Regardless of the chiefs’ views on the subject; “he does not want to marry, we want to marry” In this overview of the bodies related to the Mamone traditional authority and the ways in which the coronation of a new king has affected them, there has so far been little attention for the ways in which community members view the changes. How do they feel about traditional leadership in general, and their new chief in particular? The majority o f the people in the Mamone traditional authority say that they support chief (73 %), but a minority do not support Billy Sekwati but still follow his old contender, Mr Mohlala, or consider their headman to be the only kgosi they know^^ People give a number of different reasons for - still - supporting traditional leadership, but most involve culture, or identity. “Now we are not like leaves flying in the wind anymore” or “a nation without a kgosi will always start fighting”. A chief, it is held, represents community unity and in addition to the often-quoted kgosi ke kgosi ka batho (a chief is a chief through the people) some respondents emphasised that setsaba ke setsaba ka kgosi (a community is a community because it has a chieO As N. Kgalema, the head of the Commission on the Tnbal Constitution puts it: “ The whole system of hogosi is a way of trying to keep stability in the community, to keep the community together It is central in determining where people find themselves, Al! our customs and traditions are enshrined in bogosi Where there are mago$i you will find respect You’ll be able to leave you things in the street or your car outside and nothing will happen to them Because everyone is a police there The moral fibre of the whole society rests on bogosi It encompasses religion, tradition, governance, customs, everything That's why even if you go to a location you’ll still find induna's and things resembling bogosi This system of governance is in our blood They are above all politics He should be a symbol of unity That's why it’s very annoying if a kgoSi is bad Especially if the whole community has put their trust in him But (vehemently) this is not a reason to do away with the institution That's why they should try to empower the institution instead of the person If the kgosi is bad. than you can always still discuss with someone else in the institution,”^̂ Interview B Sekwati Mampum III, 22-7-I9W The comparison between the 73 % here and the 94 Vo in my first case study, the more rural village of Hoepakranz. is interesting For a report on that case and more information on the research in general see http //home mweb co za/b /b oomen/ Interview. 6-6-1999 Ift There are also more practical reasons to support traditional leadership, like “if we have to go to the government, we can go through him” or "there is national, provincial and local government, but the magosi are the government at grass-roots”. Generally, people find that the chief is primarily responsible for settling disputes (89 % names this as the first function), allocating land (53 % as second function) and conducting the initiation school (39 % as third function). Other often-named functions are registering marriages and giving out pensions. The people interviewed are often not sure about Billy’s merits as a chief yet. When asked how they find their chief 40 % answers that they do not know: “1 have never met him, how can 1 know how he is doing” Of the remaining 60 %, 13 % finds that he is doing ‘badly’, stating for instance that “he is very soft, very Christian”. 23 % assesses his 0 performance as neutral - “he has yet to show his true colours” - and 24 % thinks it is ‘good’: “he will rule us very well, like his father”. Those people who oppose traditional leadership express their opimons just as vehemently as the proponents. Whilst only 27 % of the respondents say that they do not follow a particular kgost, the question “do you think traditional leadership should be retained in the new South Africa” yields a more diversified response: only 61 % says ‘yes’, and 39 % ‘no’. Opponents give reasons like: “They are ripping our parents left and right: remember that our mothers should work at mosate whilst our fathers are taxed” The role that traditional leaders played under Apartheid is also named frequently: “They were informers of the Apartheid regime 1 hear Billy is o f my age: maybe he can pull up his own socks unlike his grandparents”, or “bugosi is now a dead donkey and should be buried for good” and. “They were corrupt before and now some of them are still corrupt 1 suggest that they should be abolished”. The advent of elected local government is also mentioned as a reason to abolish traditional leadership “how can you have two bulls in one kraal?” There also seems to be a certain conditionality to the support for the traditional leaders: they have a role to play as long as they do not burden people by asking for them to work for the chief and contribute tribal levies and Jibego and mahtukon (although the two latter expressions literally mean ‘beer’ and ‘the first three nbs of a slaughtered beast’ they are also often used to indicate financial tributes) In comparison to other Sekhukhune areas there has been relatively little pressure to pay tribute to the chief in this way over the past years, with only a few people having worked for the chief (1 %), paid tribal levies (3 %), given him presents (7 %), Jibego (12 %) or mahlakon (13 %). However, as we have seen, the traditional authority now tnes to change this by demanding a 0 staggering r 100 from every household. In answering the question “do you think the government should pay the chiefs?” the fact that people pay tribal levies often surfaces in the motivations. The 63 % of the people who say yes’ motivate this by saying things like “to stop them from asking taxes from poor community members who can’t afford them” and “to relieve us all from the monies they want when someone has died or is going to marry” Others seek to link payment to performance: “Only the real magosi and if they promise to render services to the community and if not they should not be paid” and “provided the magoSi learn how to deliver to their communities” The people who say ‘no’ (37 %) provide reasons like: “For what? They are useless Since 1 came here these magosi have done nothing for our parents but surprisingly they still love them" and say that “they must go to the belly of the earth to dig for coals and gold just like our husbands.” In looking at people’s opinions on traditional leadership in general and B Sekwati in particular an interesting aspect is the relation between religion and hogosi. The fact that Billy is a bom-again Christian and has, for instance, been spotted outside Jane Purse Plaza professing his faith through a microphone, has given rise to a discussion on this ability to lead his people correctly “He is very soft, very Christian”, people will say diminutively, conjuring up images of the long-standing dispute between the hakrixli Christians and the haheilene - heathens, in which the baheuene are the people closer to the tribal tradition Conversely, many people explain their support for bogosi by linking it to God: “God made the chiefs and they should stay as long as God is alive” A fixed item in Billy’s roadshow is where a priest reads from the Bible, reading from Matthew, Romans or Proverbs 8:15 “By me kings reign and rulers make laws that are just. By me princes govern and all nobles who rule on earth” IV. To WHOM DOES THE LAND BELONG? THE CENTRAL ISSUE OF Ij\N D OWNERSHIP "When there is a fight at the top. we at the roots can enrich ourselves After having looked at the position of traditional authority in general and the changes that the coronation of a new chief has engendered, it is now time to turn to the various fields in which the interplay between outside influences (laws, policies) and local dynamics in determining the position of traditional authority are best visible: land ownership, local government and customary law Of these three it is proper to look at land ownership first, as It is pivotal in determining the position of traditional leadership in Mamone The area finds itself in a situation where the pressure on the land in rising and - simultaneously - the profits related to land ownership are becoming clear to the various stakeholders. The following account will demonstrate how a combination of legal and institutional insecurity and the recent changes in traditional governance have led to corruption, fights over competence and considerable insecurity o f tenure for the Mamone citizens As stated before the Mamone traditional authority consists of a patchwork of villages, of which some are built on trust land and others on tribal land Trust land falls under the government-owned South African Development Trust, but is officially still administered by the traditional leaders. Tribal land was bought by the community - as past policies did not allow for individual titles and, as was legally required, also has the chief as the trustee There are some differences between land tenure on the tribal and on the trust lands In the past, for instance, occupants of trust land would have to pay a yearly r 2 or r 3 to the magistrate Although this levy was officially abolished m 1994 many people do still take that money to the magistrate - what happens with it from there onwards is not clear Similarly the chief, during one of his roadshows, was accompanied by an Agricultural Extension Officer who told the people that “in the past you paid r 10 yearly for your plot Although the magistrate doesn't come for it anymore you must just go on paying that ” ’’ Another diflerence between the two tenure systems is that applicants for a business 4 ^ ■v,-/ ’ Interview P Mhahlele, agricultural extension oftlcer. 24-7-|Qi^9 ̂KgoSi’s roadshow Eenzaam Trust Farm, l4-(>-|999 P & licence on trust land pay a yearly r 240 to the government, whilst businesspeople on tribal land will pay that amount to the tribal office. But, as the chief administers both land tenure systems, the following discussion will not distinguish between tribal and trust land and concentrate on the regulation of access to land in all cases A distinction does have to be made between land destined for fields, for grazing land, for residential sites and for all sorts o f development projects. These destinations used to be decided upon by the Department o f Agriculture whose olTicials would plan an area and subsequently inform the traditional authority about these plans However, this function has been moved to the provincial Department of Local Government and Traditional Affairs and the undercapacitated TLC’s are now expected to be responsible for this planning. The former administrators are sceptical. “If you go there and ask them to plan something they won’t even have a map and they’ll never be able to help you”. The population influx in the Mamone traditional authonty has led to considerable pressure on the land. For all its development, the area is still considered ‘rural’ by most of the people who live in it, a lifestyle that is associated with the growing of sorghum and maize, with the herding o f cattle and the rural rhythm in which these activities take place But at present there is, as we have seen, a scarcity of fields and people complain about having to usher their livestock over tar roads and through whole villages in order to reach the designated grazing sites. The large development projects in the area - the housing projects, the hospital, Jane Furse Plaza - all entailed a dispossession of fields And although many families in that process lost their most important livelihood, they were never compensated. A second type of land use to be looked into is that of residential sites’. Here, like in many other traditional authority area’s, people receive a Permission To Occupy (P'fO) ” Seated in the large tribal office, between filing cabinets and yellowed papers with government notices pinned to the wall, the tribal secretary once explained the official procedure in this case: “If you are from the area you just pay r 60 when you get married, then you can get a site for free. If you are a stranger you have to pay r 400 and you need a Irekpas from you former kgosi to show that you are a law-abiding citizen”.̂ * He demonstrated a typed form on which applicants have to fill in their name and i.d.-number, the number of wives that they have, whether they have paid tribal levies and local taxes and recommendations from the local headman, the chief, the local development agricultural officer and the sectional head of development. On the basis of this full information the magistrate will give out a PTO. This approach, from a constitutional point o f view, has a number of flaws The first concerns the control of access. Officially it is only married men, for instance, who can apply for a P fO: “How can a man want a site alone? What will he do at night? He must be a Although women in practice are often granted sites, this legal regime does not officially give them that nght. The absence of a irekpas, a referral letter from a “ Interview Tribal Olfice, 22-7-19W Allthough I still have to trace the legal basis lor this title it is widely used and recognized under the Interim Protection of Informal Land Rights Act 31 of 1996 As the name suggests, it contains a nght to occupy but not to self Because of the legal insecurity this entails the title is also condescendingly referred to as PTL, Pennission to l.ose Tribal ortlce, 4-6-1999 i d A iMohi IS a criminal n former chief, can also be a reason to refuse people. As the Jane Purse headman says: “I do sometimes refuse people if they don’t have a Ireknax or if there are negative things in it”.'“ A second flaw lies in the vast differences between the amounts o f money that people end up paying for such a PTO It is the headmen, in the satellite villages, and special land allocators called hoditene in Mamone village, that are responsible giving out land and acting as intermediaries between individuals and the traditional authority, magistrate and other government officials involved Different headmen can charge anything between r 0 and r 1000 for a stand, and pocket the amount left after paying Mamone It is especially newcomers that are charged heavily, to such an extent that locals complain that ‘‘nowadays if you are bom here it is hard to get a site because the headmen prefer giving them to people whom they can charge honihole”.'" A third problem lies with the question who are the rightful representatives of mosate, or the headmen who can give out land In the past period the Mamone traditional authority has seen a series of clashes over this subject. As recounted before, communities can decide who their headmen are In some cases they preside over whole committees whilst in others they operate alone or with a few advisors who are also called councillors. Three recent cases tried in the Mamone kgoro can demonstrate the extent o f this problem: I The case of Jerry Lelhamaga Jerry was a supporter of Mr Mohlala. who fought over the throne with the chiefs mother for the past years As his headman he started allocating sites in Mokwete. where there was also a headman appointed by the chief In May 1999 Jerry was dragged to the kgord, beaten up and tied to the thomtree for the red ants to punish him further Also, he was fined r 3500 and the people whom he had allocated the sites to were told to leave the village. Jerry has opened a case against the Mamone moMte II. The case of Mr Moela Mr Moela appeared in the Mamone kgord on 14 July, charged with illegally occupying a site He explained that when he arrived in Mamone from the Leolo mountains he asked someone on the street where to go, and that person pointed him to Mr Mohlala He showed him his trekpas and paid r 60. and got a hand-written letter in return The kgoro decided to charge Mr Moela bonihole of r 400 and a fine of r 50 for not following the right procedures MI The case of Mr Mashegoane The Riverside headman took the following case to the Mamone kgord on 30 June: A Mr Mashegoane had accepted r 1550 from a woman for four sites for her children, but had handed over only r 600 to the headman When the woman protested because she only received two PTO’s the man s plotting came out The kgord told him to pay the difference, and fined him r 300 and a live cow for his insulting behaviour Up to now this account has concentrated on headmen allocating land, as this is what happens most often and is considered by people as the right procedure (73 % of the people find that the chief should allocate land, 14 % speak of a democratically elected council, 9 % of the government and 4 % of the TLC’s). Nevertheless, the responsibility to allocate residential sites was officially shifted to the TLC's in March 1999. One agricultural official doubts the wisdom of this decision; 'These TLC's know nothing Interview Mr Phoku, 7-6-1999 ' R Ralau, 27-7-1999 about land. And now people are sufTering, waiting for residential sites and not knowing where to go”.'*̂ There are also others involved in the allocation of land: in some cases agricultural officers give out PTO’s directly and in one instance the civics have taken it upon them to give out sites. For free, much to the fury of the local headman."” Whilst the allocation of land for residential sites causes many problems, handing out sites for development projects, where the financial stakes are often high leads to even more trouble. When it comes to small development projects, the land is often allocated by the Tribal Council. People wishing to start a poultry project, a new church or a cultural village must explain their case in front of the council that generally hardly looks at the merits of the project but instead questions the applicants on whether they have paid the r 100 for the coronation and the house of the chief'''' If a project seems too big for the council it is sent to the TLC. What constitutes ‘too big’ here is a matter of discretion; someone who wanted to open a holiday resort, for instance, was sent on to the TLC because of the involvement of a white person in the planning If a development project is taken up by the TLC, it usually involves the “proclamation” of the land involved by Tribal Resolution to ensure a more secure title. This is a procedure based on the Informal Protection of Land Rights Act, through which an area is proclaimed as ‘township’ and its inhabitants can thus receive indtvidual titles A Tribal Resolution was issued in the case of Jane Furse Plaza, where mosate received an undisclosed amount of money from the contractor for such a resolution, in the case of the Jane Furse Fjousing Project, where mosate was paid r 100.000 and in the cases of the library, the hospital and a clinic. This is because most government departments consider such a Tribal Resolution a precondition for a project. Although the Department of Land Affairs holds the position that “the rightful ownership of communal land vests not in chiefs, tribal authorities or committees but in the members of the group which holds the land”"** and that land can only be disposed of by a “majority o f those present or represented at a properly constituted meeting”"*’ this does not seem the practice in the Mamone traditional authority. Community members complain that they have not been consulted on the setting aside of tribal land for projects as Plaza and the hospital “The constitution says that no-one's land can be taken away without negotiating So many projects are initiated without us knowing We must complain These developers came to mosate, just discussed with the council and the community knows nothing Now we’ve allowed the council and mosate to speak on our behalf but they don’t negotiate or consult with us’’"** Interview P Mhahlele. agricultural extension officer. 24-7*1999 This is the case in Eenzaam see also the next pages Based on council meetings on 18-5-1999, 15-6-1999 and 13-7-1999 Council meeting 15-6-1999 '** Department of Land Affairs. Interim Procedures Governing Land Development Decisions Which Require The Consent Of The Minister Of Land Affairs As Nominal Owner Of The Land, quoted on: http //w3sli wcape gov za/indexNet htm Ibid and Informal Protection of Land Rights Act Meeting on the tribal constitution, 13-6-1999 Instead, Tnbal Resolutions can be validly signed in a closed meeting with the TLC, the project steering committee, and a representative of the chief or the chief himself^'"' The problems caused by this insecure and little-understood legal position combined with various factions competing over control of a ‘traditional community’, are graphically illustrated by the case of the Kenzaam Housing Project, which 1 will recount in some detail: THE EENZAAM HOUSING PROJECT Driving along the long, dusty road to what must be one of the most desolate and dry places in Sekhukhune one passes a billboard with colourHil images of people building together and a cheerful “Housing Project, r 7.5 million allocated” splashed over it, planted firmly in a field with bristle dried-up maize It is hard to imagine that this board has caused a controversy that involves provincial politicians and has nearly led to war and bloodshed. The Eenzaam Housing Project was applied for in 1996 by members of the civics, frail young boys with - due to the high unemployment - little else to do “It was not that we needed houses, but we thought of it as a way to get water and electricity”. They never applied to Mamone moiaie for permission, as the Commissioner who once visited the village in the 1970s had said that “this land belongs to me. not to the chief’ The project was approved by the Department of Housing, but it took about two years for the application to be processed During that period the village headman and some elders, long weary of the civics who had started allocating land for Ifee, went to Mamone and applied for the same land to be designated as ploughing fields They also joined the sjambok-wielding vigilante organisation Mapogo a Mathamaga to protect them The youth were surprised and consulted a lawyer about obtaining a court interdict to stop them from ploughing, but he advised to “just leave those people as they are softening the soil for the building” When one day in June 1999 the Department planted the infamous board on those maize- fields a violent fight erupted between the youth, gathered in the civics, and their elders, who were ploughing the fields The village headman called Mamone moMte, which immediately saw an excellent reason to restore law and order in this remote and rebellious pan of its territory In a heated meeting around the Mamone thomtree the villagers vowed to go to war with these “youth who think the soil that was paid for with the blood of our ancestors belongs to God or to them” and it was only after Ntwampe Sekwali received advice from both his lawyers and his ancestors against it that they decided not to go and bum the bulldozers Instead, a series of meetings was held between the TLC, the builders, the civics and representatives of the headman and mosaie Whilst the Eenzaam youth, delighted with this excitement in their otherwise dull lives, toyi-toyied outside in t-shirts saying “the youth shall overcome” and “leaders are bom, not produced” the stakeholders pondered over the question whether mosaie had or had not given permission Those in favour of the project claimed that a Tribal Resolution had been signed and that someone had stood up and signed on behalf of the chief “And who are we to question such a guy'’ These chiefs can hold us all at ransom anyway”, shrugged the Afrikaner builder In another version, some people in the coiridors whispered that the mayor of the TLC. who had just bought himself a new Mercedez-Benz, might well have attempted to forge permission on his own And vehemently denied ever having agreed to the project Finally, a truce was agreed upon Mamone m u^te would redebate the possibility of proclaiming land for the Housing Project The builders would await the outcome, with the possibility of the Housing Department’s permission expiring in the meantime '' Interview town plannei h Schoeman, 9-7-1999 The tribal council and the li C hold similar poiiiions Of the many themes that surface in this account - the tensions between youth and elders, the insecunty concerning the status of land, the control of mosaie over a satellite village one seems particularly significant the issue of representation The legal system, in dealing with group rights, appears to presume that communities are homogeneous entities and that one person can represent' the community and convey its will However, in the case above as in many others, it is far from clear who can represent the chief and who can represent a community IV. T w o BU l.LS IN O NE K R ,\A L ? TH E TRA D ITIO N A L AUTHO RITY AND LOCAL CO V ERN M EN T 9 This issue o f ‘representing the community’ is also central in the position of the traditional authority in local government. As is well-known, traditional authonties were awarded a multitude of local government functions under the Apartheid regime, and made into ventable autocrats in their areas As no new Traditional Authority Act’ is in place as yet and practically none of the old legislation has been repealed, the traditional authorities from a legal point of view still have these functions, which range from “public health” and “the eradication of weeds” to “the unauthorized influx of blacks into urban areas’’̂ . But, in addition, the post-Apartheid era has seen the eleetion of TLC’s, Transitional Local Councils, with many of the same and overlapping functions. The question arises as to what extent the traditional authority still carries out the local government functions that the law holds it responsible for, and to what extent the elected local government has taken over these functions The Mamone Tribal Office is about four times as large as the TLC office, which lies just a few kilometers away from it. It is staffed by two full-time tribal clerks, two tribal cleaners and one driver At present these are paid for by the tribal authority, but they are - justifiably - pleading to be considered government enmloyees, just like the traditional leaders, and to receive the benefits that come with that. ' The office has a large meeting hall - with the tribal totem of a porcupine [tainted on one of the wall - in which the Tnbal Council meets fortnightly, twice as often as the TLC. It is difficult to uncover the yearly budget of the traditional authority, as parts are administered by mosate and others by the Department of Traditional Affairs on behalf of the traditional authority, but it must be considerable. Although the councillors are not officially paid by the government - a long­ standing complaint of the Lebowa headman - a r 18 000 stipend received from the government was divided amongst them last year. It is an interesting exercise to present the tribal clerk with a list of the functions legally ascribed to it and to enquire whether these are - still - carried out. Issues concerning public health, for instance, are normally raised by the community at the tribal office, which then acts as an intermediary between them and the Department of Health or the hospital. “The registration of the persons in his area or of taxpayers and the collection of Regulations Prescribing the Duties, Powers, Privileges and Conditions of service of Chiefs and Headmen. Proclamation 110 of 1957 Traditional leaders have been designated public servants in terms of the Remuneration of Public Servants Act taxes, rates or levies”^̂ , a central function underpinning Apartheid policies is only carried out in a piecemeal fashion. Some people will still register births, marriages and deaths at the tribal office but others will go straight to the Department of Home Affairs Many people in Mamone pay the marriage levy of r 60, which also entitles the couple to a stand, but others never appear at the office In agricultural issues like “the eradication of animal diseases by dipping” and the “use of commonages” the tribal office has a long-standing relation with the Department of Agriculture and acts - as in so many other cases - as a one-stop-shop for government officials. Although the function of “the efficient use of the labour resources of his area and the control of work seekers” has a particularly outdated ring to it, the traditional leader does entertain relations with long-standing employers Douglas Collery Mines, for instance, contributed r 100.000 to the coronation of the king and entertained his majesty in their members-only club house before his enthronement, Many environmental tasks, like “the preservation of flora and fauna and of water supplies” are still felt as the responsibility of the tribal authority: one old man at the kguro, for instance, is responsible for writing letters of permission, with the chiefly stamp, for the cutting of trees. Also, the tribal office furnishes stockowners with certificates of proof The many functions concerning the public order like “the prevention, detection and the punishment of crime” will be dealt with in the next paragraph but the police does still regularly make a turn at the tribal office and the chief has a book in which to note down unruly tribesmen Generally speaking, the tribal office is a fundamentally administrative organ, that - for a r 20 fee - types out any certificates that people ask for and gives them the bureaucratic weight of the royal stamp In many cases, like the registration of births and the furnishing of all sorts of certificates, this assistance is optional. It is only when it comes to land allocation and - in the eyes of the people - starting a development project that they must engage the services of the tribal office Nevertheless, the tnbal office is well-gstablished as a local government body and often the first port o f call if people have any queries. The contrast with the Greater Ngwantsi Makhudu-Thamaga TLC is striking in various ways This TLC serves a much larger area than Mamone alone but only has one administrator with two assistants The councillors, most of them teachers, receive an allowance of about r 1500 monthly, less than a quarter of what the traditional leader pockets. Due to their employment elsewhere, the councillors are normally only available in the afternoons, and have a council meeting once a month. Although the Constitution allocates the local governments a vast array of functions - from "air pollution” to “water services”^̂ - they have not been given the institutional muscle to match. Many functions are carried out by the larger and more capacitated Distnct Council instead It is interesting to dwell a bit on peoples opinions on TLC’s and development. Table I contains a list of some local government functions, as descnbed in the constitution, and the opinions of the people as to whom should perform these functions The majority of the people holds the TLC responsible for most issues, with exceptions when it comes to “democratic government” (this burden seems shared), “a safe environment” and “community involvement in decision-making”. As discussed before, the chief is held S Prociamalion 110 of 1957 All the limctions quoted here are named in this proclarnalion which in turn is based on the Black Admisiration Act of 1927 and the Black Authorities Act of 1951 See the B sections of Schedule 4 and 5 of the Constitution, Act 108 of i99t> responsible for issues concerning land, particularly building regulations (61 %) Table II gives an overview of how people see the recent changes in their lives Although life has, according to 54 % o f the respondents, got “better” or “a bit better”, they do not credit the TLC for this: 50 % of the people who know the TLC (68 %) think that they have done “badly”, whilst 37 % is neutral and only 13 % gives a positive response. Table I: Who do you think is responsible for providing the following issues? (n = 121, percentages rounded o f f ) \ \ ho is respoiisihle for prm idiiig......... ? I K Kgdsi Politiciil parlies ( is ics mcnt + others Olh ers Democratic government 29% 22% 25 % 21 % 1 % 2% 1 % Services 44% 18% 18% 15% - 3»(, 2% Soc-econ development 61 % 9% 17% 9% - 1 % 3 “-o Safe/healthy environment 20% 18% 10% 49 % - 2% 2 % Community involvement in decision-making 21 % 31 % 27 % 19% - 2% - Preschools 60% II % 3 % 20% 1 % 3% 3% Electricity 71 % 11 % 3% 8% 1 % 6% 1 % Clinics 68% 11 % 4% 9% 1 % 7% - Tourism 53 % 6% 8% 27 % 1 % 5% - Water 77% 12 % 3% 6% - 3% - Roads 68 % 17% 5% 4% . 6% 1 % Trading regulations 42 % 31 % 8»'i> 9% - 9% 2% Building regulations 18% 61 % 3 % 12 % - 4»''o 3 % Table II: How has life changed since the 1994 elections when it comes to the following subjects? (n = 121, percentages rounded o f f ) 1 his is..... Miieh worse W orse Still the si\ me Better Much belter Access to schooling 3% 2 ? i 37 “,o 46 % 13% Access to water 16% 3% 45% 23 % 14% Access to electricity 13% 2% 42 % 4% 40% Access to jobs 78 % II % 8»/o 3 % 1 % Financial situation 87 »/o 3% 9% 3% - General situation 12% 7% 28 % 48% 6% The criticism is particularly vehement, with people writing things like: “I don't think we have elected these guys to drive around in Mercedes Benz’ with nonsense girlfriends whilst not delivering to us. Our elected leaders have turned out to be just thieves, some thugs” and “these leaders must stop taking bribes from the community” and “the Northern Province must send its anti-corruption unit to this place to clean it out” '̂' People tell many tales of bribery, fueled by the sudden wealth of the - as we have seen - meagerly paid councillors For instance, many people speak of having to bribe TLC- olTicials to get a job in development projects In one project, a councillor allegedly received r 45 per day for each worker but only paid the people r 20 There is a case pending against the mayor for stealing bricks from a site where a - still unfinished - school was being built. And the Jane Furse Housing RDP-housing project has mysteriously come to include 250 commercially sold middle-income houses instead of the planned low-cost houses. Respondents were also asked to comment on the relation between TLC’s and traditional leaders. As we have seen m the discussion of the Eenzaam Housing Project, this relation is strenuous, wtth land as the central bone of contention. 54 % of the people finds that the TLC and the traditional leader don’t work together well, 29 % doesn’t know and only 17 % is positive about this relation “This co-operation is not healthy: how can the government employ two bulls in one kraal and expect them to deliver?” , “They have been like cats and dogs since the uprising of the black power in 1986 against magosi as informers of the Apartheid regime” and "I think their relation is poor because the members of the TLC are very young and arrogant and they steal very much” Generally, there is a great deal of uncertainty within the TLC’s and the traditional authorities about their respective powers. As the tribal clerk remarks: “How do we know what to do^ We were never given a job description”/’̂ In some cases, like the maintenance of roads, a vacuum has arisen after 1994, with the traditional authonties being told that they are not responsible for this function anymore but the TLC’s not picking it up either Both bulls receive financial and institutional support for carrying out certain functions and seek to expand their circle of influence on the basis of this support V. R e n e g o t ia t in g r u l e : c u s t o m a r y l a w in m a m o n e Whereas it is government policy to install wall-to-wall elected local government all through South Africa and thus weaken the role of traditional leaders m this field, the situation when it comes to customary law is slightly different The government is at present toying with the idea of strengthening the traditional courts and making them “courts of first instance” m the rural areas?^ This would not really be a departure from the present situation, in which parties are expected to take certain cases to the traditional court before being able to appeal to the magistrates court Whilst policy-makers and academics nationally debate the future and role of traditional law and the institutions that administer it, a similar discussion takes place within the Mamone traditional authority The consequences of the advent of a new chief Tales of bribery are rampant, iueled by ihe sudden wealth of ibe - as we have seen - meagerly paid councillors For instance, many people speak of having lo bribe fLC-olTicials to get a job in a development project In one project, a councillor allegedly received r 45 per day for each worker but only paid the people r 20 There is a case pending against the mayor for stealing bricks from a siie where a - still unlmished - school was built And Ihe Jane Furse Housing RUP-housmg project has mysteriously come to include ” 4-6-1999 “ See South Atfican law Commission, (1999) Report on The Harmonisation of the Common Law and Indigenous Law I raditional Courts and the Judicial Function ot Traditional l.eaders and of democracy on the local normative system are debated within two fora. In the Wednesday kgoro the old men, seated between the marula and the thorn tree, use every case that is brought in to debate and restate material and procedural norms Less haphazard is the process on Sundays, when the Commission on the Tnhal Constitutum seeks to consult community members on a variety of issues considered related to customary law in order to draw up a comprehensive tribal constitution. Let us start by looking at the kgoro. This body has been functioning again since January 1999 and - partly due to the active promotion of it by the chief and his advisors - adjudicates one or more cases every Wednesday. Most cases are about land issues or fights within the faqiily As we have already dwelled on some land-related cases, three examples of other cases adjudicated by the kgoro will be recounted here: I On the 30* of June a man who had threatened to kill his wife for being disobedient was summoned by his alarmed in-laws to come to the kgoro In a protracted discussion he was accused of philandering and of beating his wife. He ended up publicly admitting guilt and paying a r 50 fine The woman was taken home by her family, to await a motseta - messenger - to call her back to the house once her husband had cooled down II. On the 4* of July the kgoro looked into marital disputes within a woman-marriage Women sometimes marry other women, for instance when they have no children of their own to perpetuate the family name In this case the older woman, considered the husband because “a woman who marries a woman becomes a man” refused to maintain her wife's children, and wanted a divorce The kgoro, however, does not grant divorces and only “builds families" They decided that the women should make peace and that the younger woman had a right to go to the maintenance court if her “husband” did not fulfil her duties III On the 7* of July two boys came to the kgoro, asking that their stepmother should leave the house now that their father had died. This led to a long discussion on the question whether this stepmother could be considered a seantto, a replacement of the boy’s mother who was thus entitled to inherit the yard This was. the men concluded, indeed the case and the woman should be allowed to stay Together with the children, because the kgoro is there to promote family unity A great deal has been written about customary law as a process, instead of a body of fixed rules This, in the Mamone case, does not only go for the material norms applied, but also for the procedures followed. It might be because of the recent renaissance of the traditional court, but it still debates issues like: Can a woman alone take a case to the court? Does a case have to start with a discussion between families? Does the chief himself have to give the verdict on the basis of the discussion or can it be one of the royal advisors? Nevertheless, cases do follow a general pattern They are set in motion by a letter to the tribal office or to mosate and are introduced to the kgoro by the royal advisors whilst both families get a chance to speak after that Subsequently the case is “handed over to the kgoro", and everyone present can comment on its merits After having discus.sed all aspects of a case, a phase of “building” starts in which the men debate a solution. This solution is summarized by the royal advisors, or taken to the chief who usually confirms it It is then whispered into the ears of both parties by their respective hatseta - go-betweens who communicate to the kgoro whether the parties accept the solution In addition to a fine for wrong, parties are often expected to pay r 50,- “to disperse the kgoro", an amount which is put between two stones so that no one can stick it in his pocket, and used for food or drinks afterwards In looking at the material norms applied in the kgdro cases, one finds the same mix of fluctuating norms arising out of the power relations that underly a particular case and relatively fixed patterns. A great deal of the justice dispensed is based on “common sense” rather than specific norms: “ We know how lo settle cases by listening to our grandfathers But also, anyone in the right mind can settle disputes. Don’t you do the same when your children are fighting? You know how to sit down and talk to them You don't have to go to school for that, its just common sense. You’ll find that our solutions ditTer per case, that’s why we need a tribal constitution”'^ The fact that norms "are tailored to suit the case concerned is presented by some as a good thing “the kgosi knows us all and he can come to the right decision on the basis of your background”. Nevertheless, there are some general rules, values underlying the individual processes, that transpire in many different cases The most important one is the general aim of restoring relations and seeking harmony. Out of this flow rules like the fact that the kgoro does not allow parties to divorce. This rule is captured in a saying - "lebilla la momdt ke bugadi" (a woman’s grave is where she is married) - like many other of the more general rules / e/uo la molho ke kgomo, for instance: he who insults a man will be fined a cow Bui even if a rule is well-established, its application can be selective, a generally disliked and arrogant man was fined a cow for insulting someone by walking away during ihe kgoro. whilst many others who did the same did not face such an outrageous fine fhis bias IS ihe most imponanl reason that 51 “o of the res()ondents say that they do not like the traditional court ' I hey decide your ease on ihe basis of your properties " or ■'the chief will alway s judge m favour otThe rich people and the ones close to him” The lack of proper legal’ background is also berated by some ”1 hey do not have the proper legal jargon and are just using their heads ” Of the 49 "o of the people who do look upon the kgoro positively, many come up with the same reasons: “they can reach a good decision because they know you” They consider the kgoro to be materially better than the magistrates court: “At mosaie you are being judged by many people and in only one day” and "the kgdii knows how to settle people’s cases in their language and in their culture”. The fact that one does not need a lawyer, and cannot be locked up are also frequently named as positive aspects of the customary court Nevertheless, the jurisdiction of the chief is clearly defined in the eyes of the people: he should try marriage matters (59 To''*), family matters (87 %), land issues (56 %), small theft (87 %), assault cases (83 %) and issues concerning witchcraft (74 %) The magistrate, in contrast, is the person to go to with cases like maintenance matters (92 To) and large theft (93 %) These responses are in line with the judicial powers of traditional leaders as defined m the Black Administration Act “ It is only issues like "crimen iniuria’ (defamation of character) and pretended witchcraft’ which the law lays with the magistrate but people see as within the jurisdiction of the customary court Inierview bakgoina and bakgomana, 22-7-19^)9 30-6-1999 of ihe respondents would lake ihis type of case lo the customary court tlrsl ^ Act 38 of 1927 Act 13 of 1955 gives a list of the olTences that may not be tried by chiefs, langing from Treason and rape to man stealing One imporlant issue to be dealt with, not only in Mamone but also in the general discussion on the jurisdiction of customary courts, is that of corporal punishment The Mamone kgord still regularly administers this sanction, in forms varying from a few lashes with freshly-cut twigs on the buttocks of young boys who stole watermelons*"' to a ferocious beating of a perceived ‘enemy-of-state’. As the support (59 %) for the ‘sjambok vigilantes' Mapogo a Mathamaga indicates, many people consider corporal punishment the only way to restore law and order in a time of decaying morals and cheeky youngsters: “What do you do.when a donkey suddenly doesn't want to walk anymore'’ You hit it, that's the only way to rflove forward And people are sometimes like donkeys. Some walk without problems, and you never have to touch them But those who stand still what else can you do with them'’"*’̂ The indignation that arises when - other - state institutions question the nght of the Mamone traditional authority to beat up its citizen is graphically illustrated by the case of Jerry Lethamaga, which has already been quoted a few times. The case of Jerry Lethamaga (continued) A few weeks after Jerry opened the case for assault against mosate, the kgord was visited by policemen seeking to promote the Community Policing Forums They were greeted with a great deal of suspicion - “why should we have these CPF’s, can’t the police do their own job’’’’ - and told that ‘The police knows where people drink water here at mokue We have a problem with the police here and sort issues out in the traditional way There are more people who report cases at mowte than at the police olTice Why’’ Because they have confidence in us We don’t trust the police When we beat that man up he went to report to you and now you are protecting him On whose side arc vou’’" In a later kg<}rd meeting the issue was raised again ' There is dissent in the satellite villages People say that thev arc not mied bv us anymore, even if they arc staving on our land If we don t open our eves we II end up ruling Mamone only ’ I he best thing to do with someone like Jerry is to “not be scared of anyone, get that guy’s stulT and dump him on the tarred road to never come back here again We are the kgord. protected by God and the ancestors ” In the light of these sentiments it was not surprising that a first appearance in the magistrate's court of the members accused of beating Jerry up was turned into a show-down between Mamone and the State A large group of men gathered in the kgord, to first listen to a peptalk about how “we are warriors, not scared of anyone” before - after the blowing of the bugle - departing for the Nebo Magistrates Office, swinging branches and singing songs of war Once the case had been opened and immediately suspended, the group decided to pass by Mokwete and linger around threateningly in front of Jerry’s house before going back to the kgord - where women served them calebashes brimming with traditional beer. Next to corporal punishment, another issue to be debated by ptolicy-makers on traditional courts is the possibdity of ‘opting out’ of the traditional sphere Although the magistrate’s court and the kgord take antagonistic positions in the case above, the magistrate generally helps in reinforcing the position of the kgord: he sends cases that he considers within the jurisdiction of the chief back to him “If someone from a traditional area comes here with a divorce issue, a family matter or a dispute over land, I send them back to their chief Kgoro 7-7-l99<) Inerview Mr Manaleng, 22-7-1999 See introduction and p 14 (after note 40) They normally come here first because they complain that those people are biased, but we hardly ever see them back here” *''* This standpoint is often recounted in Mamone with people fearfully claiming that “if you go to the magistrate first he will send you straight back to mosate" and the leaders of the kgoro clamping down hard on people who tned to by-pass them. Another problem which has already surfaced in some of the above accounts is the position of women in the kgoro. Whether they are allowed to bring in their own cases is debated. What is sure is that they can only act as witnesses in a particular case and not adjudicate cases general They are expected to remain seated outside the kgoro and - if they do have to speak - do so on their knees with their eyes lowered. O f the respondents 49 % feels that the kgoro discriminates women (54 % of the women and 43 % of th e ' men): “ It is how we found things to be. A woman should always respect a man and not argue with him and never dress in trousers Thafs why today so many things are wrong ” Many people admit that women are discriminated but feel it is justifiable, giving reasons like “a woman is a woman and she will remain property of a man as long as the bible says that she was made from the rib of a man”; “No trousers on my wife’s body, and she can't be allowed at the kgoro to stand up and speak: it's our culture as blacks” and even things as “what if she stands up to talk and her dress goes up and we all have a free show” or “what if she starts menstruating in court'.’” Many women seem acquiescent, agreeing with the cards culture has shook them or reasoning that “at least we can talk m the schools and other places” Issues as corporal punishment, the possibility of opting out’ of the traditional sphere and the position of woman do not just concern national policy-makers, but are also debated within the local sphere The ( ommission on the Tribal I 'onsutunon (CTC) has engaged in a brave etfort to redebate customary law within the context of the national Constitution In doing so, it takes a much more holistic en progressive approach than the kgoro. which renegotiates traditional rule on the basis of individual cases and generally takes a more reactionary standpoint The CTC, as we have seen, consists of what may be deemed the organic intellectuals of Mamone village: teachers who are also members of the sehuba (lit: breast, royal family) and of the ANC, and who actively seek to draw these structures closer together for the sake of the development of the village: “We have a newly enthroned chief, who needs the support of the community It will be ditTicull for him to rule people who know much about consiilulional values, especially as these were noi considered in the past But we must now be together, also in issues like development Muguit still have an imponant role to play here, they are a symbol of unity and custodians of culture and iradiiions Without them we would be lost Some of these traditions do have advantages, and they should be retained, especially if they are not unconstitutional It is important lo unify people around something that they understand and believe m Like alter the initiation school the whole village unites and no-one complains” ‘ Interview magistrate Ramoiwala. 17-6-1999 ' Interview Mr Selala, member CTC, 11-7-1999 o Writing the Tribal Constitution is expected to be a lengthy process The CTC commenced with a workshop in which all village ‘structures’ - ranging from churches to women’s societies, from youth clubs to organisations of traditional healers -- debated customary law in the context of the South African Constitution. The delegates zealously pored over the legal text and debated issues as whether m oihuhd, working on the fields of the chief, could be considered ‘forced labour’ in terms of s 13 of the Constitution "But we are doing this freely, no-one is forcing us’’, complained one old man Subsequently the CTC drew up a paper with points to be discussed, ranging from the political structure of the traditional authority to the Bapedi heritage and development structures (see illustration III) This will be the point of departure in meetings with the various magdro (personally organised groups), the organisations of migrants, the satellite villages and other structures The first of these meetings saw heated debates around issues as the relations between various organs of the traditional authority, the procedures surrounding circumcision schools, the question as to whether Christians should be allowed to wear traditional clothes and who owns the land. The general impression that arises from these meetings is that of the fluidity of tradition’: not only is there a debate on what is the real tradition - for instance, who are members of the royal family - but also on what it should be. Although members o f the CTC idealistically stale that "the chief will enjoy it if we tell him how we'd like to be ruled He is our child, we must teach him how to rule us. We decided that we as schooled young people should better sit down and wnte a draft constitution mo.sate, not surprisingly, awaits the outcome of the process before commenting upon it. One CTC-member explains this by pointing out that; "It’s really not surprising that morale doesn't want to be a part of this They benefit out of this confusion Like now there is no consultation on the question of land But a tribal resolution should be public And we can never see Billy, they always throw up obstacles this creates problems and also space for some other people"*’ It appears as though the traditional authonty is more than aware of the power that lies in definition, and the possibility of changing a social constellation through the mere act of defining it ’ Meeting CTC, II-7-1W9 ' Ibid III. Discussion topics tribal constitution (translated from Sepedi) Policy guidelines - Meetings on the Tribal Constitution in Mamone ❖ M a n a g e m e n t Structure - royal palace - council - messengers - traditional leadership - the kgoro's - marrying a candle wife - the initiation school - dispute resolution - the management o f the satellite villages ❖ La n d PLANNING AND n a t u r e CONSERVATION ^ • Residences - cemetries - fields - grazing - business sites - immigrants ❖ Culture AND TRAomoN Totem - history - heritage - initiation school - clothes - working at mosate - mahlakort and dibego (wedding gifts to the chief) - taboos - names -■ powers o f women ❖ Sports AND ART Songs - dances - games - clothes - art • ' : ^ ❖ Education ❖ ❖ H e a l t h AND SANITATION Sanitation - water - clinics ' J ❖ Rel ig io n Traditional doctors - spirit mediums - Christianity - clinics D e v e l o p m e n t Structures - resources These topics are not binding and as a guideline for discussion only o 9 This last observation brings us back to issues of policy and to our original question: to what extent is the position of traditional authority in Mamone determined by outside intlucnces ~ ranging from laws to government policies - and to what extent does it follow its own, internal dynamics? Firstly, a remark on the strength of traditional authority in Mamone should be made Within the South African state, the Mamone traditional authority can be considered a separate sphere However, this sphere is far from uniform. Because of the topic of this paper, its emphasis, has been on the traditional authority itself and its seat of power: Mamone village Nevertheless, as strong as the position of traditional authority might be in Mamone, it is markedly weaker in other places falling under the traditional authority People in Jane Furse remark that they live ‘location-style’, without a chief, whilst people in the satellite villages complain about the return of traditional rule after decades of managing their own business. 88 % of the people has never attended a case at Mamone mosaic and 39 % of the people feels that hogosi has no role to play in the new South Africa. This being said, the coronation of a new chief has caused some sweeping changes in the Mamone traditional authority. Various fractions in society have set about reinstalling ‘traditional law and order’: through reviving the kgoro, trying to strengthen support for the chief in the satellite villages and engaging in power struggles with other state institutions like the magistrates court, the police and the TLC. Even the process of writing a tribal constitution can be said to be sparked as much by the coronation of the new chief as by the advent of democracy in South Africa. In rebuilding the structure of traditional authority the fractions considered could strongly rely on outside support. The Apartheid policy of “decentralized despotism” and the “containerization of natives”'’* has left enough remnants for ethnic entrepreneurs to rebuild traditional authority as a considerable force in local power politics This can best be understood by considering law, institutional support and finances as resources in the quest for local power It has become clear that the traditional authority can still boast many of these resources In the ‘fight between two bulls’ with the TLC, for instance, the traditional authority can still rely on a large budget and considerable legal powers The TLC’s hesitant start and - often - malfunctioning creates a vacuum in which the traditional authority can manifest itself The legal Insecurity in this transitional phase, with the old crumbling apart and the new not yet bom, leaves power-mongerers of all designations ample chances for strengthening their position. In the field o f customary law the State has left the traditional authority with even more considerable armaments, and a culture in which citizens are obliged to use the customary court as their first port of call But, institutions and finances aside, there is another, more intricate and substantial, resource on which the Mamone traditional authority can rely A resource that makes that the traditional authority is not merely a stmeture buttressed from the outside but that it also leans comfortably on some inside pillars: a continued support for traditional governance Many of the people quoted in the account above believe that traditional authority constitutes good governance, sometimes even more so than its alternatives Mamdani, M (19%) Cilizen and Subject contemporary Africa and the legacy of lale colonialism Princeton, Princeton University Press, passim Those people who like the traditional court do so because they believe it dispenses a better, substantially and procedurally more equitable type of justice than the magistrates court. 73 % of the people believe that the land should be held in trust by the chief and that - however much they want security of tenure - it is his right to hand it out. It is somewhere between these two images of traditional leadership - a crumbling remnant of the past buttressed from the outside by laws and policies or, alternatively, a separate sphere resting easily on its own moral foundations and merits - that the answer to our question lies. Much, in this case, can be learnt by looking at the problems caused by the laws of the past We have seen, for instance, the problems caused by the assumption underlying many laws that a ‘traditional authority’ is a homogeneous entity, to be represented by its chief In the Mamone traditional authority the traditional leader is but one small actor - all be it beefed up by the law. Who can represent the chief, or who can represent the community, is a subject to ongoing debate This is where the challenge for policy makers lies: in the recognition of not only the diversity between traditional authonties, but also within them The more policies will hook onto local dynamics, the more chance of success they will have. But ultimately all policies will be no more than resources in the local power-play Like the 1996 South African constitution, they will have to be redebated and renegotiated at the local level, and moulded to suit local interests and aspirations n