The Legitimacy of Traditional Leaders in Democracies

2021 ◽  
Vol 20 (6) ◽  
pp. 779-809
Author(s):  
Shimreisa Chahongnao
Keyword(s):  
South Africa ◽  
Linguistic Analysis ◽  
Customary Law ◽  
Traditional Leaders ◽  
Underlying Basis ◽  
British Colonies

Abstract This study analyses the issue of legitimacy that unfolds to understand the authority claims of traditional leaders underpinned by customary law in contrast to modern law and legislations in the democracies of two erstwhile British colonies: South Africa and the Tangkhul Nagas of India and Myanmar. The study enquires: if the warrant of modern and traditional law, the fulcrum of traditional leaders’ legitimacy, is questioned in the democratic dispensation, what is the underlying basis of legitimacy that makes traditional leaders resilient? It employs historical, cultural and linguistic analysis to understand how traditional leaders mediate legitimacy. It concludes that cultural cognitive categories like metaphors and aphorisms are instrumental in leveraging the legitimacy claims of traditional leaders across countries.

Justice versus Social Justice in South Africa: Quo vadis?

2021 ◽  
Vol 6 (1) ◽  
Author(s):  
Marelize Isabel Schoeman
Keyword(s):  
South Africa ◽  
Social Justice ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Lessons Learned ◽  
Historical Discourse ◽  
Self Reflection ◽  
Underlying Basis ◽  
Quo Vadis

This article explores the concept of criminal justice as a formal process in which parties are judged and often adjudged from the paradigmatic perspective of legal guilt versus legal innocence. While this function of a criminal-justice system is important – and indeed necessary – in any ordered society, a society in transition such as South Africa must question the underlying basis of justice. This self-reflection must include an overview questioning whether the criminal-justice system and its rules are serving the community as originally intended or have become a self-serving function of state in which the final pursuit is outcome-driven as opposed to process-driven. The process of reflection must invariably find its genesis in the question: ‘What is justice?’ While this rhetorical phraseology has become trite through overuse, the author submits that the question remains of prime importance when considered contemporarily but viewed through the lens of historical discourse in African philosophy. In essence, the question remains unanswered. Momentum is added to this debate by the recent movement towards a more human rights and restorative approach to justice as well as the increased recognition of traditional legal approaches to criminal justice. This discussion is wide and in order to delimit its scope the author relies on a Socratically influenced method of knowledge-mining to determine the philosophical principles underpinning the justice versus social justice discourse. It is proposed that lessons learned from African philosophies about justice and social justice can be integrated into modern-day justice systems and contribute to an ordered yet socially oriented approach to justice itself.

scholarly journals Schooled for Servitude: The Education of African Children in British Colonies, 1910–1990

Genealogy ◽  
2019 ◽  
Vol 3 (3) ◽  
pp. 40 ◽  
Author(s):  
Malisa ◽  
Missedja
Keyword(s):  
South Africa ◽  
British Empire ◽  
Race And Ethnicity ◽  
History Of Education ◽  
African Children ◽  
History Of ◽  
British Colonies ◽  
Education In Africa

Our paper examines the education of African children in countries that were colonized by Britain, including Ghana, South Africa, and Zimbabwe. We show how education plays an important role in shaping and transforming cultures and societies. Although the colonies received education, schools were segregated according to race and ethnicity, and were designed to produce racially stratified societies, while loyalty and allegiance to Britain were encouraged so that all felt they belonged to the British Empire or the Commonwealth. In writing about the education of African children in British colonies, the intention is not to convey the impression that education in Africa began with the arrival of the colonizers. Africans had their own system and history of education, but this changed with the incursion by missionaries, educators as well as conquest and colonialism.

scholarly journals MEDIASI DALAM PENYELESAIAN SENGKETA PADA MASYARAKAT HUKUM ADAT

2019 ◽  
Vol 6 (1) ◽  
pp. 8
Author(s):  
Wayan Resmini ◽  
Abdul Sakban
Keyword(s):  
Dispute Resolution ◽  
Indigenous Peoples ◽  
Low Cost ◽  
Customary Law ◽  
Common Interest ◽  
Peace Agreement ◽  
Traditional Leaders ◽  
Principles Of Justice ◽  
Life Philosophy ◽  
Sense Of Justice

Pengadilan, oleh masyarakat tidak lagi dilihat sebagai lembaga penyelesaiain sengketa satu-satunya. Saat ini keberadaan lembaga pengadilan sudah terindikasi dengan berbagai kasus korupsi, kolusi, dan nepotisme, yang lebih dikenal dengan istilah KKN. Hal ini mengingat banyak produk keputusan pengadilan yang menyimpang dari asas-asas keadilan, cepat dan berbiaya murah. Dalam konteks inilah diperlukan model alternative penyelesaian sengketa pada masyararakat hukum adat yang lebih efisien, adil serta akomodatif guna menjaga kelesterian dan keberlanjutan kehidupan masyarakat hukum adat, yang lebih manusiawi dan berkeadilan. Tradisi penyelesaian sengketa pada masyarakat hukum adat didasarkan pada nilai filosofi kebersamaan (komunal), pengorbanan, nilai supernatural, dan keadilan. Dalam masyarakat hukum adat kepentingan bersama merupakan filosofi hidup yang meresap pada setiap anggota masyarakat adat. Pelaksanaan hasil mediasi yang sudah disakralkan dihadapan tokoh adat, apalagi sudah dilakukan dengan suatu upacara adat (ritual), maka kesepakatan tersebut harus dilaksanakan dengan segera, bila salah satu pihak mengingkari atau tidak bersedia melaksanakan hasil mediasi, maka pihak tersebut akan mendapatkan sanksi adat dari masyarakat hukum adat. Sanksi adat diberikan atas pertimbangan, bahwa pengingkaran kesepakatan damai merupakan bentuk pengingkaran terhadap nilai dan rasa keadilan masyarakat hukum adat. Penjatuhan sanksi adat dijatuhkan oleh tokoh adat yang bertindak sebagai penjaga nilai keadilan dan warisan leluhur dalam masyarakat hukum adat.The court, by the community is no longer seen as the only dispute resolution agency. At present the existence of a court institution has been indicated by various cases of corruption, collusion and nepotism, which are better known as KKN. This is because there are many products of court decisions that deviate from the principles of justice, fast and low cost. In this context an alternative model of dispute resolution is needed in the customary law community that is more efficient, fair and accommodative in order to maintain the sustainability and sustainability of the life of indigenous peoples, who are more humane and just. The tradition of dispute resolution in indigenous peoples is based on the values of communal philosophy, sacrifice, supernatural values, and justice. In indigenous peoples the common interest is a life philosophy that permeates every member of the indigenous community. The implementation of the mediation results that have been sacred before traditional leaders, moreover has been done with a traditional ceremony (ritual), then the agreement must be carried out immediately, if one party denies or is unwilling to carry out the mediation results, the party will get customary sanctions from the community customary law. Customary sanctions are given for consideration, that the denial of a peace agreement is a form of denial of the values and sense of justice of indigenous peoples. The imposition of customary sanctions is imposed by traditional leaders who act as guardians of the value of justice and ancestral heritage in indigenous and tribal peoples. 

Case Note: The interface between customary rights and environmental legislation: Lessons from Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (SCA) 2018

2020 ◽  
Vol 26 ◽  
pp. 134-160
Author(s):  
Alexander Paterson
Keyword(s):  
South Africa ◽  
Natural Resources ◽  
Protected Area ◽  
Marine Protected Area ◽  
Customary Law ◽  
Constitutional Court ◽  
Eastern Cape ◽  
Customary Rights ◽  
The Republic ◽  
Law And Legislation

The Constitution of the Republic of South Africa, 1996, recognises customary law as an independent and original source of law, subject to the Constitution itself and legislation that specifically deals with customary law. As recognised by the Constitutional Court in Alexkor Ltd vs the Richtersveld Community (2004), customary law, as an independent source of law, may give rise to rights including rights to access and use natural resources. Rights to access and use natural resources are often comprehensively regulated by legislation. Conflicts between customary law and legislation relevant to natural resources may arise, as evidenced in the case of Mr Gongqose, who along with several other community members were caught fishing in the Dwesa-Cwebe Marine Protected Area situated off the Eastern Cape coastline. Notwithstanding their claims to be exercising their customary rights to fish in the area, they were convicted in the Magistrate’s Court for certain offences in terms of the Marine Living Resources Act (1998), under which the marine protected area had been established. Their appeal to the High Court proved unsuccessful and the Supreme Court of Appeal was tasked with considering the relationship between their customary rights to fish and legislation purportedly extinguishing these rights. The SCA’s judgment in Gongqose & Others vs Minister of Agriculture, Forestry and Fisheries & Others (2018) is the first of its kind in South Africa to consider the extinguishment of customary rights to access and use natural resources through post-constitutional legislation. This note critically considers the guidance the SCA provided on proving the existence of customary rights to access and use natural resources, and the manner in which they may be extinguished through legislation. While the focus is on marine living resources, the lessons emerging from this case are relevant to other natural resource sectors.

The Need for Culturally Responsive Mediation Practices to Enhance the Process and Outcomes of Mediation for Unmarried Fathers

2021 ◽  
Vol 33 (1) ◽  
Author(s):  
Razia Nordien-Lagardien ◽  
Blanche Pretorius ◽  
Susan Terblanche
Keyword(s):  
South Africa ◽  
Culturally Responsive ◽  
Customary Law ◽  
Significant Progress ◽  
Structured Interviews ◽  
Family Mediation ◽  
The Past ◽  
Explorative Study ◽  
Factors Influencing ◽  
Unmarried Fathers

The past decade has shown significant progress in family mediation services in South Africa, following the implementation of the amended Children’s Act of 2005, which has not fully considered issues relating to customary law and culture pertaining to mediation with unmarried fathers. A broader qualitative explorative study was undertaken to understand the experiences and perceptions of unmarried fathers, unmarried mothers and mediators regarding mediation. This article focuses on factors influencing the process and outcomes of mediation for unmarried fathers. Semi-structured interviews were conducted with a sample of seven unmarried fathers and eight mediators. Factors were identified that influence the process and outcomes of family mediation, of which culture, customary law and family dynamics are the focus of this article. Findings from Xhosa and Zulu participants in the study highlight the need for the inclusion of culturally responsive approaches to family mediation services by foregrounding issues relating to customary law, culture, and unmarried fathers.

Customary Law and Communal Property in South Africa

2018 ◽  
pp. 127-151
Author(s):  
Juanita M. Pienaar
Keyword(s):  
South Africa ◽  
Land Reform ◽  
Land Rights ◽  
Customary Law ◽  
Communal Property ◽  
Challenges And Opportunities ◽  
Constitutional Right ◽  
Communal Areas ◽  
Traditional Authorities ◽  
Recent Policy

In the geographical areas forming the focus of this contribution, the traditional communal areas in former Bantustan and homeland areas in South Africa, communal ownership flows from the application of customary law, linked to the constitutional right to culture. Living customary law, embedded in communities, entails a dynamic system of land rights which are negotiated in line with particular needs. Recent policy and legislative developments, however, seem to bolster rights of traditional authorities, thereby impacting on land rights and effectively negating spontaneous negotiation. Conceptual clarification in this contribution embodies the complexity linked to communal property, specifically land, in light of the aftermath of apartheid, the commencement of an all-encompassing land reform programme and the operation of a dual legal system comprising customary law and Western-style legal paradigms. The challenges and opportunities for law reform are explored in this context of inter-connectedness of customary law and communal property.

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