Round-table Symposium on Citizenship and Accountability: Litigating Customary Law and Traditional Leadership under South Africa’s Democratic Constitution

On 17 and 18 June 2019, the Land and Accountability Research Centre (LARC), together with the Bonavero Institute of Human Rights and the Programme for the Foundations of Law and Constitutional Government in Oxford, co-hosted a symposium at the University of Oxford. Lawyers, judges and academics discussed the questions that citizenship and accountability under customary law and traditional leadership pose for South Africa’s new democratic order and how these issues are litigated.

Advocate Tembeka Ngcukaitobi (chair), Professor Peter Delius and Dr. Aninka Claassens discuss “where are we now? The Constitution, traditional leaders and customary law”.

LARC researchers Ayesha Motala, Ramabina Mahapa and Zenande Booi attended and participated at the symposium.

Chief researcher at LARC, Dr. Aninka Claassens, discussed the Bills currently before Parliament, including the Traditional and Khoi-San Leadership Bill and Traditional Courts Bill. Aninka was joined by Professor Peter Delius (University of the Witwatersrand) who provided a historical overview of South African customary law and leadership.

LARC’s director, Nolundi Luwaya, participated on a panel together with Professor Thandabantu Nhlapo and former Constitutional Court Justice, Professor Kate O’Regan, to explain what living customary law is and how courts should identify and apply it.

Nick Barber (chair), former Constitutional Court Justice Professor Kate O’Regan, Professor Thandabantu Nhlapo and Nolundi Luwaya presenting on “what is living customary law? And how should the courts identify and apply it”.

LARC’s deputy director, Monica De Souza Louw, was a panelist in a discussion about the scope of chiefly power and presented her research on the conferral of power to perform state functions on chiefs.

Zenande Booi participated in a discussion on selected case studies and presented her paper on “Continued struggles for security of tenure in South Africa’s rural communities: illustrated by the Ingonyama Trust’s continued undermining of customary ownership rights”. Zenande was joined by Dominic Burbidge who spoke about the internal boundary disputes and title deeds in Kenya.

Monica De Souza Louw, Advocate Jason Brickhill (chair), and Advocate Michael Mbikiwa discussing the scope of chiefly power.

Professor Ben Cousins (chair) and Zenande Booi discussing contemporary struggles for security of tenure and the issue of recorded rights.

The symposium provided an opportunity for LARC to build and strengthen relationships within and outside of its working areas. Researchers were able to network with other academics and practitioners and learn about land struggles in the broader South African context and hear perspectives from Ghana and Kenya. The symposium culminated with a discussion about the ways forward and priority areas for advancing living customary law, presented by Advocates Tembeka Ngcukaitobi and Geoff Budlender.

Report compiled by: Ayesha Motala

Photographs taken by: Ayesha Motala and Monica De Souza Louw