With the new Zulu king due to be crowned in the next few days, some in the royal family are still contesting his legitimacy, in the process raising a plethora of concerns and questions about the future of traditional leadership in the country.
The public fight surrounding the Zulu kingship is causing more harm than good to customary law, the institution of traditional leadership and our constitutional framework.
For those who may not be aware, the system of traditional leadership enjoys full recognition in terms of chapter 12 of our Constitution.
It is for this reason that, since the dawn of democracy, there have been numerous processes to restore the dignity of the system of traditional leadership, including undoing some of the distortions created by colonialism and apartheid.
It is important to appreciate that there are many African communities that practise traditional leadership and that live in accordance with traditional systems. These communities hold traditional and cultural practices, some of which are sacrosanct, dear.
The erosion of the system of customary law and traditional leadership in these communities will translate into a total erosion of their traditional and cultural values and practices.
One of the major shortcomings of, and probably the consequence of, these unending disputes for traditional leadership is lack of focus on the true value of customary law, traditional leadership and its strategic role in society.
While the system of traditional leadership is subject to the Constitution, its recognition does not limit its strategic role in advancing transformation, facilitating development and building cohesive communities.
By their very nature, the systems of traditional leadership and customary law have their own mechanisms to resolve disputes within both royal families and traditional communities.
The fact that those involved in the disputes are unable to apply established traditional and customary norms suggests that those systems and norms are being abrogated.
While the courts have dealt with many traditional leadership disputes since the advent of democracy, the dispute between king-elect Misuzulu kaZwelithini and some members of the royal family has assumed extraordinary proportions. It has gone beyond a normal traditional leadership dispute to a dispute about the customary laws and norms of the Zulu people.
The various court applications brought since the passing of king Goodwill Zwelithini kaBhekuzulu last year indicate that either for his entire reign there were smouldering embers of tension and dissatisfaction which were never dealt with, or that a section of the royal household either misinterprets or rejects some of the established customs and norms.
It may also point to pure opportunistic tendencies that have developed since the dawn of democracy.
It is also clear that the kingship will be managed through court orders and that the royal family may never again be united.
It is unheard of in African custom that parallel sacred rituals for the king can be performed by two groups for the same purpose.
Being ushered into the sacred kraal at the Enyokeni Royal Palace in Nongoma is the last rite before a prince or king designate is officially crowned.
Prince Simakade’s move to pre-empt Misuzulu followed the unsuccessful attempt to interdict the coronation of the latter.
The implication is that the contender and his supporters may be planning their own coronation. This may be in total violation of customs and customary laws. In olden, less stable times, it would have led to open war.
It is clear that not only Zulu customs and practices but also the law will be undermined in pursuit of this dispute.
But beyond that, and regardless of the court judgments, the primary objective of building the unity of the communities under the kingship will be severely compromised. This may even lead to community conflicts.
A pertinent subject that has been raised many times when there arise issues involving traditional leaders and customary law disputes, and/or when traditional leaders are in conflict with the law, is that many have attacked either the law or the courts, saying they subject traditional communities to Roman-Dutch law.
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As a matter of clarity, Roman-Dutch law is no longer part of our common law. The main sources of our law are the Constitution, the statutes and customary law.
This issue is important because traditional communities that practise customary law often opt not to use their customary law systems to resolve their disputes, instead opting to approach the courts of law.
There can be no doubt that Zulu customary law and its system have mechanisms to resolve the disputes that are engulfing the royal household.
The obvious question is: Why are these systems not being exhausted to resolve the dispute?
As a traditional institution, those who are aggrieved ought to have exhausted the processes of the National House of Traditional Leaders and abided by its rulings, or, at the very least, resorted to the courts for the review of the ruling of the House.
If those who claim to be traditional leaders and who profess to practise the system of traditional leadership do not recognise and respect their own institutions, who do they expect must do so?
Our law and customary law do not approve of self-help. The fact that one is not happy about the decisions of recognised structures such as those of the royal household or the courts does not justify taking the law into one’s own hands.
This, first, suggests poor ethical leadership and sets a bad example. Second, it undermines the very foundations of the system of traditional leadership and customary law.
It is important, as the Constitutional Court stated, that customary law comes before traditional leadership. It is therefore customary law that creates the system of traditional leadership, not vice versa.
Therefore, those who aspire to derive the full benefit of traditional leadership must first accept and practice customary law.
The Zulu kingdom can only have one king, and that king will require a certificate of recognition issued by the president. The president does not, in law, appoint a traditional leader, but recognises one appointed by a royal family in accordance with its customary laws.
When a dispute has been adjudicated by a court, the outcome thereof is binding. In a constitutional democracy, no person, including the president, may undermine or disregard a judgment of the court.
There is, however, an important lesson for all other traditional communities to learn. It is an absolute necessity that the customs and customary laws of communities be documented and safely kept. This changing environment requires that a proper record of these customs and customary laws be maintained to avoid misinterpretations and distortions, and as part of restoring the dignity of the system of customary law and traditional leadership.
One of the primary objectives of both colonialism and apartheid was to disrupt the way of life of traditional communities and their customary law. The Constitution has provided a proper mechanism to restore this and advance the proper transformation of the system.
It is unfortunate that a system that has survived the onslaught of colonialism and apartheid is now being made to disintegrate at the instance of its own adherence.
Mannya is an attorney, a legal scholar, a commentator and the author of Lessons from Charlotte MakgomoMannya-Maxeke