South African Constitutional Law PDF

South African constitutional law in context 1.1 Introduction 1.2 The historical-legal context: from colonial conquest to democracy 1.2.1 Pre-Union developments 1.2.2 The Union of South Africa and the bifurcated state 1.3 The transition to democracy 1.3.1 The run-up to the ﬁrst democratic election 1.3.2 CODESA, the MPNF and the two-stage transition 1.3.3 Drafting and adoption of the ﬁnal 1996 Constitution 1.4 The South African Constitution of 1996 1.4.1 The transformative nature of the Constitution 1.4.2 Interpretation of the South African Constitution 1.4.3 Context: an inegalitarian society and a one-party dominant democracy Summary 1.1 Introduction A constitution is often said to be the founding document of a nation as the authority of the state is derived from it. It sets up the structures of government and authorises as well as regulates the exercise of power by the elected branches of government and the judiciary (and, in some instances, private institutions and individuals). It also places limits on the exercise of that power and sets out the ground rules according to which a country must be governed. However, democratic constitutions are not mere technical legal documents that contain detailed provisions prescribing the manner in which the legislature, the executive, the judiciary and other organs of state exercise public power and setting limits on the exercise of those powers to protect citizens. Hence, we cannot proﬁtably study the constitutional law of a democratic state in the abstract, as if the historical context out of which the constitution emerged and the current social, economic and political realities of this state have no bearing on an interpretation and evaluation of the various provisions of a written constitution. 1 Nor can we ignore the broader global context within which the constitution operates. Constitutional law can therefore arguably be described as the most ‘political’ branch of the law. In critically evaluating the manner in which constitutions actually operate in practice and in judging the successes and failures of various aspects of a constitutional design, we should start with, but cannot exclusively rely on, the text of the constitution to gain a comprehensive picture of how this constitution operates. We also need to consider the wider context in which that constitutional text ﬁnds application. Constitutions are often said to represent a snapshot of the hopes and dreams of a nation at the time of its writing or – more cynically – to represent a snapshot of the relative political power and inﬂuence of various political formations involved in the drafting of that constitution. However, constitutions are also living documents that judges have to interpret and apply in an ever-changing political, economic and social environment. A constitutional text often contains open-ended and relatively general language. In constitutional democracies, therefore, judges have to interpret, apply and ﬂesh out the meaning of the constitutional text. The interpretation and application of the various provisions of a constitution will not necessarily remain static. Judges will often reinterpret and reapply the text. These judges are, after all, human beings who do not ﬂoat above the world like disembodied ghosts completely untouched by the society in which they live. Judges are the products of the society in which they live. They will, despite their best eﬀorts, interpret the often open- ended and general provisions of a constitution in ways that are not entirely ‘objective’ and may change over time as social, economic and political circumstances change. Many of the justices of South Africa’s Constitutional Court have tentatively acknowledged the open- ended nature of the language of the South African Constitution. They have admitted that there may be a need to refer to extra-legal values and texts, including the South African political context and history, to justify their decisions. PAUSE FOR REFLECTION Approaches to interpreting a constitution In the ﬁrst decision handed down by the Constitutional Court of South Africa in S v Zuma and Others, Kentridge J signalled an awareness of (but skirted) the issue of what judges should do when confronted with a constitutional text that contains sometimes vague and open-ended phrases when he remarked: I am well aware of the fallacy of supposing that general language must have a single ‘objective’ meaning. Nor is it easy to avoid the inﬂuence of one’s personal intellectual and moral preconceptions. But it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean.2 One of the most perplexing questions in law relates to the manner in which judges should interpret the often open-ended or even vague provisions of a constitution. If judges merely make the constitution mean whatever they wish it to mean, they will be accused of being politicians and not judges. If they are not constrained by the text of the constitution or by other extra-legal but objective criteria, their decisions may lack legitimacy as judges are not elected and cannot be seen to make up the meaning of the constitution as they go along. This is why judges often state that they are constrained by the text of the constitution and, if the text is vague, why judges resort to factors such as context or the history of a country to give meaning to the provisions in a constitution. In this chapter we therefore discuss the constitutional history of South Africa, a history that has been dominated by colonialism and apartheid and the resulting struggle for freedom and democracy which ﬁnally led to the adoption of South Africa’s 1996 Constitution. We explore the manner in which the South African Constitution came into being and the nature of South Africa’s transition from an authoritarian race-based autocracy to a constitutional democracy. We also explore the current social, political and economic context within which the South African Constitution must operate, We focus, in particular, on the legacy of apartheid and the role of political parties in South Africa’s current one-party dominant democracy. 3 We then brieﬂy introduce the main features of the South African Constitution and pose questions about how this Constitution may be classiﬁed and how it should be interpreted. 1.2 The historical-legal context: from colonial conquest to democracy South Africa’s political history is often wrongly said to have begun in 1652 when Jan van Riebeeck arrived in South Africa and the process of colonisation formally commenced. Similarly, South Africa’s constitutional history is often said to have begun in 1910 when the South African state in its present form was created and the Union of South Africa came into existence with the passing of the Union of South Africa Act, 1909 (the South Africa Act or the Union Constitution) by the British Parliament. 4 This decidedly colonial approach to history, which views history through the eyes of those settlers who arrived in South Africa from Europe, is no longer viewed as either tenable or credible. It ignores the fact that Khoisan-speaking hunters and herders already occupied western parts of the country while agro-pastoralists occupied large parts of the eastern part of the country at the time when settlers from Western Europe arrived at the southern tip of Africa. 5 However, it is diﬀicult not to revert to colonial imposed markers when discussing the historical context out of which the modern democratic state in South Africa emerged. There are a number of reasons for this. First, pre-colonial history was never written down. Second, there is insuﬀicient clarity about the multitude of governing structures through which pre-colonial indigenous populations of South Africa governed themselves. Third, South Africa with its current borders legally came into existence only in 1910. In the section that follows we nevertheless attempt to draw attention to the fact that South Africa’s political and legal history can be viewed through various lenses and that we cannot ignore the legal pluralistic nature of South African society and legal culture when discussing the historical context out of which South Africa’s 1996 Constitution emerged. 1.2.1 Pre-Union developments It is important to understand the complex nature of pre-democratic governance structures in South Africa as these structures continue to have an eﬀect on South Africa’s democratic constitutional order. A number of centrally governed societies emerged in the geographical territory now known as South Africa from the seventeenth century onwards. In colonial enclaves in the Cape in the western parts of the region and in parts of Natal in the east, the development of constitutional forms mirrored those of other British colonies with large European settler populations. In the Cape, executive government emerged with a British-appointed Governor and an advisory council of white settlers. In 1853, this developed into a representative form of government with an appointed Governor but an elected legislature. Finally, in 1872, a system of responsible government emerged with a Governor-General representing the British Crown and an elected legislature whose support was needed for the formation of an executive council. 6 This meant that locally representative executives governed these territories, but the British-appointed Governor-General had to approve legislation. The Governor-General, in eﬀect, had a veto power over bills which could be exercised on the advice of the British government. Moreover, the British government also had the power to ‘disallow’ bills passed by the colonial legislatures within a period of one year from the date the bill was passed. This in eﬀect nulliﬁed these bills. 7 The governance structures therefore mirrored the Westminster system in place in Britain although the arrangement retained ﬁnal control over the colonies for the British government. Nevertheless, these governing structures ﬁrmly established the principle of the supremacy of the legislature on South African soil. 8 This meant that the legislature by and large had a free hand to pass any legislation it wished as long as it followed the requisite procedures. Courts were not empowered to test the laws passed by the legislature against a bill of rights and could not declare legislation invalid even where that legislation infringed on the rights of citizens. To the north of the Cape, two Boer Republics (the Orange Free State and the South African Republic, also known as the Transvaal Republic) emerged in the mid-nineteenth century. Both these Republics rejected the Westminster system described above. Under the inﬂuence of the constitutions of the United States, France and the Netherlands, the Boer Republics embraced a form of governance based on the principle of the separation of powers with directly elected presidents. The Orange Free State also had a justiciable Bill of Rights that guaranteed rights of peaceful assembly, petition, property and equality before the law. In addition, rigid rules were prescribed for the amendment of the Orange Free State Constitution of 1854. 9 However, despite the fact that the Orange Free State Constitution formally recognised the right of courts to review legislation, this power was used only once. Moreover, the protections in the Constitution were of limited application as they were interpreted to be reserved for white males only. 10 This early tentative experiment in constitutionalism was thus tainted by a notion of racial citizenship which later came to dominate constitutional law and practice in a uniﬁed South Africa. 11 In the South African Republic (Transvaal), the Constitution of 1858 was blatantly racist. It provided that ‘the People desire to permit no equality between coloured people and white inhabitants, either in Church or State’. 12 In the Transvaal, an attempt in 1892 by Chief Justice JG Kotze to review and strike down legislation of the legislature (Volksraad) on the basis that it conﬂicted with the Constitution created a constitutional crisis. 13 President Paul Kruger rejected the right of the court to review and strike down legislation and eventually ﬁred the Chief Justice. When swearing in a new Chief Justice, President Kruger warned the judges that ‘the testing right is a principle of the devil’, which the devil had introduced into paradise to test God’s word. 14 Those parts of South Africa not directly subjected to colonial domination exhibited various forms of indigenous governance structures loosely centred on the concept of chiefdoms. These chiefdoms usually had a similar governance hierarchy consisting of a chief, a paramount chief or a king. Below them were headmen who were representatives of leading families. Headmen were responsible for aﬀairs within a deﬁned geographical area and reported to the chief. The chief, together with his headmen, constituted a council. Below the chief and headmen were family or kraal heads. The chief’s role was to adjudicate disputes fairly and to provide for the well-being of his people by applying a living customary law which developed through its application by chiefs. To empower the chief to meet his obligations, he was vested with secular powers and was granted certain privileges that he was entitled to exercise. 15 The selection of a chief was rooted in ancestry and traditional leaders were born into the role rather than selected and trained. We must be careful not to evaluate the traditional leadership structures through the lens of Western-imposed governance structures. It is therefore not proﬁtable to evaluate these structures with reference to concepts such as the separation of powers or parliamentary sovereignty. Nevertheless, although chiefs had wide powers, these were not unlimited. Chiefs were generally required to consult with their councillors in certain matters and were always required to act for the beneﬁt of their people. 16 Potential challenges to the oﬀice of the chief also acted as an incentive to ensure that chiefs acted appropriately. 17 The emergence of the Zulu Kingdom, which eventually spanned large parts of what is now known as KwaZulu-Natal, represents a modiﬁcation to this governance model. The Zulu Kingdom began with the reign of Dingiswayo, Chief of the Mthethwa, who ruled from 1808 to 1818. King Dingiswayo conquered several chiefdoms with the assistance of a reorganised military. This had important sociopolitical implications since it weakened the inﬂuence of territorially based kinship relations. Dingiswayo also changed the political order by centralising power over the conquered area. 18 After the death of King Dingiswayo, King Shaka seized power. Shaka gathered a large number of chiefdoms into one entity and incorporated the defeated troops into the Zulu military. Although some chiefdoms were able to disperse into other territories, Shaka’s wars resulted in the merging of some 300 formerly independent chiefdoms into the Zulu Kingdom. Shaka ordered his warriors to remain unmarried and controlled the organisation of his military regiments. This further weakened traditional kinship ties and the powers of the elders in favour of his central authority. However, the purported authoritarian rule of Shaka still relied on a delicate system of delegated chieﬂy powers. Shaka was assisted by a staﬀ of chiefs who surrounded him in the royal kraal (a territorial dwelling unit with the house of the King located at the centre). While Shaka needed the chiefs to execute his will, he was careful to limit their eﬀective powers and it is argued that he stirred rivalry among them so that they would check one another but never dispute his will. 19 COUNTER POINT Diﬀerent viewpoints on the evaluation of indigenous governance structures There is a fundamental diﬀerence between the governance structures of the indigenous societies of South Africa and the governance structures imposed by the British colonial regime. Some commentators argue that the indigenous structures valued community and the relationships between individuals and groups. This mitigated what may appear from the vantage point of the modern state to be an autocratic and undemocratic arrangement. Chiefs relied on the goodwill of their subjects, so it is argued, and hence were required to rule wisely and humanely. Where this did not happen, chiefs could be removed and this acted as a check on the power of the chiefs. Others point to the essentially patriarchal nature of the arrangement and contend that the arrangement was, at the very least, deeply sexist as it negated the role of women in society. When evaluating these various governance structures of the era, it would be diﬃcult to do so except through the distorted twenty-ﬁrst century lens. However, it can be argued that the governance structures of traditional indigenous societies in South Africa have something to oﬀer a South African constitutional law scholar as they are often said to have been based on a kind of communalism. This indirectly ﬁnds resonance in the co-operative government provisions in the modern South African Constitution. Nevertheless, if we judge these structures from the modern-day vantage point, they may seem problematic as they are not based on the same democratic principles that we take for granted in a modern constitutional state. The various forms of governance and the customary powers of traditional leaders described above remained largely intact as the British extended their colonial domination across southern Africa. Nevertheless, over time – as the territorial expansion of colonial governments proceeded apace – indigenous South Africans were increasingly subjected to the authority of the colonial powers. This led to a situation in which colonial governments became the primary source of the traditional leader’s authority. In 1894, the Glen Grey Act 20 was passed in the Cape Colony. This Act eﬀectively excluded the vast majority of Africans from the Cape Parliament. It also weakened the authority of the system of chiefs by replacing them with a system of government-appointed district councillors. In addition, the Act introduced separate ‘reserve’ areas where Africans were supposed to stay if they were not selling their labour to white-owned institutions in cities and towns. The Act was thus designed to set a pattern of African land-holding – individual plots in separate ‘reserves’ – throughout the ‘Cape African reserves’. 21 It assigned certain geographical areas for use by blacks and others for whites under a distorted version of the communal system of land tenure. The Glen Grey Act can therefore be said to be a forerunner of the more all-encompassing segregationist and apartheid measures, especially the creation of territorially separate areas for African occupation after 1910. 22 By 1903, the Native Aﬀairs Commission (the ‘Langden Commission’) had developed a vision for a future South African union based on the territorial segregation of black and white as a permanent mandatory feature of public life. 23 The Commission endorsed the practice of creating ‘native reserves’ and accepted the notion that this involved special obligations on their part to the colonial state. ‘Natives’ were seen as having special rights to these pieces of reserved land as the ‘ancestral land held by their forefathers’. ‘Native reserves’ were held communally and administered by tribal chiefs who were said to have transferred their sovereign rights over land and their absolute political authority to the Crown through a process of ‘peaceful annexation’. 24 The assumption of the ‘peaceful annexation’ of land was a ﬁction which served the interests of the colonial rulers. These developments set the scene for the formation of a bifurcated state when the various territories now known as South Africa were uniﬁed into the Union of South Africa in 1910 and can clearly be seen as the precursor for the elaborate system of apartheid. 25 PAUSE FOR REFLECTION Recognition of traditional governance structures in the Constitution Constitutional law textbooks have often ignored the governance structures of indigenous South Africans as well as the customary law applied by chiefs during the pre-Union period. They have tended to focus exclusively on the imposition of the Westminster model by the British and on the importation of Roman-Dutch and English common law. This is not surprising as such textbooks have been written from a Western perspective. Today, the Constitution partly recognises traditional governance structures. However, as we shall see, these traditional governance structures were transformed in their encounter with the colonial rulers and this aﬀected their development. These developments help to explain the present arrangement in South Africa in which traditional leaders and the application of customary law are made subject to the provisions of the 1996 Constitution. 1.2.2 The Union of South Africa and the bifurcated state After the British defeated the armies of the Boer Republics during the Anglo-Boer War of 1899–1902, the territory now known as South Africa largely came under the inﬂuence of the British government. However, as part of a policy of granting self-rule to white colonists in its various colonies, Britain facilitated negotiations that led to the formation of the Union of South Africa in 1910. Black South Africans were not invited to take part in these negotiations. This process of negotiation resulted in the drafting of the South Africa Act (the Union Constitution). This Act brought together the four settler colonies – Cape, Natal, Orange Free State and Transvaal – as well as the various indigenous groupings in South Africa in a single unitary state known as the Union of South Africa. The Constitution establishing the Union in essence granted parliamentary democracy to the white minority within the borders of present-day South Africa. However, this settlement largely ignored the political aspirations of indigenous South Africans and subjugated the black majority to autocratic administrative rule. It is true that the drafters of the Union Constitution reached a compromise that allowed the Cape to retain its provision for limited voting rights for black citizens. 26 However, the northern provinces were allowed to exclude all participation by black South Africans in the electoral process. The retention of this very limited franchise for black South Africans in the Cape did not change the essentially racist and paternalistic nature of the founding Constitution of South Africa. African society was presented as essentially ‘traditional’ and was to be governed by chiefs under the paternalistic ‘protection’ of the white government. The South African polity was therefore divided into two distinct spheres – one white and one black. This reﬂected the colonial character of South Africa’s legal culture in which ‘professed legalism with its accompanying rhetoric of justice’ coexisted with the racist abuse of power by the state. 27 Thus section 147 of the Union Constitution stated that the ‘control and administration of native aﬀairs … throughout the Union shall vest in the Governor- General in Council’. The Governor-General in Council was given ‘all special powers in regard to native administration’. This ‘colonialism of a special’ type thus established a Westminster-style parliamentary system. Under this system, a pseudo-democratic white state co-existed with an authoritarian order in which the majority of the country’s people lived under a classic system of colonial indirect rule. 28 Traditional versions of South Africa’s constitutional history produced before 1994 ignore this bifurcated nature of the South African state between 1910 and 1994. 29 As noted above, the Constitution establishing the Union of South Africa was largely applicable to white citizens only. This Constitution followed the British model and opted for a Westminster-style system of parliamentary government and a form of parliamentary supremacy. The Union Parliament consisted of two Houses, the House of Assembly and the Senate. The House of Assembly was directly elected by the limited number of male citizens who had the right to vote. The members of the Senate were partly indirectly elected by the House of Assembly and partly nominated. South Africa was also established as a unitary state rather than a federal state. However, the four former colonies were retained in the form of four provinces and each province had equal representation in the Senate. The most striking aspect of the Union Constitution was, however, the fact that it retained a system of parliamentary supremacy. Despite this, the South African legislature was restrained, initially at least, in two important ways which imposed limits on the sovereignty of the newly created Parliament. First, until the British Parliament adopted the Statute of Westminster in 1931, Parliament was, in theory, still bound by the provisions of the Colonial Laws Validity Act, 1865. This meant that the Union Parliament could not legislate extraterritorially or in a manner repugnant to any Act of the British Parliament which had been made applicable in South Africa. All bills passed by the South African Parliament had to be sent to the Governor- General (as representative of the British Crown) for assent before they could become law. The Governor-General could assent to the bill, refuse his assent or reserve it for the King’s decision. The King made his decision based on the advice of the British cabinet. The British monarch also had the power to disallow a bill within one year after the bill had received the assent of the Governor-General, a power once again exercised on the advice of the British cabinet. In practice, little or no control was ever exercised and the powers referred to above were never used before they were scrapped by the Statute of Westminster. 30 Second, a small number of clauses in the Union Constitution required Parliament to use a special procedure before they could be amended. These entrenched sections protected the limited franchise for blacks in the Cape 31 and the guarantee of the equality of the two oﬀicial languages (English and Dutch). 32 Thus, Parliament could amend any section of the Constitution with a simple majority in each of the Houses of Parliament sitting separately. However, section 152 of the Union Constitution required that any alteration of the above sections (as well as section 152 itself) would only be valid if the bill was passed by both Houses of Parliament sitting together and agreed to at the third reading of the bill by not less than two-thirds of the total number of members of both Houses. 33 Despite the procedural protection of the limited franchise, all African voters (those who lived in the Cape Province and had retained their right to vote in the deal struck in 1909) were nevertheless removed from the common voters roll and given separate representation in 1936. 34 The Union’s ﬁrst full-blown constitutional crisis arose after the National Party (NP) narrowly won the parliamentary election in 1948 on the basis, among others, that it would impose absolute racial segregation on South Africa. In 1951, the NP attempted to remove ‘coloured’ voters from the common voters roll by adopting the Separate Representation of Voters Act. 35 A group of voters challenged the Act on the basis that the procedure required by section 152 of the Union Constitution was not used. In Harris and Others v Minister of the Interior and Another,36 a unanimous Appellate Division (AD) found that the Separate Representation of Voters Act was of no force because the correct procedure had not been used to pass the amendments. After further legislative and judicial manoeuvres, in which the NP was again thwarted, it increased the size of the AD from ﬁve to 11 judges and also increased the size of the Senate. When this legislative move was again challenged in Collins v Minister of the Interior,37 10 of the 11 judges upheld the challenged amendments to the Union Constitution. 38 This brought an end to the limited voting rights enjoyed by black South Africans and until partial reforms were introduced in 1983, only white South Africans could vote in parliamentary elections. In 1958, the whites-only Parliament adopted the South Africa Amendment Act. 39 This Act prohibited any court of law in South Africa from enquiring ‘into or … pronounc[ing] upon the validity of any law passed by Parliament’ other than those aﬀecting the clause dealing with the two oﬀicial languages. 40 When South Africa became a Republic in 1961, a new constitution was adopted which conﬁrmed the supremacy of Parliament. Section 59 of the 1961 Constitution thus stated that: ‘Parliament shall be the sovereign legislative authority in and over the Republic, and shall have full power to make laws for the peace, order and good government of the Republic’. This extreme form of parliamentary supremacy, which became dominant in South Africa after 1948 and the rise of Afrikaner nationalism, is said to have ‘brought about the debasement of the South African legal system’ and brought it to its ‘logical and brutal conclusion’ to the detriment of a respect for human rights. 41 However, it may well be argued that it was the combination of this extreme form of parliamentary sovereignty and the inherently racist nature of the bifurcated constitutional system which gave the South African state its particularly brutal character before the advent of democracy in 1994. COUNTER POINT An extreme version of parliamentary sovereignty In Sachs v Minister of Justice; Diamond v Minister of Justice,42 the AD had to consider the validity of a banning order issued by the Minister in terms of the relevant provisions of an applicable Act. Banning orders prohibited a person from being present in speciﬁc areas because the Minister was satisﬁed that the person ‘is in any area promoting feelings of hostility between the European inhabitants of the Union on the one hand and any other section of the inhabitants of the Union on the other hand’.43 Banning orders were a powerful tool used by the authorities to restrict the political activities of those opposed to the policies of the government. In rejecting the challenge to the banning order, Stratford ACJ made the following statement about the nature of parliamentary sovereignty in South Africa: [O]nce we are satisﬁed on a construction of the Act, that it gives to the Minister an unfettered discretion, it is no function of a Court of law to curtail its scope in the least degree, indeed it would be quite improper to do so. The above observation is, perhaps, so trite that it needs no statement, yet in cases before the Courts when the exercise of a statutory discretion is challenged, arguments are sometimes advanced which do seem to me to ignore the plain principle that Parliament may make any encroachment it chooses upon the life, liberty or property of any individual subject to its sway, and that it is the function of courts of law to enforce its will. In the present case we were referred to many decisions dealing with the exercise of discretionary powers. In this division, at all events, no decision aﬃrms the right of a Court to interfere with the honest exercise of a duly conferred discretion. For the sake of greater caution I should perhaps add, that in exercising a conferred discretion, the procedure laid down in terms of its grant must, of course, be observed as essential conditions of its exercise. Interferences when they have occurred are justiﬁed on one of two broad grounds, either that (a) the exercise has not been honest or (b) that the discretionary power has been exceeded.44 The view expressed by Stratford ACJ represents an extreme version of the nature of parliamentary sovereignty. It is also far less compatible with the notion of democracy than a view which limits the power of the legislature to adopt legislation that encroaches on the rights of citizens and allows judges to review and set aside legislation and the actions of members of the executive if this is needed to protect and safeguard the rights of individuals. This is because democracy itself can be subverted if the rights of citizens to exercise their democratic rights are not protected. After the Union of South Africa was established in 1910, the bifurcated nature of the South African state led to the adoption of several laws by the Union Parliament aimed at developing legal mechanisms to entrench further a classic form of indirect colonial rule. The Black Administration Act of 1927 (BAA)45 was a lynchpin in this system which reaﬀirmed the rule of chiefs within so-called ‘reserves’ and that subordinated their rule to the power of the ‘white’ government and its oﬀicials. 46 The BAA made the Governor-General the supreme chief with the authority to create and divide tribes and appoint any person he chose as chief or headman – even in the face of popular opposition from a community. 47 The BAA to some extent built on the Glen Grey Act and further subverted the traditional governance structures based on chiefs selected via kinship. It allowed for the appointment of traditional leaders from outside the ruling families, creating scope for a body of government lackeys, who were compliant with entrenched party political interests, to assume the role of traditional leader. It has been remarked that the BAA: was intended to shore up the remains of chieftaincy in a country- wide policy of indirect rule, which would allow for segregation in the administration of justice. The policy was aptly named ‘retribalisation’, giving chiefs the semblance of power and hoping that this would safeguard the allegiance and acquiescence of the Reserve residents. 48 The BAA conferred civil jurisdiction on chiefs who could apply the customary law to their subjects in most private law civil disputes. However, in practice, Africans had a choice of courts to which they could take their civil case – the magistrates’ courts or the chieﬂy authority. The magistrates obviously wielded much more power than the chiefs in relation to the central government, but the chiefs were given a niche in the local arm of administration which ‘they seized with alacrity’. 49 As the conﬁdence of the ruling NP government grew in the years after 1948, it stepped up political repression while simultaneously trying to create a system based on ethnic nationalism within a tribal context. Thus, the implementation of a system of indirect rule accelerated with the adoption of the Bantu Authorities Act 50 in 1951 and, by 1959, legislation which created a system of homelands. 51 The system divided South Africa into several ‘self-governing’ territories where each ethnic group was accommodated in a separate homeland (the former ‘native reserves’). These homelands were envisaged as the sole mechanisms through which Africans would be able to exercise their political aspirations. People classiﬁed as ‘coloured’ or ‘Indian’ were not accommodated in this system at all. Eventually, certain of the homelands were granted ‘independent’ status52 but other homelands never achieved or refused to take up an oﬀer of ‘independence’. Chiefs held half the seats in the legislative assembly of the homelands ex oﬀicio and thus assured the leading parties of support. 53 It is important to note that this social engineering had devastating consequences for the traditional governing structures of indigenous South Africans. It transformed chiefs by bringing them directly into the service of the state. It became more and more diﬀicult for chiefs to claim legitimacy, to win respect from their followers and to implement the provisions of the Bantu Authorities Act at the same time. 54 With the advent of democracy, the role of traditional leaders, and especially chiefs, has become controversial given the manner in which the system was manipulated during the colonial and apartheid eras. This role is perceived to be inherently undemocratic and patriarchal as it is both hereditary and reserved for men. 55 However, despite concerns surrounding the undemocratic essence of tribal leadership, it remains an important part of South Africa’s cultural heritage which, despite allegations of corruption, receives some popular support. 56 By the late 1970s, the apartheid state had come under increasing pressure both internally and externally as opposition and resistance to apartheid and white minority rule increased and the struggle for freedom by the black majority gathered momentum. 57 In response, the apartheid government of Prime Minister PW Botha (who became Prime Minister in 1979) opted for a process of so-called ‘reform’ to try to reincorporate people classiﬁed as ‘Indian’ and ‘coloured’ under the apartheid system into the political system. This led to the 1983 Constitution58 which extended the franchise to coloureds and Indians in a tricameral legislature. This new constitutional system (whose introduction was ﬁercely resisted by the majority of South Africans) created three separate Houses of Parliament: one chamber for whites, one for Indians and one for coloureds. The jurisdiction for each House was distributed according to whether an issue dealt with an ‘own’ aﬀair or ‘general’ aﬀair. Own aﬀairs were vaguely deﬁned and were deemed to be matters ‘which specially or diﬀerentially aﬀect a population group in relation to the maintenance of its identity, traditions and customs’. 59 Each House was given powers to deal exclusively with these ‘own aﬀairs’. ‘General aﬀairs’ were deﬁned as matters which were not own aﬀairs. 60 The white minority government retained control of this system through a provision in the Constitution that stated that the State President took the ﬁnal decision on whether an issue dealt with an own aﬀair or a general aﬀair. 61 Each House enacted legislation dealing with ‘own aﬀairs’ related to its race group while all three Houses of Parliament dealt with general aﬀairs. However, in eﬀect, the tricameral Constitution ensured that the exercise of power would remain ﬁrmly entrenched in the hands of the dominant white majority party – the National Party. This was done, ﬁrst, by centralising the running of the government under the State President who was given

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