Contested Power and Apartheid Tribal Boundaries: The Implications of 'Living Customary Law' for Fixed Boundaries

Abstract

"The interface between state and customary law in South Africa has been the subject of much recent litigation in the South African Constitutional Court. The paper describes and reflects on the opportunities created by the emerging jurisprudence of 'living customary law' for asserting and protecting customary entitlements to land in the face of controversial new laws that bolster the authority of traditional leaders within fixed jurisdictional boundaries coinciding with the former 'homelands'. It examines the impact of the fixed and exclusionary nature of these boundaries (of land, and identity) on the flexible (more inclusive) nature of 'nested' boundaries within and at the interface with local more or less 'customary' systems. It argues that the new laws attempt to 'outsource' the governance of the poorest South Africans and in so doing undermine not only their citizenship rights but also indigenous accountability mechanisms inherent in the consensual character and flexible boundaries of 'living customary law'. It contrasts the 'real world' substantive approach to issues of power and inequality adopted by the Constitutional Court with the bounded top-down view of customary law that informs the new traditional leadership laws."