Legal brief Environmental: SANRAL challenges AmaPondo Communities’ capacity to appoint lawyers18 September 2015
By Danjelle Midgley, Candidate Attorney
Lawyers for SANRAL and the Sigidi and Mdatya Communities of the Amadiba Administrative Area in Pondoland in the Wild Coast region of the Eastern Cape will appear in the North Gauteng High Court next month as part of the case regarding the proposed construction of a tolled highway through the Wild Coast.
This hearing involves the rights of the Amadiba Communities to access the law and participate in legal processes concerning their land. At the heart of this application is the ability of communities to appoint lawyers and have the legal standing to approach a court.
SANRAL has argued that the Communities do not have legal standing in terms of common law and that their lawyers are not authorised to act for them. The Applicants (who include a member of the Baleni Community, the Sigidi and Mdatya Communities and the Amadiba Tribal Authority) argue that the Communities have locus standi under section 32 of NEMA and section 38 of the Constitution.
This case has important implications regarding the judicial recognition of traditional decision-making processes, and the rights of people and communities living under customary law to access justice in the courts.
The Centre for Law and Society has applied to join the proceedings to assist the court in determining deeper questions about the flexibility of customary law, its relationship to statute, the nature of customary land rights and the proper method for determining the content of customary law.