Customary law in South Africa

South African customary law refers to that usually uncodified legal system developed and practised by the indigenous communities of South Africa. Customary law has been defined as

an established system of immemorial rules [...] evolved from the way of life and natural wants of the people, the general context of which was a matter of common knowledge, coupled with precedents applying to special cases, which were retained in the memories of the chief and his councilors, their sons and their sons' sons until forgotten, or until they became part of the immemorial rules.[1]

Officially, in terms of the Recognition of Customary Marriages Act,[2] "'customary law' means the customs and usages traditionally observed among the indigenous African peoples of South Africa and form part of the culture of those peoples."[3] There is no clear distinction, then, between the religion, the culture and the law of such peoples.

Constitutional recognition of customary law

Although there is the view that colonialists 'invented' customary law as a way to govern natives while under the auspices of paying tribute to their culture and heritage, some other writers have argued that customary law was not so much 'invented' by them, but 'manipulated' so as to conform the actual practices of the natives to their westernised ideals as part of their 'civilising mission'. These writers prefer to view the colonial influence more as 'imagination', rather than 'invention'.

Indirect rule and the genesis of official customary law

Whether imagination or invention, colonial actors had a significant impact on the existence and articulation of customary law. Native law was officially recognised in 1848 but only insofar as it did not infringe humanitarian principles of "civilised society" – understood to be white society in that day. The Kafir Commission (1852–1853) attempted to codify what they termed Kafir law and wanted this law to govern people. This was the colonists attempt to control the native tribes. The commission suggested that polygamy and lobolo be outlawed and that there be a more civil approach to the administration of native affairs. This suggestion was however not sustained.

Mahmood Mamdani has emphasised the importance of Theophilus Shepstone's role in creating the system known today as indirect rule and, with it, official customary law.[4] Mamdani named this system "decentralized despotism." This was a system whereby colonial authorities used customary law (which they felt at liberty to adapt from within its institutions and terms) as a form of rule over the majority black population. David Welsh argues that Shepstone's system of indirect rule formed the "roots of segregation in South Africa" – not only according to racial divisions but the system entrenched (or manufactured) ethnic divisions too. It provided a model for the rest of the country. After the first publication of the Natal Code the most notable commission of inquiry into customary law in Southern Africa took place in the Cape. At this inquiry Shepstone was consulted as the expert on the law of Africans in Natal.

Shepstone, as the highest colonial official in Natal, was responsible for all native affairs from the creation of the colony until his transfer to the Transvaal in 1877. Thomas McClendon broadly argues that one particular moment marked an important transition in the colonial state of Natal. This was the moment when Shepstone toured the African reserves of Natal to promulgate the "New Marriage Regulations and Fees of 1869." McClendon describes these regulations as "Draconian". These regulations asserted direct colonial control over African marriage practices, imposing large fees (taxes), limiting the payment of bride wealth and requiring an "official witness" appointed by the state to ensure that women entered into these marriages voluntarily and that new limits on bride wealth were not exceeded. These regulations challenged traditional African hierarchies and gender relations.[5] The state now set out to alter and directly regulate the practices and relationships within African society for the purpose of receiving more revenue from Africans.

McClendon sees this as an example of the colonial states' refusal to hear the complaints of its African subjects and the unrestrained ability of the state to reshape African social and political institutions through law. Despite Shepstone's claims of success the actual effect of the new regulations were uncertain at best. The standardisation of bride wealth fees seemed to lack practicality and "subjects" found creative ways to get beyond the limit while applying the letter of the law. Yet, it did have some effect. From hereon, "[t]he rituals of rule were to be less personal and more regular represented less by meetings and more by codes registers and account books." That is, government was moving away from the personal style of rule that Shepstone had, which emulated African chiefship, to a more bureaucratic and legalistic style of rule due to its increasing power and confidence. The codes referred to constitute what is now generally referred to as official customary law: a system of norms given expression by colonialists themselves, drawn in part from practices that they observed but also from restrictions placed on those practices by those in power. Account books are a metaphor for the economic strings that government pulled, that served as government's motivation in many ways. The stakes of colonialism had increased; discovery of diamonds in the 1860s in Griqualand accelerated and widened the colonial economy. This both created a vast need for cheap labour and expanded government's ability to tax natives who provided that wage labour.

Codification

Main article: Codification (law)

In all of the South African pre-union colonies, the object was to maintain control over conquered people. However there was much controversy over how to achieve this. Policies varied between strict assimilation and indirect rule in each of the colonies. There were sporadic attempts to codify Native law but due to the dynamic nature of living customary law (that is, the customary law that was lived by "native" peoples), this codification mostly served to shape future customary law artificially and dictated the administration of black populations, but not really the law they actually lived.[6]

For instance, a system of assimilation was attempted in Natal in that European officers were vested with the necessary legal powers to administer native populations. However as resources dwindled, indirect rule was employed, thus local laws were to be regarded as far as possible but always subject to a repugnancy clause.[7] Likewise, the Cape met customary law with a policy of assimilation. The assimilation was started by the abolition of slavery and lip service was given to the notion of 'rights to all', regardless of race.[8] The government set up a commission in 1880 to enquire into native laws and customs with the objective of codifying criminal and civil law. The manner in which knowledge of the customary law was gathered was similar to that of Natal and used administrative officials as the primary source of knowledge with additional reference to experts and missionaries and as a last resort chiefs and headmen. However, natives were never used as a source of information for their own culture.[9] However, many objections stifled assimilation, including the colonial objection to customary practices pertaining to inheritance and marriage, especially in regard to polygamy and bride prices.[10]

Similar to the trend in Natal and other colonies, in time, the inclination towards assimilation waned in the Cape Colony and the need for indirect rule became apparent. Controlling a conquered people required the maintenance of a tribal system and the regulation of natives by their own laws. However these laws were kept very general, which left gaps for the colonial authority to fill as they required.[11] The result was that the law for white persons was detailed, written and formal, whereas the law for black persons was simple, elastic and personal. This allowed for better control of natives.

The Northern Republics of South Africa (Transvaal and the Free State) were less inclined to allow or accommodate a system of African customary law that was separate to the Republican law. The Transvaal went to the extent of outlawing any polygamous marriage or a marriage that included bridewealth. With the British annexation in 1877, British policies of indirect rule changed the landscape of customary law recognition. To gain legitimacy and prevent "natives" from seeking justice from their own courts in rural areas, a native administration from Natal was sent to Transvaal. However as the occupation ended the Republican courts of Transvaal still refused to recognise any polygamous or customary marriages and indeed still did not provide for valid marriages for anyone but white people until 1897.[12] It was feared that recognising African people in the law would inadvertently elevate their status to that of white people's. Customary law was therefore left with this uncertain status.

"Native" Participation and the Repugnancy Principle

The historiography of customary law often fails to account for the ways that Africans continued to make their own history under the unelected conditions of colonialism and its repercussions. The history of South African customary law in particular has tended to exclude the contributions of Africans to the shaping of the law. Evidence shows Africans were written out of the record in many ways – especially since the many and most readily available (written) sources were ones prepared by colonisers. The paucity of records, invisibility of interpreters and failure to take testimonies from African witnesses before codifying "native" law makes it difficult to find these contributions.

However, recent scholarly analyses of customary law and indirect rule, such as that of Sara Berry, have detailed the subject matter of colonialism as a collection of conversations, debates and arguments among Africans as well as between Africans and colonial powers. It is therefore misleading to comprehend customary law as a mere "invention". Terence Ranger[13] (who coined the term) has in fact re-examined his prior contribution and revised it, thus restoring African subjectivity. He now suggests use of the term "imagination" in place of "invention".[14] Thus, as Berry observes, although colonizers had considerable power to shape institutions and discourse, that power was limited by a lack of resources and by a failure to understand the ongoing historical processes that they entered.

This shortage of resources in the 19th century meant the colonialists could no longer rule solely through coercion. Thus, despite the power of colonizers to "shape institutions and discourse", there was sufficient resistance by the natives to ensure that whatever the law was on paper, was a reflection – if a somewhat skewed reflection – of what they considered to be their governing norms. The powers of the chiefs to act as assessors of customary law and Africans (when summoned by magistrates), for instance, and their ability to hear cases before these were taken to magistrates allowed them some influence on the law. However, Moreover, since Shepstone himself did however act as the last court of appeal, because the chiefs' powers were confined by the colonial state, and still ultimately governed by colonial power.

Chiefs were given the opportunity, under indirect rule, to exert immense control over others, especially the socially weak.[15] Chiefs were given "the power to enforce their notions of custom as law", and could rely on the support of colonial institutions. They shaped custom in ways that allowed them to consolidate their power, for example by even defining people's movement and settlement according to "custom". Although it was frequently claimed that customary rules were organically formulated in response to local conditions and needs, in reality they were often imposed by the administration – both colonial and "traditional". They contributed to the development of what was disingenuously described as the enforcement of custom when, in truth, it was the extension of colonial power and the development of a colonial economy. Consolidating the power of a pliant chief was one of the key mechanisms to achieve this. The outcome of this consolidation was the abuse of power by some chiefs, against their own people and their interests.[16]

Despite these under-handed colonial strategies, Africans continued to challenge colonial authority, with methods ranging from evasion, testimony to commissions of inquiry, occasional rebellion to appearances in colonial courts. The latter (defiance) was a different kind of power from official influence exercised by native chiefs. In fact, the empowerment of chiefs as assessors and courts was one way colonizers had to draw on the actual experiences and practices of the natives at the time to avoid absolute resistance or revolution. An example of the effect of native resistance is that, despite the limits placed on bridewealth by the colonizers, the natives found ways of circumventing the restrictions. In fact, the not-so-subtle resistance caused the colonizers, themselves, to relax their approaches to the central practices of polygyny and bride wealth, for example. Furthermore, a colonial commission, itself, admitted that the natives were governed by their 'own laws' as regulated by Shepstone.[17] Polygyny and lobolo was later codified in the Natal Code, and subsequently confirmed as legitimate in the Native Administration Act of 1927.

We can also find diverse African voices by looking at the ways ordinary Africans (those who were not elites or officials of the State) used the state courts to their own ends. Although the system of customary law contained many contradictions, these gave some who would normally be disadvantaged by customary the opportunity to challenge it and thus provides evidence of the ways that norms of customary law were continually contested.

The main colonial limitation on the ability of 'natives' to influence official customary law, however, was the 'repugnancy' principle whereby courts drew on western, 'civilised' ideals to reject certain native customs and practices on the basis that they were abhorrent to such western, civilised conceptions of morality.[17] 'Natural justice' and 'public policy' (which form the terms of the repugnancy rule) have thus continued throughout South Africa's history of (non-)recognition of customary law. These ideas supported the colonial mission (or myth) of 'civilising' Africa.

Even outside the limits set by the repugnancy clause, customary law was not some immutable and uniform set of indigenous ideas and principles that predated colonialism. Rather, it was shaped by the societal changes occurring at that time, particularly the replacement of slavery by a new coercive colonial regime and the rapid growth of markets in wage labour and export crops. The conflict over customary law was deep-seated; and the political, economic and social dislocations that came about as a result of the onset of colonial rule heightened this conflict. Substantive customary law was shaped by the conflicting claims of those interested parties looking to secure wealth or power in these new areas

An example of this repugnancy clause is in the Law of Evidence Amendment Act 45 of 1988 (quoted below), which codifies the fact that the courts may take judicial notice of customary law, though this is qualified by the fact that such law has to be "readily ascertainable and sufficiently certain".[18] Such law must also be in line with public policy principles, but a court is not allowed to declare the custom of lobola or any similar custom falls foul of these principles. The latter marks the conclusion of the colonisers' internal debate about the acceptability or reprehensibility of the practices of polygyny and lobolo (bridewealth). "The creation of the official discourse on African marriage…was at the core of the construction of segregation of the common law."[19] The government wanted to abolish polygamy and marriages with lobola, but they continued to be legally recognised.[20] This love-hate fixation was concluded by the Law of Evidence Act, which in turn concluded the time when customary "unions" were deemed legally and socially inferior to civil and Christian marriages.

Law of Evidence Amendment Act 45 of 1988:

(1) Any court may take judicial notice of the law of a foreign state and of indigenous law in so far as such law can be ascertained readily and with sufficient certainty: Provided that indigenous law shall not be opposed to the principles of public policy and natural justice: Provided further that it shall not be lawful for any court to declare that the custom of lobola or bogadi or other similar custom is repugnant to such principles.

(2) The provisions of subsection (1) shall not preclude any part from adducing evidence of the substance of a legal rule contemplated in that subsection which is in issue at the proceedings concerned.

Continued Through Apartheid

The patterns of colonialism were continued and intensified during apartheid. In particular, the codification of customary law, distortion of the powers of traditional leaders, and division of cultural groups was advanced by pieces of legislation, among them the Black Administration Act 38 of 1927, and the Black Authorities Act 68 of 1951. These expanded the realm of official customary law and deepened the rift between it and living customary law. Women were continuously sidelined and subjected to an exacerbated and entrenched form of patriarchy. These developments under apartheid set the scene for the questions that would plague South Africa as it formulated a democratic Constitution, and considered how to provide for customary law and traditional authorities in it.

Negotiation and inclusion of customary law in the Constitution

South Africa's transition to a constitutional democracy came about through an intricate negotiation process between the various political parties. In essence, it was a two-step process. It involved, in the first instance, the drafting of an Interim Constitution and its subsequent approval by the parties in the Multi-Party Negotiating Process (MPNP). This Constitution came into effect on 27 April 1994, coinciding with South Africa's first democratic elections.[21] Secondly, the newly elected National Assembly was tasked with drafting the Final Constitution,[22] which had to comply with a set of Constitutional Principles agreed upon by the erstwhile negotiating parties. These principles sought to maintain a sense of continuity between the two Constitutions, and, in the process, they also tried to garner respect for the initial negotiation terms agreed upon during the MPNP.

The negotiations leading up to the Interim Constitution

Constituencies of traditional leaders were represented at the MPNP.[23] The issues that concerned these leaders, mainly relating to the status of African Customary Law (ACL) and the recognition of a right to culture in the Constitution, became some of the most hotly contested issues during the negotiations.[24] The effect of a supreme constitution would allow for judicial review of the actions of traditional leaders as well as scrutiny and amendment of ACL more generally. The debate centred on the issue of gender equality because some of the tenets of ACL accord more rights and authority to men than they do women.[25] At times, the bargaining process was used as a means to secure the role of the traditional leaders in the new constitutional era.[25] One difficulty is that ACL was subverted by colonialism and apartheid rule.[26]

Initially, the traditional leaders tried to get an exemption for ACL from the application of the Bill of Rights.[23] They based their arguments on the Zimbabwean Constitution.[nb 1] In essence, the traditional leaders were trying to create two parallel systems of law, ACL and common law, neither of which could or should interfere with the other.[27] However, the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)[28] provides that states must 'modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices of customary and all other practices based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.'[29] There was therefore substantial opposition to the proposals,[30] which succeeded.

The Interim Constitution

The Interim Constitution became the supreme law of the Republic of South Africa in 1994. It included numerous Constitutional Principles that the Final Constitution needed to comply with to be valid. Principle XI, read with s 71(1)(a) of the Interim Constitution, committed the Final Constitution to promote and protect cultural diversity. Principle XIII required the Final Constitution to continue to recognise the role of traditional leaders in the constitutional dispensation, and the courts to apply ACL.[nb 2] However, this was qualified by the fact that ACL was subject to applicable legislation and indeed to the Constitution. The Interim Constitution also allowed for traditional leaders to be elected into local government.[31] Houses of traditional leadership were also established for the purposes of allowing the traditional leaders to make representations to the government in relation to ACL.[32]

The Interim Constitution recognised the customary principle of "ubuntu" – simply defined as humanity (see S v Makwanyane for discussion). The right to culture was also protected in the Bill of Rights in the Interim Constitution.[33] This is particularly notable because it was the first time that culture had been recognised as a fundamental right in South Africa. It guaranteed the people of South Africa the opportunity to live according to their cultural traditions.[34] It was argued that the right to culture clashed with other fundamental rights in Chapter 3 of the Interim Constitution, particularly the equality clause in s 8.[35] However, the general limitations clause was introduced to balance these conflicting interests.

While the Interim Constitution recognised ACL as an indispensable part of the South African legal landscape, it is important to note that the debate about the negotiation and inclusion of ACL was far from settled. Another difficulty is that when the Interim Constitution was enacted in 1994, the application of ACL was still subject to the Law of Evidence Amendment Act.[36] The effect thereof was that courts were obliged to apply ACL where applicable, but only insofar as the principles did not conflict with public policy and natural justice[37]

The negotiation and inclusion of customary law in the final Constitution

After an intensive Constitutional Assembly negotiation process, and a process of its certification by the Constitutional Court against the Constitutional Principles in the Interim Constitution, the final Constitution was passed in 1996 and came into force in early 1997. Section 2 of that Constitution holds that the Constitution is the supreme law of the Republic, and that any law inconsistent with it is invalid. The Constitution boasts a justiciable Bill of Rights, of both horizontal and vertical application; in other words, it applies not only between the State and the individual, but also between private persons. Pursuant to the Constitutional Principles, the Constitution protects and recognises ACL in various ways. Chapter 12 (ss 211 and 212) affords official recognition to ACL as well as to the institution, status and role of traditional leadership. Specifically, s 211(3) mandates the application of ACL by the courts, where applicable.[nb 3] However, in applying ACL, one must remember that it is still subject to the Constitution as well as to any legislation that specifically deals with it. ACL is further protected within the Bill of Rights, most notably under the right to freedom, belief and opinion (s 15), the individual right to language and culture (s 30) as well as the collective right pertaining to cultural, religious and linguistic communities (s 31). Note that the protection of ACL within the Bill of Rights is not subject to the same conditions as in s 211(3), namely that it must be used where applicable and subject to the relevant legislation. Accordingly, the rights in the Bill of Rights protecting ACL are subject only to the Constitution (and specifically, other rights in the Bill of Rights), and can only be limited in terms of s 36, being the general limitations clause[38] It is worth noting also that s 36 recognises the possible existence of customary law rights outside of the Bill of Rights but only permits their recognition if they are consistent with those in the Bill.

Inasmuch as one may have an understanding of ACL as protected in the Constitution as the indigenous laws of the various peoples living in South Africa, one should perhaps scrutinise it more closely. The term itself gives rise to an ambiguity. On the one hand, one can identify official ACL, or the customary law that has been codified and concretised in judicial precedent. On the other hand, there is living ACL. This term refers to the current practices and norms deemed binding by the community itself. Official ACL is not only circumscribed by virtue of its codification, but very often it embodies a distorted version of the actual rules themselves. It is, by now, evident that the integration of customary law within the amalgam of South African law has had its fair share of debate. There are two key issues that can be highlighted, in this regard: (i) the potential compatibility problem between the rights enshrined in the Bill of Rights and ACL and (ii) the method of developing ACL norms in line with the values and rights of the Constitution.

Given the discriminatory nature of some ACL precepts and the likelihood of their being invalidated for want of equality, an important question to ask is whether the subordination of ACL to the Bill of Rights ultimately will have the effect of erasing much of the content of customary law and rendering its constitutional recognition entirely meaningless.[39] To a large extent, the answer to this question leads one into a discussion of possible methods of developing ACL norms in line with the values and rights of the Constitution.

Once a violation of the Bill of Rights has been established, the courts essentially have three options: (a) they can strike down the ACL rule; (b) they can exclude the application of the rule and replace it with a statutory or common law rule; or (c) they can develop the rule to promote the spirit, purport and objects of the Bill of Rights.[39] At this stage, a further distinction between direct and indirect application of the Bill of Rights ought to be made. Direct application means that where such an ACL rule offends a constitutional right, that rule is simply struck down.[39] This method may be employed when dealing with official ACL, where the codified rule could theoretically be struck out in its entirety. However, the resulting lacunae often lead the courts to substitute an unconstitutional rule with a statutory or common law rule. By contrast, in accordance with indirect application, the offending rule is developed or interpreted in line with constitutional rights and values.[39] This method is preferable when scrutinising the validity of living ACL rules, though it can also apply to official ACL in precedent.

Neither s 173 of the Constitution, which deals with the inherent powers of the courts, nor s 8(3) on the application of the Bill of Rights, makes mention of the development of ACL rules. The sections do, however, make provision for the development of the common law. Nevertheless, when considered in conjunction with other sections in the Constitution, the exclusion of ACL from these provisions in no way precludes the courts from developing it. If one considers the obligation on the courts generally to apply ACL in conjunction with the s 39(2) mandate to promote the spirit, purport and objects of the Bill of Rights when developing the common law or customary law, it becomes clear that the courts can develop customary law in the same way as they would any other source of law. Given that ACL is a set of laws intricately connected to the cultural rights of people, the Constitutional Court has said that it is the community itself who are best placed to harmonise ACL and constitutional values, and that this should be encouraged.[40]

Constitutional Court case law

There have been a number of cases that have come before the Constitutional Court requiring it to interpret and apply the rights and principles in the Constitution pertaining to ACL. In doing so, the CC has not only been faced with the challenge of elucidating the extent to which ACL is now recognised, but it has also had to address the issue of how to go about ascertaining what that law in fact is. The first such substantive case is Alexkor Ltd and Another v the Richtersveld Community and Others,[41] which involved the appeal of a claim for restitution of land by the Richtersveld Community ('the Community'), an indigenous South African community, in terms of the Restitution of Land Rights Act[42] ('the Act'). The Constitutional Court therefore had to examine whether or not the Community had rights in land in 1913 and, if so, whether or not it was subsequently dispossessed 'as a result of past racially discriminatory laws or practices.' It was in answering the first of these questions that the Court made various authoritative comments regarding the extent to which ACL is now recognised.

The Court essentially stated two broad principles. Firstly, ACL is an independent source of law, not to be interpreted 'through the common-law lens.'[43] Instead, it is to be seen as parallel to the common law. Secondly, the recognition of ACL is circumscribed by its consistency with the Constitution and any legislation concerning ACL. The CC drew specifically on s 211(3) of the Constitution. Applying these principles, the Court found that the Community did indeed have (indigenous) rights in land in 1913, which were left unaltered by British annexation. It then added an important third principle – that customary law in the Constitution really referred to the living form of that law:

…It is important to note that indigenous law is not a fixed body of formally classified and easily ascertainable rules. By its very nature it evolves as the people who live by its norms change their patterns of life…In applying indigenous law, it is important to bear in mind that, unlike common law, indigenous law is not written. It is a system of law that was known to the community, practised and passed on from generation to generation. It is a system of law that has its own values and norms. Throughout its history it has evolved and developed to meet the changing needs of the community. And it will continue to evolve within the context of its values and norms consistently with the Constitution.[44]

The court specifically acknowledged the difficulty of establishing customary law, given the relative unreliability of written sources on customary law, and the fact that there may be competing versions of customary law presented in evidence, when such is appealed to.

In a subsequent case of Shilubana and Others v Nwamitwa,[40] the Constitutional Court spelled out the principles that should govern how living customary law rules are identified by courts and when courts should develop the customary law. Ms Shilubana, of the Valoyi traditional community, which is located in the Limpopo Province of South Africa, was appointed as hosi (chief) of her people contrary to the past practice of the eldest son of the previous hosi succeeding his father as the new hosi. The resolution adopted in appointing her specifically referred to the constitutional provision for gender equality as part of the community's motivation in adapting its rules. Mr Nwamitwa sought to dispute Ms Shilubana's appointment based on his purported right as the eldest son of the previous hosi. The matter was decided in favour of Mr Nwamitwa in both the High Court and the SCA, and the case was eventually taken on appeal to the Constitutional Court. In a unanimous judgment, the Court decided that Ms Shilubana was legitimately appointed as hosi of the Valoyi people. The Court emphasised the fact that ACL is a living system of law not bound by historical precedent.[45] Because of this, it set aside a series of prior decisions that had set a test for determining the content of customary law by referencing long-standing and historical practices. The Court found that ACL is meant to reflect the current practices of a particular community and hence is developed with reference to the constantly evolving practices that indicate the current system of norms by which that community has chosen to live.[46] The Court therefore held that the ACL regarding the hosi had legitimately developed to allow for a woman to be appointed and that this development was consistent with the Constitution.[45] Therefore, the appeal was upheld, the Court finding that Ms Shilubana had been validly appointed.

Theoretical framework

Coexistence of multiple legal orders

While there is by no means agreement on the idea that there can be any other forms of law than those that hail from the state (formal government), there is a school of thought that has come to perceive the co-existence of multiple normative universes. It is called 'legal pluralism' – a term that was coined in the 1970s by John Griffiths.[47] It evolved out of resistance to the notion of the state's unique monopoly on law known as 'legal centralism'. In terms of legal centralism, the South African government would be the only authority able to produce law as norms that are enforceable in South African society. Thus, any other order that would purport to produce rules that hold normative force would not produce law. This would be so even if the rules it did produce regulated social behaviour to some extent, were perceived to be binding by the members of that group, and had effective sanctions tied to them.

Griffiths identified two main types of legal pluralism: 'weak' legal pluralism (which roughly corresponds to Gordon Woodman's 'state law' pluralism), and 'strong' legal pluralism (not unlike Woodman's 'deep' legal pluralism).[48]

"Weak" or "state law" pluralism

Out of the Enlightenment period emerged the view that the existence of law served as the bench mark for a civilised society, as it distinguished them from primitive laws. At around the same time, colonialism peaked in the Western world, which spread the coloniser's laws into the colonies. (The notion of lex nullius, to complement the concept of terra nullius.) It didn't take long for the coloniser to realise that colonial law was not always appropriate or convenient for the colonised in dealing with instances of everyday life (such as family law).[49] Accordingly, the colonial state began to define the parameters that marked the jurisdictions of legal systems within its control and, in so doing, divided colonial and customary law into "separate and [allegedly] autonomous spheres".[49] Under this model, authority became centralised in the form of the state, represented through government, the most visible manifestation of which is the legislature. Thus, while plurality of normative orders existed, it was supposedly embodied within the state, which, as earlier demonstrated, would either recognise customary law as lived in the communities and administered by state-recognised chiefs and colonial officials, or seek to specifically capture and define customary law in state codes.

On whether "state law pluralism" is in fact possible, there are interesting differences of opinion among legal pluralists. Woodman that state laws are not internally self-consistent logical systems, and that they are not clearly delineated and detached from other normative orders.[50] He argues for a form of state legal pluralism wherein different sources of law may be relied upon to resolve conflict between various state sectors depending on the degree of authority vested in the sources.[50] In other words, he recognizes the possibility of a pluralism that is internal to state law, as might be exemplified by official customary law and common law (both of which are state law forms). However, for John Griffiths, the notion of state law pluralism is an impossibility because the law of the state represents a single legal order and as such legal pluralism can only be said to exist where non-state law and state law coexist.[51] In that case, official customary law and common law could not conflict but would have to conflict with a normative order outside of state law – living customary law, for instance.

"Deep" or "strong" legal pluralism

Strong legal pluralism recognises that legal pluralism exists in all societies; that is, that there are multiple forms of normative ordering that pertain to members of a society that are not necessarily dependent on the state for recognition of their authority.[52] Sally Falk Moore is perceived to have provided the strongest articulation of this theory. She suggests that to have a more realistic idea of the manner in which people live according to 'the law' and 'social mores' it is necessary to study the law in the context of society, rather than attempting to separate the 'law' from 'society'. She calls looking at law in this way, looking at it as a 'semi-autonomous field', which is not defined by territorial boundaries but rather by its sphere of influence and whether it can generate rules, customs and symbols that generate a sense of obligation and compliance in those people who live within the field, while at the same time it influences and is influenced by the rules and decisions emanating from the 'outside' world.[52]

Often government administrations attempt to re-regulate these 'semi autonomous fields' which already have rules and customs by imposing new legislation. However, legislative intervention often fails because the pre-existing social arrangements are seen by the society as more important or stronger than the new legislation. Yet even when it is successful, imposed legislation can have unplanned consequences.[52]

The main criticism of deep legal pluralism is that it offends the rule of law, 'which is seen as a necessary feature of justice'. Woodman explains that 'the competing sources of legitimacy give rise to competing duties, and consequently the rules of law cannot totally prevail'.[53] This is also accused of being too vague and ill-defined, in danger of drawing no distinction between the differing normative orders, and thus, conflating them all under the rubric of law.[54] To scholars such as Brian Tamanaha and Gunther Teubner, this is an untenable situation because they maintain that an empirical distinction between state law and other normative orders exists.[54] State law norms come into effect by operation of the State's institutional apparatus (i.e. parliament), whereas other normative orders are informed by social practice.[55]

In the South African context, the notion that living customary law is competitive with and influenced by state law is self-evident. It also obviously powerfully influences the behaviour of a significant proportion of the country's population. Falk Moore's theory is relevant here. As an empirical claim, she contends that any social field can make law, and these laws are complex and may overlap with one another.[56] Specifically, she argues that a semi-autonomous social field can make and enforce its own rules, but that it is smaller than other fields, which may exercise influence over its rules. A group of such fields may form their own field, and may interact with each other, perhaps as in the case of the South African legal order at large. These also lead to a tangle of binding obligations. The living customary law field might then be said to be semi-autonomous because the ties that bind its participants together are stronger than the ties that bind them to external fields such as state legislation. Though there may not be legal sanctions for a violation of these norms (from the state), there are still effective extralegal sanctions that govern them (intra-communally). These extralegal inducements are more immediate than sanctions from the state, and they may also compel compliance with state-generated law.

In this sense, instrumentalist theory, which says that rules are commands given by the legislator and received by an individual, is inaccurate for it ignores the medium through which this command must proceed before it reaches its subject. Instrumentalism gives a naïve positivistic conception of the relationship between the governed and legal regulation. This naivety is due to the idea that commands of the lawmakers are received by an individual free of social norms, who exists in what might be called a normative vacuum. As such, no attention is paid to the social medium through which the command of the law-maker must travel in being received by the individual. It therefore fails to see how the subject receives the rule as filtered through the medium(s) that is their nearer semi-autonomous social field. The effectiveness of a rule depends on the field, as well as the social context in which the rule is given effect to.[57] In essence, therefore, the government of South Africa must contend with the empirical reality of South Africa's multiple normative orders (including living customary law) through which any norms that it issues for the general population are filtered, and consequently reinterpreted and embraced, or simply ignored or even outrightly defied.

While the constitutional provision for living customary law outlined earlier does not settle the theoretical debate on whether extra-statal normative orders can produce law, it certainly answers the definitional question that is part of it: living customary law is legitimately law. By this means, however, the difficulties pertaining to the rule of law (specifically, the principle of legality, and the requirement of legal certainty, within it) and the vagaries of living law becomes all the more immediately relevant. The precedent of Shilubana[40] stopped courts from avoiding the difficulties by devising a test that finally forced them to confront these challenges directly. It would seem that, in this decision, the Constitutional Court espoused Woodman's theory of "selective legal pluralism". Woodman refers to two options available at this point; either an unqualified tolerance can be afforded to customary law, or allowance can be made for the purposeful and principled intrusion by the state into the field of customary law.[58] Woodman refers to the second option as "selective legal pluralism" and affords the state with the opportunity to consider the needs of justice in each case involving customary law. Consequently, Woodman argues that to achieve justice, elements of state law pluralism should coincide with deep legal pluralism with the operation of is doctrine of selective legal pluralism.

Rights and culture

Theoretical background

There has been the argument made over the years that human rights and culture (especially the cultures that prevail in the third world) cannot be reconciled. Some have feared that attempts (in the context of inequitable power between the cultures) might even lead to the denial of one or the other, usually local cultures at the expense of allegedly universal human rights. In the words of Thandabantu Nhlapo, 'where contending cultures, Western and African cultures, do not enjoy equality of status, the danger increases that in its criticism of local circumstances, the dominant culture will be tempted to enlist the prestige of the international human rights movements to mask the basic intolerance of competing world views.'[59]

The theoretical terms in which this conflict has come to be described are the notions of universalism and cultural relativism. Rights are seen to be as universal in as far as they are consistent with western concepts thereof, evolved from western histories such as the French and American revolutions, and then to two world wars. Culture is said to be relativised when universalism is rejected in arguments that would seem to prefer the insular notions of what are claimed to be rights, appealing to bounded notions of culture and prioritising the interests of groups over those of individuals.[60]

One of the major criticisms of the way in, which human rights have been defined since the international recognition of such rights in the Universal Declaration of Human Rights (UDHR) is that it legitimises only those rights, which are endorsed by Western societies.[61] This is said to be seen in that Western societies only were involved in the drafting of these, and that they did not take into account the multi-culturalism within other political states, yet the UDHR became the standard that other countries had to abide by to be called human rights compliant.[61]

According to Thandabantu Nhlapo, ACL does not fit within this Western conception of rights. He uses the area of African family law – particularly in relation to its institutions and practices that reflect a value system that emphasises kinship, and ceremonies of marriage such as lobola – to illustrate the point. As under colonialism and apartheid, these continue to challenge the Western perception of rights, particularly the notions of equality and dignity. Nhlapo argues that the way these concepts have been defined by the dominant culture is used to undercut the rights that ACL recognises because it is not understood by Western society. This lack of understanding has been a cause for concern for Western society such that it has led to a rejection of ACL and the rights it recognises.[61]

The recognition of ACL has tended to be seen as a danger to women's rights and interests. This is the result of perceptions of its possessing intrinsic inequalities that necessarily lead to the disempowerment and disadvantage of women. As a result most strategies to secure women's rights (in land) in rural South Africa have tended to avoid the customary law arena and instead favoured formal legal initiatives.[62]

This conundrum is especially relevant in the South African context where rights have been entrenched in the Constitution and major emphasis has been placed on the rights to dignity, equality and freedom (s 7(1)). The way in which these rights have been interpreted has illustrated the problem highlighted by Nhlapo – the right to equality has been used as the basis for the criticism of customary law in that some of its practices seem to perpetuate discrimination, especially gender based discrimination.[59] A prime example of this might be said to be the Bhe case decision.

Proposals for reconciling rights with African customary law

In light of the fact that the Constitution[22] recognises ACL as applicable and the right to (practice one's) culture, Nhlapo suggests that the right to dignity should be understood in a way that protects and promotes these rights even when they appear to conflict with the notion of rights held by western society. Thus, human dignity should be seen as encapsulating not only western notions but also as including distinctly African values such as "ubuntu". Human dignity, in this light, should be viewed from the perspective of those who are governed by customary law and not purely from the proclaimed wider national identity.[59]

Jennifer Nedelsky suggests that shifts in the meaning of rights are inevitable and ongoing.[63] She therefore argues that our conception of rights needs to take account of the depth of the continuing disagreement in democratic societies about the content of rights. She adds that rights should not be seen as trumps or guards of people against one another. Rather, they should be understood as spaces and means by which people negotiate their relationships of mutual dependence, in the context of which participation in the processes of determining those rights is crucial.[63] Celestine Nyamu Musembi advocates an actor-orientated perspective on human rights, which acknowledges that people live in a context of legal and cultural pluralism and draw from both their cultural or religious norms and formal rights in dealing with situations that face them.[64] She embraces Merry's notion of vernacularisation as a way to adapt rights from the universal context to the local, to make them relevant to the needs of people involved in struggles at the local level.[64]

Interfacing with this consideration of women's ability to affect rights, Aninka Claassens and Sindiso Mnisi advocate that legal strategies to support women's rights (in land) cannot avoid the customary law arena and should, in fact, engage with it fully. This is because of the impact of ACL on power relations, which means that rural women have no option but to grapple with issues of rights and custom at the local level. Legal strategies therefore need to pay attention to the legal changes taking place outside the statutory law arena, where women are playing a key role in negotiating the content of rights under custom, and appealing to both the discourses of rights and custom as they do so.[62]

These scholars therefore suggest that, by the inevitable appropriation of rights through the lenses of their cultures and social circumstances, people are able to transform underlying cultural categories and practices so as to secure the dignity and equality for which most people are engaged in struggle. This has the effect of redefining not only the local cultural practices but, necessarily, the rights themselves too. This is part of the fluidity of culture, that it allows new ideas to permeate and influence it, and part of the flexibility of rights, that their content changes as they are appropriated from one culture to another and adapt to meet the needs presented by the struggles and the contexts of the relationships in which they must deliver justice and protection.

The South African experience

Claassens and Mnisi argue that there is a need to combine the flexibility and inclusiveness underlying indigenous systems of relative land rights with constitutional values such as equality. It is suggested that negotiations that take place in rural areas concerning the integration of customary entitlements and constitutional rights present important potential for shifting power relations and transforming women's land rights in practice, in ways that reach far deeper than many legislative reforms. They provide the example of Kalkfontein where single mothers are allocated land partly as a result of the increase in female involvement on the land allocation sub-committee post 1994 and rural women's challenging land allocation, arguing for the granting of land to single mothers[62]

The customary laws of marriage and succession are the main areas where the South African legislature and courts have attempted to advance women's rights. With regard to marriage, in 1998, Parliament passed the Recognition of Customary Marriages Act[65] (hereafter referred to as 'the Recognition Act') with the intention of ridding the customary law of marriage of elements that discriminated against women. The Act makes provision for customary marriages in two ways: firstly, all marriages prior to the Act that were valid in terms of ACL are valid for all legal purposes (this did away with the ambivalence in South African history toward the legitimacy of African marriages); and secondly, all marriages conducted in terms of ACL after the Act came into force are valid if they fulfil the Act's requirements. The Act accommodates what might be called common law provisions in areas of minors' marriages, the status of spouses, as well as the proprietary consequences of marriage and divorce.

Concerning succession, the majority decision of the Constitutional decision in Bhe v Magistrate Khayelitsha[66] repealed the customary law of succession in terms of the Black Administrations Act (BAA) of 1927,[67] replacing it with the Intestate Succession Act. Prior to the Bhe decision, the BAA brought the distribution of black people's intestate estates under the purview of ACL, as defined in the Act. This included the principle of male primogeniture in terms of which the eldest surviving male family member inherits the estate (originally with, but later without, the reciprocal duty to care for the other of the male head's dependents). Women were thereby excluded from inheritance. The court in Bhe, in declaring the offending sections of the BAA unconstitutional, made an order that effectively replaced them with the common law. Chuma Himonga argues that this judgment, in its reliance on codified ACL, failed adequately to recognise living customary law, and that those subject to the new law may therefore feel alienated by it. Moreover, she argues that the approach taken in the reform of ACL will result in little benefit to women in practice.[68]

Himonga names three main factors that could adversely affect the implementation of these new developments. The first factor is that of the "Eurocentric approach". Mere imposition of the common law in a so-called Eurocentric manner may result in opposition from traditional leaders who reject the legislation on the grounds that it is an encroachment of ACL's status in the Constitution.[22] This is very closely related to the second, the historical factor, which takes note of the 'inferior position' ACL has held in the past. The final factor is that legislation may be largely inaccessible to people who live under ACL. One of the purposes of the legislation, if not its primary reason, would have been to champion women's rights, but as Himonga argues, its inaccessibility may conversely fail to protect women's rights in practice.

Nature, definition and sources of customary law

Main article: Custom (law)

As seen earlier in the summary of the Constitutional Court's discussions, a central issue regarding (the recognition of) ACL is determining the appropriate methodology to know what practices and norms actually constitutes customary law. It is not immediately clear that classic Western theories of jurisprudence can be reconciled in any useful way with conceptual analyses of customary law, and thus some scholars (like John Comaroff and Simon Roberts)[69] have characterised customary law norms in their own terms. Yet, there clearly remains some disagreement, which is seen in John Hund's critique of Comaroff and Roberts' theory, and preference for the contributions of H. L. A. Hart. Hund argues that Hart's "The Concept of Law" solves the conceptual problem with which schoalars who have attempted to articulate how customary law principles may be identified, defined and how they operate in regulating social behaviour and resolving disputes.[70]

In the South African context, the vigorous debates over the nature, definition, and sources of customary law are yet to be settled. However, each conception of customary law presented by the theorists discussed presents genuine difficulties. While the South African legal system is so rule-based as to struggle to conceive of ACL in the way Comaroff and Roberts determine that it functions, South African legal history makes it difficult to countenance such an "evolutionary" view of customary law vis-à-vis formal law as is implicit in Hund's conception. (Ironically, it is by his very attempt to defend customary law from being undermined by being regarded as less than state law that Hund arrives at what, in the South African context, would be understood, in historical context, as a lesser view of customary law).

In what is seen by many to be a victory over a long, arduous and painful history, the Constitutional Court in Shilubana[40] finally announced that customary law must be accepted on its own terms. That is, customary law must be accepted as the practices of the people who live according to it and adapt it to their changing circumstances and needs. Thus, the Court largely ruled in favour of the Comaroff and Roberts view. However, given the fact that the Court operates within a legal system that depends on the application of positively defined rules, Hund's theory is ultimately the winner as the courts will forever be seeking to translate fluid processes and contextually shifting norms into hard-and-fast rules. What it means for that to be achieved, the rules applied (and hopefully even determined), on a case-by-case basis remains to be seen.

See also

References

  1. ↑ Bekker 11.
  2. ↑ Act 120 of 1998.
  3. ↑ s 1(ii).
  4. ↑ Mamdani.
  5. ↑ Carton.
  6. ↑ Chanock, 243–244.
  7. ↑ Chanock, 244–245
  8. ↑ Chanock, 250
  9. ↑ Chanock, 250-3
  10. ↑ Chanock, 251-2
  11. ↑ Chanock, 256-7
  12. ↑ Chanock, 270
  13. ↑ Ranger (1983), 211–262
  14. ↑ Ranger (1993).
  15. ↑ Mamdani, ch. 4
  16. ↑ Mamdani, 124
  17. 1 2 McClendon at 56–57.
  18. ↑ Law of Evidence Amendment Act 45 of 1988 subsection 1(1)
  19. ↑ Chanock, 261
  20. ↑ Chanock, 262
  21. ↑ Currie and de Waal
  22. 1 2 3 Constitution of the Republic of South Africa, 1996
  23. 1 2 Bennet, 77
  24. ↑ Kaganas & Murray, 409
  25. 1 2 Kaganas & Murray, 410
  26. ↑ Kaganas & Murray, 411
  27. ↑ Currie.
  28. ↑ Adopted by the General Assembly in 1979 and came into force in 1981
  29. ↑ Article 5(a)
  30. ↑ Currie, 149
  31. ↑ Constitution of the Republic of South Africa, 1993, section 181-2
  32. ↑ Constitution of the Republic of South Africa, 1993, section 183-4
  33. ↑ Constitution of the Republic of South Africa, 1993, section 31
  34. ↑ Himonga and Bosch, 310
  35. ↑ Mokgoro
  36. ↑ Law of Evidence Amendment Act 45 of 1988
  37. ↑ Law of Evidence Amendment Act 45 of 1988, Section 1
  38. ↑ Lehnert, 245
  39. 1 2 3 4 Himonga and Bosch
  40. 1 2 3 4 Shilubana
  41. ↑ Alexkor
  42. ↑ Restitution of Land Rights Act 22 of 1994
  43. ↑ Alexkor, para 51
  44. ↑ Alexkor, 52–54
  45. 1 2 Shilubana, 44
  46. ↑ Shilubana, 44–46
  47. ↑ John Griffiths.
  48. ↑ Woodman, 157
  49. 1 2 Anne Griffiths, 291
  50. 1 2 Anne Griffiths, 296
  51. ↑ Anne Griffiths, 297
  52. 1 2 3 Anne Griffiths, 298
  53. ↑ Woodman, 160
  54. 1 2 Anne Griffiths, 306
  55. ↑ Anne Griffiths, 307
  56. ↑ John Griffiths, 34
  57. ↑ John Griffiths, 29–34
  58. ↑ Woodman, 166
  59. 1 2 3 Nhlapo, 148
  60. ↑ Merry.
  61. 1 2 3 Nhlapo, 136–137
  62. 1 2 3 Claassens
  63. 1 2 Nedelsky.
  64. 1 2 Musembi.
  65. ↑ Act 120 of 1998
  66. ↑ Bhe.
  67. ↑ Act 38 of 1927.
  68. ↑ Himonga.
  69. ↑ Comaroff & Roberts.
  70. ↑ Hund.

Notes

  1. ↑ The Zimbabwean constitution shields customary law from the provision forbidding discrimination at s 23(1) and (3)(b)
  2. ↑ Principle XI states that ʻthe diversity of language and culture shall be acknowledged and protected, and conditions for their promotion shall be encouragedʼ. Principle XIII provides ʻthe institution, status and role of traditional leadership, according to indigenous law, shall be recognised and protected in the Constitution. Indigenous law, like common law, shall be recognised and applied by the courts, subject to the fundamental rights contained in the Constitution and to legislation dealing specifically therewith.ʼ Also see Mokgoro.
  3. ↑ The applicability of customary law rules is governed by the common law choice of law rules.

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