This article was written by Devon Wall and forms part of the SAHO and Southern Methodist University partnership project
Customary Law in South Africa:
Historical Development as a Legal System and its Relation to Women’s Rights
Abstract: This paper explores the nature of customary law in South Africa and evaluates whether the contemporary status of customary law as a legal system lends itself to a gender disparity that is both discriminatory and disadvantageous for women. An introductory background on South African customary law will be presented by way of tracing the development of customary law over time, focusing on three historical periods: colonialism, the apartheid era of segregation, and after democratization. The 1996 South African Constitution incorporated customary law into the South African legal system. The ensuing legislative tensions between customary law, the Constitution, and the Bill of Rights gave rise to concerns regarding the protection of women’s rights. This legislative conflict is illustrated by cases related to inheritance and succession.. The paper will conclude by evaluating the application of customary law in court and its impact on outcomes and verdicts, and the extent to which customary law negatively affects South African Women.
Key Words: Legal Pluralism, Customary Law, Traditional Law, Women’s Rights, Constitutional Law, Human Rights, South Africa, Inheritance, Marriage, Divorce, Succession, South African Bill of Rights, 1996 South African Constitution
In order to better understand the nature of customary law that exists in today’s South Africa, it helps to become familiar with the history of customary law in South Africa, particularly in its stages of recognition. Within the context of recognition, developments in customary law can be seen with the 1652 arrival of colonial settlers and their administrations, during the era of apartheid, and on through to the creation of the South African Constitution of 1996. However, it should be noted that customary law existed in South Africa long before the earliest colonization, and it constituted an authoritative form of justice. The legitimacy of customary law as a legal system derives from the notion that it has existed from time immemorial and manifests itself in the day-to-day cultural traditions of a people (Bennett, 1995). Customary law is therefore dynamic in nature, and its form can vary between different groups of people and across time. However, by focusing on the customary law of a relatively small region, or by identifying commonalities belonging to a certain type of customary law, one can narrow the scope of customary law because these approaches allow for a more specific line of inquiry. Thus by utilizing a historical approach, the place of customary law in the South African legal system can be evaluated during three distinct periods: colonialism, apartheid era, and constitutional democracy.
Muna Ndulo, professor of law and director of Cornell’s Institute for African Development, asserts that prior to colonization, the ‘law in most African states was essentially customary law in character, having its sources in the practices, traditions, and customs of the people’. (Ndulo, 2011) Colonialism, however, significantly influenced the development of law in South Africa. During the colonial period, customary law initially went unrecognized, but was eventually tolerated and provisionally acknowledged by colonial settlers. In 1652, the Dutch East India Company (VOC) founded a refreshment outpost at the Cape. By the 1670s, the VOC decided to establish a permanent settlement at Cape Town, and eventually declared their ownership of the Cape territory in 1672. As a result of colonisation, the Dutch settlers brought with them Roman-Dutch law, which at that time was the official law of the Netherlands. However, there is no evidence that the Dutch administrationrecognized the customs of the indigenous peoples they encountered (Rautenbach, 2008).
The British took control of the Cape from the Dutch in 1806, and permanently acquired the territory in 1814, after which it became a crown colony. After the English settlement of Cape Town, customary law began to receive some recognition. In the British Colony of Natal, this was the Natal Code of 1878. In addition to implementing English law, the British maintained Roman-Dutch law as the basic, or common, law of the land (Cape Articles of Capitulation, 1806). Although the Natal Code of 1878 was a relatively disorganized initial attempt at codifying customary law, it nevertheless introduced fundamental concepts that remained inherent to the Code through subsequent revisions and amendments. The 1878 Code stated that ‘native law’ was based on a few leading principles, from which all other aspects of the law were derived. These main elements of customary law included the subjugation of women to men, the subjugation of children their father or to the head of the family, and the rule of primogeniture. According to historian Thomas McClendon, ‘the resulting system emphasized the rights and authority of males and elders while it also emphasized the powerlessness and deference of women and juniors’. (McClendon, 1995)
The British established an amendment to the first Code with the Natal Code of Native Law in 1891, wherein which they again endeavored to codify known customary law. In doing so, they rendered customary law static insofar as it was codified, and thus created a code that failed to account for the dynamic nature of custom. The promulgation of the Natal Code resulted in a rigid colonial version of customary law (McClendon, 1995). However, recognition of customary law was conditional, as the practices were subject to a repugnancy clause. The application of customary law was recognized provided that the customs and usages were not repugnant to morality or justice, and did not conflict, either implicitly or explicitly, with any public policy or written law (Ndulo, 2011). Thus customary law existed alongside the received systems of common law in the form of legal pluralism.
Following the South African War of 1899-1902, the Treaty of Vereeniging facilitated the Union of South Africa in 1910. After the Union, the application of customary law was regulated according to each of the territories’ own legislation. As a result of these conflicting laws, the status of customary law differed across various parts of the country, and the situation was referred to as a ‘chaotic state of affairs’. (Roodt v. Lake & Others, 1906) In response, these varying sets of laws were consolidated in the Native Administration Act of 1927, the title of which was later amended to the Black Administration Act. Section 11 provided the first account of a universal recognition of customary law (Rautenbach, 2008). This meant that customary law was granted full recognition in both chiefly and Commissioner courts. However, customary law would be applied at the discretion of the commissioner.
The Black Administration Act also created a dual system of law. Sanele Sibanda, a former Supreme Court attorney in Zimbabwe and current professor of law, claims the this dual system ‘established a separate and inferior system of justice for Africans and left the common law system of justice for all other South Africans’. (Sibanda, 2010) Furthermore, the Act appointed the State President as the ‘Supreme Chief of all natives in the Union,’ which granted him authority in matters including, but not limited to: the selection or demotion of traditional leaders, land tenure, and the constitution of tribes (The Black Administration Act, 1927). There were also provisions that regulated marriage, distinguishing between civil marriages and unions, with the latter term used to refer to informal African nuptials that did not constitute a legal marriage (Nhlapo, 1995). In addition, the Act included several discriminatory clauses directed specifically towards women. The Act disallowed the female inheritance of estates, regardless of the woman’s marital relation or familial ties to the deceased. Instead, the nearest living male relative inherited all of the relevant property. Furthermore, Black women were regarded as minors, irrespective of age or marital status. As a result, Black women had no legal parental rights concerning their children (The Black Administration Act, 1927). Regarding the legislation’s broader significance, Sibanda argues that the Act served as a means of ‘entrenching a uniform system of indirect rule in South Africa whereby traditional leaders became state agents in administering the affairs of those over whom they were appointed to rule’. (Sibanda, 2010)
In 1948, the governing National Party introduced the policy of apartheid. The regime implemented a doctrine of separate development through legislation that enforced systems of racial segregation. Under the Bantu Authorities Act of 1951, the government established an administrative hierarchy of tribal, regional, and territorial authorities in traditional communities. Tribal authorities were set up as formal structures of governance in the reserves, and were led by chiefs, headmen, and councillors (Black Authorities Act 68, 1951). The Act set the groundwork for later apartheid legislation, in particular including the Promotion of Bantu Self-Government Act of 1959, which provided for the creation of homelands, and the development of self-governed territories and independent states.
The structures established in 1927 and the 1950s lasted through to the 1980s. Facing the imminent collapse of apartheid, the government initiated a series of reforms. Among these reforms included The Law of Evidence Amendment Act 45 of 1988, which revised the terms required to allow for the recognition of customary law (Rumbles, 2001). According to the bill, ‘any court may take judicial notice of customary law if it is readily ascertainable and not opposed to the principles of public policy and natural justice’. (Rautenbach, 2008) Although the requirements for recognition were reformed, the repugnancy clause introduced by previous legislation remained included in the Law of Evidence Amendment Act (Harris, 1998).
The status of customary law shifted once again with the democratization of South Africa. The South African Constitutions ”” the interim Constitution of 1993, and the new Constitution of 1996 ”” firmly established the place of customary law within the South African legal system. With the adoption of the new Constitution, customary law became a core element of the South African legal system, on par with Roman-Dutch law (Bennett, 2004). With the advent of the constitutional democracy, customary law is no longer subject to any legislation other than the rule of constitutional law. This is evidenced by the case of Alexkor Ltd v. The Richtersveld Community, in which the court stated: ‘While in the past indigenous law was seen through the common law lens, it must now be seen as an integral part of our law. Like all law it depends for its ultimate force and validity on the Constitution. Its validity must now be determined by reference not to common law, but to the Constitution.’ (ZACC 18, 2003)
The new Constitution of South Africa was heralded as providing ‘a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful coexistence and development opportunities for all South Africans, irrespective of color, race, class, belief or sex’. (Ebrahim, 1998) Indeed, Chapter I of the Constitution states that South Africa is founded on values including but not limited to: human dignity, the achievement of equality, the advancement of human rights and freedoms, non-racialism, and non-sexism (Constitution of the Republic of South African, 1996).
Yet, the question must be asked: can the application of customary law be compatible with the civil rights granted by the Constitution and the human rights guaranteed by the Bill of Rights? This question becomes complicated, however, when one takes into account the inherent conflict in legislation between the Constitution and the Bill of Rights. Essentially, there are contradicting clauses regarding the right to culture within the same legislation. This conflict, as explained below, makes it difficult to ascertain the circumstances in which one has the right to engage in cultural practice. Due to this uncertainty, the practice of customary law is also potentially called into question.
Sections 30 and 31 of the Bill of Rights pertain to rights concerning culture. While section 30 grants the right to language and culture, section 31 serves to reaffirm the supremacy of the Bill of Rights in terms of the legislation as a whole. Section 31 ensures that a person has the right to belong to, and participate in, cultural, religious or linguistic communities. However, it also states that those rights are conditional. This section establishes that the exercising of these rights cannot be in any way inconsistent with any other provision articulated in the Bill of Rights (Constitution, 1996).
Therefore, the practice of culture cannot undermine any of the basic human rights as detailed in this Bill. Culture must be practiced in a manner that remains in accordance with the sections concerning rights to equality and dignity. When the right to culture, as it relates to the aforementioned principles of customary law, is subjected to the Bill of Rights, it seems that the cultural practice of customary law ought to be reevaluated. Further doubt arises when one considers the fact that Constitution does, in fact, recognize the application of customary law, but does so ‘without resolving the conflict between customary law norms and human rights provisions’. (Ndulo, 2011) Thus the question is not whether there exists a conflict between customary law and Constitutional law regarding gender equality, but rather the extent to which that conflict continues to impact women’s rights in South Africa.
One particularly contentious area of customary law for women’s rights are the customary practices involved with succession and inheritance. The laws of succession as realized in customary law have received severe criticisms both before and after the 1996 Constitution (Rautenbach, 2008). Many of these critiques were aimed at the aspect of male primogeniture, which is a prominent feature of the customary law of succession. Under the customary principle of primogeniture, the eldest male descendent of the deceased ‘stood to inherit to the exclusion of all females (including the wife) and younger surviving males’. (Sibanda, 2010) This application of male primogeniture certainly does not conform to the constitutional advancement of gender equality. In fact, the Constitutional Court of South Africa declared the practice unconstitutional in 2004, after having heard the case of Bhe and Others v. Khayelitsha Magistrate and Others. During the court case, the practice of primogeniture was determined to be in violation of multiple Constitutional provisions. It went against the founding provisions related to the attainment of equality and the advancement of human rights, dignities, and freedoms. In terms of the Bill of Rights, the principles of primogeniture violated the equality, prohibition against discrimination, and human dignity clauses. The practice of primogeniture was determined to be in violation of the aforementioned provisions because ‘it excludes women from being considered for succession to the deceased family head’. (Bhe and Others v. Khayelitsha Magistrate and Others, 2004)
Thus throughout its historical development in South Africa, customary law has been infused with an underlying element of discrimination, and the characteristic has persisted through to its contemporary status as a legal system. In practice, customary law often violates the human right to equality as established in the Constitution and Bill of Rights. Customary law also tends to dismiss women and view them as being on the periphery of the group, as opposed to being equal participants in that society. Whether customary law can reconcile its norms with those norms codified in the Constitution and Bill of Rights or have its practice be compatible with human rights is not a question that can be readily answered, given the prevalence of discriminatory legislation being applied in customary courts, and the continued presence of rulings based on disadvantageous, gendered customary laws in current South African courts.