Emalus Library Online Documents Collection - Customary Law
THE CUSTOMARY LAW
QUESTION IN THE SOUTH AFRICAN CONSTITUTION
HON. YVONNE MOKGORO*
Source: Saint Louis University Law Journal, Fall 1997; 41 St. Louis L.J.
1279
* Justice of the Constitutional Court of South Africa. B. Juris., LL.B., LL.M. University
of the Northwest (South Africa). LL.M., University of Pennsylvania. Justice Mokgoro has
served as a lecturer and Associate Professor at the University of the Northwest, the
University of the Western Cape and the University of Pretoria. She also served as
Specialist Researcher in Human Rights at the Centre for Constitutional Analysis at the
Human Sciences Research Council, until her appointment to the Constitutional Court. This
article is a revised version of a paper delivered at the Saint Louis University School of
Law on October 7, 1997.
SUMMARY:
... When the Constitution of South Africa, Act 200 of 1993, called the interim
Constitution, was adopted, it was a historical milestone of unprecedented significance.
... The Nature of African Customary Law and its Constitutional Recognition ... This piece
of legislation, in a way, provided a false celebration of cultural diversity in that it
made customary law applicable to certain "classes" of Africans who were said to
live according to African tradition or custom. ... During the Multi-Party Negotiations
process which forged the interim Constitution there was strong lobbying by traditionalists
on the one hand and what seemed an equally strong and highly motivated feminist lobby on
the other, for the place of customary law and traditional authority in a new dispensation.
... It was the view of the traditionalist lobby, however, that the systems of customary
law and traditional leadership ought to be accorded more respect and dignity in a new
dispensation. ... At the same time, sub-section 3 insists that the entrenchment of a
fundamental right shall not be construed to be denying a right conferred by customary law
if it is not inconsistent with that fundamental right. ... In Mthembu v Letsela and
Another, there was an application for an order declaring the rule in African customary law
which excluded women from intestate succession to be inconsistent with the provisions of
the equality clause. ...
TEXT:
[*1279]
I. Background
Constitutions are not written everyday. They are historical milestones. When the
Constitution of South Africa, Act 200 of 1993, called the interim Constitution, was
adopted, it was a historical milestone of unprecedented significance. Like most
constitutions, it was also a reflection of the history, the fears and aspirations of the
nation it was meant to serve, stating in its preamble:
... there is a need to create a new order in which all South Africans will be entitled to
a common South African citizenship in a sovereign and democratic constitutional state in
which there is equality between men and women and people of all races so that all citizens
shall be able to enjoy and exercise their fundamental rights and freedoms.... 1
Unlike most constitutions, however, the interim Constitution has been widely described as
a product of political negotiation and compromise. Many of the contradictions and
difficulties in interpreting its provisions have been attributed to this characteristic
feature.
During the multi-party negotiations process which took place at Kempton Park,
Johannesburg, in 1993, a two stage process of constitution-writing was agreed to by all
political parties participating in the process. First, an interim Constitution would
govern from the date of the completion of the first democratic election until a new
Constitution had been drafted and adopted by Parliament. Second, introducing another
special feature of this interim Constitution, participating political parties had
negotiated and concluded that thirty- [*1280] four
constitutional principles within the bounds of which the new Constitution would be
drafted, would form part of the interim Constitution. 2
It was further agreed that before the new text would be adopted, the newly created
Constitutional Court would have to certify that all of the provisions of the new text
complied with the constitutional principles. The Court duly certified the new constitution
only after a second submission by the Constitutional Assembly, after the first submission
had not borne the required result. 3
South Africa functioned under the interim Constitution for almost three years after it was
adopted. The new constitution is now in operation, having been signed into law on February
4, 1997. 4
Not unlike its predecessor, the new Constitution is the supreme law of the land and
contains a chapter which guarantees fundamental human rights. 5 This chapter of the
Constitution, described as "the cornerstone of democracy in South Africa," 6 is founded on values of
freedom, equality and human dignity. 7
In full realization of the potentially competing demands that a drastically changing
society of diverse values and equally diverse historical experiences may place on scarce
resources, the new Constitution contains a fully fledged limitations clause in the Bill of
Rights, which provides courts with sets of criteria to be applied when competing rights
and interests have to be balanced. 8
Much as there is a need to develop a new South African constitutional ethos, there is also
acknowledgement that the rich diversity of indigenous values need to be nurtured with
pride, for it is that rich diversity which will give birth to and shape a new South
African constitutional value system. Of course the new Constitution reminds us that South
Africa is now back in the global fold. So that while we continue to shape our own
constitutional values, we are enjoined at the same time, to promote the values that
underlie an open and democratic society, based on human dignity, equality and freedom. We
are to consider international law and are encouraged to take into account constitutional
values developed in foreign jurisdictions in similar situations. However, this does not
imply wholesale importation.
It is in the context of this background that the apparent tensions between [*1281]
the recognition of African customary law in the Bill of Rights of the Constitution
and the guarantee of fundamental human rights in the same Bill of Rights should be viewed.
II. The Nature of African Customary Law and its Constitutional Recognition
In South African jurisprudence, there is no single interpretation of the concept Customary
Law. It is however generally understood as the cumulative of all legislative enactments
and judicial pronouncements on African social tradition and custom. Because it is based on
African traditions and customs, if it is not legislated upon, it should continuously
respond to society's contemporary values, needs and practices. If it is sufficiently
responsive to social reality, its contemporary value would be measured in terms of its
compatibility with the contemporary values, needs and practises of its jural communities.
For reasons now well-documented in the colonial history of South Africa, which include
self-serving political ideals of successive colonial governments, traditional institutions
were largely formalized through legislation and infused with the typical conservatism of
positive law, thus substantially reducing their inherent responsive potential.
In ordinary circumstances, because social tradition and custom are so closely connected to
social lifestyles, custom should reflect society's stage of social development. In the
case of African traditional social institutions which form part of the corpus of
"positive" customary law, however, the place and extent of evolution was the
prerogative of political and legal authorities. The denial of participation of blacks in
the political and judicial processes generally precluded Africans themselves from having a
direct influence on the development of customary law. Moreover, the significant failure on
the part of legal policy to keep customary law abreast with social reality resulted in a
sharp dichotomy between custom as law and custom as social practice. In a rather silent
and invisible revolution, women, particularly in the rural sectors, have largely
overturned the central principles which have ordered society for centuries. They have
disrupted social relations and unsettled social identities. In real terms, women have long
been challenging power relations and demanded participation in decision making, but legal
policy has been unresponsive. Judicial administration in this respect fell within the
jurisdiction of the Commissioners Courts and other specialized customary law courts where
the response was equally inadequate. The power of traditional Chief's Courts, the only
courts conducted by jural communities themselves, lacked the capacity to have any
significant impact on the evolution of the system because of their limited jurisdiction.
There is also the general tendency to romanticize African custom or tradition as an
expression of African social values, pure and unchanged by colonial influence. The truth
of the matter is that much of the social tradition and custom has evolved with the
development of traditional [*1282] communities
over time. Whatever developments have been effected by successive colonial administrations
to certain customary law institutions, the system still lags behind contemporary social
values, needs and practices. In a number of situations, this dichotomy between customary
law and social reality causes serious hardships for jural communities in general and for
women in particular. For example, in contemporary traditional families, women make
significant contributions to the accumulation of communal family property and transact
frequently in connection therewith. In the officially developed customary law, however, a
woman has no legal capacity to act whether on her own behalf or on behalf of her own
children, or on behalf of any other. She has been understood to be a perpetual minor with
no capacity to own or transact property or even to act as guardian of her own children.
She herself is regarded as a ward of the nearest surviving male relative even if it is her
own married son. Some of these misconstrued patriarchal institutions, accorded senior male
persons, as heads of households, superior status in the private and public sphere,
enthroning them as the only true persons in law and the sole holders of family property,
whereas in pre-colonial custom and tradition, the head of the household was but only the
"administrator" or "fiduciary" of family communal property. This
general misconstruction places women and unmarried children outside of the law rendering
them legally invisible. Originally, the institution of succession to communal family
property was compatible with the unity of the extended family. Today, despite the erosion
of that family unity senior male relatives, at times remotely related, are still enabled
by customary law to succeed to communal family estates and more often than not, leave
widows and children destitute. 9
Unlike South African common law, customary law, like religious law, has not featured
prominently in the mainstream of South African jurisprudence. A separate court structure
was created to administer customary law, and to apply it in terms of the then Black
Administration Act. 10 This piece of
legislation, in a way, provided a false celebration of cultural diversity in that it made
customary law applicable to certain "classes" of Africans who were said to live
according to African tradition or custom. Those who were sufficiently
"westernized" were exempted from the application of what had become a more
restrictive system of law for women and unmarried family members, mostly in the area of
family relations. The latter would, alongside their white counterparts be subject to the
application of Roman Dutch (Common) Law. 11 [*1283]
This marginalization of customary law vis a vis the common law has thus contributed
largely to its skewed development. That has resulted in much scepticism and mistrust, for
the application of customary law. The attitude is quite naturally most prevalent among
women who seem to bear the brunt of this skewed legal development. At the same time,
however, South Africans are now faced with what seems an essentialized system of law,
which in reality affects thousands of particularly rural African lives in areas where
decades of apartheid neglect have resulted in widespread illiteracy. Some institutions
within this system of law are still cherished, particularly by traditionalists, and those
who seemingly derive from it a power base, whether it be in the public or private sphere.
It is for this reason too that the need for the harmonization of customary law with the
fundamental values of a new legal orderCas opposed to abolitionChas become important.
III. The Customary Law Question in the Interim Constitution
During the Multi-Party Negotiations process which forged the interim Constitution there
was strong lobbying by traditionalists on the one hand and what seemed an equally strong
and highly motivated feminist lobby on the other, for the place of customary law and
traditional authority in a new dispensation.
The feminist lobby aimed to vigorously expose the weaknesses of the system of customary
law in general and traditional leadership, challenging the practices which have come to
discriminate severely against women and unmarried persons. 12 They set out to weaken
the legitimacy of the systems and their role in a new dispensation by presenting the
envisaged Fundamental Bill of Rights and Freedoms as a counter balance to the demands of
traditionalists. In particular, they underscored what was viewed as the undemocratic and
discriminatory aspects of the system of traditional authority and leadership. Not only was
the traditional authority insulated from the electoral process, the lobby argued, it was
also hereditary, where the hereditary process was significantly male primogeniture and by
its nature excluded women. As a result, it precluded women from ever presiding over
customary law and bring it in line with their contemporary needs. Considering that a
majority of the nearly forty percent of rural South Africans are women, it was difficult
to justify the continued recognition and enhanced protection of a system of rural local
governance which was fundamentally male in character, governing predominantly female
communities and excluding women. This seemingly unrepresentative and discriminatory nature
of traditional leadership could not be ignored. It had outlived its legitimacy. It is
offensive to the principles of participatory development and government accountability. It
violates the values of equality, dig- [*1284] nity and
freedom, so basic in the envisaged interim Constitution. Fighting this rearguard battle,
the feminist lobby aimed to prevent an outright traditionalists victory.
It was the view of the traditionalist lobby, however, that the systems of customary law
and traditional leadership ought to be accorded more respect and dignity in a new
dispensation. The lobby thus demanded not only continued recognition of the systems, but
their entrenched protection after decades of operating in a political system notorious for
its suppression, manipulation and exploitation of African national symbols. Again,
considering that forty percent of South Africans are currently permanently rural, they
argued, and a significant number commute between town and country, where such communities
are essentially traditional, there is a need for greater recognition and protection of
traditional leadership and the system of law over which the lobby presides. In
circumstances where South Africans were now turning their back on apartheid and all that
it stood for, the call was widely considered not to be unreasonable.
The view was that a call for enhanced and maximized power for traditional leadership,
despite the system's notorious history, forms part of the argument that colonialism,
apartheid and racism in South Africa made Africanism an integral part of the history of
the national liberation struggle. 13
Achieving national liberation should naturally include the restoration and revival of
institutions symbolic of African pride, dignity and other forms of assertion. In a
post-apartheid democracy, they argued further, there was a need to structure an all
inclusive constitution and Africanise government structures and legal institutions.
Besides, traditional authorities, particularly in the former homelands, constituted the
local government of the day. Despite the controversy around them, the system is firmly in
place and cannot disappear by the stroke of a pen. Rural communities identify with it and
view it as their own. Whether it is appreciated or not goes the argument, traditional
leadership exercises substantial power and authority over their jural communities. The
effect these strongly opposed demands placed on the democratization process during the
Multi-Party negotiations are evident in the provisions of the interim Constitution.
There are a number of references to customary law in the interim Constitution which seemed
to give it some elevated recognition and status. 14
It has been argued that previously, on its face, the choice of law principle in South
African jurisprudence provided a person with the freedom to participate in his [*1285]
or her cultural life, but did not provide that as of right. Section 31 of the
interim Constitution, however, introduced the idea of that choice as of right. It has been
argued that this right does not nullify the previous freedom. A person only had an
additional right to insist on the application of customary law in appropriate legal
proceedings. The freedom, it is further argued, comprehends the generality of social life
while the right requires a special act of recognition by courts or authorities.
Significant in the newly acquired status of customary law is the notion that once its
application is considered as a right in particular circumstances, it is placed on a
constant collision course with other relevant fundamental rights in Chapter 3. 15 This is the case
particularly between the equality clause in section 8 16
and a number of customary law principles and institutions which were understood to subject
the fundamental rights and freedoms of women and children to that of senior male persons
within the family structure.
However, there seemed to be no hierarchy of rights in Chapter 3 of the interim
Constitution. When those rights were in conflict with customary law principles, as it was
bound to happen, it was left to judicial interpretation to balance opposing interests. The
limitations clause contained in section 33 as a whole, provided some guidance by laying
down the criteria or factors which had to be considered in the balancing exercise. 17 Sub-sections 2 and 3
clearly establish the relationship between the chapter on Fundamental Rights and Freedoms 18 on the one hand and
customary law on the other. Section 3(2) provides that a law of general application, which
includes a provision of customary law may not limit a fundamental right. At the same time,
sub-section 3 insists that the entrenchment of a fundamental right shall not be construed
to be denying a right conferred by customary law if it is not inconsistent with that
fundamental right. 19
The interpretation clause (which is contained in section 33) 20 further subjects the
development of customary law to the fundamental rights and the basic values of freedom,
equality, the purport and objectives of the Bill of Rights, where the right to participate
in the cultural life of one's choice was part of the same Bill of Rights.
The interim Constitution has come and gone. In its short life-span, no challenge to any
aspect of customary law was brought before the Constitutional Court in its ordinary
proceedings. The meaning and effect of these seemingly contradictory provisions within the
interim Constitution have there- [*1286] fore not had
occasion to be settled by the Court.
Some of the High Courts have however had the occasion to test the extent of protection
provided by the Interim Constitution for customary law: In Congress of Traditional Leaders
of South Africa v Minister for Local Government, Eastern Cape, 21 applicants challenged
the constitutionality of a proclamation and regulations which they alleged, if applied in
the rural villages of the Eastern Cape Province, had the effect of depriving traditional
leaders of their powers which were entrenched in the interim Constitution. The
application, however, failed on the basis that the proclamations and regulations did not
have the effect alleged by the applicants. The Court was of the view that there was not a
single function of local government which was vested in the applicants who were a group of
traditional leaders. There was no appeal against this decision.
In Mthembu v Letsela and Another, 22 there
was an application for an order declaring the rule in African customary law which excluded
women from intestate succession to be inconsistent with the provisions of the equality
clause. The rule was upheld. The Court was of the view that if the injunction in section
33 is applied the differentiation between men and women here, did not amount to unfair
discrimination in that the rights conferred by customary law should not be construed to be
inconsistent with the fundamental rights in the Constitution. Similarly, no appeal was
lodged against the decision.
IV. The Customary Law Question in the New Constitution
Constitutional Principle XIII in Schedule 4 of the interim Constitution, 23 when read with section
71(1) of that Constitution, committed the new Constitution to continue to recognize and
protect the role and functions of traditional leaders, and for the courts to apply
Customary Law as provided for in the new Constitution and relevant legislation.
Constitutional Principle XI, read with section 71(1)(a) of the interim Constitution,
required the new Constitution to promote and protect cultural diversity. Thus, it seems a
positive duty on the part of the State to do so. It is the extent to which this
recognition applies vis a vis other relevant provisions of the new Constitution which is
still questioned. Other than the occasion of the first and subsequent certification of the
new Constitution, and the certification of the constitution of the province of
KwaZulu-Natal, the Constitutional Court has unfortunately still not had an opportunity to
interpret these pertinent provisions. However, there are some academic opinions in this
regard. 24
[*1287]
V. Future Prospects for the Development of Customary Law
Viewed from the outcome of the two certification judgments of the Constitutional Court, it
seems the constitutional tensions between customary law and the Fundamental Rights,
reflected in the interim Constitution have been eased. To what extent this is in fact so,
would be difficult to assess since there has not been much interpretation by our courts
during the interim phase of the constitution to compare. The Bill of Rights, which is
contained in Chapter 2 of the new Constitution is also applicable to all law, including
customary law. It now binds not only the legislature and executive as was the case in the
interim Constitution, but its binding force has been extended to the judiciary as well. 25 Moreover, it is now
also binding on natural persons and juristic persons. There is a view that it introduces a
clear yet limited horizontal effect. To what extent this is indeed so and how this will
affect power and privilege in customary law personal relationships will optimistically
soon be interpreted by South Africa's courts. Nothing, however, stops academics and others
from speculating through academic analysis.
Section 39 seems to provide much room for harmonizing customary law with the rights
protected in the Constitution. This section requires courts to promote the spirit, purport
and objects of the Bill of Rights when they develop the law, including customary law. The
section, like its predecessor also recognizes the rights conferred under customary law,
protects their continuous application but also expressly requires that such recognition
shall be given only if customary law is consistent with the Bill of Rights, reinforcing
the same apparently circular argument. What the effect of the relationship between these
and other relevant sections of the new Constitution have, on the status of customary law
in South Africa, still needs to be interpreted and settled by the courts.
There are also a number of other provisions in the new Constitution which may affect the
development of customary law one way or another. The South African Law Commission is
currently embarking on a major customary law reform project, with a view to harmonize the
system of customary law with the ConstitutionCa rather daunting task which requires
substantial human and financial resources. 26
However, in the Commission's view, the task is nevertheless achievable.
The judiciary, notably the Constitutional Court and the High Courts in South Africa, have
the primary duty to resolve existing constitutional tensions through interpretation. 27 The opportunity,
however, can only arise through [*1288] vigorous
constitutional litigation, but South Africans are only as litigious as they are
rights-conscious. This is still a serious short-coming due to widespread illiteracy,
particularly in the deep rural areas of South Africa where the need is so great.
There are new constitutional structures specifically created to support constitutional
democracy, and to create and nurture a human rights culture in South Africa. These
structures have started to do sterling work in this regard. Of particular significance for
the customary law question are the Commission on Gender Equality 28 and the Commission for
the Promotion and Protection of the Rights of Cultural, Religious and Linguistic
Communities. 29 The former has the duty
to promote and protect gender equality. Its powers include to: educate, lobby, advise,
research and report on issues of gender equality. The latter has the primary duty to
promote respect for the rights of cultural, religious and linguistic communities. Like the
former, it also has the power to research, educate, lobby, advise and report, on issues of
cultural, religious and linguistic communities. There is particular curiosity about how
these two bodies will relate to each other in their function and practical operation.
Traditional leaders, who still enjoy recognition in the new Constitution have been
provided with a Council of Traditional Leaders at a national level and houses of
traditional leaders at the level of provinces. 30
Their role will be set out in national and or provincial legislation. In terms of the
Interim Constitution these structures had been entitled to advise and make proposals to
legislatures or to government on matters relating to traditional authorities, indigenous
law or the traditions and customs of traditional communities. However, whether this
recognition is only symbolic or whether a real governmental function has been carved out
for traditional leaders in the new Constitution still has to be fully interpreted by the
courts. Concerning the creation of public awareness around the Constitution, for purposes
of litigation, and in the context of the socio-economic history of South Africa, it is
acknowledged that the new government cannot do all at once. For this reason, civil society
through non-governmental structures still has an important role to play in popular
education around the Constitution and in the creation and promotion of a human rights
culture in South Africa. Much of the constitutional litigation brought before the
Constitutional Court has been a direct result of the efforts of such nongovernmental
organizations and structures, providing legal aid and or representing parties and or
acting as amicus curiae.
VI. Conclusion
During the Multi-Party Negotiations Process which ushered in the new le- [*1289]
gal order, many in South Africa argued against the recognition of customary law.
Many in the women's movement particularly expected the Bill of Fundamental Rights and
Freedoms to purge customary law of all provisions which have a discriminatory effect on
women and unmarried persons. Today, however, the demands for the restoration and revival
of African symbols of respect, pride and dignity as part of the widespread call for an
African renaissance has infused a new level of realism in the customary law question.
To an extent it is accepted that customary law is a living law which affects millions of
South Africans. It can therefore not be wished away. Nhlapo has indeed observed that it is
not so much the recognition of the system which is the source of tension, but the
technical difficulties that arise from such recognition. 31
Precedents in neighbouring jurisdictions like Zimbabwe, Botswana, Zambia and Swaziland are
not always helpful in this regard. Their constitutions have clearly insulated customary
law from the application of the norms of equality. Indeed, though this may not be
desirable as Bennett opines, 32 it is at least helpful
for purposes of interpretation. The prospects for the harmonization of customary law with
fundamental rights in the South African context awaits to be seen. In conclusion, it is my
view that if customary law can survive the harmonization process, then all skepticism
about its continued existence in a human rights legal order should become unnecessary.
FOOTNOTES:
n1. S. Afr. Const.
(Act 200 of 1993), preamble.
n2. S. Afr. Const.
(Act 200 of 1993), sched. 4. For the full text of schedule 4, see Appendix A, at 41
St. Louis U. L.J. 1319 (1997).
n3. See Ex Parte
Chairperson of the Constitutional Assembly: In re Certification of the Amended Text of the
Constitution of the Republic of South Africa 1996, 1997 (1) BCLR 1 (CC) (second
certification). For the result of the first submission, see Ex Parte Chairperson of the
Constitutional Assembly; In re Certification of the Constitution of the Republic of South
Africa, 1996 (4) SA 744 (CC) (first certification).
n4. S. Afr. Const.
n5. S. Afr. Const. ch.
2. See also 7-39.
n6. Id. at 7(1).
n7. Id. at 7(3).
n8. Id. at 36.
n9. The South African
Law Commission is currently embarking on an ambitious program of harmonizing customary law
with Roman-Dutch Common Law. The goal of the program is to bring the two systems in line
with the new Constitution. Papers dealing with the position of children under customary
law and marriage under customary law have already been released by the Commission for
public comment.
n10. Act 38 of 1927.
n11. 31 of Act 38 of
1927.
n12. See Yvonne
Mokgoro, Traditional Authority and Democracy in the Interim Constitution, 3 Rev. of Const.
Stud. 60 (1996).
n13. See generally, M.
Van Diepen, The National Question in South Africa (1989).
n14. There were major
provisions which seem to result in its elevated status in the interim Constitution, such
as 181 which explicitly recognizes traditional authorities and customary law and 31 which
formed part of Chapter 3 provided: "Every person shall have the right to use the
language and participate in the cultural life of his/her choice." See also 33(2),
33(3), 35(3) and 182.
n15. Id.
n16. Id. at 8.
n17. Id. at 33.
n18. S. Afr. Const.
(Act 200 of 1993) ch.3, 7-35.
n19. Id. at 3(3).
n20. S. Afr. Const., '
35.
n21. 1996 (2) SA 898
(CC).
n22. 1997 (2) SA 936
(CC).
n23. S. Afr. Const.
(Act 200 of 1993), sched. 4. For the text of schedule 4, see Appendix A, 41
St. Louis U. L.J. 1319 (1997).
n24. See, e.g., T.
Nhlapo, African Customary Law in the Interim Constitution, in The Constitution of South
Africa from a Gender Perspective 156-66 (Sandra Liebenberg ed., 1995).
n25. S. Afr. Const.,
8.
n26. The South African
Law Commission's Project 90, Discussion Paper, The Harmonisation of the Common Law and
Indigenous Law 74 (1997).
n27. S. Afr. Const.,
167.
n28. Id. at 181(1)(d).
n29. Id. at 181(1)(c).
n30. Id. at 12; S.
Afr. Const. (Act 200 of 1993), 182.
n31. Nhlapo, supra
note 24.
n32. T.W. Bennett,
Contemporary African Customary Law in Southern Africa 26 (1985).