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Simon Klose Stockholm University, Faculty of Law LL.M. Thesis Supervisor: David Fisher Human Rights 2001 (20 p) Cover photo “Natal Widow” @ Ulf Berglund Text: Creative Commons CC-BY Photos: @ Ulf Berglund “The Election”


Table of Contents

1. Introduction

5

2. Women in Customary Law

5

2.1 Human Rights in Africa 2.1.1 African Values 2.1.2 The Critique Against Human Rights 2.1.3 Culture Revived

5

5

8

11

2.2 Customary Law 12

2.2.1 Inventing Traditions 12

2.2.2 Family in the African Value System 15

2.2.3 The Customary Marriage 17

. 2.2.4 Legal Status of Women Prior to the

RCMA 19

(a) Proprietary Capacity 20
 (b) Contractual Capacity and

Locus Standi 20

(c) Dissolution of Marriage 22 (d) The Law of Evidence 22 (e) Polygyny 23 (f) Lobolo 26 (g) Levirate and Sororate Unions 28

2.2.5 The Application of Customary Law Today 28

3. The Relationship Between the Right to Equality and the Right to Culture

3.1 The Right to Culture 3.1.1 The Concept of Culture 3.1.2 Culture in the Interim Constitution 3.1.3 Culture in International Law (a) Minority Protection (b) Self Determination (c) Aboriginal Rights 3.2 The Right to Gender Equality 3.2.1 Equality in the Constitution (a) Formal and Substantive Equality 3.2.2 International Instruments Protecting

Equality (a) The International Bill of Rights

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30

30

32

32

33 34

35

36

36 36 37 38


(b) The African Charter on Human and Peoples Rights 38 (c) CEDAW 40

3.3 The Relationship between Equality and Culture in the

Interim Constitution 42

3.3.1 The Negotiation Process and the

Traditional Leaders 42

3.3.2 The Interim Constitution 44

3.3.3 Horizontal Application of the Interim

Bill of Rights? 45 (a) Du Plessis v De Klerk 46

(b) Drittwerkung and Customary Law 47

3.3.4 Application of the Interim Bill of Rights

to Customary Law 48

3.3.5 Equality and Culture in the Interim Constitution 49

3.3.6 Equality and Culture in International Law 50

3.4 Culture and Customary Law in the Final Constitution 53

3.4.1 Section 30 and 31 of the Final

Constitution 53

3.4.2 Culture in the Context of Customary Law 54

3.4.3 Application of the Final Bill of Rights to

Customary Law 55

3.4.4 Limitation of Rights by Customary Law 57

(a) North American Approaches 57

(b) Dow v Attorney General 58

3.4.5 Intra-cultural Conflicts 60

4. New Perspectives

4.1 The RCMA 4.1.1 Definitions 4.1.2 Polygyny and Lobolo 4.1.3 Requirements for a Valid Marriage 4.1.4 Registration 4.1.5 Divorce 4.1.6 Guardianship and Custody 4.1.7 Equal Status and Legal Capacity 4.1.8 Age of Majority 4.1.9 Eect on Women’s Status

64

72

72

4.2 The Development of Future Customary Law 4.2.1 Towards Living Customary Law

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64

64

64

66

67

68

68

70

71

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5. Conclusion

75

6. References

79

Literature Journals Government Publications Legislation South African Cases Foreign Cases International Human Rights Law Abbreviations

79

79

79

81

81

82

82

82

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1. Introduction The aim of this thesis is to present an overview of the recent development of the position of women in South African customary law. I attempt to do this by answering three distinct questions. The first part of the thesis contemplates the question how customary law discriminates women. In answering this question I have tried to describe and explain the legal structures that discriminate women as well as the practices and customs unregulated by law that are said to be inimical to women’s rights. When doing my research I soon realised that any attempt to describe the recent developments of customary law would be incomplete if it failed to put the customs and practices that constitute customary law in their social and historical context. In pursuit of this context central parts of this thesis incorporates subjects as diverse as family-, constitutional- and international law as well as history and anthropology. Nevertheless, despite the many interdisciplinary digressions, the overriding issue of this thesis is that of the human right to gender equality. Questioning my own right to come to South Africa and write a thesis that partly condemns aspects of a culture that I have the deepest respect for, but that I hardly derive my origin from, I have included a chapter about the critique and resistance against human rights in Africa.

The second question arose out of the debate between traditionalists wanting to preserve customary law without reform and the women’s rights movement demanding immediate reforms to ameliorate the status of women in customary law. The title of this thesis comes from this debate. Generally it was conceptualised as a battle between the right to gender equality on the one hand and of the right to culture on the other. The peak of the dispute took place before and during the Interim Constitution of 19931 (IC). The second question thus contemplates; if customary law discriminates on the grounds of gender, can that discrimination be justified with arguments of rights to culture? As it is widely recognised that the oppressive apartheid system denied the majority of South Africans their dignity and culture, claims for cultural autonomy carried substantial weight.

The Final Constitution of 19962 (FC) made the dispute academic by giving the final Bill of Rights horizontal application and expressly qualified the right to culture in such a way that it could not override the right to gender equality. So, as for the third question, I ask if the right to gender equality cannot be limited by the various rights to culture, what then is being done to improve the status of women subject to customary law? The Recognition of Customary Marriages Act3 (RCMA) promulgated in 1998 is a ground breaking attempt to ameliorate the inferior legal status of women. If it will succeed in providing women equal status with men or not is a question of the future, in 1

Constitution of the RSA 200 of 1993

2

Constitution of the RSA 108 of 1996

3

Act 120 of 1998

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this thesis I focus on some of the critique that has been launched against it. When the final pages of this thesis were written an article by Victoria Bronstein was published suggesting guidelines for how the judiciary can develop future customary law to be coherent with the equality clause. In the last chapter of this thesis I cite these suggestions.

2. Women in Customary Law 2.1 Human Rights in Africa 2.1.1 African Values With South Africa’s long history of political and social discrimination it is no wonder that a keystone of its new Constitution is a Bill of Rights. All persons of the nation will finally be subject to a uniform standard of treatment. However, the pursuit of equal treatment often directly contradicts the freedom to organise one’s life in way’s that diverge from national standards. As South Africa now, supposedly, is bound to respect the cultural tradition of those of its people who live according to an African way of life, conflicts with the fundamental rights contained in chapter 3 of the constitution are bound to arise. The values encoded in customary law on the one hand and the Bill of Rights chapter on the other frequently contradict one another. These contradictions are the main issues of this thesis.

Of a total population of about 38 million some 28 million are black, 5.6 million white, 3.4 million coloured and one million of Indian descent4. The vast heterogeneity of South Africa’s population, divided by eleven official languages5, a web of religions6, and its various cultures/ethnic groups is notorious. Given these circumstances it is understandable that groups observing distinctive cultures and traditions should demand respect for their particular lifestyles and systems of law. The conflicts arise when the application of an African legal regime is admitted. Even though it is often stated that the fundamental human rights represent a universal and therefore culturally value neutral system their characteristics constantly betray their origin in western law and philosophy7.

When African countries started to get decolonised the political and judicial intelligentia in most countries were convinced that the human rights regime was a superior value system to that of traditional African societies. Customary laws and African culture however, did not share this prestige. It 4

Although South Africa has rejected racism it still collects population statistics on the basis of race. Lonely Planet, p ?

5

Ndebele, North Sotho, South Sotho, Swati, Tsonga, Tswana, Venda, Xhosa, Zulu, English and Afrikaans. Lonely

Planet 6

Most of the population is Christian but with an enormous diversity of schools, ranging from 4000 African indigenous churches to racist sects that have split up from the Dutch Reformed church. Out of the one million Indian population about 70% is Hindu and 20% Muslim. Lonely Planet p 34 7

(1789).

Particularly the United States Declaration of Independence (1776) and the French Declaration on the Rights of Man

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was also generally accepted that the inevitable process of acculturation eventually would lead to the westernisation of all people8. Ironically, one of the main reasons for the scepticism against African traditions and culture was its identification with and close relationship to colonialism. The indigenous tradition had been distorted and exploited by countless European administrations to support the authority of local rulers and to justify a slow pace of development. Thus, when African territories regained their independence indigenous institutions were seen as hostile to progress and nation building because of their opposition to the individual freedoms heralded by human rights. Furthermore they were believed to preserve obsolete and wasteful economies while encouraging tribal factionalism.

Nevertheless, the newly independent states of Africa hardly gave human rights a warm welcome reception. Chronically unstable political environments made the implementation of bills of rights impossible. Also it seems as numerous African governments regarded civil rights and freedoms as luxuries likely to work as obstacles to economic progression9. For most Africans the so-called rights culture had negative associations with the moral hegemony that the colonial powers wielded in the nineteenth century. Moreover, in Bennets words ”they had every reason to be on guard as the human rights movement has become western imperialism in new guise, a criterion used to determine diplomatic and economic relations with developing countries”10. Suspicions of neo-colonialism however, is perhaps easier to allay than to contend with the differences between African and western perspectives on the world.

African societies are said to be suspicious of law and try to avoid courts and justice institutions regulated by the state11. The Rechtsstat that tested legitimacy by the rule of law had little in common with traditional African forms of government. Although African rulers were bound by norms of good government that prohibited arbitrary or actions of self interest, these norms had nothing to do with western constitutions. Instead, according to Bennet, they can be regarded as an undifferentiated repertoire of moral, legal and conventional precepts for good governance12.

In African societies social harmony was achieved not by rules per se but through other means. Functionalist anthropology has demonstrated that societies with no evident concern for law and legality could function peacefully and harmoniously. Malinowski’s classic study of the Trobriand

8

The few voices that said anything positive about the African cultural heritage, such as Kwame Nkrumah (1962) 6 JAL 103 and Léopold Senghor (in M’Beye (1970) 22 Rev Int Droit Comparé 38), seem to have been driven principally by nationalistic pride. Bennet (1999) p 2 9

Bennet (1999) p 2

10

ibid, p 2

11

Nguema (1990) 11 Human Rights LJ 269, cited by Bennet (1999) p 2

12

Bennet (19 99) p 2

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Islands13 for instance has shown that a society ”lawless” in the western sense does not necessarily have to be chaotic. Society’s systems of control were simply different. Meditation and conciliation were important components in maintaining order. Rituals ensuring the co-operation of watchful ancestors who kept a constant and mostly benign watch over the living to ensure that order was maintained was another14.

An even more important difference between Africa and the west is arguably the African lack of interest in change and progress for their own sakes. These were, and are still, the ultimate values of the western world whereas for Africans maintenance of tradition was paramount. To the west, which only appreciates age and the past in terms of art or tourism this kind of thinking is banned. The predominant functions of customary and western systems of law thus immensely differ. While customary law tries to prevent behaviour from disrupting status-quo western law encourages a constant process of purposeful change15.

2.1.2 The Critique Against Human Rights It is often argued that the whole phenomenon of a human rights regime is foreign to Africa and that it is an inappropriate standard to judge social and political arrangements against. No attempt to analyse the status of women in customary law from the standpoint of human rights is immune from the suggestion that the whole process is a ‘western-inspired’ endeavour and therefore irrelevant or even traitorous to the continent.16 Much of the widespread scepticism of human rights in Africa stems from the fact that people are aware of the fact that they had no input whatsoever into the Universal Declaration of Human Rights and other UN documents which form the basis of the human rights movement. These instruments were declared at a time when most African countries were colonised. Furthermore, some countries that preach the doctrine most vociferously have also been known to collude with apartheid17. These arguments however, that are based on cultural relativism18, object to the imposition of western ideological and cultural values on third world societies. There are however, several grounds to reject them on. First of all one’s membership of a particular group or community is not a morally relevant circumstance whereas human rights discourse pre-eminently is a moral enterprise. To argue that if a particular 13

Malinowski Crime and Custom in Savage Society (1926), cited by Bennet (1999) p 2

14

Bennet (1999) p 2

15

ibid, p 3

16

Nhlapo (1991) p 115

17

ibid, p 115. Furthermore, the preamble of the United Nations Charter which reaffirms ‘faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women’ was ironically in large measure drafted by South Africa’s Prime Minister, General Smuts, who as President of the Commission on the General Assembly played a leading part in the formation of the United Nations. Dugard, p 171, Rights and Constitutionalism, David van Vyck, 1994 18

See footnote 23 below, p 4.

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society has always had authoritarian practices it is morally defensible that it continues to have them is to accept an extreme form of moral and legal positivism.19

Secondly, the notion that human rights is a product of the West with limited or no applicability to the African society is misleading simply because Africa has its own indigenous doctrine of rights. This ethical doctrine was overlooked by the colonisers due to their sense of superiority. In some instances the African way of behaving coincided squarely with Western human rights norms and in others it even exceeded what the West would have considered sufficient. The African right to life, for instance, was wider than its Western equivalent; not only was it prohibited to kill, one was also obliged to assist the needy. Therefore to argue that a rights-based critique of customary practices is foreign ignores historical facts.20

The voices that assert that a human rights regime is irrelevant to Africa on the ground that the continent has its own ways of protecting human dignity generally base their case on a conception of a pre-colonial society. A society unaffected by Christianity, capitalism, labour, migration, industrialisation, urbanisation and in South Africa, apartheid. These forces have all had a major impact on kinship relations. The dynamic characteristic of the African social order also seems to have accelerated thanks to colonial conquest, social engineering programmes and an abrupt decolonisation process. These rapid and disruptive changes are all too evident in domestic relationships. Nowadays informal unions and cohabitation are as commonplace as are illegitimate births while women often are forced to raise the children alone. Family unions like these, set in urbanised societies of today are obviously incapable of providing the support system that traditionalists see as the fundament of African society. 21

Furthermore indigenous institutions too have changed. During colonialism chiefs and traditional rulers were specially protected by the policy of indirect rule and after the decolonisation process the newly formed African nations could not handle the situation without their services. Even so, the many redefinitons of indigenous power and the constant appointments and disposals of rulers done by successive governments has created a modern chief with little in common with his pre-colonial predecessor. Thus the modern way of using the term ”traditional authorities” lacks both authenticity and legitimacy22.

In the 60s a new school of Marxist inspired anthropologists started criticising the dominating functionalism theories and particularly their concepts of culture and culture relativism. Functionalism had sprung up as a reaction against the implicit racist philosophies enshrined in nineteenth 19

Nhlapo (1991) p 115

20

ibid, p 115

21

Bennet (1999) p 6

22

ibid, p 7

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century evolutionary theory. With theories of cultural relativism23 functionalist anthropologists found that forms of oppression that they normally would have condemned at home had to be tolerated if the oppression occurred in an exotic country. In 1947 when the Universal Declaration of Human Rights was being written the executive board of the American Anthropological Association24 stated that ”What is held to be a human right in one society may be regarded as anti-social in another.” Also the board warned that the declaration would simply encode the ethnocentric values of Europe and America and that they refused to condemn the standards of exotic cultures25. The new generation of anthropologists rejected this theory on the basis of moral judgement, the same argument with which the functionalists had rejected the evolutionary theories.

The next challenge to the argument that human rights have no place in Africa simply because of the unique conditions of the continent springs out of these anthropologists critical re-examination of the concept of culture. Functionalists had unquestioningly used the term culture to define the subjects of their study. In their eyes these social groups were static societies unaffected and impossible to influence by the outside world. However, critics showed that the concept of culture was too value laden and too vague to account for neither the coherence of a social group nor the dynamic process of a society in constant change. Therefore to assert that there exists a pure African culture uninfluenced by the West was to propagate a myth26.

Another fallacy pointed out by the critics was that culture is the product of spontaneous primordial community practice. Instead it was concluded that society could have been imposed by an elite or even an outside group. Within the South African apartheid system this came to have a particular effect. The regime emphasised and even created cultural discrepancies which they systematically exploited in order to reorganise society. Once the population of South Africa believed that they were ”naturally” divided into various cultures the apartheid government could justify the geographical fragmentation into ethnic ”homelands”. This critique posed a number of awkward questions to all those who advocated local cultures. If a cultural tradition had been pervaded by external powers and if its institutions had been artificially created by the very same external influences then what was the point of defending it? Who had the right to define culture if it had been imposed for political reasons? And how far could

23

According to cultural relativism standards or values derive from culture and can therefore not be separated from it. Cultures are self-validating and can not be seen as true or false because truth is always contextual. There is therefore no standard by which all cultures can be judged or by which a choice can be made between them. The problem with the relativism stance, taken to its logical conclusion is that by absolutely recognising and accepting the validity and differences of all cultures, it also gives the tyrant and the ‘fundamentalist’ a voice. Thus the very tolerance relativism embraces is what justifies absolutist factions to oppress people under the banner of culture. Kaganas & Murray (1994) p 428 24

Statement on Human Rights (1947) 49 American Anthropologist 593ff, cited by Bennet (1999) p 8

25

ibid, p 8

26

Bennet (1999) p 7

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one compromise between fundamental human rights such as for instance that to gender equality in order to tolerate cultural diversity?27

2.1.3 Culture Revived The last two decades with its dynamical political events in Eastern Europe, South America, Asia and the Pacific has dramatically revived the way people perceive indigenous culture. There has been a worldwide outcry for the defence of indigenous traditions and political self-determination to counter the ubiquitous western globalisation. These political events have forced anthropologists to once again revalue the concept of culture. That social boundaries between groups not are absolute seems to be clear. A group’s conviction that it is different and distinct from other groups is also an important issue. Yet self-awareness points in the direction that members of a group have distanced themselves enough from their culture that they are able to question it. There seems to be an underlying paradox in the fact that people who claim respect for their culture are the same people that already have started to lose it. This argument usually raises questions of how genuine a culture is, to which it has been responded that just because you are looking at a culture from an outsiders perspective this does not necessarily make the culture less genuine. The complexity of one group’s behaviour and output can obviously not be comprised in what is tagged culturally typical. A culture constantly absorbs new features as well as it dismisses others. Some elements may origin from the group’s past, some from another culture and others may just as well have been invented. Accordingly, one cannot dismiss a whole culture solely because it was deliberately created28.

The late twentieth century and its characteristic post-modernistic feature of tolerance towards diversity is a time receptive to cultural relativism. Yet cultural relativism is hard to defend, not only because it tolerates cultural differences to an extent that justifies oppression – or in Bennets words contains the seed to its own destruction – but also because it threatens to turn everything we hold for granted as true and certain upside down. But this does not change the fact that cultural relativism stands true to everyday reality, the fact that people with totally different values and lifestyles can manage to co-exist29.

27

Bennet (1999) p 7

28

ibid p 9

29

ibid p 9

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2.2. Customary law 2.2.1 Inventing traditions Bringing law to societies thought of as lawless was a pivotal characteristic in the justification of European territorial imperialism in Africa and Asia30. In South Africa colonisers imposed a legal system largely based on English models and drafting-style, English court procedures and rules of evidence and a Roman-Dutch common law31. However, practical considerations prevented a wholesale substitution of these European legal and administrative systems for indigenous mechanisms of social control32. Firstly the alien laws were believed to increase the possibilities of uprisings and revolutions among an already unstable indigenous population. Secondly, there was the economic aspect; it was simply too expensive to govern the entire population in an imposed western court-system.33

The colonisers solved this problem by instead preserving an appropriately modified version of the often extensive indigenous legal cultures and systems that already existed in most of the colonised territories. The result, particularly in territories colonised by the British, was a dual legal system: a European system governing relations between the colonisers and a subordinate regulated system of indigenous law ruling relations between the colonised34. More commonly expressed, it was a system of white law for the white population and a black law for the black population.

The legal system that governed, and still today governs, the indigenous peoples of South Africa was tagged ‘customary law’ due to its origins in African tradition. However, the history of these ‘traditions’ and ‘customs’ is one tainted by colonialism and later the apartheid system. The adjective ‘customary’ seems to imply that the rules were not created by a professional class of lawyers. The last decades however have shown that this notion is a historical misunderstanding and that the inverted commas now regularly flanking the term ‘customary law’ reveal a scepticism about its origins35.

Before the colonisers advent to Africa law occupied a central position in the societies on the continent. The law was known by everybody and had to maintain society in the way it had been handed down by the ancestors36. The law in itself was dynamic and often changed in order to meet the needs 30

Currie, p 146

31

Chanock (1991) p 52

32

Currie, p 146

33

Bennet (1999) p 20

34

Currie, p 146

35

Bennet (1991) p 18

36

O C Eze Human Rights in Africa (1984) cited in Dlamini (1991) p 72

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of the people. It simply embodied the common moral code of the people. There was no sharp line between what ordinary members of society regarded as proper conduct and of what the official organs of society decreed as law. Nor did classes or categories with directly opposing economic interests exist.37

The alienation of customary law from its community origins began with the colonial policy of indirect rule. Indigenous legal regimes were co-opted to the imposed Anglo-Dutch Roman system. After being incorporated into the formal system customary laws had to comply with the requirements of the leading legal culture. The systematic accounts of the customary rules were gathered, compiled and supplied by ethnographs, government commissions of inquiry, the opinions of assessors and the judgements of courts. As most African societies seemed to be run by groups of elder men these were the colonisers primary source of information about the customs and rules they were gathering. When translating it into written laws, customary law was transformed into a fixed code that more or less conformed to the preconceptions and the biases of its translators.38 Varying versions of African law were simply constructed and applied by a process of mutual interaction between white politicians, and officials, and African traditional elites, and their subjects.39 The eventual effect of colonial state support to the chiefs, who have been described as adjuncts to colonial rule was to undermine their prestige and to subvert the basis of traditional order. Before colonisation most chiefs had governed, at part at least, with the consent of their people. This check on any abuse of power was removed when the chief’s position came to depend instead on government subsidies.40

Moreover the plethora of rules were reconceptualised into western legal terminology overlooking the nuances, flexibility and dynamic forces that had characterised precolonial African societies. The claim that this body of rules represented a genuine precolonial tradition or a continuing evolution of social norms was a false one, but the etiquette of tradition encouraged the subjected African peoples to believe that they still maintained some form of legal autonomy41. In contrast with the state’s law which was seen as an oppressive imposition customary law was perceived as egalitarian or at least acceptable to people as a whole. In Martin Chanocks popular phrase, customary law is thus neither customary nor legal42. Instead, with the symbolic capital of tradition customary laws possessed, it became absorbed by the state while genuine ‘custom’ remained outside. The state’s production 37

ibid, p 72

38

Bennet (1991) p 19

39

Chanock, (1991) p 56

40

Bennet, A sourcebook of African Customary Law for Southern Africa (1991) p 57, cited by Bronstein (1998) p 397

41

Bennet (1991) p 19

42

Chanock (1989) p 74

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of a customary law was a cornerstone and a powerful intervention in the way in which African life could and would develop under colonialism and apartheid.43 Ultimately authentic indigenous culture was destroyed by colonial rule with the use of law as a significant force in legitimising and entrenching vested interests:

‘[L]aw, along with other institutions of the colonial state, transformed conceptions of time, space, property, work, marriage and the state. The role law played in the colonizing process is an instance of its capacity to reshape culture and consciousness.’44

Indigenous chiefs and family heads around as well as inside South Africa needed the authority of state power to enforce customary family law. Without this crucial power the practices of young men and women, of divorcées and widows, all of whom struggled against aspects of the legally maintained patriarchy, would have been clearly revealed as customs. Customary law has never, nowhere in Africa, been used to improve egalitarian social relations. Its function has been to resist the genuine constantly developing customary practices which were overwhelming customary law45.

Another crucial misunderstanding about the nature of customary law was one brought by English anthropologists. Bringing to Africa a confused intellectual background about the nature of law in their own societies, influenced by functionalist models, they were unable to fit their numerous observations about African social conflicts into a structure that took account of conflict of norms. They understood norms mostly as expressions of group values rather than the interests of parts of groups, focussed into normative statements precisely because they were partial interests.46

It has been shown that, as a telling example of the above mentioned ‘partial interests’, male elders were able to press for and establish as customary law a form of marriage which was clearly not that practised by most tribes and peoples during precolonial or early colonial times. These forms of marriages were on the contrary resisted by many. The male chiefs assertion of control over women and family property was supported by the English administrators who, coming from a society governed by a European patriarchy, more or less had the same prescriptions for African societies.47 Another factor of the current state of customary law is its severe stagnation in the 20th century. Bennet explains how women’s inequality was fossilised in a rigid, stagnant body of law:

43 44

Chanock (1991) p 55 Engle Merry, Law and Colonialism (1991) 25 Law and Society Rev., p 889, quoted by Kaganas & Murray (1994) p

422 45

Chanock (1991) p 55

46

Chanock (1989) p 76

47

ibid, p 76

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[By] the mid-twentieth century, it was obvious that the African family was not what it had been at the time of colonial conquest, and that legal reforms were urgently needed to ameliorate the position of women and children. Yet the courts, and at least until 1985 the legislature, clung to their policy of non-intervention. This long period of inactivity could in formal terms be justified by the government’s scruples about interfering with matters of African culture, which was supposed to be the preserve of the independent and self-governing territories. There was a further danger of making “paper laws”, ones that would be resisted by an uninformed, conservative, and often hostile population. And for their part, the courts have always relied on the adage of legal positivism: their job is to apply the law, not to make it. But the most probable explanation for the inertia is political disenfranchisement, it leads to an unbridgeable social gulf between the lawmaker and the legal subject with a consequent insensitivity to the latter’s problem.’48

2.2.2 Family in the African Value System In 1950 Radcliff-Brown stated that ‘For the understanding of any aspect of the social life of an African people – economic, political or religious – it is essential to have a thorough knowledge of their system of kinship and marriage.’49 Neither the decolonisation process and the deconstruction of the apartheid system in South Africa nor industrialisation and the first stages of an African information society half a century later have managed to outdate this statement. The family is still where the foundations of people’s social lives are being constructed. Traditionally European family structures have been referred to as nuclear families, meaning a couple and their children living together. As opposed to this there is the extended family which consists of parents, children and other relatives, such as grandparents, aunts and uncles. The extended family is no longer common in modern Europe but is still prevalent in many parts of Africa.50 In precolonial, precapitalist times the systems of marriage and kinship sought to serve the purposes of an agrarian society in which the family constituted a centre for production, distribution and consumption. The supreme value in the structure that emerged was the communal or non individual nature in marriage and family life51.

48

Bennet, A sourcebook of African Customary Law for Southern Africa (1991) p 146, cited by Bronstein (1998) p 398

49

AR Radcliffe-Brown, ‘Introduction’ in AR Radcliff-Brown and D Forede (eds), African Systems of Kinship and Marriage, London: Oxford University Press (1950) p 1, quoted by Nhlapo (1991) p 114 50

Bekker (1991) p 2

51

Nhlapo (1995) p 211

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The collective aspect of the marriage relationship embodies the idea of an alliance between two kinship groups for purposes of realising goals beyond the immediate interest of the particular husband and wife52. The primary function of the couple lies in the joining of two families, lineages or clans for purposes which have community-wide significance. Procreation and survival were the main goals aimed at by this kind of marriage. In preindustrial society wives and children were economic assets and the rules that derived around them were part of a survival strategy for the wellbeing of a larger group. Nhlapo points out that this fact is not the same as saying that the interests of the group is more important than the interests of the individual; but instead that group interests in patriarchal societies are framed by and in favour of men.53

Here some aspects about the position of the elders needs to be understood. Most African societies cherish respect for the elders, which by definition, according to Nhlapo, is a notion that discriminates against the young in favour of the old54. The traditional respect both serves as an effective way of bringing up younger generations into values of consideration, humility and decency and, on the other hand, institutionalises – particularly for women – relationships of inequality and suffering in society.55

The status position of the elders had serious economic implications; the control over ‘strategic resources’ ensured wealth, power, authority, privilege and leadership. By making demands on junior relatives the elders secured their superior position in terms of labour and property. The control of marriageable women and the easy access to younger mates were central to the provision of the old-age security system in precolonial societies. By taking successions of young wives with cattle earned through the marriages of their daughters, fines for their seduction (or the occasional infidelity of their mothers) men were able to monopolise the majority of societies resources. Nevertheless, it has to be stated that one of the most important functions of the ideology of deference to the elders, in a society without a system of social welfare, was the granting of subsistence of the ageing generation. In today’s society, when elders increasingly loose control over the young, they seem to be falling back on neo-traditionalism which usually means regaining power over women and children. This generally creates conflicts between claims of old-age support versus independence. 56

The traditional role of women in the African family reflects the fundamentally patriarchal structure in society. It has been said that it is unfortunate that, in a multicultural South Africa claiming non-racism on all

52

Nhlapo (1991) p 113

53

ibid, p 113

54

ibid, p 117

55

ibid, p 117

56

ibid, p 117

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levels of society, the only non-racial institution is patriarchy57. Patriarchy is usually defined as a social relationship that subordinates women to men through all aspects of society. The system is characterised by a mechanical gender division of labour dominated by men, manifesting itself both at institutional and ideological levels. It can be seen as a psycho-historical power-relation which transcends race, religion, culture and class. 58 Even though patriarchy seems to be a universal phenomenon the superior role of the husband in African marriages is sometimes particularly emphasised. IFP's Ubuntu-Botho: Good Citizenship 59, for instance, states that: 'The woman knows that she is not equal to her husband. She addresses the husband as "father", and by doing so the children also get a good example of how to behave. A woman refrains from exchanging words with a man, and if she does, this reflects bad upbringing on her part.'

The Ubuntu-Botho syllabus is used as promoting traditional Zulu family values in KwaZulu-Natal schools. Even though the role of the woman sketched by IFP perhaps is no fair reflection of the majority of peoples concept of marriage today it can be seen as a telling demonstration of the rigid patriarchic structures that permeates South African society, particularly in the rural areas. Urbanisation, industrialisation and recent legislation however, are constantly changing the ways people perceive roles in marriages.

2.2.3 The Customary Marriage In most societies marriage is of fundamental importance for the regulation of the status of the spouses, their ospring and succession. In South Africa, with its legal dualism, only one of the two system's form of marriage was recognised as a valid one. For the customary marriage this was not the case. The ethnocentric bias characteristic of the colonisers generally portrayed African institutions as primitive, barbaric and unchristian, usually basing their prejudices on uninformed value judgements60. Due to the fact that African customary marriages, like religious Hindu and Muslim marriages, are potentially polygamous61 South African law, until the passing of the RCMA in

57

The Afrikaner patriarch for instance, whose authority over women an children originally was biblical, was said to be a 'strict and almost unapproachable person who exerted his authority in a determined manner'. Bekker, p 3 58

African Law Review, p 32, vol 6, no 3/4, 1995

59

Bekker, p 3

60

Dlamini (1999) p 38

61

Even though lawyers tend to use the term 'polygamy' to refer to the practice of one man having more than one wife the term simply means a plurality of husbands and wives. Anthropologists refer to 'polygyny' as the practice of one man having more than one wife and to 'polyandry' as one wife having more than one husband. Kaganas & Murray (1991) p 119

!17


1998, refused to treat customary marriages as valid. 62 The customary marriage in South Africa has been compared to the marriage that was practised by the Germanic peoples when Ceasar came to Gaul. Like the latter, it is a contract between two family groups rather than between two individuals, involves payment of bridewealth in the form of lobolo, akin to the wed or pretium nuptiale among the Germans, and permits polygyny.63

In search of the answer to the question how African customary law and tradition is inimical to women's rights attempts have been made to create so called 'hit lists' of customs considered to be oppressive to women. For legal scholars the focus would generally be on women's proprietary and contractual incapacity, their lack of locus standi in court and their perpetual minority. Unregulated by law customs such as polygyny, bridewealth, the levirate, the sororate, child betrothal and mourning taboos would be included.64 Historically these practices were condemned for dierent reasons. The indigenous marriage system simply did not accord with the colonisers sense of propriety. Polygyny, for instance, was regarded as contrary to public policy, as opposed to the monogamous Christian civil marriage. Dlamini makes the point that it was not really public policy that was at issue but rather state policy which represents the views of the colonisers community on what is acceptable conduct. The views of the indigenous community were simply regarded as irrelevant.65'

A distinction between a civil marriage and a customary marriage was made in several provisions, most of them based on the definition in the Black Administration Act of 192766. A customary marriage was defined as an 'association of a man and a woman in conjugal relationship according to Black law and custom, where neither the man nor the woman is a party to a subsisting marriage.' A civil marriage on the other hand is defined as the voluntary union of one man and one woman to the exclusion of all others.67 Section 35 of the Black Administration Act contains another definition making a clear distinction between the two forms of marriages:

"The union of one man and one woman in accordance with any law for the time being in force in any province governing marriages, but does not include any union recognised as a marriage under Native law and custom or any union recognised as a marriage in Native law under the provisions of section one hundred and forty seven of the code of 62

Dlamini (1999) p 15

63

Sinclair, p 240-1,

64

Nhlapo (1991) p 111

65

Dlamini (1991) p 75

66

S 35 Act 38 of 1927. The promulgation of the Black Administration Act was a decisive moment in South African legal history. It was supposed to introduce a new and more rational structure to African legal matters and remained unchanged for the next 58 years. Bennet (1991) p 19 67

Maithufi (1996) p 300

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Native law contained in the Schedule to Law 19 of 1891 (Natal) or any amendment thereof or any other law." (my italics)

The consequences of non-recognition on the basis of the potentially polygynous nature of customary marriages were certainly invidious for all family-members; unprotected by the law they were accorded only a few of the rights enjoyed by the members of legally constituted families. It had the effect that persons married under customary law were not legally regarded as husband and wife and therefore could not owe each other a duty of support68. Their children were regarded as illegitimate69 and if a man concluded a civil marriage with another partner during the subsistence of a customary one, it had the effect of automatically discarding the first wife and children.70 Furthermore there were no rights to succession between spouses on intestacy and the spouses were competent and compellable witnesses against each other71.

Until the passing of the RCMA in 1998 the customary marriage was said to be hovering in a twilight between a recognised marriage and an illicit co-habitation. For a better comprehension of the position of women a brief historical background of both the legal consequences of a customary marriage and the unregulated features of the marriage that are considered to be particularly oppressive to women will be presented.

2.2.4 Legal Status of Women Prior to the RCMA The RCMA means a radical upgrading of the legal status of women. Prior to its commencement, according to the official version of customary law women – and particularly the wives of customary marriages – had no capacity to hold and dispose of property, contract and sue or be sued in court.72 Compared to other sub-Saharan African countries the customary norms that enforced gender discrimination in South Africa took on a more extreme manifestation. Women were always able to mitigate the structures of patriarchy in different ways depending on the situation of the individual woman, domestic circumstances, and the attitudes of the community. The flexible nature of 'genuine' customary law allowed this. But any local variations were ignored by the courts in favour of a uniform rule that deprived all married women of proprietary and contractual capacity and locus standi in judicio.73 Deprivation of capacity rested on the belief that women were not versed in the ways of the world and could not handle legal matters, or matters outside the family 68

See Ismael v Ismail 1983 (1) SA 1006 (A), see ch 2.2.5 (a) below, p 13

69

See Docrat v Bhayat 1932 TPD 125

70

Dlamini (1999) p 17

71

See S v Johardien 1990 (1) SA 1026

72

SALC, p 78, paper 74, project 90

73

The right of a party to appear and be heard before a court. Bennet (1991) p 25

!19


for that manner, without the help of a male guardian. Based on a widespread analogy with children the courts tended to assimilate African women to the status of minors in common law. They were labelled perpetual minors which perhaps was not so surprising given the status of women under DutchRoman law until the reforms of the Matrimonial Aairs Act 37 of 1953. Full legal capacity was regarded as a senior male prerogative.74

2.2.4 (a) Proprietary Capacity The most serious incapacity suered by women is probably felt in the area of proprietary relations. Control of property is the key to social empowerment, and had women been given clear rights to property their overall position would have been greatly advanced.75 Although women throughout Africa have always played a vital role in food production they were generally denied control over the means of producing food, namely land and livestock.76 More importantly, today, are the wages, salaries and consumer goods related to the market economy. Where women worked to acquire money - and most women have had to enter the labour market today - the courts, without questioning the adult male capacity to earn and control this property, gave their income to men. In the words of the courts, suitable for the structure of polygynous households, the wife's acquisitions were labelled 'house property'.77 From the general principle that women are subordinate to men the courts extrapolated a rule that women have no capacity to acquire, own or deal with property. Women were perpetual minors subject to 'guardianship'.78 Thus anything a woman earned, bought or acquired virtually became the property of her husband79, with the exception of items of personal nature80. The actual meaning of proprietary incapacity in customary law is uncertain. It could mean the absence of power to acquire property, the freedom to use it or the right to vindicate it, the courts have never specified which.81 2.2.4 (b) Contractual Capacity and Locus Standi Removing a certain class of people’s capacity to contract is a logic consequence of having first taken away their rights to property. Women under customary law were not allowed to enter into contracts in their own 74

SALC, p 78, paper 74, project 90

75

Bennet (1999) p 86

76

SALC, paper 74, p79

77

Bennet (1999) p 86

78

SALC, paper 74, p79

79

Bennet (1991) p 25

80

Kaganas & Murray (1994) p 17

81

SALC, paper 74, p79

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right without the signature of the husband. They were generally treated like minors at common law82; guardians were thus obliged to act bona fide in the minor’s best interest83. The bona fide rules – that at least were protective in nature – applied in the case of contractual capacity and locus standi but not regarding the proprietary capacity84.

Women were not allowed to litigate or bring any kinds of legal actions to court in their own names, if they were to do so ‘a hallowed principle of customary law that goes to the very root of native custom', would be destroyed.85 As women were supposed to be ignorant of legal matters they needed someone to argue their cases for them. A woman could not (formally at least) be denied her action, she merely required assistance to bring it. If her guardian was absent in court a curator ad litem would be appointed.86 The rule denying women locus standi in court is procedural in nature and has to be distinguished from a claim. If a woman has no right to litigate in court in, for instance, a claim of guardianship of her children, her presence in court will be incidental. It is her guardian that has the substantive right to bring the suit - the woman is normally merely required to give evidence.87

In 1943 an amendment to the Black Administration Act gave women the capacity to negotiate common law contracts and the locus standi to sue or be sued for common law debts. However, section 11 (3) practically made the above mentioned capacity null and void stating that88:

'(b) a Black woman (excluding a Black woman who permanently resides in the province of Natal89) who is a partner in a customary union and who is living with her husband shall be deemed to be a minor and her husband shall be deemed to be her guardian.'(my italics)

This provision was a good example of the typical distortions that littered the official version of customary law. The common law terminology of minority and guardianship could not capture the actual nuances of female status, furthermore s 11 (3)b did not reflect the social reality that many women, even 82

Zwane v Dhlamini 1938, NAC (N&T) 278.

83

Bennet (1999) p 87

84

ibid, p 87

85

Mashinini (1947) NAC (N&T) 25, quoted in SALC, paper 74, p78

86

SALC, paper 74, p79

87

Bennet (1999) p 87

88

SALC, paper 74, p80

In KwaZulu-Natal s 11(3)b of the Black Administration Act was repealed and thus giving customary wives common law contractual capacity and locus standi. However, s 27 (3) of the KwaZulu code provided that the wives fell under the common law concept of marital power of their husbands, which arguably is no improvement from the customary concept of minority. Bennet (1999) p 90 89

!21


in 1943, were living independent lives.90 S 11 (3)b was not repealed until 1998 when the RCMA was promulgated.

2.2.4 (c) Dissolution of Marriage According to customary law the husband has the right to unilaterally repudiate his wife. The return of lobolo91 is fundamental to the dissolution of marriage, and unless the husband acts with good cause, he is required to forfeit what he has paid. The wife however, has no power to end her marriage. She is dependent on the guardian who received the lobolo to negotiate the divorce on her behalf. During the marriage the husband is obliged to support the wife. After a divorce the wife is assumed to return to her guardian’s home and thus has no rights to maintenance. There is no provision in customary law for the division on property on divorce, as there is in civil law. Women married in customary law neither have rights to own property nor have they rights to any part of the matrimonial estate on the dissolution by divorce.92

While the death of an African wife dissolves her marriage, the death of the husband does not. Instead the widow falls under the guardianship and protection of her husbands heir.93 That person may be the wife’s son or some other relative of the husband. Testamentary succession is unknown in customary law. Instead the customary law of succession is governed by the principle of male primogeniture. That is, the eldest male heir, which could be a son or a relative, inherits all the property. Regulation 2 of the Regulations for the Administration of the Estates of Deceased Blacks94 provides that the estate of a deceased Black on intestacy devolves according to Black law and custom. Generally, this means that the property devolves upon the eldest son of the first or great customary wife, leaving the customary wives themselves at risk.95

2.2.4 (d) The Law of Evidence In this area, the non-recognition of potentially polygynous marriages produces unfortunate results for both spouses. Since the passing of the Law of Evidence Amendment Act 45 of 1988 a spouse in a civil marriage is a competent but not a compellable witness in a criminal prosecution against

90

SALC, paper 74, p 80

91

see 2.2.5 (b) below, p 14

92

Sinclair, p 178

93

see ch 2.2.5 (c) below, p 14. In some systems, where the death of the wife deprives the husband of her full reproductive potential, the institution of sororate requires a younger sister to take her place. The levirate, on the other hand, requires a entitles a relative to the deceased husband to exploit the procreative capacity of the widow. 94

R200 GG 10601 of 6 February 1987

95

Sinclair, p 178

!22


the other.96 The Criminal Procedure Act 51 of 197797, avoiding all uncertainties, deems spouses married according to customary law to be unmarried. In civil as well as criminal proceedings one spouse cannot be compelled to disclose communications made to him or her by the other spouse during marriage.98 This privilege however, does not apply to spouses in customary marriages.

2.2.4 (e) Polygyny Certain aspects of customary marriages that are not regulated by law are also said to be inimical to women’s rights. The institution of polygyny is perhaps the feature of the customary marriage that is most widely held to be fundamentally incompatible with a democratic social order. Furthermore it is seen to be inevitably oppressive to women99. From the earliest reported decisions from South Africa it was self-evident to the colonising judiciary that the Christian monogamous marriage was the only one that could be recognised by law. Polygyny, like bridewealth, was seen as heathen practices confined to the unenlightened and thus incompatible with the law. Evidence put up by missionaries in 1872 before the Commission of the Laws and Customs of the Basotho set up by the Cape government stated that:

'Cattle-marriages mean polygamy, they mean systematic sensualism and immorality. Take them away, and the whole fabric is broken in pieces, - the native heathen customs become meaningless, polygamy becomes impossible, - woman is emancipated, - virtue, truth and honour cease to be empty names….If we wish to reconstitute the family on the Christian mode…there must be no compromise with this embodiment of evil, this traffic in souls, this chain of bondage….'100

The ethnocentrism in statements like this in the colonisers approach to African family law is quite obvious today. There are apparent dangers of generalising from our culturally specific notions of 'virtue, truth and honour'.101 After having condemned polygynous marriages as contra bonos mores for centuries on moral and theological grounds the objection raised against the practice today is more secular: it degrades the status of women. However, as with bridewealth, it is not an easy task to prove that polygyny is 96

S 6 of the Law of Evidence Amendment Act 45 of 1988

97

S 195(2) of the Criminal Procedure Act 51 of 1977

98

Ss 10(1) and 12 of the Civil Proceedings Evidence Act 25 of 1965 and ss 198 and 199 of the Criminal Procedure Act

51 of 1977 99

Kaganas & Murray (1991) p 119

100

Cited by SM Poulter Family Law and Litigation in Basotho Society (1976) p 65, in Kaganas and Murray (1991) p

119 101

Kaganas & Murray (1991) p 125

!23


the direct cause of female subordination102. Particularly when considering arguments stating that polygyny performs the valuable social functions of absorbing women into domestic unions, that it prevents the breakdown of marriages caused by adultery103, provides companionship, reduces the sexual demands on each wife and enables women to space their children104. Also wives in a polygynous marriage are able to share the domestic workload and thus may get greater freedom to engage in the marketplace. Seen in this light, note Kaganas and Murray somewhat controversially, polygyny may in fact on the contrary reduce the hardship women suffer in patriarchal societies105. These arguments however cannot diminish the many obvious ways that women are unequal to men in polygynous marriages. Women bear (and bear the responsibility for) their children but has no rights over them (they are vested in the husbands); they carry the burden of labour both within and outside the household so that their husbands may prosper materially and enhance their status106. Furthermore a husband can introduce more wives to the family while a woman only can have one, shared husband107. Also it is arguable that the possibility to acquire wives as same-sex substitutes facilitates stereotyping and objectification to a greater extent than monogamous relationships. Most of these examples, however, simply point to various patriarchal, oppressive features of customary marriages108.

These apparent inequalities raise the question whether the constitutional norms of non-discrimination should lead to the abolishment of polygynous practices. The whimsical idea that a solution to the equality problem could be to allow women to take more than one husband and thus act as a wife for more than one man suggests greater oppression rather than liberation109. Still the strong emotions and depth of feeling the institution of polygyny arouses suggests that a ban would be difficult to enforce and

102

Bennet (1999) p 120

103

Other ‘positive functions’ of the institution of polygyny suggested by Dlamini are unlikely to impress those wanting equality between the sexes. Having stated that it is a misconception that polygyny discriminates women Dlamini goes on to propose that it still has a role to play, not only for rural, non-literate people but also for the educated; 'as a compromise between a happy marriage and a divorce (the high rate and ease of which in Western societies amounts to serial polygamy). He also states that polygyny is calculated to protect the woman who cannot find a single man to marry and is prepared to settle for a married man. The first wife, who may be aggrieved, is lucky still to have a husband, and may even be given the status of the great wife. Dlamini (1991) p 77-8 104

Kaganas & Murray (1991) p 131

105

ibid, p 131

106

ibid, p 127

107

See ch 4.1.2 below, p 35. After the passing of the RCMA husbands need their previous wives consent before introducing a new wife. In the case of Indonesia and Pakistan monogamy is seen as the preferred form of marriage while polygyny is permitted only if the first wife has consented and the husband is able to support all parties fairly. CEDAW/C/SR113 25 February 1988, quoted in Kaganas and Murray (1991) p 128 108

ibid, p 128

109

ibid, p 127

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therefore inadvisable110. Instead, suggests Bennet, polygyny should be left to the gradual process of disuse where there is every reason to believe that it will disappear in time.

The South African courts attitudes towards potentially polygynous marriages has changed radically in the last couple of years. Even though this thesis focuses on African customary marriages two cases of Muslim marriages are of interest for the illustration of the judiciary's reasoning on this matter. In 1980111, Mrs Ismail who was married according to Muslim rites claimed maintenance from her husband Mr Ismail which she had a right to according to Islamic customs. Mr Ismail had failed to maintain his wife for almost three years when the marriage was terminated and Mrs Ismail sought to enforce her claims in the civil courts. In the view of the court the recognition of a potentially polygynous marriage (it was in fact monogamous) was said to be 'a retrograde step‌in view of the growing trend in favour of the recognition of complete equality between marriage partners'112. Paradoxically the outcome, based on the principle of equality, was in fact prejudicial to women. While deploring the position of women in Muslim marriages the court's decision added to their disadvantages. Kaganas and Murray points out that the invocation of equality in this case seemed merely to provide a new rationalisation of old prejudices. Rather than redressing inequality the case illustrated the tensions between dierent cultural traditions in South Africa where women were caught in the crossfire113.

In 1999 the Ismail-precedent was replaced by a case where a man married in a Muslim marriage died in a car accident caused by the negligence of another114. Here the question was whether the deceased's wife had a right to compensation for the loss of support. The respondent, who had caused the death of the breadwinning husband, rejected the claim arguing that a marriage according to Muslim rites is not valid in common law and therefore there is no legal obligation of maintenance. The marriage was a de facto monogamous union solemnised in accordance with the tenets of a major religion where a husband is obliged to support his wife during marriage. The court concluded that the only basis for not recognising the applicant's claim was that the marriage was not in accordance with Christian values. For African customary unions a duty of support to dependent wives is

110

In Namibia men would simply be invited to take more wives without celebrating the subsequent unions as official marriages. Cf Becker and Hinz Marriage and Customary Law in Namibia, p 3, quoted in Bennet (1999) p 120 111

Ismael v Ismail 1983 (1) SA 1006 (A)

112

Ismael v Ismail 1983 (1) SA 1006 (A)

113

Kaganas & Murray, p 125, 1991

114

Amod and the Commison for Gender Equality v Multilateral Motor Vehicle Accident Fund, 1997 (12) BCLR 1716

(D).

!25


recognised even though they are potentially polygynous.115 Therefore the court held that it would be unequal, arbitrary and intolerant and thus contrary to the ethos created by the new constitution to deny the applicant's claim. They concluded that the widow was legally entitled to the duty of support and that the respondents thus were obliged to compensate her. However the question of the validity of a de facto polygynous Muslim marriage was expressly left open. In this case the Supreme Court of Appeals used the underlying values of tolerance, equality and respect in the Constitution to interpret common law rules. At a practical level it advanced the constitutional rights to equality and the prohibition of unfair discrimination based on religion. Furthermore it carried the implicit message that South Africa needs to re-examine norms that are premised on the belief that there is one preferred religion in the country116.

The treatment of women as property, sexual stereotyping and domination are not limited to polygyny, nor are they practices that can be shown to be inevitable in polygyny. Nevertheless, it is very diďŹƒcult to disassociate these practices from polygyny or to envisage a polygynous relationship where the husband does not dominate. Moreover polygyny as a symbol has become so closely associated with the oppression of women that it could be questioned whether the practice is compatible with a society where the liberation of women is a recognised goal.117 However, concludes Kaganas and Murray, one should be extremely cautious in identifying polygyny in itself as the root of oppression, but rather patriarchy or the sex/ class system. To challenge this system women must be empowered: they need education to widen their options, economic independence, political organisation and the support of community structures118.

2.2.4 (f) Lobolo Another tradition that is unregulated by law is the institution of bridewealth (known variously as lobolo, ilobolo, lobola, bogadi). It is a contract between the groom and the bride's father where, traditionally, cattle was delivered to the bride's father for the transfer of the woman and her reproductive capacity, from the fathers family to the husbands. One of the main purposes of lobolo was to provide security for the woman if the marriage broke down through no fault of hers. The practice is still an essential element of a valid customary marriage in many uncodified systems of customary law.119 As for legal functions of lobolo the ceremonial transfer of the woman to the 115

There has been statutory recognition of customary marriages for limited purposes. In 1963 s31 of the Black Laws Amendment Act 76 a widow of an African customary marriage was entitled to recover damages that aroused from the death of her breadwinner husband. Sinclair, p 158 116

Govender, paper prep for SAHR Comm

117

Kaganas and Murray (1994) p 128-9

118

ibid, p 134

119

Sinclair, p 170-71

!26


husband's family was evidence of a new matrimonial relationship, it validated the conclusion of the marriage and marked the formal creation of the husband's marital power over his wife. It also gave the husband exclusive parental power over the wife's children whereby they became legally aďŹƒliated to him.120

Historically lobolo was repudiated and heavily criticised by Christian morals as a purchase of a woman, which derogates from her status and dignity.121 Today the critique of the payment of bridewealth asserts that it treats women like property, commercialises marriage and is a corrupted custom.122 For the African majority on the other hand, the custom is regarded as a unique African custom that gives them a distinct cultural identity.123 Functions like the validation and the stabilisation of the marriage, the joining of the two families and the protection of the wife from her husband's maltreatment are still of importance today.

Section 11(1) of the Black Administration Act 38 of 1927 states that it shall not be lawful for any court to declare that the custom of lobolo is repugnant to public policy. It is thus a protected institution, but an institution that has not been subjected to constitutional scrutiny against a Bill of Rights that demands equality and bans unfair discrimination. Nor has s 30 of the 1996 constitution, which guarantees every person the right to participate in the cultural life of his or her choice, been weighed against challenges based on equality that claim that this custom, like polygyny, subordinates women.124

Bennet traces the anthropological history of the custom and claims that the institution is now dysfunctional, having none of the previously claimed benefits; 'Because it is now paid in cash, bridewealth is dissipated to defray day-to-day expenses instead of being kept as financial security for the divorced or widowed wife. The entire institution of marriage is said to be undermined: men cannot aord to pay the sums asked of them, so they enter into informal unions, which condemns their ospring to illegitimacy. In a community which is already desperately poor, the continued practice of bridewealth seems irrational and self-destructive.'125

The critique of lobolo is an extremely sensitive issue as the custom remains a ubiquitously popular practice.126 One possible solution could be to 120

Dlamini (1991) p 78

121

ibid, p 78

122

Sinclair, p 171

123

Dlamini (1991) p 79

124

Sinclair, p 171

125

Bennet, Sourcebook of African Customary Law, p 201, cited by Sinclair, p 172

126

Currie, p 159-60 comments that empirical research on the opposing views about lobolo reveals that people are not uncritically devoted to the custom although most of the men and women sampled approved of it. Dlamini (1991) p 79, objects to the critique against lobola with the mute fact that he paid for his wife but she got him for free.

!27


update the institution so that it might serve the original purpose of providing a safety-net for the woman and her children by advocating a 'Bridewealth Fund', something akin to a Retirement Annuity Fund.127 Currie, argues that the institution of lobolo should remain in place until adequate social security mechanisms are devised to take it's place whereas Bronstein, hesitantly suggests that the practice should be rejected on the ground that it undermines eorts to create a society where men and women are treated equally.128

2.2.4 (g) Levirate and Sororate Unions If a husband died and the widow was still young and capable of bearing children, according to customary law she would be expected to enter into a levirate union with one of the deceased's male relatives. This way death would not disrupt the relationship between the two families and the widow could continue to produce children for her husbands patriline. A sororate union, on the other hand, denotes the situation where a wife who is still of child-bearing age dies and her family is expected to provide a substitute spouse, usually a sister or cousin of the deceased. 129 The levirate and the sororate are unlikely to present problems to the new constitution as they are both largely becoming obsolete. If the odd case arises the principle of freedom of marriage guards against women being forced into such unions against their will.130

2.2.5 Application of Customary Law Today The question whether or when an individual should be bound by customary or civil law has traditionally been answered by the conflict of laws. This subject provides choice of law rules to determine which law should be applied when two dierent legal systems are applicable to the same set of facts. In South Africa the courts have had to create these rules on a case-bycase basis because, apart from situations of civil marriages and succession131 none of the enactments governing recognition and enforcement of customary law has laid down any specific rules for the choice of law.132 S 211(3) of the 1996 Constitution states that the ‘courts must apply customary law when that is applicable, subject to the Constitution and any 127

S Burman, Capitalising on African Strengths: Women, Welfare and the Law, p 7, 1991, SAJHR 215, cited by Sinclair,

p 172 128

Chaskalson (ed), p 34-19. Bronstein states that she is not for the abolition of lobolo, but that she is rather for the right for women to determine their own future. 129

Sinclair, p 259

130

The widow's guardian, however, could coerce her to fulfil her customary obligations since he might be liable to refund bridewealth if she does not. The obligation to restore bridewealth in these situations has never been fully accepted, hence the courts have held that lobolo must be returned only if the widow remarries. Bennet (1999) p 128 131

Ss 22 and 23 of the Black Administration Act 38 of 1927

132

Bennet (1999) p 51

!28


legislation that specifically deals with customary law’. This is an umbrella provision dealing with the applicability of customary law in all courts other than the traditional leaders. According to s 1(1) of the Law of Evidence Act 45 of 1988 customary law may be applied by any court, provided that it can be readily ascertained and that it is not contrary to public policy or natural justice. The subsection does not, however, determine whether customary law is applicable in any particular matter. 133 From the absence of explicit rules of choice of law however, it follows that the application of customary law is still a matter of judicial discretion subject to the tests developed in earlier precedents.

Two principles that guide the courts decisions can be discerned out of these cases. The primary principle is that the personal inclinations of the parties should be respected. Customary law will apply where the parties would have expected it to apply to the matter. This expectation is usually indicated by an express or tacit agreement between litigants that customary law should apply. The secondary principle is that customary law should apply to people who, on an objective assessment of their lifestyle and their participation in cultural activities, can be said to adhere to an African culture.

133

Chaskalson, p 36-18

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3. The Relationship Between the Right to Equality and the Right to Culture 3.1 The Right to Culture 3.1.1 The Concept of Culture With the historical and political evolution of South Africa from the colonial settlement to the rise and demise of Apartheid – where racial and cultural cleavages where the definite polemic – it is understandable that the accommodation and protection of ethnic, religious and linguistic minorities in a democratic body eclipsed all other issues in the writing of both the interim and the 1996 constitution.134 The rights to language and culture and the protection of cultural, religious and linguistic communities are found in ss 30 and 31 of the Constitution.

Culture, being a notoriously indeterminate term, is not defined in any international human rights instrument. Even though a colloquial understanding of the word 'culture' might imply artistic and intellectual endeavour, the way most social scientists employ it today stems from nineteenth century British anthropologist Sir Edward Burnett Tylor who defined culture as "that complex whole which includes knowledge belief, art, morals, law, custom, and any other capabilities and habits acquired by man as a member of society’.135 As anthropology grew more diversified so did the definition of the term culture. A 1951 UNESCO publication136 defines culture much broader:

Whereas race is strictly a question of heredity, culture is essentially one of tradition in the broadest sense, which includes the formal training of the young in a body of knowledge or a creed, the inheriting of customs or attitudes from previous generations, the borrowing of techniques or fashions from other countries, the spread of opinions through propaganda or conversation, the adoption - or 'selling' - of new products or devices, or even the circulation of legends or jests by word of mouth. In other words, tradition in this sense covers provinces clearly unconnected with biological heredity and all alike consisting in the transmission, by word of mouth, image or mere example, or characteristics which, taken together, differentiate a milieu, society or a group of societies throughout a period of a reasonable length and thus constitute its culture. As culture, then, comprehends all that is inherited or transmitted through society, it follows that its individual elements are proportionately diverse. They include not only beliefs, knowledge, sentiments and literature (and illiterate peoples often have 134

Devenish, p 411

135

Tylor, Primitive Culture (1871) quoted in Devenish (1998) p 412

136

M. Leiris, Race and Culture (1951) p 20-1, cited in Capotorti Report, para. 222), quoted by Kaganas and Murray (1994) p 414

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an immensely rich oral literature), but the language or other systems of symbols which are their vehicles. Other elements are the rules of kinship, methods of education, forms of government, and all the fashions followed in social relations. Gestures, bodily attitudes and even facial expressions are also included, since they are in large measure acquired by the community through education or imitation; and so, among the material elements, are fashions in housing and clothing and ranges of tools, manufactures and artistic production, all of which are to some extent traditional…

In the debates surrounding the interim constitution Nhlapo distinguished two understandings of the concept of culture137. The first one, which he calls the ‘academic’ or ‘theoretical’ understanding, stresses the nature of culture as a phenomenon that is essentially contested and processual rather than uniform and static. The quoted definition above is an example of this concept. Cultural values in every era are seen as continually in a process of contestation, with sub-cultures in various forms springing up and challenging the dominant culture. Typical of this approach is Kaganas & Murray138 who point out that ‘culture cannot be seen as a given…it is the product of constant change and sometimes opportunistic manipulation’139. They endorse the idea that culture is a creative process that comes out of dynamic social and economic relationships. Therefore there lies a danger in accepting values, practices and arguments merely on the basis of their claim to a traditional, cultural pedigree. They argue that the 'right to participate in the cultural life' of one's choice in section 30 carries an equally broad meaning, and that that is confirmed by the reading of the constitution as a whole

The ‘lay’ understanding of culture is found somewhat to the right of the ‘academic’ understanding. It shows little appreciation of the ‘contestation’ argument and happily places culture next to tradition. Nhlapo explains that ordinary people invest a great deal of emotion in the belief that they ‘belong’ in certain categories: that there are some things which make them ‘us’ and the others ‘them’. This seems to be so despite the growing acceptance of theories of culture which stress similarities rather than differences in the human condition. To the majority of South Africans however, it is not what culture is that is of importance but rather what it does: it gives people a sense of identity.140 Advocates of an unreformed customary law generally take the stand that culture is a uniform, static entity.

137

Nhlapo (1995) p 212

138

Who among others cites the work of R. William, Problems in Materialism and Culture, 1980, Verso and T. Ranger & E. Hobsbawn The Invention of Tradition in Colonial Africa, 1983, Oxford University Press 139

Kaganas & Murray (1994) p 409-433

140

Nhlapo (1995) p 213

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3.1.2 Culture in the Interim Constitution With white right-wing groups trying to secure minority rights to further their Volkstaat ideal and the Inkhata Freedom Party lobbying for minority interests for a federation the Interim Constitution barely contained a minimum of minority rights protection. Section 31 of the IC, which constituted an individual right, stated that:

'Every person shall have the right to use the language and to participate in the cultural life of his or her choice.'

Enshrined in this sentence was a fundamentally new approach to customary law. Read together with the authority of international and comparative foreign law141 the section provided an argument that the state was finally obliged to recognise and apply customary law142. Even though s 31 gave no explicit right to insist that customary law should be applied in legal proceedings, the individual’s right to participate in the culture of their choice, however, could be seen as an entailment of the state's implicit duty to maintain African culture and thus give a right to the application of customary law. As the direct duty-bearer of s 31 the state had two obligations: not to interfere with the individual’s right and to permit the existence of institutions necessary to sustain the culture concerned.143

The Constitutional principles also reflect a commitment to cultural diversity in the fullest sense. Principle XI stipulates the acknowledgement and protection of cultural diversity and requires that conditions for promoting dierent cultures shall be encouraged. Principles XII and XIII are even broader. Principle XII refers to 'collective rights of self-determination in forming, joining and maintaining, organs of civil society, including linguistic, cultural and religious associations.' Principle XIII goes one step further and ensures that 'the institution, status and the role of traditional leadership, according to indigenous law, shall be recognised and protected in the final Constitution' and that 'indigenous law, like common law, shall be recognised and applied by the courts. Thus it converts the state's passive duties into taking active measures to support cultural institutions.144 3.1.3 Cultural Rights in International Law The enforcement of customary law under the banner of cultural protection in South Africa is also highly influenced by international demands of recognition of native social and legal institutions. Section 35(1) of the 1993

141

In terms of s 35(1) of the Interim Constitution (which corresponds to s 39(1) in the Final Constitution)

142

Bennet (1999) p 23

143

Bennet, p 24

144

Kaganas and Murray (1994) p 415

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Constitution145 directed the courts to, when interpreting rights in ch 3 to 'have regard to public international law applicable to the rights entrenched in this Chapter' and 'to comparable foreign case law'. Thus South Africans are entitled to appeal both to international and constitutional law to protect their culture.146 3.1.3 (a) Minority Protection The League of Nations Covenant, adopted after the first World War, made no specific mention of minorities but supplemented it's founding text with a series of minority agreements147. Here the first rights to culture can be found in a state's legal duty to guarantee the rights of minority populations, i. e. groups defined by common bonds of culture, language or religion, within it's borders. After World War II minority rights became a United Nations issue whose primary contribution to minority protection is accommodated in the International Covenant on Civil and Political Rights of 1966 (ICCPR).148 Article 27 states that:

'Persons belonging to‌minorities shall not be denied the right, in community with the other members of the group, to enjoy their own culture, to profess and practise their own religion, or use their own language.'

It is generally accepted that individuals, and not groups149, are the principal right-holders of this article - but only as long as they enjoy their culture 'in community with the other members of the group'. This might imply that the collective also has a legal interest.150 Apart from this article minority protection in the post-war era did not receive much attention until 1992 when the General Assembly adopted the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. Article 2 states that individuals have a right to enjoy their own culture 'without interference or any form of discrimination' which is similar to the right to participate in a culture of choice in article 27 of the ICCPR. Furthermore, states are obliged to 'protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their territories151, and to create 'favourable conditions' to enable persons belonging to minority 145

This section corresponds to s 39(1) in the 1996 Constitution

146

Bennet (1999) p 11

147

Devenish (1998) p 411

148

Bennet (1999) p 11

149

Devenish (1998) p 414

150

Bennet (1999) p 11

151

Article 1.

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groups to express their characteristics and develop their culture152. For the protection of customary law against the South African state it is therefore crucial to determine if the vast part of the population that are being regulated by customary law qualifies as a minority. What constitutes a minority? There is no binding definition to the term in international law153 but generally a people has to pass two tests to qualify as a minority: they must be distinguished by common ethnic, religious or linguistic bonds, and they must be subordinate to another group or groups. 154 The first test is easily complied with by Africans, more diďŹƒcult however is the question of subordination. Is a group subordinated to another group if it is smaller or if it has less power? Here opinions go both directions.155

As Africans after the demise of Apartheid neither are a political nor a numerical minority any claim against the South African state to respect their culture on the basis of minority protection will, according to Bennet, most likely fail. Presumably only ethnic/cultural groups within the African population, say for instance a Venda speaking tribe within a Zulu-dominated area, would be able to claim minority status towards the larger group.156

3.1.3 (b) The Right to Self-determination The group right of self-determination came to be an accepted rule of customary international law in the 1960s. It features as common in article 1(1) in the International Covenants on Civil and Political, Economic, Social and Cultural Rights (1966). The beneficiary of the right is not as controversial as that of the right to minority protection; the right bearer of self-determination simply goes to all 'peoples'. The term people, however, has both objective and subjective elements157, meaning that the collective must be regarded by others as separate and distinct, and subjectively the group must consciously have identified itself as dierent from other groups.

The most publicised aspect of the right to self-determination is the right it gives peoples to choose their own form of government and to decide what form of association they will have with their parent or neighbouring states. In addition, self-determination allows a people the freedom to pursue their economic, social and cultural development, which indicates a close

152

Article 4(2).

153

Devenish, p 415, 1998

154

See art 27 of the ICCPR; Capotorti (1985) 8 Encyclopedia of Public International Law p 385; Robinson (1975) 1 Israel Yearbook on Human Rights p 61; Dinstein (1976) 25 ICQL p 104-5, cited in Bennet (1999) p 12 155

Crawford (1987) 2 Law & Anthropology 8 claims that a minority does not necessarily have to be numerically inferior to be subordinated to another group, whereas Capotorti Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, assumes the opposite. Bennet (1999) p 12 156

Bennet (1999) p 12

157

As recognised in art 1(2) of the 1989 ILO Convention on Indigenous and Tribal Peoples, quoted in Bennet (1999) p

13

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relationship to the right to minority protection.158 It is also under the banner of self-determination that ethnic minorities have waged bloody, passionate and relentless struggles to realise their ideals, often resulting in the disintegration of and chronic instability in nation states.159 In international practice, however, the right to self-determination has rarely been evoked for the protection of a culture. The right is asserted almost exclusively in political contexts and is generally interpreted restrictively to apply only to non selfgoverning peoples.160 Thus protecting customary law under the invocation of self-determination seems quite unrealistic in the South African context.

3.1.3 (c) Aboriginal Rights A stronger source of authority for the advocates of an African cultural tradition can perhaps be found in the instruments that are protecting the rights of aboriginal peoples. Aboriginal peoples, being particularly disadvantaged, have started to assert various rights in international law, i. a. to free expression of culture, to land and natural resources, and, more radically, to full political self-determination. Bennet suggests that an unqualified application of human rights, with the implication that indigenous peoples must be assimilated to a uniform national status, can be met by a demand that African culture shall be given special respect, because it is both indigenous and subordinated to a dominant Western culture.161 There is no absolute definition of the term aboriginality in legal sources, but the central meaning is habitation of a territory before the arrival of immigrant colonists. Other essential elements are a status of cultural subordination and the existence of particular social dierences that divide the aboriginal community from a state's dominant population162.

In 1989 a Convention on Indigenous and Tribal Peoples163 was drafted, with the intention of protecting approximately 300 million indigenous peoples. Although the convention might seem a promising weapon of advancing cultural rights at first glance it merely exhorts states to respect indigenous cultures without forcing parties to any specific obligations. It fixes general goals and leaves the methods of achieving these goals to the

158

ibid, p 13

159

Devenish, p 415, 1998

160

Bennet (1999) p 14

161

ibid, p 14

162

In the Convention of Indigenous and Tribal Peoples of 1989 'tribal' peoples are defined in art 1(1)(a): as those 'whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations.' Indigenous peoples are defined in art 1(1)(b) as indigenous 'on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their social, economic, cultural and political institutions.' 163

Convention No 169

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national governments.164 At the United Nations World Conference on Human Rights in Vienna 1993 a Working Group on Indigenous Populations presented the result of an eight year drafting process: a declaration of rights and a programme of action. They call on states to protect the rights of persons belonging to ethnic, religious and linguistic minorities and indigenous populations. Although aboriginal claims to culture are far from being accepted as binding rights and duties in international law continued lobbying is pointing to a growing support for revised international norms.165

3.2 The Right to Gender Equality 3.2.1 Equality in the Constitution Given the history of South Africa it is no surprise that the guarantee of equality lies at the heart of both the Interim Constitution and the Final Constitution. It is founded upon and informed by the principle of equality which 'permeates and defines the very ethos upon which the constitution is premised'166 The first paragraph of the Preamble to the Interim Constitution speaks of the '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 exercise their fundamental rights and freedoms'. (my italics) The Afterword to the Interim Constitution also looks forward to 'a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans irrespective of colour, race, class, belief or sex'. In addition equality is inscribed in the constitutional principles167 which, together with the Preamble and the Afterword, serve as a guide to interpreting the Constitution.168

3.2.1 (a) The Equality Clause Section 9(3) of the Final Constitution states that:

The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth. (my italics)

164

Bennet (1999) p 15

165

Bennet (1999) p 16

166

P Mahomet J in Fraser v Children's Court, Pretoria North (1997) 2 BCLR 153 (CC) p 161, quoted by Devenish, p 35

167

principles 1, 3, and 5 are directly concerned with equality

168

Albertyn & Kentridge, p 149

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Within the Bill of Rights, equality is listed as the first substantive right, thereby giving it a de facto 'position of pre-eminence'. 169 Even though the sequence of the rights does not determine their status towards the other rights 'the drafters of Chapter 2 listed equality first in order to stress its primary significance'.170 According to the South African High Court equality is both a profound moral and legal issue on which the entire philosophy of the 1996 Constitution is premised.171 3.2.1 (b) Formal and Substantive Equality The Preamble of the 1996 Constitution read together with section 9 and the 'spirit, purport and objects'172 of the Bill of Rights makes it clear that a formal interpretation of the equality clause is not sufficient. Instead a 'politically contextual and value-coherent interpretation of equality' is required.173 The difference between formal and substantial equality is a distinction between an abstract, formal equality which prescribes equal treatment of individuals regardless of their actual circumstances, and a substantive equality that requires effective economic and social equality. Formal equality presupposes that all persons are equal bearers of rights within a just social order and that inequality is a deviation that can be eliminated by extending the same rights and entitlements in accordance with the same 'neutral' norm or standard measurement. It is blind to entrenched, structural inequality, and ignores actual, social and economic differences between groups and individuals. Formal equality constructs standards which appear to be neutral but which in truth embody a set of particular needs and experiences which derive from socially privileged groups. Thus a reliance on formal equality may actually exacerbate inequality.174 Or better formulated; treating those who are unequal in terms of their access to power and resources as though they are the same contributes to substantial inequality – that is inequality in (people's) actual condition – while creating an illusion of fairness. 175

Substantive equality, on the other hand, requires us to look at the actual social and economic conditions of groups and individuals in order to determine whether the Constitutions commitment to equality is upheld. Such

169

Devenish, p 37

170

see Du Plessis and Corder South Africa's Transitional Bill of Rights p 139, quoted by Devenish, p 37

171

see Nyamazaki v President of Bophuthatswana (1994) 1 BCLR 92 (B). quoted by Devenish, 37

172

S 39(2) of the 1996 Constitution

173

Devenish, p 38

174

Albertyn & Kentridge, p 152

175

Brodsky & Day, Canadian Charter Equality Rights for Women: One Step Forward or Two Steps Back? (1989) Canadian Advisory Council for the Status of Women, p 38, quoted in Albertyn & Kentridge, p 149

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an inquiry, according to Shepphard176, reveals a world of systematic and pervasive group-based inequalities, which needs to be considered when approaching the equality clause. A parallel here can be drawn from the illustrating removal of the apartheid laws or the recognition of customary marriages and their consequences. Formal equality is achieved merely by repealing racially or gender discriminatory laws but is blind to the actual social and economic conditions of people's lives which continue to structure, for instance, access to land, employment and education on racial and gender basis.

3.2.2 International Instruments Protecting Equality Section 39(1) of the 1996 Constitution states that a South African court, tribunal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and freedom when interpreting the Bill of Rights. Furthermore it proclaims that the courts must consider international law and may consider foreign law177. So which international human rights instruments are constructed to protect gender equality? 
 3.2.2 (a) The International Bill of Rights The International Bill of Rights is a term that refers collectively to three instruments: the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols. These covenants all strengthen and extend this emphasis on the equal rights of women. Equality of rights for women is a basic principle of the United Nations. The Preamble to the Charter of the United Nations sets as a basic goal 'to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women. Furthermore art 1 of the Charter proclaims that one of the purposes of the United Nations is to achieve international co-operation in promoting and encouraging respect for human rights and fundamental freedoms for all people 'without distinction as to race, sex, language or religion'.178

The Universal Declaration on Human Rights – the first and perhaps most significant Human Rights achievement adopted by the General Assembly in 1948 – is based on equal dignity and rights of every human being. It proclaims the entitlement of everyone to enjoy human rights and fundamental freedoms 'without distinction of any kind, such as race, colour,

176

Colleen Shepphard, Litigating the Relationship Between Equity and Equality, (1993), Ontario Law Reform Commission, p 5, quoted by Albertyn & Kentridge, p 149 177

S 39(1)(a-c)

178

CEDAW fact sheet, p 2

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sex, language, religion, political or other opinion, national or social origin, property, birth or other status'179.

The two Covenants on Economic, Social, Cultural and Civil and Political Rights emerged as a result of the expanding upon these rights and freedoms in 1966. They clearly state that state parties specifically undertakes to ensure the equal right of men and women to the enjoyment of all rights set forth in each Covenant. The Committee on Economic, Social and Cultural Rights and the Human Rights Committee are therefore competent to deal with issues of gender-based discrimination raised under the provision under each instrument.180

3.2.2 (b) The African Charter on Human and People’s Rights The African Charter on Human and People’s Rights, in article 2, provides for equal enjoyment of rights and freedoms without distinction of sex. The Charter also entails the elimination of discrimination against women181 and incorporates the values of the major international covenants. Furtermore, the unique character of African philosophy enshrined in the Charter makes it clear that the family unit is the basic building block of society. Article 18 aims at strengthening and preserving the family and states that:

1.

2.

The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical and moral health.

The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized The family shall be the natural unit and basis of society. It shall be protected by the State which by the community.

With the fundamentally patriarchal structure of customary law in mind it is perhaps difficult to see how the ‘family as the custodian of morals and traditional values’ enshrined in the provision can guarantee equality for women at first blush. Yet a deepened understanding of African values sought to be protected in the Charter, and the fact that members of the family have individual rights within the collective of the family also suggests that this is possible. The individual rights are therefore practised within the interests of the collective.182

The drafters of the African Charter took into consideration ‘the virtues of their historical tradition and the values of African civilization which should

179

art 2

180

CEDAW fact sheet, p 3

181

Article 28 provides that each individual shall respect and consider his fellow beings without discrimination, and shall maintain relations aimed at promoting, safeguarding and reinforcing mutual respect. 182

Sinclair, p 159-60

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inspire and characterize their reflection on the concept of human and people’s rights’183. The provisions regarding women and the family, however, are no different from those contained in other international declarations and conventions. Article 60 of the African Charter also reaffirms its adherence to international law on the subject of human and people’s rights.184

3.2.2 (c) Convention on the Elimination of Discrimination Against Women (CEDAW) CEDAW came into force in 1981185 and was ratified by South Africa in 1993. Several articles in CEDAW directly condemn characteristics found within the customary law of South Africa. The Convention defines discrimination in art 1 as any distinction made on the basis of sex which ‘has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights’ in any field.186 In contrast with the International Bill of Rights this provision specifically gives a comprehensive and detailed definition of the term discrimination against women. Such discrimination encompasses any difference in treatment on the grounds of gender which 'intentionally or unintentionally disadvantages women; prevents society as a whole from recognising women's rights in both the domestic and the public sphere or which: prevents women from exercising the human rights and fundamental freedoms to which they are entitled'. 187

Legally entrenched differentiations - including denying women basic legal rights - such as for instance the right to own property, is easily identified as discriminatory. Not all differentiations will constitute discrimination however. If the result of the differentiation is a nullifying or impairment of equal rights in any of the forms set out above then the differentiation is discriminatory and thus prohibited under the Convention. Article 2 (f) states that states parties condemn discriminations in all its forms and that they:

‘agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discriminations against women'188(my italics)

183

The Premable to the African Charter

184

Bekker, p16

185

van Wyk, p 79

186

art 1

187

CEDAW fact sheet, p 9

188

art 2(f)

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South Africa, as a state party to the convention, is thus obliged to modify or abolish customary law. It has also accepted the responsibility to take active steps to implement the principle of equality between men and women into its national constitution. States parties are also obliged to take steps to eliminate discrimination in both public and private spheres. It is not enough to strive for 'vertical'189 gender equality of the individual woman vis-Ă -vis public authorities; states must also work to secure non-discrimination at the 'horizontal' level, even within the family.190 Article 5 has direct implications for the nature of customary law. It proclaims that states are obliged to

'take all appropriate measures to modify social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on the stereotyped roles for men and women'.

This provision recognises that, even if women's legal equality is guaranteed and special measures are taken to promote their de facto equality, states still have to strive to remove the social, cultural and traditional patterns which perpetuate gender-role stereotypes. According to article 15 women shall have equality in all legal and civil matters and impacts directly on contractual capacity and locus standi:

'State parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals'.

Further on state parties 'agree that all private instruments of any kind with a legal eect which is directed at restricting the legal capacity of women shall be deemed null and void. 'Discrimination within the family is regulated by article 16. According to this provision states are obliged to take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and to 'ensure, on a basis of equality of men and women: the same right to enter into marriage; the same right freely to choose a spouse and to enter into marriage only with their free and full consent; the same rights for both spouses in respect of the ownership, acquisition, management administration, enjoyment and disposition of property, whether free of charge or for valuable consideration.'191 In customary law, with women in constant need of a male

189

see ch 3.3.3 below, p 27

190

CEDAW fact sheet, p 10

191

art 16(1) (a, b, h)

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guardian, the opposite was often codified. 192 Section 11(3)(b) of the Black Administration Act,193 for instance, that stated that women married in customary law should be deemed to be minors and therefore had no legal or contractual capacity, would thus clearly constitute a breach of international law. It should also be noted that South Africa, when signing the convention, unlike many other states did not retain restrictions on equal rights regarding women’s personal status, namely, on marriage, family citizenship, and the legal capacity of women in general.194

3.3. The relationship Between the Right to Culture and the Right to Gender Equality in the Interim Constitution 3.3.1 The Negotiation Process and the Traditional Leaders The intensity of the various debates in the constitutional process preceding the 1993 Constitution is notorious. Because of the heterogeneity of South African society there was no shortage of lobbies intent on driving home their particular concerns. Amongst the most widely publicised points of dierence were the quest of rightwing Afrikaners for a 'Volkstat' and the insistence of real federalism by the Inkhata Freedom Party amid implicit threats of secession by KwaZulu-Natal from Chief Mangosuthu Buthelezi. Feminist and other groupings concerned with women's issues were no less active. They were acutely aware of the danger that the new South Africa would be more 'non-racist' than 'non-sexist' as had happened in other parts of Africa, and there was consensus that the opportunity oered by the negotiations to insert an equality clause in the constitution should not be missed.195

One of the most vociferous groups in the negotiating process comprised representatives of the traditional leaders. There are over 800 recognised traditional leaders in South Africa - each one with followers and jurisdiction over an area of land in which customary laws and practice prevails.196 Very early in the debate it became apparent that, for these leaders, one of the most troubling features of the draft Constitution was that the commitment to equality fundamentally encompassed a commitment to gender equality. Mwelo Nonkonyana, for instance, chief negotiator for the Cape Traditional Leaders, repeatedly and provocatively insisted that women are not and cannot be equal to men. The rules in customary law that subordinates women were presented as axiomatic, as the articulation of

192

art 15(2)

193

S 11(3)b of the Black Administration Act was repealed after the promulgation of the RCMA in 1998

194

Samuel, p 24

195

Nhlapo (1995) p 209

196

Devenish, 68

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time-honoured197 values of which these leaders were the natural and legitimate custodians.198 In justifying their position and asserting their legitimacy traditional leaders consistently argued that they were 'above' politics. The president of the Congress of Traditional Leaders of South Africa (CONTRALESA), for instance claimed that a system of traditional leadership is not inconsistent with a democracy:

The traditional leader acquires his position without being elected. He is decreed by custom and birth to be the leader. Heredity and the fact that he comes from the correct lineage confer legitimacy‌The fact that the traditional leader is required to act in the interests and according to the wishes and the will of the people ensures that he does not undermine the democratic rights of his people.199

The debate was thus largely on who stood to lose if gender oppression was abolished. An important part of the debate sought to understand the eect of claims for women's emancipation, based on human rights notions, on societies in which status quo is routinely defended with arguments based on culture and 200tradition. This led to a general questioning of the role of the indigenous African value-system and what it entailed for women.201 The dispute between the advocates of customary law and the representatives of the women's rights movement became very bitter. To scrutinise the patriarchal nature of customary law on the basis of the right to gender equality opposed a direct threat to the power that traditional leaders wield in their communities. There was therefore reason to believe that their fierce challenges against the right to equality came out of a genuine fear of disempowerment.202

There were strong assertions that the value system of a new South Africa broadly should reflect the culture of the majority of the country's inhabitants. That it finally - socially and politically - should represent the family values of the continent it was part of rather than Western Europe.203 Concretely this was expressed in an attempt to secure special treatment of culture and customary law in the Interim Bill of Rights. As the far reaching 197

Traditional authority is based on the belief of the sacrosanctity of immemorial rules and practices: value is a result of historical fact. Max Weber contrasts traditional authority with legal authority, the hegemonic form of modern political legitimacy where authority is distributed according to impersonal norms that are consciously established in a context of purposive or value rationality. M Weber, Economy and Society (1978), quoted by Currie, p 149 198

Kaganas & Murray (1994) p 410

Nkosi Sango Patekile Holomisa, The Role and Place of Community Courts and Chief's Courts (paper delivered at the University of the Western Cape, 26 March 1993) quoted by Kaganas & Murray (1994) p 410 199

200 201

Nhlapo (1995) p 209

202

Kaganas & Murray (1994) p 410

203

Nhlapo (1995) p 209

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eects of a constitutional regime which contained a Bill of Rights and granted the courts the power of judicial review became apparent the traditional leaders were alarmed that their traditional systems would fall.204

Because of the fact that the whole negotiation process embodied the recognition of the oppression of the majority of South Africans under Apartheid and a denial of their dignity and culture, claims for cultural autonomy carried weight. The ANC-aligned CONTRALESA had not only secured a commitment in the Constitutional principles recognising the position of traditional leadership as constituted under customary law, but also reached an agreement on the insertion of a provision in the Draft Interim Constitution (Article 32) recognising the right of communities 'which observe a system of customary law' to be governed by that law in their interpersonal relations. This right was to be subject to the requirement that the legislature and the courts should be active, during the interim period, in guiding the development of customary law so that it conformed with the constitutional values, particularly that of equality. They had in other words secured the continuance of customary law if it accepted some 'gentle coaxing' in the twenty-first century. Even if this compromise was not popular within all groups it was generally acknowledged as a sensible approach under the circumstances. 205

Then suddenly, inexplicably, the traditional leaders changed their tactics. In the eleventh hour of the negotiating process they demanded a blanket protection for 'cultural rights' so that the bill of rights should not apply to customary law. This led to a widespread withdrawal of sympathy for the customary law argument as a whole among the other members of the committee.206 A lobby group that united women across party-lines and that was firmly supported by rural women's organisations was formed to contest the traditionalists assertions that they simply implemented the wishes of all their people, which was belied by the authoritarian tone of their claims. In what Nhlapo calls a significant victory, the hard-fought compromise of Article 32 was rejected and thus left customary in the same position as civil law, subjected to the Bill of Rights in chapter 3 of the Interim Constitution.207

3.3.2 The Interim Constitution The Interim Constitution of 1993 proclaimed a historically new order based on the principle of equality and was the result of four years of extremely diďŹƒcult negotiations. Because it represented an accommodation of twentysix parties and groupings whose support never before had been tested in a democratic election it was designed to be temporary; the definite constitution was to be drawn up by a democratically-elected legislature two years later. 204

Kaganas & Murray (1994) p 410

205

Nhlapo (1995) p 209

206

ibid, p 209

207

Kaganas & Murray (1994) p 411

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Thirty-four 'constitutional principles' established the framework of the basic guidelines which had to be incorporated in the Interim as well as the Final Constitution. The very existence of constitutional principles evidences both the lack of trust between the parties negotiating and the fact that the interim constitution embodied more than one uneasy compromise208.

Principle III for example, provides that the constitution 'shall prohibit‌ gender and all other forms of discrimination and shall promote racial and gender equality and national unity' while Principle XI enjoins the acknowledgement and protection of linguistic and cultural diversity and stipulates that 'conditions for their promotion shall be encouraged'. Principle XIII(1), which was a late compromise amendment under s 2 of Act 3 of 1994 designed to win the co-operation of the King of the Zulus and the Inkatha in the elections encapsulated the paradox in two directly contradictory sentences:

'The institution, status and role of traditional leadership, according to indigenous law, shall be recognized and protected in the Constitution. Indigenous law, like common law, shall be recognized and applied by the courts, subject to the fundamental rights contained in the Constitution and to legislation dealing specifically herewith.'

The first sentence implies that the patrilineal system of traditional leadership cannot be overturned on the ground of gender equality whereas the second sentence implies the opposite.209

3.3.3 Horizontal Application of the Interim Bill of Rights? Human rights were originally meant to protect the citizen from arbitrary and oppressive treatment by the state (vertical application) and could not be used to ground a substantive right held by one private person against another (horizontal application). Following the interim constitution of 1993 there was much confusion and debate whether the constitution regulated private relations or not. The pertinent question was if one individual could bring a suit against another solely on the breach of one of the fundamental rights in the bill of rights. If horizontal application was possible the constitutional rights would be able to override customary law and conversely, if only vertical application was allowed customary law would limit the bill of rights210.

Section 7(1) specified that chapter 3 – the Bill of Rights – 'shall bind all legislative and executive organs of state'. The omission of the judiciary implied that the constitutional rights only applied to customary law when embodied in an administrative decree or legislative enactment. This interpretation however rested on a narrow, literal reading and, according to Bennet, avoided the important social and moral issues at stake. To 208

ibid, p 409

209

Bennet, (1999) p 29

210

ibid, p 30

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complicate matters section 7(2) stated that the fundamental rights chapter applied to 'all law in force' and to all administrative decisions taken and acts performed during the operation of the act. The two subsections thus seemed to be in direct conflict.211

3.3.3 (a) Du Plessis v De Klerk In the case of Du Plessis and Others v De Klerk and Another212 in 1996 a direct doctrine of horizontality was denied by the Constitutional court. The case arose out of the circumstances of a series of newspaper articles that alleged that certain South African citizens had been involved in supplying arms to the Angolan rebel movement UNITA for personal gain. When the respondents claimed damages for defamation the appellants, a Pretoria based newspaper, tried to amend their plea by invoking a defence based on article 15 of the Interim Constitution which guarantees the right to freedom of expression.

The Constitutional Court noted that there was no universal answer to the problem of vertical or horizontal application of a bill of rights, the courts in Canada, USA and Germany had, for example, rejected a direct doctrine of horizontality. The German model could best be described as an indirect application model. The rights of individuals entrenched in the Basic Law213 were directly applicable as protection against State action, but did not directly apply to private law disputes. The values embodied in the Basic Law, however, permeated the rules of private law which regulates legal relations between individuals. A constitutional right might override a rule of public law, but is said to 'influence' rather than override the rules of private law. Private law was thus to be developed and interpreted in the light of constitutional norms, and continued to govern private litigants.214

Further on the court concluded that the 'emphatic' phrasing in section 7(1) which left out the judiciary 'must mean that chapter 3 was intended to be binding only on the legislative and executive organs of State'. If a more extended application had been intended it could easily have been expressed as, for instance, it had been in article 5 in the Namibian Constitution. Thus the court found that the fundamental rights enshrined in chapter 3 were not in general capable of application to any relationship other than that between persons and legislative or executive organs of government, with two judges dissenting from the majority view215.

211

Bennet (1999) p 30

212

Du Plessis and Others v De Klerk and Another BCLR 658 (CC)

213

The German equivalent of a fundamental rights chapter.

214

Du Plessis and Others v De Klerk and Another BCLR 658 (CC)

215

After a textual analysis primarily based on section 7(2) of the bill of rights, which states that chapter 3 applies 'to all law in force' (i.a. taking into consideration that the Afrikaans text used the word 'reg', the generic term for all kinds of law) judges Kriegler and Didcott concluded that chapter 3 was capable of horizontal application.

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3.3.3 (b) Drittwerkung and Customary Law The legal result of not recognising customary marriages, because of the incompatibility of polygyny and bridewealth, were that the courts bastardised practically the entire African population; that they deprived almost every father of guardianship or other rights to his children and the destruction of any equitable claim in property. As nobody wished this fate on customary law in the future the problem under the Interim Constitution was to follow the rule that fundamental rights could only be applied when the state is party to an action and at the same time heed a human rights regime.

Accordingly, when the precedent of Du Plessis v De Klerk clearly stated that the fundamental rights in the Interim Constitution could not be applied horizontally South African legal scholars looked abroad for solutions in foreign jurisdictions. The German approach described above is known as mittelbare Drittwerkung (indirect application of fundamental rights) in German and oered South Africa a particularly useful guide in applying the fundamental rights. The technique is favoured by both courts and academic opinion in Germany and suggests that the constitutional norms must be determined by their social and legal circumstances. The fundamental rights become applicable when rules of private law are generally or abstractly formulated. Like German private law, customary law is full of generalised norms, often characterised by requiring reasonable behaviour. According to the doctrine constitutional norms shall fill in the gap whenever private law is vague, contradictory or has no applicable rule. In the case of customary law this becomes highly significant, bearing in mind both that the oďŹƒcial version of customary law is a distortion of pre-colonial laws and in other cases it does not represent current social practices. Thus whenever a customary rule does not reflect authentic social praxis or is uncertain or ambiguous, the fundamental rights in chapter 3 may be invoked.216

The willingness to extend constitutional rights to private relationships partly comes from the ideas of the Sozialstaat where the modern state is obliged actively to promote private good instead of, as liberal philosophy dictates, remaining a passive onlooker. Another important argument in favour of the Drittwerkung-doctrine is the fact that the state no longer holds a monopoly of power. Private institutions such as commercial corporations, trade unions, universities and churches wield considerable social and economic power which private law may be ill-equipped to control. A continuance to insist that constitutional rights should only bind the state is in fact arbitrary. If corporal punishment, for instance, is banned by a bill of rights, the rule would apply only to children in public schools but not to those in private schools, regardless if the two schools exercise the same powers. 217


Feminist scholarship has shown that one of the results of confining social

216

Bennet, (1999) p 39-40

217

Bennet (1999) p 36

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issues to the private sphere is to suppress them. 218 In particular the application of the constitutional norm of non-discrimination in exclusively public contexts – where women traditionally have been excluded in favour of 'abler' men – has made it even harder for women to enhance their position in society.219

3.3.4 Application of the Interim Bill of Rights to Customary law Three sources of customary law can be distinguished. Primarily, there is a body of parliamentary and delegated legislation that codifies or amends rules of customary law. The Native Administration Act of 1927, the Natal and KwaZulu codes of Zulu law and the labyrinthine body of legislation that regulates customary land tenure are examples of this form of customary law. Secondly, there is a body of customary law contained in the decisions and precedents of the Supreme Court and the Black Appeal Court. Thirdly, there is the ‘unofficial’ or ‘living’ customary law, the unwritten repertoire of rules rooted in the actual social practices of African communities today.220

The consequences of the application provisions in the Interim Constitution only directly affected the first of these sources. The version embodied in judicial decisions and the ‘living’ law fell outside of the direct reach of the Interim Bill of Rights. However, the combination of s 35(3) that required that courts developing customary had to pay regard to the spirit, purport and objects of the Bill of Rights and the method of Drittwerkung, the Bill of Rights applied indirectly to non-statutory customary law when a rule was abstract or unclear. For instance, in giving content to the customary rule that requires a ‘head of a family’ to manage household assets ‘reasonably’, a court would be required to have regard to the spirit, purport and object of the Interim Bill of Rights. A court may therefore require that a head of a family only may deal with household property which is the product of labour of the woman or minor children of the family with their consent.221 In the case Mthembu v Letsela & another 222 the court refused an invitation to develop customary law of succession. Since customary has to be interpreted in accordance with the spirit, purport and objects of the Bill of Rights one may wonder how the court could avoid to modify the by definition discriminatory principle of male primogeniture on succession. Instead the court held that any change to the rule disqualifying women from inheriting would also affect 218

M. Freeman, for instance, in Towards a Critical Theory of Family Law, (1985) p 38, writes that the powerful ideology of liberal theorists that the state should refrain from intervention in the ‘private’ lives of individuals has served to deny protection to women and children, the mentally ill, the handicapped, and others traditionally cared for in the home, by women. Far from being a liberal stance protecting areas of freedom, this insistence on the privacy of the family is designed to perpetuate male domination and female subordination, which are seen by the state as crucial to the ‘assumed stability of the family unit’. Quoted by Sinclair, p 21 219

Bennet (1999) p 36,

220

Chaskalson, p 36-20

221

ibid, p 36-20

222

1998 (2) SA 675 (T)

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customary family law rules, and that such far reaching development should be undertaken by parliament.223

3.3.5 Equality and Culture in the Interim Constitution One of the central problems that the courts faced during the Interim Constitution was that there was no clear guidance to the hierarchy of the rights embodied in the Bill of Rights. When reading the Constitution as a whole however, according to Kaganas & Murray, the principle of equality emerged as the superior value. 224 The Preamble, for instance, proclaimed that the overriding goal of the 1993 Constitution was to create a new order in which there is 'equality between men and women and people of all races'. The Afterword also emphasised the importance of non discrimination for the organisation of a new South Africa. Furthermore constitutional principle XIII225 while providing for the recognition and protection of customary law, expressly subjects it to the fundamental rights. It is true that, in terms of section 31226 and constitutional principle XI227 one of those rights must protect culture. But even if many parts of customary law could be said to reflect cultural values and practices, principle XIII must mean that, in it's relationship to customary law, the right to protection of culture must rank below that of the right to equal treatment. If customary law was allowed to trump equality in the guise of indigenous culture principle XIII would have been meaningless.228

More support for the view that equality should take precedence can be found in section 33(3) which describes the types of limitations of the secured rights that are permitted. The section is based on a Canadian provision and requires that such limitations, among other things, are justifiable in a 'democratic society based on freedom and equality'. Even if this provision most likely will have little direct eect on the way conflicts between cultural and equality rights are interpreted, nevertheless it reasserts the privileged position of equality in the constitutional dispensation. 229

A third argument in favour of the idea that equality ranks higher than culture comes from the emphasis, both in the constitutional principles and the constitution itself, on the individual as the subject of the rights conferred. The preamble declares that 'all citizens' should be able to exercise their fundamental rights. Constitutional principle II states that 'everyone' shall enjoy fundamental rights, freedoms and civil liberties. And, most importantly 223

Rautebach, p 128

224

Kaganas & Murray (1994) p 417

225

see 3.3.5 above

226

section 31

227

Constitutional principle XI states that: 'The diversity of language and culture shall be acknowledged and protected, and conditions for their promotion shall be encouraged'. 228

Kaganas & Murray (1994) p 416

229

ibid, p 416

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s 31 states that 'every person' has the right to participate in the 'cultural life of his or her choice'. The formulations in these provisions makes it clear that all the fundamental rights, and cultural rights in particular, can only be asserted by individuals and not by groups. It is the individual who has the right to choose a cultural identity and to protest if the expression of that identity is being limited. Consequently it is also the individual who has the right to resist the imposition on her of cultural practices that violate the principles of equality and non-discrimination.230

3.3.6 Equality and Culture in International law Due to the increasing demand for protection of ethnic and indigenous minorities in the international forum United Nations documents, like article 27of the Covenant on Civil and Political Rights231, recognise two distinct aspirations on behalf of these groups: to avoid discrimination and to receive equal treatment in areas where needed, and to receive differential treatment where this is necessary to preserve their various characteristics.232 The right to be different, however raises difficult questions. Primarily the protection of minority identity might lead to secessionist movements or underscore differences which may cause social disorder. Capotorti, for instance observes that the need to safeguard the integrity of the state and discourage separatism and fragmentation might be regarded as 'a natural limit to any policy of protection for minorities, even a policy pursued in the form of a very broad pluralism.'233 According to his study some jurisdictions have abolished customary law in pursuit of national unity and modernisation while others have argued that the right to culture in article 27 is subject to implied restrictions in it's application if, for instance, it is used to prevent integration or to threaten the unity of the state. Here it should be noted that the concern that the protection of minority rights may cause secessionist movements or harm the unity of states was not accepted by the international community as valid reasons for avoiding the promotion of minority identity. Capotorti's 'natural limit' does not justify an absolute denial of cultural rights to minorities, but it is rather to be seen as an interest that might be validly considered when giving effect to these rights. Kaganas & Murray argue that it seems clear that 'similar concerns must be arise in the case of indigenous groups, whether minorities or not, whose cultural norms are out of step with the dominant norms enshrined in the national constitution.234

230

When explaining the reference to 'collective rights of self-determination', the technical committee on constitutional issues emphasised that the bearers of the rights would be a collective of individuals. (Third Supplementary Report on Constitutional Principals of the Technical Committee of Constitutional Issues to the Negotiating Council, 30 June, 1993, para. 2.9) quoted by Kaganas & Murray (1994) p 430 231

see 3.1.3 (a), p 16 above

232

'Special Protective Measures of an International Character for Ethnic, Religious or Linguistic Groups', UN Doc. E/ CN.4/52, section V, cited by Kaganas & Murray, p 430, 1994 233

F. Capotorti, United Nations (1979) E/CN.4/Sub.2/384/Rev.1, cited by Kaganas & Murray (1994) p 418

234

Kaganas & Murray (1994) p 419

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Not only arguments of national interests justify the curtailment of cultural rights. It is also suggested that incompatibility with contemporary human rights standards shall justify an abridgement of those rights. In 'Human Rights, Peoples' Rights'235 Kamenka argues that groups should not be immune from either internal or external criticism of their customs and practices. He asserts that third-generation rights, such as the rights of peoples, should be read and understood in terms of first-generation rights such as individual autonomy. Groups 'do not have the moral right, in the name of collective self-determination, to deal as they wish with their own people, any more than we now believe that governments and nation states have such a moral right.'236

In traditional human rights jurisprudence, which generally follows a language that is universalist and individualist, group's rights are hard to fit in. The Universal Declaration of Human Rights, for instance, refers to rights vesting in 'everyone, without distinction of any kind'.237 Neither article 27 of the Covenant on Civil and Political Rights attempts to promote group interests at the expense of the individuals’. It clearly phrases the right in terms of the individual when stating that 'persons belonging to‌minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture.' The article, it is said, does not create a true group right that can be invoked against individual members of the group. Other voices suggesting that rights related to culture are limited assert that they are focused on individuals though they are predicated on the group.238 Consequently communities do not have locus standi in terms of the covenant.

The Capotorti Report also confirms that it is the persons that belong to minorities and not the groups as such that the rights in article 27 are vested in. One of the reasons for this is that the freedom of the individual to make a choice between voluntary assimilation and preservation of culture might otherwise be disregarded by the group in an eort to preserve it's 'unity and strength'.239 Or in the warning words of Kamenka, 'The rights of peoples can become rights against one's own people'.240 Thornberry, confirming Kamenka's point, gives the example of the treatment of women in Islam and Hindu cast system, stating that 'no individual against his or her will can be coerced into acceptance or adoption of such practices in the interests of group solidarity and continuity. To do so would violate other rights under the 235

E. Kamenka, Human Rights, Peoples' Rights, in The Rights of Peoples, ed. J. Crawford (1988), p 127 at 133, cited by Kaganas & Murray (1994) p 419 236

ibid, p 133

237

article 2

238

Kaganas & Murray (1994) p 419

239

F. Capotorti, United Nations (1979) E/CN.4/Sub.2/384/Rev.1, cited by Kaganas & Murray (1994) p 419

240

E. Kamenka, Human Rights, Peoples' Rights, in The Rights of Peoples, ed. J. Crawford (1988), p 127 at 133, cited by Kaganas & Murray (1994) p 419

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covenant. He concludes that the balance is in favour of the individual; the minority has no rights as such to preserve its identity.241

The interpretation that the individual's right to equality has priority over a group's right to minority protection is emphasised even more in the context of the Declaration of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. A central dierence between this instrument and the Covenant of Civil and Political Rights is that article 3(1) empowers members of groups to exercise their rights individually 'as well as in community with other members of their group'. The substantive rights created by article 2, however, including the right to enjoy one's own culture, are conferred to 'persons' and not groups. Consequently, even though a number of individuals can act collectively in exercising their rights, the group still cannot impose its practices on a member that refuses.242

In addition, the 1992 declaration asserts the pre-eminence of the principles of non-discrimination and equality, reaďŹƒrming in the preamble that the main purpose of the United Nations is to promote and encourage respect for human rights and fundamental freedoms 'for all without distinction to race, sex, language or religion'. Furthermore the declaration obliges states to take measure to ensure that 'persons belonging to minorities' may exercise 'all their human rights and fundamental rights without any discrimination' (my italics).243 Article 4(2) places states under the duty 'to take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture'. The provision, however, is limited and can not be invoked 'where specific practices are in violation with national law and contrary to international standards'. Thornberry seems to share the view of the declaration that international human rights law requires minority rights:

'to be brought into balance with human rights or, more correctly, to be seen as a part of human rights. Whatever respect must be paid to the rights of groups, the stance of modern international law is clear in according primacy to individual choice: respect for group rights does not justify 'group determinism', the overriding of individual choice by claims of the group'.244

In the 1993 Vienna Declaration and Programme of Action the potential danger of group-sanctioned cultural practices is specifically acknowledged. The states that signed this document are obliged to adopt as a priority the protection of women rather than culture. Article 38 emphasises, somewhat 241

P. Thornberry, International Law and the Rights of Minorities, (1991) p 176, cited by Kaganas & Murray (1994) p

420 242

Kaganas & Murray (1994) p 420

243

article 4(1)

244

P. Thornberry, International Law and the Rights of Minorities, (1991) p 394, cited by Kaganas & Murray (1994) p

420

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ambiguously, the importance of 'the eradication of any conflicts that might arise between the rights of women and the harmful eects of certain traditional or customary practices, cultural prejudices, or religious extremism'. That any of these arising conflicts shall be solved in favour of protecting women becomes clear when reading the declaration as a whole. The preamble grants overriding rights to the individual (the 'human person'), while article 49 directs states to 'repeal existing laws and regulations and remove customs and practices which discriminate against and cause harm to the girl child'.

With these arguments in mind, argue Kaganas & Murray, there is every reason to assert that to endorse certain customary practices in South Africa would mean violations in both constitutional principles and international human rights norms. Group rights would thus override those of the individual which would be deprived of the autonomy that permeates the constitution as well as the fundaments of international human rights instruments.245

3.4 Culture and Customary Law in the Final Constitution 3.4.1 Section 30 and 31 of the Final Constitution After the intense debate regarding the relationship between the right to culture and the right to equality following the Interim Constitution the rights to culture were modified. S 30 of the Final Constitution finally provided that:

'Every person shall have the right to use the language and to participate in the cultural life of his or her choice but no one exercising those rights may do so in a manner inconsistent with any provision of the Bill of Rights’ (my italics)

The right is aimed at minority protection and restrains the state or private individuals and institutions to interfere with an individual’s right to use the language or to participate in the culture of his or her choice. The last part of the provision implies that it is expressly qualified so that it cannot override the right to equality. In addition, section 31, based on article 27 of the ICCPR states that:

(1) Persons belonging to a cultural, linguistic or religious community may not be denied the right, with other members of that community (a) to enjoy their culture, practise their religion and use their language; and (b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.

(2) This right in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights. (my italics)

245

Kaganas & Murray (1994) p 421

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The verbal link between ‘culture’ and ‘customary law’ is uncontroversial. The preservation of legal customs and traditions forming an integral part of a group’s culture is recognised as a fundamental part of minority protection. The purpose of s 31, in particular, is to enable a non-dominant community to preserve its distinct culture against discrimination or assimilation to which it otherwise would be vulnerable. Primarily, the right requires toleration of cultural practices that diverge from the dominant norm. Secondly, the rights require positive measures to protect and preserve the identity of cultural communities that are particularly vulnerable to discrimination, assimilation or extinction of their distinct culture and identity. Law reforms that threatens that very culture and identity would violate the constitutional protection of cultural integrity.246

3.4.2 Culture in the Context of Customary Law What then does the recognition of a right to cultural integrity mean in the context of customary law? First, the right requires toleration of cultural practices that diverge from the national norm. This means that reforms of customary law conducted for the purposes of establishing a uniform personal legal regime would be illegitimate. Secondly, the rights require courts to apply customary law to disputes between parties that are subject to it. If there are no institutions to support and enforce cultural practices the right to maintain cultural integrity would be meaningless.247

Whatever protection cultural rights gives to customary law from legal modernisation, legislative intervention in customary law designed to protect equality rights is constitutionally permissible. While the 1996 Bill of Rights contains provisions supportive of group solidarity and continuity, such as s 31, it places them in the context of a list of rights aimed at guaranteeing individual freedom and equality. The constitutional protection of culture has therefore been phrased so that it will not undermine the primacy of individual rights. The collective right to cultural integrity is therefore qualified by the requirement that it may not be exercised in a manner inconsistent with any provision of the Bill of Rights. Consequently the constitution embraces both membership of collective cultural communities, whose institutions requires protection, as well as individual rights and freedoms. Where individual rights are prejudiced by the practices of cultural institutions the protection of those rights may undermine the autonomy and identity of the cultural institution. To claim any coherence the constitution must be interpreted as respecting collective cultural institutions and practices only in so far as they are compatible with the bill of rights. Since that list contains substantial equality guarantees, reform of customary law aimed at upholding, for instance the

246

Chaskalson (ed), p 36-25

247

Chaskalson (1999) p 36-26

!54


right to gender equality is justified by the restricted ambit of the right to cultural identity.248 3.4.3 Application of the 1996 Bill of Rights to Customary Law Unlike it’s predecessor the application provisions in s 8(1) and (2) in chapter 2 of the Final Constitution state that the Bill of Rights binds the legislature, the executive and the judiciary, and all organs of state. It is thus clear that the fundamental rights apply directly to private and juristic persons in certain circumstances. In other words the Bill of Rights can be applied horizontally. Individuals are bound by a provision of the Bill ‘if and to the extent that [the provision] is applicable, taking into account the nature of the right and any duty imposed by the right’249.

S 8(1) makes it clear that both statutory customary law and the situation where the state seeks to rely on a provision of non-statutory customary law to legalise its actions are subject to the Bill of Rights. What is less clear however – and of pivotal importance for the future of customary law – is whether non-statutory customary law in it’s application among individuals is directly or indirectly subject to he Bill of Rights. The meaning of the key provision, s 8(2), stating that rights bind individuals ‘if and to the extent that they are applicable, taking into account the nature of the right and the nature of any duty imposed by the right’ is far from self-evident. First, it seems to suggest that not all the rights in the Bill of Rights will bind individuals since they will not ‘be applicable’. Secondly, the rights that do bind individuals will only bind them ‘to the extent that’ the rights are applicable. This is necessary because rights do not bind individuals to the same extent that they bind the state. The duties imposed on individuals by the Bill of Rights must be balanced against the rights that it accords individuals. The extent of a right is determined by the duty imposed by the Bill of Rights not to violate certain rights of individuals. Rights therefore bind the state to their full extent. The duties imposed on the state may not be avoided by a claim of a counter-right, but only through showing that a limitation of the right is justifiable in the interests of democracy, freedom, equality and dignity.250

Thus S 8(2) requires two questions to be answered. Does a particular right bind individuals? If Yes, to what extent does it bind? The first question is answered by interpreting the reach of a particular right. The second requires assessing the degree to which the right is qualified in a situation of horizontal application by duties to uphold the rights of others.251 Here an example might be helpful. Normally rights-based objections to customary law focus on gender discrimination. Against such objections supporters of the customary 248

ibid, p 36-26

249

S 8(2)

250

Chaskalson (1999) p 36-22

251

ibid, p 36-22

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rule claim that their cultural practices shall be tolerated. For instance a woman may institute proceedings against a male relative complaining that the customary rules of succession which prevent her from inheriting her late husband’s estate violate the right to equality.252

This is a horizontal matter: one individual relies on a non-statutory rule of customary law to justify his conduct while another claims that the rule is unconstitutional. The applicant must therefore demonstrate that the nondiscrimination right imposes duties on individuals. In the case of the right to equality, this is easily done. S 9(4) expressly prohibits individuals from unfairly discriminating on grounds, inter alia, on sex and gender. In other words the right binds the defendant because it is applicable.

In response to this the male heir to the estate would respond that customary rule should be upheld as a part of the right to participate and maintain his culture. Again this argument depends on the applicability of the right to a private person, i. e. on whether the rights to culture in ss 30 and 31 can be applied to a person in the private sphere. Unlike the equality right, there is no clear textual indication that cultural rights should be horizontally applicable. Interpretation is therefore required. This requires a ‘generous delineation of the ambit of a right so as to give an individual its full benefit’.253 This must entail protecting individuals both against violations of the right by the state as well as from private sources were it is possible that private violations of the right may occur. Since cultural integrity is potentially as vulnerable to private power as it is to state power, the right should also have horizontal applicability.254

Thus both the right to equality and the right to culture bind individuals. The next step is to contemplate the extent to which these rights are binding. Is the right to non-discrimination qualified in its extent by a duty of noninterference in cultural practices? Or from the reverse perspective, is the duty of non-discrimination qualified by the right to maintain a culture? The answer is probably no in both questions. The reason why is because ss 30 and 31 already expressly qualified in their extent in that the right to culture cannot ‘be exercised in a manner inconsistent with any provision of the Bill of Rights’. The requirement that the exercise of communal rights to culture may not be inconsistent with other individual rights is a remainder that the constitutional protection of community identity is not a license to that community to violate the rights of its members. Thus one may not discriminate in the exercise of the right to culture. A provision of customary law that does so is unconstitutional and must be erased or changed.255

252

According to customary law estate devolves to a male heir.

253

Minister of home Affairs (Bermuda) v Fischer [1980] AC 319 (PC) at 328-9 cited with approval in S v Zuma & others 1995 (2) SA 641 (CC) a para 14 cited by Chaskalson (ed), p 36-23 254

Chaskalson (ed), p 36-23

255

ibid, p 36-24

!56


This leaves only the possibility of limitation. It is arguable that a particular customary rule serves interests that may justify the limitation of equality rights. These interests are a commitment to cultural pluralism and a toleration of systems of law and social order that diverge from the dominant system.

3.4.4 Limitation of Rights by Customary Law If a provision of customary law violates a right in the Bill of Rights, that violation may nevertheless be lawful if it can be brought under the limitation section. The limitation section allows a court to weigh the constitutional values of the practices and traditions of cultural communities against the values of human dignity, freedom and equality. Whether gender equality can be sacrificed in ‘an open and democratic society based on human dignity, equality and freedom’ is clearly questionable. Bronstein suggests two approaches to the South African courts, where the second one is likely to be more appealing.256

3.4.4 (a) North American Approaches North American jurisprudence relating to discriminatory practices of aboriginal communities can be somewhat instructive in the South African context257. In Martinez v Santa Clara Pueblo258 a Native American woman sought relief in a federal court against enforcement of a ordinance of a Native American tribe that denied membership in the tribe to children of female members who married outside the tribe. The children of men who married outside the tribe were allowed membership. Martinez claimed that the ordinance was discriminatory on grounds of gender and ancestry and therefore a violation of the Indian Civil Rights Act 1968, which provides that no Indian tribe in exercising its powers of self-government may ‘deny to any person within its jurisdiction the equal protection of its law.’ Tribal forums had denied Martinez relief. A majority of the US Supreme Court declined to grant federal protection to Martinez. According to the court Native American tribes are in the best position to understand their culture, and to adjudicate rights claims in the light of that understanding. The US Bill of Rights could thus be modified to accommodate the unique political, cultural and economic needs of tribal governments.

The Canadian Supreme Court came to a similar conclusion in Attorney-General of Canada v Lavell259. According to Canadian statute260 S 36(1) of the 1996 Constitution 256

Chaskalson, p 36-27

257

It should be noted however, that US and Canadian constitutional law confer aboriginal communities a limited measure of sovereignty. 258

436 US 49 (1978)

259

[1974] SCR 1349, (1974) 38 DLR 3d 481

260

Indian Act RSC 1970 c I-6

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Indian women who married non-Indians lost their Indian status and the rights associated with that status, whereas men who married non-Indians did not. The court decided that the statute was not invalidated by section 1 of the Canadian Bill of Rights, which provided for ‘equality before the law’ ‘without discrimination by reason of…sex’. The majority found that the federal Parliament could enact legislation treating Indians living on reserves differently from other Canadians in relation to their property and civil rights.261

Both these cases provide for the limitation of individual rights and freedoms in order to preserve a minority culture. The result of this way of preserving culture however, argue many voices, is a way of perpetuating inequality. MacKinnon262 for instance, calls the US Supreme Court’s deference to community autonomy hypocritical and contemplates that ‘perhaps the control of Indian women matters less to the United States than does the control of land, fish, minerals and foreign relations, as to which tribes are not so sovereign’.

3.4.4 (b) Dow v Attorney-General263

In this case the Botswana Court of Appeal confronted an argument that a law that has a discriminatory effect is justifiable where its purpose is the preservation of a social practice. In the case a Botswana woman married to a US citizen challenged the Citizenship Act of Botswana264 that stated that a child becomes a citizen if the father is a citizen, or, in the case of a child born out of wedlock, if its mother was a citizen. Consequently the children of Unity Dow only had a tenuous right to residence in the country. The mother claimed that the act was discriminatory and thus a violation of s 15 of the Constitution of Botswana. The claim was upheld in the High Court.265 The pertinent question in the Court of Appeals was the omission of any reference to sex or gender discrimination in the definition of ‘discriminatory’ in s 15(3). The attorney-general argued that the word ‘sex’ had been deliberately omitted from the definition to accommodate, subject to the Bill of Rights, the patrilineal structure of the Botswana society. Given the extensive sexual discrimination in the statutory, customary and common law of Botswana, prohibition of such discrimination could not have been the intention of the Constitution. Therefore the effect of the omission was to permit the enactment of legislation which is discriminatory on the grounds of gender discrimination. Furthermore, argued the attorney, the objective of the Citizenship Act was not to discriminate but to preserve the male orientation in society and avoid dual citizenship. Thus, even if the court chose to extend

261

Chaskalson, p 36-27

262

C MacKinnon Feminism Unmodified (1987) p 66 cited in Chaskalson, p 36-27

263

Dow v Attorney-General of the Republic of Botswana [1992] LCR (Const), Msc 134/90, p 623,

264

SS 4-5 of the Citizenship Act of Botswana 1984

265

Dow v Attorney-General [1991] LCR (Const) p 574

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the definition of discriminatory to include gender discrimination, the legislation could not be considered discriminatory because the disabilities it imposed on women and the advantages it conferred on men were reasonably justifiable in a democratic society.266

The majority of the court however, held that the Constitution should be interpreted in compliance with international law. Botswana had ratified the African Charter on Human and People’s Rights which, in article 2, provides for equal enjoyment of rights and freedoms without distinction of sex. To interpret s 15 to exclude protection against sex discrimination would have the effect of the state’s failure to conform with its international obligations and therefore constitute a breach of international law. For similar reasons the court dismissed the argument that discrimination on grounds of sex can be held to be reasonably justifiable in a democratic society. According to the court an analysis of, inter alia, articles 2 and 9 of CEDAW, art 2 of the African Charter on Human and People’s Rights and the General Assembly Declaration on the Elimination of Discrimination Against Women, to which all Botswana had ratified or participated in, showed that ‘the whole world has realized that discrimination on grounds of sex…can no longer be permitted, or even tolerated, more so by the law.267 In a concurring judgement Bizos JA pointed out that the Botswanan Constitution, enacted in 1966, was influenced by contemporary international human rights instruments in which the principle of non-discrimination on grounds of sex was endorsed. After the passage of the Constitution the existing customs, traditions and culture of Botswana society could not prevail over the constitutional provisions designed to prevent discrimination.268 In the final judgement the court inter alia reasoned that:

[T]he time when women were treated as chattels or were there to obey the whims and wishes of males is long past and would be offensive to modern thinking…’269

‘What is considered degrading treatment today has changed from former conceptions. Discrimination against women, denying or limiting as it does their equality of rights with men is fundamentally unjust and constitutes an offence against human dignity!…’270

What is significant about this case in the context of the South African customary law debate is perhaps the basis of the fierce opposition the state launched against Dow’s claim. The defence case seems to have been driven 266

Chaskalson (ed), p 36-29

267

Dow v Attorney-General of the Republic of Botswana [1992] LCR (Const), Msc 134/90, p 670-674

268

Dow v Attorney-General of the Republic of Botswana [1992] LCR (Const), Msc 134/90, p 681-83

269

Dow v Attorney-General of the Republic of Botswana [1992] LCR (Const), Msc 134/90, judgement p 17

270

Dow v Attorney-General of the Republic of Botswana [1992] LCR (Const), Msc 134/90, judgement p 23

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primarily by a belief that the patriarchal structure of Botswanan society made it impossible for the Constitution to outlaw sex discrimination. The AttorneyGeneral, for instance, stated that ‘The whole fabric of the customary law in Botswana is based on a patrilineal society which is gender discriminatory in its nature’. The court was urged to listen to the ‘heartbeat of Botswana’ rather than to what the rest of the world had to say. 271 Furthermore the court was told that ‘it is not unfair to say that if gender discrimination were outlawed in customary law, very little of customary law would remain’.272

The Botswana Court of Appeal appears to accept the fact that legal structures of Botswanan society are shaped by an underlying patriarchal culture. Nevertheless, according to the court, the Constitution represents an agreement that such structures should give way when in conflict with international standards of individual rights, such as those to gender equality. According to Bronstein, the outcome of this case represents a more attractive alternative to South African courts than its North American counterparts.273
 
 3.4.5 Intra-cultural Conflicts The customary problem has invariably been seen as a clash between the cultural rights of historically disadvantaged communities on the one hand, and the equality rights of women, a disadvantaged group within these disadvantaged communities, on the other. According to Bronstein274, however, there is an alternative and more fruitful way to conceptualise the customary law dilemma. Instead she sees the process as intra-cultural conflicts between ‘internal’ women and other members of the group. She writes that:

‘…I want to frame the problem differently. I do not see this case as a contest between equality and culture (in the sense that one value has to win out). Rather I would argue that this is intra-cultural conflict. When a woman comes to court to argue about her status, she does not dislodge herself from her culture. She does not transcend her culture and find herself in the realm of Western values. Her identity is not suddenly transformed. Rather, an internal cultural dispute is brought to an alternative tribunal in order to be heard. The fight is no longer between culture and equality. Rather it is between two different interest groups battling to retain/change power relations within their very culture – a culture which is constantly evolving.275

271

Dow v Attorney-General of the Republic of Botswana [1992] LCR (Const), Msc 134/90 p 102, 105

272

Kaganas & Murray (1994) p 412

273

Chaskalson (ed), p 36-29

274

Bronstein (1998) p 389

275

Bronstein(1998) p 403

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In the debate cultural representatives and traditionalists who defend customary law generally portray equality claims as the work of outsiders with imperialist or colonialist motives. Bronstein argues that it is wrong to see women’s struggle for equality as a process of westernisation and refutes four distinct arguments often heard from cultural representatives. They are:

-we are entitled to live by our traditional culture

-it is culturally ordained that women are not equal to men

-equality threatens our culture which is fragile and entitled to protection

-external forces are not entitled to impose their values on us

Against the first of these arguments Bronstein refers to the fluid, changing concept of culture and points out that culture has always interacted and been influenced by other cultures. The people within these cultural structures have complex and multi-faceted identities and this needs to be accommodated in any legal analysis of culture.276 Nhlapo exemplifies this by stating that ‘[a]s a Zulu I may strongly support a particular kind of relationship between youngsters and their elders; as a Christian I may abhor polygamy; as the recipient of post-secondary education I may be indifferent to witchcraft or lukewarm on lobolo.’ He calls this ‘intensity of allegiance’ to a particular culture and suggests that this insight is an important element in establishing a system that allows people to ‘opt out’ of the particular cultural package that is attributed to their group. On the gender issue it would undercut the power of the ‘definers’ of culture and provide people to embrace culture instead of having it dictated to them. 277 Furthermore this illustrates that even though culture plays an important part of peoples lives it does not possess or own it’s subjects.278

The claim that women’s inferiority is culturally ordained and that traditional African society was a static, harmonious gerontocracy were male elders exercised vast powers over junior men and all women is also challenged. It was rather a society composed of different groups with diametrically opposed interests.279 Large-scale migrancy for instance, steadily worked to deconstruct the system of gerontocracy. Male migrants became economically independent and could afford to pay their own lobolo which radically altered the relations with the elders. Women also resisted the pre-capitalist power structures. Sibusisiwe Violet Makhanya for instance, the first Zulu woman to train as a social worker in the USA, gave evidence to the Native Economic Commission in 1930-32 that:

276

ibid, p 394

277

Nhlapo (1995) p 215

278

Bronstein (1998) p 394

279

C Meillassoux, ‘From Reproduction to Production’, 1972 1 Economy and Society 93,cited in Bronstein (1998) p 395

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‘There is a keen desire for independence in the women and a keen desire for ownership…I know of cases in our district where, when the parents have died and the brothers have become heirs, the girls are not in any way provided for. I am thinking of one or two cases where the girls have actually left their homes and have gone to urban areas where they are working and providing for themselves, whereas in former times, 10 or fifteen years ago, that would not have taken place, where the brother would have gone to the town and fetched the girls back to the kraal.

And today the girls would resist that kind of thing?

Yes, they would and when thinking of these things, one can say that men are becoming powerless in that respect.

Now would you say that the change in the attitude of women is becoming general, it is becoming widespread?

Yes, it is becoming more and more so…’ 280

It is impossible to conceptualise African culture outside of this modern context. So, if the claim that women’s subordination is culturally ordained, the advocates of an unreformed body of customary law have to face the fact that the ‘ideal’ culture they are referring to is lost in the depths of time. If their claim on the other hand is about customary law, then they have to challenge the fact that customary law is an imposed and stultified system that has gained much of it’s strength from it’s relationship with colonialism and later on with a repressive and indifferent apartheid state.281

The argument that African culture is fragile and needs to be protected is also denied by Bronstein who points out that African customs and traditions have been remarkably resilient despite the completely transformed, modernised South African society. Cultures reproduce themselves by giving it’s adherents a sense of continuity and convince ‘those whose personality they shape’ that they must perpetuate the values and customs in a traditional way of life. And African culture, in its present multiplicity of forms is certainly still integral to the lived reality of people’s lives. African cultural groups tend to be powerful changing communities. There is a need, however to distinguish between the character of a particular culture at a particular time – which is constantly dynamic and changing – and it’s actual stability. This stability is only threatened in extreme circumstances282. In the context of African culture, the claim that culture will be destroyed or dissolve on the introduction of egalitarian change, lacks any sort of genuine force.283
 
 Vail (ed), Marks ‘Patriotism, Patriarchy and Purity: Natal and the Policy of Zulu Ethnic Consciousness’ quoted by Bronstein (1998) p 394 280

281

Bronstein (1998) p 398

282

Examples of cultures that are genuinely threatened and fragile are for instance those of Australian Aborigines and Native Americans. 283

Bronstein (1998) p 400

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The fourth argument is a claim from cultural relativism. The statement that ‘you have no right to tell us how to live our lives’ is certainly a powerful claim. But who is ‘you’ in this context? ‘You’ could for instance be progressives in the ANC who for the most part have cultural commitments. It is therefore wrong to see them as external forces hostile to culture. So what if the cultural representative launches his attack on external feminists and academics? What gives them a right to comment on other people’s cultural practices? Kaganas and Murray, whose standpoint sometimes is referred to as ‘weak cultural relativism’, argue that culture is not the only determinant of the validity of a moral position, but that moral judgements about behaviour must be informed by the cultural context in which the behaviour occurs. They warn us of the dangers of uninformed value judgements and requires us to reach an understanding of a particular culture before we condemn its practices as oppressive or inegalitarian.284

Bronstein shows that people have a critical distance to the customs they follow and that they constantly reassess these practices. Differing conceptions of justice are being debated among people from other cultures as well as within cultural groups. People with different cultural backgrounds can and do argue over which is the most just solution to a problem. The South African negotiation process is an excellent example that meaningful discussion can and does take place with fundamentally opposing cultural understandings participating. The ideas of an external feminist for instance, are not so foreign that she cannot be understood. Thus if the claim about cultural relativism is a claim about fundamental miscommunication and incomprehension, the claim must fail. 285

284

Kaganas & Murray (1991) p 125-6

285

Bronstein (1998) p 403

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4. New Perspectives 4.1 The Recognition of Customary Marriages Act (RCMA) 4.1.1 Definitions The RCMA introduces a radical change in the matrimonial regime of a customary marriage. The overriding goal of the Act is to ameliorate the inconsistencies in South African family law which relegated women subject to customary law to second or no class status citizens. The Act attempts to achieve this by harmonising the preservation of culture with the competing claims posed by the constitutional obligation of gender equality. The main object is to extend full legal recognition to marriages concluded in accordance with customary law or traditional rites.286 The Act also protects and supports cultural rights in various ways. One subtle way of bolstering culture is embodied in the new definition of ‘customary law’ stated in s 1:

‘customary law’ means the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those people’

In academic literature customary law has generally been portrayed as a rigid body of law that was the result of collaboration between colonial administrators and indigenous elites, and not the ‘lived ‘folk-law’ it claimed to be. By giving customary law a new definition the drafters of the Act have tried to break away from the ideological trap posed in the literature. Further on, a customary marriage is defined simply as a marriage concluded in accordance with customary law.287 Partially the Act has retrospective effect and thus recognises and provides legal validity to customary marriages that were valid in customary law at the date of commencement as well as marriages concluded after the promulgation of the Act.288

4.1.2 Polygyny and Lobolo Section 2, significantly, recognises both monogamous and polygynous marriages as valid. This has doubtlessly created mixed emotions among South African women. However, after much consultation, the South African Law Commission concluded that the law does not provide a suitable strategy for challenging polygyny. The fact that polygynous marriages are not only solemnised in the rural areas but also by, for instance, politicians in parliament certainly also played a part in the Law Commissions decision to extend legal protection to the institution. But more importantly, to say that a woman that has grown up in a patriarchal cultural setting and who has no 286

Samuel, p 25-6

287

S 1 of the Act

288

S 2 of the Act

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obvious alternatives should defy it because it is outlawed is unrealistic. Instead the Commission preferred the solution of conferring greater rights on women within such marriages.289 Professor Nhlapo of the Law Commission, for instance, states that because polygyny constitute a big part of peoples cultural beliefs a ban would probably have driven it underground. By giving polygamy rules and regulations, women - who still would have been discriminated against - are being protected while still giving people the right to practice the custom according to tradition.'290 Section 7(6, 8) state that a husband in a customary marriage who wishes to enter into a further customary marriage with another woman needs his first wife's or wives consent. If the previous wife's refusal causes a divorce, then it is the husband who is the one at fault. He should forfeit lobolo or any other faultrelated consequences. By giving previous wives this veto-right the balance of power with regard to lobolo and matrimonial property is altered and thus further empowers women.291 Moreover a husband married in customary law who wants to enter into a further customary marriage with another woman has to apply to court to approve of a written contract regulating the future matrimonial property system of his marriages.292 In addition, in the case of a husband who has more than one wife, all persons having a sufficient interest in the matter and especially the applicant's existing spouse or spouses, must be joined in the proceedings.293

The court must consider the application in accordance with s 7(7) which provides that:

When considering the application in terms of subsection 6 –

(a) the court must –

(i) in the case of a marriage which is in community of property or which is subject to the accrual system –

(aa) terminate the matrimonial property system which is applicable to the marriage; and

(bb) effect a division of the matrimonial property;

(ii) ensure an equitable distribution of the property; and

(iii) take into account all the relevant circumstances of the family groups which would be effected if the application is granted;

(b) the court may -

(i) allow further amendments to the terms of the contract;

(ii) grant the order subject to any condition it may deem just; or

289

Samuel, p 26

290

Nhlapo (2000) p 24

291

Bronstein (1998) p 409

292

S 7(6) of the Act

293

S 7(4) (b) of the Act

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(iii)

refuse the application if in its opinion the interests of any of the parties involved would not be sufficiently safeguarded by the means of the proposed contract.

Thus the legislature tries to protect the interests of women married in polygamous marriages. In ideal circumstances this would be an excellent solution with the potential to safeguard women from the many material difficulties inherent in polygynous marriages. In today’s South Africa however, there is a real risk that these regulations merely will become a paper solution. The provision primarily affects a sector of the South African society that has the least access to courts and the least knowledge in dealing with them. There is therefore a good chance that parties entering into polygynous marriages simply will ignore the Act.294 Once again the difficulties of formal versus substantial equality become apparent.

The Act says nothing about the consequences of non-compliance with these provisions. It can forcefully be argued however, that a subsequent marriage would be invalid for want of compliance with the Act.295 If that is the case these provisions will cause much legal and practical difficulties for subsequent wives. On the other hand, if these subsequent marriages will be held to be valid, the Act will not have done its job of protecting the parties.296

In the Act bridewealth is not a requirement for a valid marriage and the non-payment will have no effect on spouses towards one another or their children. One important consideration of the Law Commission in its research on lobolo was the difficulty of enforcing laws banning it or restricting the payable amount. It came to the conclusion that it should have a purely social function as a sign of the cultural attributes of a marriage and merely be an optional element of the marriage.297 4.1.3 Requirements for a Valid Marriage S 3 states the requirements for a valid marriage. Both spouses must be over 18 years old. Children under the age of 18 may be permitted to marry, but only with the consent of the minister298. The Act also requires that both the spouses must consent to the marriage. This is an important change from the position where the families negotiated without making the woman’s consent a requirement. In customary law the consent of the spouses has not necessarily been essential to the marriage. Instead the interests of the 294

Bronstein (2000) p 562

295

See s 2(4): ‘if a person is a spouse in more than one customary marriage, all such marriages entered into after the commencement of this Act, which comply with the provisions of this Act, are for all purposes recognised as marriages.’ (my emphasis) 296

Bronstein (2000) p 563

297

Samuel, p 27. In a survey cited by the South African Law Commission (1998) 95% of the people questioned were in favour of retaining bridewealth, and a brief survey of opinion in KwaZulu-Natal by the Natal Human Rights Trust showed that more than 80% of the people questioned were of the same view. Samuel , p 31 298

S 3(4) (a-c)

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particular wife or husband are incidental to family interests that are secured by institutions such as lobolo. According to s 3(1)(b) ‘the marriage must be negotiated and entered into or celebrated in accordance with customary law.’

This requirement was deliberately made imprecise. The Act does not prescribe, endorse or suggest any list of prerequisites which will dispose of the question of whether a valid marriage has been concluded.

4.1.4 Registration S 4 requires all customary marriages to be registered since it makes it easier to establish proof of marital status. Failure to register will, however, not render a marriage invalid. Nor is there any sanction for not registering. Other African countries which require registration of customary marriages have experienced large-scale non-compliance with similar provisions.299 The Law Commission argued that declaring unregistered marriages void would lead to great hardship and deprive many existing marriages of potential validity. Nevertheless, proof of marriage is of vital importance. Particularly considering s 10 that states that a person in a customary marriage:

‘may marry another person according to customary law…may marry that customary spouse according to civil law provided

that neither is a party to any other customary marriage.’

In other words a party to one customary marriage cannot marry another third party in terms of the civil law. Under these circumstances proof of marriage becomes very important. Provision is made for spouses in existing marriages to register and for late registration by children of the marriage or other parties who have a legitimate interest in the marriage.300

4.1.5 Divorce The provisions for dissolution of a customary marriage are found in s 8. They are in conformity with civil law and thus require ‘irretrievable breakdown’ as a ground for divorce. This is a fundamentally new approach to divorce in customary law. Divorcing a spouse is no longer a private or a communal affair: ‘a customary marriage may only be dissolved by a court by a decree of divorce on the ground of irretrievable breakdown’.301 Ss 8(3) and 8(4)(a) of the Act extend the most significant sections of the Divorce Act302 to the

299

Bronstein (2000) p 560

300

Samuel, p 27

301

S 8(2) provides that the court may only grant a decree of divorce if ‘it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of restoration of a normal marriage relationship between them’. 302

Act 70 of 1979

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dissolution of customary marriages.303 Thus courts presiding over customary divorces will have the same powers they have under the Divorce Act, inter alia to make settlement agreements orders of court, to order maintenance, forfeiture of benefits, or to award pension interests of one spouse to another.304

In cases where a husband has more than one wife, the court must take into account the husband’s pecuniary arrangements with his other wife or wives and make ‘any equitable order it deems just’.305 As a result of the Act it will clearly be easier for customary law spouses to divorce. Ex-spouses will be able to claim and receive maintenance. Whether the legislation has extended the judicial discretion to redistribute assets equitably on divorces to wives who were married before the commencement of the Act or not, however, is debatable.306

Either spouse will now have the locus standi to institute divorce proceedings. One of the consequences of bridewealth is that customary law wives do not have the power to prosecute their own divorces. Women do not negotiate the bridewealth and may not tender its return.307 Theoretically, whether the bridewealth has to be returned on divorce depends to a significant extent on fault, but the wife is vulnerable to stay in her marriage if her family cannot afford or will not return the lobola. This has now been cured by the provision allowing either spouse to institute divorce. One aspect that has been criticised as worrying however, is provision 8(e) which suggests that the bridewealth paid may be taken into consideration when making maintenance orders. Because of the fact that lobola is paid to the wife’s family and not to her, it should not be a consideration affecting her right to maintenance.308

4.1.6 Guardianship and Custody When deciding the divorce, the court will also decide on the issues of guardianship and custody. Under customary law, once lobolo has been paid, the husband’s family has absolute rights to any children borne by the wife. Even though the wife may be permitted to take the children with her on divorce, particularly if they are young, they still ‘belong’ to the husband or his heir. This customary rule has been modified by a provision for courts to

303

S 8(4)(a) of the RCMA gives a court granting a decree for the dissolution of a customary marriage the powers contemplated in ss 7, 8, 9, 10 of the Divorce Act 70 of 1979 and s 24(1) of the Matrimonial Property Act 88 of 1984. 304

Bronstein (2000), p 560

305

S 8(4)(b) of the RCMA

306

Bronstein (2000) p 560, see 4.1.7 below, p 41

307

Bennet (1991) p 255

308

Samuel, p 29

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award custody to the mother when it is in the best interests of the child to do so and when the father is not a fit and proper person. 309

4.1.7 Equal Status and Legal Capacity S 6 provides that:

A wife in a customary marriage has, on the basis of equality with her husband and subject to the matrimonial property system governing the marriage, full status and capacity, including the capacity to acquire assets and to dispose of them, to enter into contracts and to litigate, in addition to any rights and powers that she might have at customary law.

Thus the former male marital power is abolished and the Act provides that the wife of a customary marriage is her husband's equal. There is no distinction drawn between marriages solemnised before or after the commencement of the Act. The intention is to ensure that equality for women cannot be disputed: in one fell swoop it grants all women contractual and proprietary capacity as well as locus standi.310 Thus women are no longer treated as minors and will no longer need a court appointed curator ad litem to bring their legal actions to court. In other words all the rights enjoyed by the rest of South Africa's citizens has now been conferred upon women married in customary law. There are however, unfortunately, limitations to these emancipatory rights. Section 7(1) states that:

'The proprietary consequences of a customary marriage entered into before the commencement of this Act continue to be governed by customary law.'

In other words, marriages conducted before the Act are precluded from proprietary protection. While section 6 states that women are equal in 'all' respects section 7 distinguishes between marriages before and after the Act. The two sections apparently contradict one another. In the Law Commissions Discussion Paper311 published 1997 it was envisaged that a customary law wife would continue to own property that she brought into the marriage. The result of the paper was that a large-scale opposition of the recommendation that customary marriages should be out of community emerged. Various women’s organisations lobbied for customary marriages to be in community of property automatically. Thus the Law Commission was persuaded that future customary marriages should be in community of property and of profit and loss between the spouses and thus merged the proprietary consequences of civil and customary marriages. Chapter 3 of the 309

ibid, p 29

310

ibid, p 27

311

SALC, Discussion Paper 74, p 133-4, cited by Bronstein (2000) p 565

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Matrimonial Property Act312- which gives the spouses equal right to administer and control the common estate - was also made applicable to customary marriages which are in community of property.313 However, in the eyes of the Law Commission it was impossible to reconcile a community of property matrimonial property regime with polygamous marriages that had already taken place. Prior to the Act a customary marriage was neither in nor out of community of property but a separate house was established with its separate property. The Law Commission thought it was a too radical shift to simply transform existing customary law marriages into marriages in community of property.314 The latter more radical view, is the one that Samuel and Bronstein sympathises with.

According to Samuel there lies an irony in the Acts attempt to limit the proprietary and contractual capacity of parties married in customary law prior to the Act, whose property consequences continue to be regulated by customary law. By initially appearing to provide protection by making the Act retrospective, in reality it actually denies a large group of women protection. She argues that the Act not only permits systematic discrimination but also in fact allows and authorises it. The result of the failure to make the propriety clause retrospective will, according to Samuel, 'produce an underclass of consistently disadvantaged people who are unable to improve their position with lawful means.' 315

Clearly material equality - the capacity to acquire, enjoy and dispose of property - in combination with the possession of their own means of production are key elements in the emancipation of African women. Land and property rights can be seen as an extension of familial control over its members. The fact that these land rights are given to the male head of the household, despite the reality that most men migrate to the cities to work, has enormous significance for the women who are left behind to farm the land. They are thus forced to remain dependent on men simply to ensure access to the land they need to grow food for their own and their children's survival. Consequently, many African women stay in their marital home despite maltreatment and violence, for fear of loosing access to the few assets they have, namely land and children. The importance of gaining access to and control over productive assets cannot be overstated, as they oer economical as well as social security. Loans can be secured against productive assets, dependency on violent or coercive relationships is lessened in addition to the gain in status women achieve from possessing their own means of production.316 Therefore Bronstein suggests that the 312

Act 88 of 1984

313

S 7(3) and s 10(3) of the Act

314

Parliamentary Committee Memorandum entitled ‘The Recognition of Customary Marriages Bill, Summary of Comments and Proposed Solutions’ cited by Bronstein (2000) p 566 315

Samuel, p 28

316

Samuel, p 28

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legislature should repeal s 7(1) and the offending part of s 6 so that women married before the commencement of the Act also will enjoy the capacity to acquire and dispose of property.317

4.1.8 Age of Majority S 9 of the Act provides that the age of majority shall be determined by the Majority Act 57 of 1972. The Act thus puts an end to the perpetual minority of women and expressly repeals s 11(3)(b) of the Black Administration Act. This particular provision however once again seems to contradict s 6. Samuel asks; if the Act provides that the Age of Majority Act will be applicable to all ‘despite the rules of customary law’, how then will it justify depriving particular majors (those married under customary law before the commencement of the Act) of the usual rights conferred to majors? The section provides that women in customary marriages will no longer be minors. They will have full legal capacity including the capacity to acquire, administer and dispose of property in their own right. This would be in accordance with the equal status and legal capacity envisaged in s 6. S 7(1) however, once again causes uncertainty, since it contradicts both s 6 and s 9.318

4.1.9 Effect on Women’s Status The RCMA attempts to assist women who have always wanted to be free from the restrictive paternalism that prevented them from enjoying full legal status and the freedom to pursue their own values in their own way. The Act can perhaps best be described as a state intervention in the name of equality (or the elimination of inequality) to combat discrimination on grounds of sex. Given the conflicting provisions and uncertainty with regard to proprietary capacity and age of majority, Samuel concludes that the Act cannot in the final analysis be described as a successful attempt to produce equality of opportunity.319 The RCMA does, however, go somewhere towards ensuring that inequalities can no longer be imposed on criteria which are impossible to justify on moral grounds. The Act is also one step in the right direction to ensure conformity with South Africa’s obligations to regional and international human rights instruments. Although using the law as a tool for social empowerment of women has its limitations – especially if its not supported by simultaneous efforts elsewhere – few would dispute the need to change customary law in its present form. Even if women cannot immediately take action on their rights, law reforms give them long-term prospects. Raising public awareness, careful education – especially in the rural areas where the Act still is largely unknown – are crucial to the success of transforming the discriminatory practises inherent in customary law. Efforts to make the

317

Bronstein (2000) p 574

318

Samuel, p29

319

Samuel, p 30

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provisions of the Act accessible to people must also be made. Without these interventions the RCMA will fail in bringing customary law in line with the equality provisions of the South African Constitution as well as its obligations in international human rights law. Thus an opportunity for establishing a realistic foundation towards substantive equality will be lost.320

When repealing section 11(3)(b) in the Black Administration Act, and by giving women legal and contractual capacity formal equality is achieved, but whether the actual social and economic realities of women in rural areas are changed to the better by the act remains to be seen. Assertions have been made that the RCMA simply will be ignored, or merely become a paper law, because it does not come close enough to social reality. The solution to this problem would be a government funded large scale education campaign to explain the complex provisions of the RCMA.321

4.2 The Development of Future Customary Law 4.2.1 Towards Living Customary Law The tension between s 6 and 7(1) of the RCMA reflects the hardships of the Law Commission’s struggle to reconcile the disparate sides of their new policy. How can a wife have status equal to her husband in all respects while the proprietary consequences of her marriage continue to be regulated by customary law? Before the enactment of the Act the National Association of Democratic Lawyers (NADEL) recommended that s 7(2) of the Bill should be made to apply retrospectively and warned that:

‘Generally, customary law marriages have the effect of vesting ownership of all marital property in the husband. This includes property that the wife brings into the marriage. This allows for a situation which manifestly discriminates against women. Therefore any legislation entrenching this situation is likely to be in conflict with s 9(3) of the…[1996] Constitution.’322

S 39(2) of the 1996 Constitution states that ‘[w]hen interpreting any legislation, and when developing the common or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.’ Bronstein provides a number of alternative ways to interpret the legislation to develop customary law in a way that coheres with the equality clause in s 9(3) in the Constitution.323 As there is no large-scale survey of 320

ibid, p 30

321

Mqeke, p 62-66

322

Committee Minutes, available at www.pmg.org.za

323

Bronstein (2000) p 568

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living customary law in South Africa - particularly regulating proprietary relations - definite statements of authentic customary law are not available. There are indications however, that women’s control over significant property is not just a modern phenomenon. Bennet for instance, argues that official customary law failed to reflect some customary systems when it refused to give wives control over their own earnings.324 In this respect colonial law seems to have been more oppressive than traditional practices that allowed women to own and control enterprises like beer-brewing or midwifery.

Historically independent wages have played an important part in giving women independence. In a study of African farmers in the Free State from the 1940s and onwards Sharp and Spiegel325 explain how the notion of composite family labour on farms was eroded when ‘farmers began to pay cash wages directly to women’. Interviewed women spoke very positively about this innovation which gave them discretion over an income that they had not previously experienced. They were able to set money aside for medical emergencies, schoolbooks, personal clothing and gained a sense of freedom that they had not had before. The husbands, on the other hand, spoke of the farmers as ‘spoiling’ the women and evidently found that women who were paid directly from the farmers became less submissive in the homes of their husbands.

Today women’s wages are an important source of income for rural households. The indications are that many women who earn money do in fact control their own income. This reality was acknowledged when legislation was passed in the 1980s that enabled women to transact with building societies.326 Labour migrancy continues to give many rural women a high degree of de facto autonomy327.

S 1 of the Customary Marriages Act defines customary law as ‘the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those people’. With no clear statements of authentic customary law available, courts need to ensure that standards of ‘lived’ customary law are not placed beyond the reach of women today. The paragraphs above illustrate that, on the subject of women’s earnings, there is a vast gap between living and official customary law. Bronstein suggests that courts that deal with the control over property should be slow to interpret legislation in a way that further entrenches patriarchal relations328. 
 
 324

Bennet, (1991) p 327, A sourcebook of African Customary Law for Southern Africa, quoted by Bronstein (2000) p

568 325

Sarp & Spiegel, Women and Wages: Gender and Control of Income in Farm and Bantustan Houses, 1990, 16 J of Southern African Studies, p 527-36, cited in Bronstein (2000) p 569 326

Section 11A of the Black Administration Act of 1927

327

Bronstein (2000) p 568

328

ibid, p 570

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A telling example of how courts can develop customary law to be coherent with the equality clause in s 9(3) is found in Mabena v Letsoalo329 where a bride’s father had abandoned the family and the mother of the bride ‘as a matter of fact functioned as head of the family’. The court found that the bride’s mother had validly consented to and received lobolo for the marriage of her daughter. She had also been entitled to act as the daughter’s guardian and had given consent to the daughter’s marriage. In court the bride stated that the wedding was performed according to Pedi customs. She also stated that:

‘My people and I, we do not engage in these customary traditions. We did it as it pleased my mother. It is how we do it at home, it is how we do it according to our custom’.330

When it was put to her in cross-examination that several aspects of her marriage arrangements had not followed Pedi customs she responded:

‘Well, customs differ, it depends on an individual, how does he or she want to do it’.331

These somewhat ambiguous answers helped the court to come to its conclusion. The court viewed customary law as a ‘living law’ being ‘law actually observed by African communities’ and thus recognised a contemporary customary law rule that mothers as well as fathers may negotiate lobolo and consent to the marriage of their daughters. By recognising a principle of living customary law and thereby radically developing official customary law in accordance with the spirit, purport and objects of the Bill of Rights the court demonstrated that it has the power to shape customary law in a direction away from gender discrimination.332

329

Mabena v Letsoalo 1998 (2) SA 1068 (T)

330

Mabena v Letsoalo 1998 (2) SA 1068 (T), p 1070

331

Mabena v Letsoalo 1998 (2) SA 1068 (T), p 1071

332

Chaskalson, 36-20A

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5. Conclusion In this thesis I have tried to trace the origins of South African customary law to show that it is an ossified body of regulations, shaped and created by the interests and misconceptions of colonisers on the one hand and of traditional chiefs and male elders on the other. Several aspects of the traditions and practices that constitute customary law and claim to derive their origin out of genuine African customs seem to have been deliberately invented. Consequently a discrepancy exists between the status of women in precolonial times and in the codified body of customary law. In addition there is a gap between the position of women in customary law and their status in contemporary ‘living’ customs that are practised by the African community today. 
 In the introduction I posed the question how women are discriminated under customary law. Legally they enjoyed the status of perpetual minors with no capacity to contract or to own, enjoy or acquire property and were deprived of their rights to locus standi in court. Women were not considered to be able to handle legal matters without a male guardian and – based on an analogy with children – where treated as minors in common law by the courts. The proprietary incapacity was probably the most serious disability as material equality is a pivotal factor in giving women economic independence. Anything a woman earned, bought or acquired virtually became the property of her husband, with the exception of items of personal nature. Furthermore women under customary law were not allowed to enter into contracts in their own right without the signature of the husband. As women were supposed to be ignorant of legal matters they needed someone to argue their cases for them, they were thus not allowed to litigate or bring any kinds of legal actions to court in their own names. Furthermore the husband has the right to unilaterally divorce his wife, whereas the wife is dependent on her guardian to negotiate her divorce. If the lobola cannot be returned the wife is forced to stay in the marriage. Also women have had no rights to succession of matrimonial property on divorce, as they are assumed to return to their guardians home. Thus women neither had any rights to maintenance.

Other aspects of customary marriages that are inimical to women’s rights include the system of polygyny which hardly can be dissociated from objectification, sexual stereotyping and domination of women. Moreover, as a symbol it has become so closely associated with the oppression of women that it could be questioned whether the custom has a role to play in a society where the emancipation of women is a recognised goal. To challenge the system women need education, economic independence and political organisation. Another custom that most likely undermines efforts to create a society where men and women are treated equally is bridewealth or lobolo. The transaction of cattle from the prospect husband’s family to the bride’s family traditionally joined two kinship groups, validated the marriage and served as a security for the wife should the marriage break down. Today it is generally paid in cash and is thus not saved, is said to commercialise marriage and forces couples who cannot afford it to enter into informal !75


unions with the result of producing illegitimate children. The issue is very sensitive as the custom remains very popular.

The second question asked in the introduction was whether the various rights to culture can override the right to gender equality. In the early stages of the debate one pertinent question was whether the Interim Bill of Rights could be applied horizontally or not. If horizontal application was possible the constitutional rights would be able to override customary law and conversely, if only vertical application was allowed customary law would limit the Bill of Rights. In the Interim Constitution of 1993 the Bill of Rights expressly applied to the legislative and the executive organs of the state but omitted the judiciary. This led the High Court, in the case of Du Plessis v Du Klerk, to conclude that the 1993 Constitution only could be applied vertically and thus could not be used by one individual to bring a suit against another individual solely on the breach of a fundamental right contained in the Bill of Rights. This left customary law out of reach of constitutional scrutiny on grounds of gender. In the doctrine however, courts were advised to apply the fundamental rights to private relationships indirectly, through the doctrine of Drittwerkung, when customary law rules were abstract or unclear.

Advocates of customary law claimed that reforms aimed at improving the status of women in customary law infringed their rights to participate in culture. Nevertheless the reading of the Interim Constitution as a whole; i.e. through the Preamble, constitutional principle XIII, the Afterword and the placement of the principle of equality as the first substantial right in the 1993 Bill of Rights, placed the right to gender equality in a superior position to the right to participate in a culture of one’s choice. International rights instruments also point in the direction that indigenous groups, whether minorities or not, whose cultural norms are incompatible with the dominant norms enshrined in national constitutions as well as international human rights standards may be justifiably curtailed. The right in art 27 ICCPR, for instance, does not attempt to promote group interests at the expense of the individuals as it is the members of a minority that the right is vested in and not the group as such. Furthermore, third-generation rights, such as the rights of peoples, should be understood in terms of the individual firstgeneration rights. Thus a group right to culture or minority protection may not override the individual right to gender equality.

The Final Constitution expressly allows horizontal application of the Bill of Rights under certain circumstances. This means that a provision of the Bill of Rights may bind a natural or juristic person, to the extent that it is applicable, “taking into account the nature of the right and the nature of any duty imposed by the right”333. The duties imposed on individuals by the Bill of Rights must therefore be balanced against the rights that it accords individuals. Both the right to equality and the right to culture bind individuals but the right to culture in ss 30 and 31 FC are expressly qualified in their extent that they cannot ‘be exercised in a manner inconsistent with any provision of the Bill of Rights’. A provision of customary law that 333

S 8(2)

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discriminates in the exercise of the right to culture is therefore unconstitutional.

Such a discriminatory provision may nevertheless be lawful however, if it can be brought under the limitation clause in s 36(1) FC, where courts can limit the right to gender equality if it is ‘reasonably justifiable in a democratic society’. In this matter the South African courts, like in the case of Dow v Attorney General, should take the stand that the constitution shall be interpreted in compliance with international human rights law. Art 2, 5 and 15 of CEDAW, for instance, directly direct states parties to accord equal legal capacity for men and women and take appropriate measures to modify or abolish customs that discriminate women. The argument that discrimination on grounds of gender can be held to be reasonably justifiable in a democratic society shall therefore be dismissed, or the courts will violate international human rights law.

This thesis sympathises with the understanding of culture as a constantly evolving, dynamic body that is continually in a process of contestation, rather than a uniform and static one. Cultural values in a particular era are challenged by up-springing sub-cultures which question the dominant cultural norms. Culture can therefore not be seen as a given factor but rather as a creative process of social and economical relationships open to opportunistic manipulation. The subordinate position of women in customary law can be seen as one example of such manipulation. Consequently there lies a danger in accepting values, practices and arguments merely on the basis of their claim to a traditional, cultural pedigree. Furthermore the customary law conflict needs to be reconceptualised. It is not a struggle between the rights to equality and culture in the sense that one value has to win out. Rather it is an intra-cultural conflict between different interest groups battling to alter power relations within their very culture – a dynamic culture that is constantly changing.

One indication that these power relations are changing, at a formal level at least, in the direction of empowering women is the RCMA. This Act can also be seen as part of the answer to the last question posed in the introduction: What is being done to improve the status of women in customary law? The former non-recognition of customary marriages on the basis of their potentially polygamous nature had the effect that persons married under customary law were not legally regarded as husband and wife. Consequently they could not owe each other a duty of support, their children were regarded as illegitimate and if a man concluded a civil marriage with another partner during the subsistence of a customary one, it had the effect of automatically discarding the first wife and children. The RCMA aims at changing this relationship by harmonising African customs and tradition with the constitutional commitment to gender equality. It gives women married in customary law equal status with their husbands, capacity to contract and litigate in court and the right to acquire and own property. It recognises both monogamous and polygynous marriages as valid. In polygynous marriages the consent of the previously married wives is a requirement before the husband can marry a new bride. The Act works retrospectively and thus !77


validates marriages concluded before the Act was promulgated. The property clause however, is not made retrospective which leaves a large group of women in a position where they still are unequal to men and still are left unprotected in a highly patriarchic society. As material equality is one of the key elements in gaining economical independence for women - by owning land and the means of production – the Act seems to fail in its ambition to emancipate all women through property rights. As the legislation entrenches a situation were women are unequal to men it is not unlikely that the Act is in conflict with the equality clause in s 9(3) of the 1996 Constitution.

In the future a possible way of shaping customary laws towards lesser gender discrimination can be undertaken by the courts. By developing the living customary law in a way that is coherent with the spirit, purport and object of the Bill of Rights a transformation that is compatible with women’s equality with men and a due respect for culture can become a real possibility in South Africa.


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References
 Literature Bennet TW Human Rights and Customary Law under the South African Constitution, 2nd ed, Cape Town: Juta & Co, 1995

Discrimination Against Women: The Convention and the Committee, CEDAW Human Rights Publication, Fact Sheet 22

Constitutional Law of South Africa, M. Chaskalson (Ed), Woolman: Revision Service 2, 1998. Chapter 36, Indigenous Law, is written by V. Bronstein.

Devenish, A Commentary on the South African Bill of Rights, Butterwoths, 1998

Gender and the New South African Legal Order, C. Murray (Ed), ?, 1994, includes I. Currie The Future of Customary Law: Lessons from the South African Lobolo Debate, p 146-?

Putting Women on the Agenda, S. Bazili (Ed), Johannesburg: Ravan Press, 1991. Includes R.T. Nhlapo, Women’s Rights in the Family in Traditional and Customary Law, p 111-123 and ?, Gender Equality under the Botswana Constitution, p ?-261

Sinclair J. The Law of Marriage, vol 1, Cape Town: Juta & Co, 1996

van Wyk D. Rights and Constitutionalism, Cape Town: Juta & Co, 1994
 
 Journals African Law Review, vol 6, no3/4, 1995, p 31-33

Albertyn C. & Kentridge J. Introducing the Right to Equality in the Interim Constitution, in the South African Journal on Human Rights, vol 10, Cape Town: Juta & Co, 1994, p 145-178

Bekker JC. Interaction between Constitutional Reform and Family Law, in Acta Juridica 1991, Cape Town: Juta & Co, 1991, p 1-17

Bennet TW. The Compability of African Customary Law and Human Rights, in Acta Juridica, Cape Town: Juta & Co, 1991, p 18-35

Bronstein V. Reconceptualizing the Customary Law Debate in South Africa, in the South African Journal on Human Rights, vol 14, Cape Town: Juta & Co, 1998, p 388-410

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Bronstein V. Confronting Custom in the New South African State: An Analysis of the Recognition of the Customary Marriages Act, in the South African Journal on Human Rights, vol 16, Cape Town: Juta & Co 2000, p 558-575

Chanock M. Neither Customary nor Legal: African Customary Law in an Era of Family Law Reform, in the International Journal of Law and the Family, vol 3, Oxford: Oxford University Press, 1989, p 72-78

Chanock M. Law, State and Culture: Thinking About ‘Customary Law’ After Apartheid, in Acta Juridica 1991, Cape Town: Juta & Co, 1991, p 53-70

Dlamini C. R. M. The Role of Customary Law in Meeting Social Needs, in Acta Juridica 1991, Cape Town: Juta & Co, p 71-85

Dlamini C. R. M. The Ultimate Recognition of Customary Marriages in South Africa, in Obiter 1999, vol 20:1, Port Elizabeth: published by the Faculty of Law, University of Port Elizabeth, p 14-41

F. Kaganas & C. Murray Law, Women and the Family: the Question of Polygyny in a new South Africa, in Acta Juridica 1991, Cape Town: Juta & Co, p 116-134

F. Kaganas & C. Murray, The Contest Between Culture and Gender Equality Under South Africa’s Interim Constitution, in the Journal of Law and Society, vol 21, no 4, Oxford: Blackwell Publishing, 1994, p 409-433

Kerr A.J. Role of Courts in Developing Customary Law, in Obiter 1999, vol 20:1, Port Elizabeth: published by the Faculty of Law, University of Port Elizabeth, p 41-52

Maithufi IP. ? in Tydskrif vir Hedendsaagse Romeins-Hollandse (Journal of Contemporary Roman-Dutch Law, vol 59:2, Butterworths, 1996

Mqeke R.B. The “Rainbow Jurisprudence” and the Institution of Marriage with Emphasis on the Recognition of Customary Marriages Act 120 of 1998, in Obiter 1999, vol 20:1, Port Elizabeth: published by the Faculty of Law, University of Port Elizabeth, 1999, p 52-68

Nhlapo R. T. Cultural Diversity, Human Rights and the Family in Contemporary Africa: Lessons from the South African Constitutional Debate, in the International Journal of Law and the Family, vol 9, Oxford: Oxford University Press, 1995, p 208-225

Rautebach C. A Commentary on the Application of the Bill of Rights to Customary Law, in Obiter 1999, vol 20:1, Port Elizabeth: published by the Faculty of Law, University of Port Elizabeth, p 113-?

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Samuel S. Women Married in Customary Law: No Longer Permanent Minors, in Agenda, vol 40, 1999, p 23-31

Traditional Marriages: How the Law Affects You, Nhlapo R. T. quoted in Drum Magazine, 14 December, 2000 
 
 Government Publications South African Law Commission The Harmonisation of the Common Law and the Indigenous Law, Discussion paper 74, project 90, Customary Marriages, 1997
 Amod and the Commission for Gender Equality v Multilateral Motor Vehicle Accident Fund, unpublished paper prepared for the South African Human Rights Commission, by K. Govender, 1998

Legislation
 The Black Administration Act 38 of 1927

The Black Laws Amendment Act 76 of 1963

The Constitution of the Republic of South Africa 200 of 1993

The Constitution of the Republic of South Africa 108 of 1996

The Civil Proceedings Evidence Act 25 of 1965

The Criminal Procedure Act 51 of 1977

The Divorce Act 70 of 1979

The Law of Evidence Amendment Act 45 of 1988

The Majority Act 57 of 1972

The Matrimonial Affairs Act 37 of 1953

The Matrimonial Property Act 88 of 1984

The Recognition of Customary Marriages Act 120 of 1998

Regulations for the Administration of the Estates of Deceased Blacks R200 66 10601 of 1987
 South African Cases Amod and the Commission for Gender Equality v Multilateral Motor Vehicle Accident Fund 1997 (12) BCLR 1716 (D)

Docrat v Bhayat 1932 TPD 125

Du Plessis & others v De Klerk & Another BCLR 658 (CC)

Fraser v Children's Court, Pretoria North (1997) 2 BCLR 153 (CC)

Ismail v Ismail 1983 (1) SA 1006 (A)

Mabena v Letsoalo 1998 (2) SA 1068 (T)

Mthembu v Letsela & Another 1998 (2) SA 675 (T)

Nyamazaki v President of Bophuthatswana 1994 (1) BCLR 92 (B)

S v Johardien 1990 (1) SA 1026

S v Zuma & others 1995 (2) SA 641 (CC)

Zwane v Dlamini 1938 NAC (N&T) 278


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Foreign Cases Attorney General of Canada v Lavell 1974 SCR 1349, (1974) 38 DLR 3d 481 (Canada)

Dow v Attorney General of the Republic of Botswana 1992 LCR (Const), Msc 134/90 (Botswana)

Martinez v Santa Clara Pueblo 1978 436 US 49 (USA) 
 International Human Rights Instruments The African Charter on Human and Peoples Rights of 1981

The Convention on the Elimination of Discrimination Against Women of 1979

The ILO Convention on Indigenous and Tribal Peoples of 1989

International Covenant on Civil and Political Rights of 1966

International Covenant on Economic, Social and Cultural Rights of 1966

The United Nations Universal Declaration of Human Rights of 1948

Abbreviations ANC CEDAW CONTRALESA ICCPR IFP RCMA

African National Congress

Convention on the Elimination of Discrimination Against Women

Congress of Traditional Leaders of South Africa

International Covenant on Civil and Political Rights

Inkhata Freedom Party

Recognition of Customary Marriages Act 120 of 1998

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Does the right to culture entail a right to gender discrimination?  

The Poistion of Women in South African Customary Laws Simon Klose LL.M. Thesis Faculty of Law, Stockholm University 2001 Text: CC-BY Photos...

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