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
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