Custom and Democracy in Post-Apartheid South Africa
(Women and "Living" Customary Law)

The main problem: Looking at customary law through a common-law prism

a) In the CLARA case, the tendency by the government lawyers to cite "official" customary law instead of "living" law, which was described by the Constitutional Court in the Bhe case as "an acknowledgement of the rules that are adapted to fit in with changed circumstances".
This leads to failure to see customary rights as they exist in practice, i.e. where these rights deviate from "official" rules, they become invisible.

b) CLARA fails to secure vulnerable entitlements, for two reasons:

c) The argument that tenure problems confronting African women are out of date, now that we have the Matrimonial Property Act of 1984 and the Customary Marriages Act of 1988. This is WRONG. The lives of rural women have not changed and laws about marriage regimes do not necessarily have an impact on the status of women's land rights, which should have been directly addressed by CLARA. Women's land rights are undermined by s 4(1) of CLARA: (especially single women living in the household: e.g. widowed mothers, unmarried sisters and aunts, divorced sisters and aunts).

d) Common law has a preference for "fixed" rules over the "untidy" reality of customary law, which represents the reality of nuanced overlapping entitlements.

e) In the Traditional Courts Bill the question of Appeals raised the same issues of common-law thinking being imposed on a customary law concept. In the original draft, the Law Commission had tried to preserve the integrity of customary law by allowing cases to be referred upwards in a hierarchy insulated, at least in the early stages, from the influence of common law. The concept is further buttressed by the creation of an administrative system that protects this customary law "universe" by developing the concept of a Registrar of Customary Courts (Section 24 and 25). Together these provisions serve to preserve the constitutional rights of a rural person to have his or her matter decided in a system that is familiar, non-alienating, inexpensive and accessible. For this to happen, the case needs to stay within the customary law system for a significant period before being transferred outside of that system. The Bill violates these rights by requiring appeal to a magistrate's court immediately after adjudication on the matter by a single customary court.

f) Similar thinking was seen in the case of the Reform of the Customary Law of Succession and Regulation of Related Matters Bill where the portfolio committee sought to protect the rights to inheritance of a "seed-raiser" without actually calling her by that name. The offending clause was one which attempted to include among the beneficiaries any woman (in addition to the widow) who had been married by the deceased according to custom, "for the purpose of providing an heir" to a particular house. Describing this custom accurately seemed to present a problem to the portfolio committee, who felt that the language would annoy feminists. The problem with this kind of political correctness is the reluctance to call a spade a spade. This is wrong. The custom should not be recognised in the statute if we think it is repugnant. In that case it should be challenged in the courts in the ordinary way. If we recognise it in a statute, then it is silly to dance around trying to name it in any way other than what it really is.

g) Sometimes it is neither common-law thinking nor political correctness that is to blame, but ignorance. A case in point is Section 11(3)(b) of the Black Administration Act 38 of 1927: Any woman who lives with a black man in a customary union as his partner has the same status as his children (paraphrase). Victorian misunderstanding of the true nature of:

• the nuanced and layered rights in African family law
  

• elderhood as a status: grandmothers and great-aunts were revered and wielded a lot of power

• everybody was a minor, as long as the senior male agnate was alive, sons and daughters alike - even a married son if he had not moved to set up his own household. This arrangement was identical to the position in classical Roman law, where the paterfamilias was the only true person in law with even married sons in his power.

Thandabantu Nhlapo
25 August 2008