MISPLACED IN THE DEVELOPMENT OF THE CUSTOMARY LAw OF ...

“Equality” misplaced in the development of the customary law of succession: lessons from Shilubana v Nwamitwa 2009 2 SA 66 (CC) Nomthandazo Ntlama B Juris LLB, Certificate in Comparative Human Rights, LLM Senior Lecturer, Department of Constitutional Law, UNISA

1 Introduction The Constitution of the Republic of South Africa, 1996 (“the Constitution”) is committed to the protection and promotion of the right to gender equality as well as the right to culture and to participate in cultural life. This dual commitment has presented significant opportunities for the development of these competing interests alongside each other. The equal recognition of the right to gender equality and the right to culture has also created tensions between the application of customary law values and the national agenda for the realisation of gender equality. This tension has resulted in customary law being viewed as a source of potential conflict and as perpetuating inequalities and prejudices against women owing to the past with which South Africa is coming to terms.1 The potential conflict between customary law and the general human rights framework relates to the former’s flexible character, the fact that it is not universal, and the lack of an accepted definition of what it entails.2 The conflict is further exacerbated by colonial and apartheid laws that limited the development of customary law alongside common law.3 The non-development of customary law alongside common law has effectively led to its marginalisation, as the majority of those subscribing to the system of customary law did not have a direct influence on its development.4 This is endorsed by Deveaux, who states that the more sinister side of the development of customary law lies in the history of manipulation and co-option of traditional leaders by colonial and apartheid administrators.5 Hence Fishbayn’s argument that even though the recognition of customary law during this period seemed to 1

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See Rautenbach “South African Common and Customary Law of Intestate Succession: a Question of Harmonisation, Integration or Abolition” 2008 12(1) EJCL http://www ejcl org/121/abs121-20 html 1 4 (accessed 07-05-2009) See Deveaux “Conflicting Equalities? Cultural Group Rights and Sex Equality” 2000 Political Studies 522 See the background in Kaganas & Murray “The Contest between Culture and Gender Equality under South Africa’s Interim Constitution” 1994 Journal of Law and Society 409 See Mokgoro “The Customary Law Question in the South African Constitution” 1997 Saint Louis University Law Journal 1279 “Liberal Constitutions and Traditional Cultures: the South Africa Customary Law Debate” 2003 Citizenship Studies 161

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have been an effort to free the African culture from the burden of emulating European norms, it was nothing more than a desire to appease the local leadership by showing deference to their authority, where traditional chiefs were empowered to apply customary law to black South Africans.6 Although the application of customary law was treated by the courts as if it were the same as common law, only commissioner’s courts and traditional courts were permitted to apply it in terms of the Black Administration Act 38 of 1927 (“the Black Administration Act”).7 This contention that the colonial and apartheid period resulted in customary law being applied through the prism of common law was endorsed by the Constitutional Court in Alexkor Ltd v Richtersveld Community8 (“Alexkor”). The recognition of traditional leadership and its institutions, including the right to cultural practices, therefore, has created a new challenge relating to their role in the development of customary law values and principles. The constitutional status of customary law has fuelled debates on its recognition and created the need for a delicate balance in the area of gender equality. This constitutional and legal status and the tensions arising from the recognition of these competing rights have given rise to court challenges. These challenges relate to the nature of these rights and the interrelationship between them, requiring the Court not only to apply them, but also to develop and adjust them within the spirit and purport of the Bill of Rights.9 Many of these court challenges10 have focused on the rule of male primogeniture in respect of inheritance and succession to property within the framework of family law relationships. One area of conflict that has not received any attention from the courts, until the Constitutional Court was called upon to consider this conflict in Shilubana v Nwamitwa11 (“Shilubana”), is the woman’s succession to chieftaincy. The purpose of this article is to analyse Shilubana and the legal framework in which it was decided, and to consider its implications for the future of the customary law of succession to chieftaincy in South Africa. It will be argued that the characterisation of gender equality as irreconcilable with the values and principles of customary law undermines the very social change objectives that are entrenched in the Constitution.

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“Litigating the Right to Culture: Family Law in the New South Africa” 1999 International Journal of Law, Policy and the Family 147 S 11 Bennett Customary Law in South Africa (2004) 44 also highlights the fact that it was only after 1988 that the courts were required to take judicial notice of customary law in terms of s 1 of the Law of Evidence Amendment Act 45 of 1988 This change was a result of the investigation by the Commission of Inquiry into the Structure and Functioning of the Courts (the Hoexter Commission) The Commission recommended that traditional courts continue to apply customary law while other courts were only required to recognise it See para 6 1 of Part 5 of the 1983 Hoexter Report 2003 12 BCLR 1301 (CC) para 51 See section 39(2) of the Constitution See Mthembu v Letsela 2000 3 SA 867 (SCA); Gumede v President of the Republic of South Africa 2009 3 BCLR 243 (CC); Bhe v Magistrate Khayelitsha; Shibi v Sithole; SA Human Rights Commission v President of the RSA 2005 1 BCLR 1 (CC) 2009 2 SA 66 (CC)

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2 Customary law and the right to culture in the Constitution 2 1 The constitutional framework for the development of customary law Bennett acknowledges that it was not until the new constitutional dispensation that customary law was given equal recognition in the Constitution as a legitimate source of law alongside common law.12 As the effect of colonial and apartheid rule was briefly noted above, the following discussion on the evolution of customary law will be limited to the developments that have occurred or taken place since the advent of democracy. This section focuses on the developments in relation to the official version of customary law in order to determine its likely influence on the promotion of African values and customs, without actually trampling those principles observed by the respective traditional communities. The discussion will be limited to the quest for the promotion of gender equality within the traditional system framework. At the same time, it is worth highlighting that the Black Administration Act, which was adopted and reserved exclusively to regulate the legal affairs of black people during Apartheid, had the effect of stifling the development of customary law. As noted elsewhere,13 this Act compromised the non-specialised system that defines the traditional system of governance which was based on oral tradition.14 Mqhayi gives a detailed account of the system of traditional leadership and governance and how it valued women in the dispensation of justice, before it was suppressed by the historic ex-colonial authorities.15 Therefore, even though the Black Administration Act did not actually give full recognition to the role of traditional leaders, the patrilineal system of succession to chieftaincy was left unchanged until it was declared invalid in Shilubana. The new constitutional dispensation affirms the participation of traditional communities and individuals in the cultural life of their choice, which also entails the duty to give fully-fledged recognition to the institutions on which their cultural practice is based. It further provides for more extensive legal protection of both the right to culture and the right to gender equality. The inclusion of the right to culture and its compatibility with the right to equality in the Constitution was not without heated debate during the Certification process,16 owing to the historical ex-colonial/apartheid authorities that viewed women as minors under the name of upholding cultural values and customs. Nhlapo gives an overview of the debates between traditional leaders and human rights activists.17 He highlights the fact that the former group argued that the value system of South Africa should broadly reflect the culture of 12 13 14 15 16 17

Bennett “Conflict of Laws” in Bekker, Rautenbach & Goolam (eds) Introduction to Legal Pluralism 2 ed (2006) 15 17 See Ntlama & Ndima ‘The Significance of the Traditional Courts Bill in affirming the Role of the Traditional Justice System’ (2008) unpublished paper UNISA See Mqhayi Ityala lamawele (1914) 44 See Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 1996 4 SA 744 (CC) “Cultural Diversity, Human Rights and Family in Contemporary Africa: Lessons from the South African Constitutional Debate” 1995 International Journal of Law and Family 208

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the majority of the country’s inhabitants. The latter group was concerned that if these claims prevailed, some practices which were incompatible with constitutional norms would be sanctioned indirectly. The greatest fear was the threat that patriarchal and sexist domination of women would be shielded by constitutional protection, resulting in the unacceptable situation that women in South Africa would not all enjoy the same rights.18 These contestations are further highlighted by Brown who refers to them as “powerful demands at independence”, the result of historic subordination, directed towards the integration of customary law into the general legal framework.19 Without examining these contestations any further, customary law was included in the Constitution alongside the right to equality, subject to its internal limitations to conform to the Bill of Rights. The central provision regulating the role of traditional leaders regarding customary law is found in section 211 which provides: “(1) The institution, status and role of traditional leadership, according to customary law, are recognised subject to the Constitution. (2) A traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendments to, or repeal of, that legislation or those customs…”

The recognition of traditional leadership and the individual and group rights within the traditional community is further affirmed in sections 30 and 31 respectively. Section 30 reads: “Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.”

Also, the non-individualistic nature of the right to culture in section 31 affirms group rights, which includes traditional communities in the exercise of their rights, within the confines of the Bill of Rights: “(1) Persons belonging to cultural, religious or linguistic communities 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.”

Section 39(3) adds to the essence of these rights in that it does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill of Rights. These provisions have placed customary law beyond doubt and endorsed it as a basic law that does not merely have to be tolerated as was the case with the Black Administration Act. However, it is necessary to ensure that it grows and develops incrementally within the framework of the Bill of Rights.

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209 See also Allott “What is to be done with African Customary Law? The Experience of Problems and Reforms in Anglophone Africa from 1950” 1984 Journal of African Law 56 “Customary Law in the Pacific: an Endangered Species” 1999 Journal of South Pacific Law 3

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This is consolidated by section 235 of the Constitution which recognises the rights of South African people to self-determination.20 The protection of communal rights is also entrenched in the African Charter on Human and Peoples Rights (1981)21 which urges member states to take into account the virtues of their historical traditions and the values of African civilisation, which should inspire and characterise their reflection on the concept of “human and peoples’ ” rights.22 The Charter, even though it does not define the concept of “peoples”, effectively enshrines the right to self-determination as it provides: “All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development to the policy they have freely chosen.”23

The right to self-determination is enhanced by the establishment of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities24 whose purpose is to determine the extent of the enjoyment of the right to culture in South Africa. The primary objects of the Commission are: “(a) to promote respect for the rights of cultural, religious and linguistic communities; (b) to promote and develop peace, friendship, humanity, tolerance and national unity among cultural, religious and linguistic communities, on the basis of equality, non-discrimination and free association; and (c) to recommend the establishment or recognition, in accordance with national legislation, of a cultural or other council or councils for a community or communities in South Africa.”25

The Commission is further empowered, subject to national legislation, to carry out the responsibilities attached to it by various means, including education, monitoring and reporting.26 This also includes the referral of matters falling within its powers and functions to the South African Human Rights Commission27 for investigation.28 This is important for South Africa considering its rich diversity and mixed legal system 29 which requires the development of appropriate strategies to ensure the advancement of all and

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Section 235 provides:  “The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation ” The Charter entered into force on 21 October 1986 See the Preamble of the Charter Art 20(1) See s 181(1)(c) of the Constitution S 185(1)(a)-(c) of the Constitution See the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Act 19 of 2002 See ss 181(1)(b) and184 of the Constitution on the establishment and role of the SAHRC See s 185(2), (3) and (4) See Mireku Three Most important Features of the South African Legal System that Others should understand (2007) unpublished paper presented at the IALS Conference on Learning from each other: Enriching the Law School Curriculum in an Interrelated World hosted by the Kenneth Wang School of Law at the Soochow University of China, 17-10-2007 Mireku refers to the system as a “hybrid legal system” because it entails two formal legal systems existing in harmony within the national framework See also Church, Schulze & Strydom Human Rights from a Comparative and International Law Perspective (2007) on the concept of a mixed system, its development, and its likely influence development in South Africa

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not the dominance of one over the other. This ensures that customary law is no longer the stepchild of common law in this new constitutional dispensation.30 It further abolishes the historic ills that entrenched the unequal power relations between customary law and common law. As customary law recovers from its subordinate status of the past, it is important that it is not shielded from the influence and beneficial impact of the Constitution. Furthermore, it is evident that the application of customary law as envisaged in these provisions is internally qualified by the limitation that they may not be exercised in a manner that is inconsistent and contrary to the prescripts of the Bill of Rights.31 This qualifier also entails the protection of these rights against other provisions of the Bill of Rights. It is also important to draw a distinction between the application of customary law as lived and observed by the communities and the official recognition of customary law as entrenched in the Constitution. Miles attaches weight to this issue saying that the recognition of the right to culture should not be based on official records or statements by academics, but on recent empirical research on the customary law of the communities concerned.32 In Bhe v Magistrate Khayelitsha; Shibi v Sithole; SA Human Rights Commission v President of the RSA33 (“Bhe”), however, Ngcobo J cautioned against the reliance on official records even while he held that the court could take judicial notice of them where customary law is readily ascertainable.34 Although this approach leaves the content of customary law caught somewhere between the living and official perspectives, Lehnert states that this does not exclude the weighing up of different interests and values, including customary law values, within the constitutional review of customary law.35 This exercise requires the court to identify whether it is the living customary law, or the official customary law, which will be applied in the development of customary norms and standards.36 Grant points out that the wide acceptance of the official version of customary law resulted in a distortion of the living customary law, as he traces the dominant voices that shaped the official version of customary law to the colonial administrators and powerful African leaders who were then all male.37 This leads to the dichotomy between the two. Lehnert also highlights the fact that official customary law reflects only to a limited extent the rules that are actually observed by communities.38 He substantiates this contention by noting the following:

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See Rautenbach 2008 12(1) EJCL 4 See also s 31(2) “Customary and Islamic law and its Development in Africa” 2006 African Development Bank Law for Development Review 81. 2005 1 BCLR 1 (CC) Para 168 “The Role of the Courts in the Conflict between African Customary Law and Human Rights” 2005 SAJHR 241 242 “Human Rights, Cultural Diversity and Customary Law in South Africa” 2006 Journal of African Law 2 20 34 2005 SAJHR 241 See also Shilubana v Nwamitwa 2009 2 SA 66 (CC) paras 43-44 where the Court referred to Alexkor Ltd v Richtersveld Community 2003 12 BCLR 1301 (CC) para 54 in which it was stated that when establishing customary law, courts should be cautious of historical records because of the tendency of older authorities to view customary law through legal conceptions that are foreign to it

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• the extent to which customary law is accurately reflected in legislation and

precedents depends largely on the general conceptions of the legislator, judge or researcher who might not be familiar with the particular custom; and • official customary law may be out of date because living customary law has undergone considerable modification in recent decades in response to profound changes in socio-political and cultural circumstances.39 He then reduces official customary law to the “state culture” which is imposed by state institutions, whereas living customary law gives expression to the objective of the right to culture which is firmly rooted in the community and generated by people.40 Allott further confines official customary law to “judicial customary law”, because it differs substantially from the law actually followed by the people whose law it was and who in theory can alone give legal recognition to a customary law rule in a customary law system.41 Within this spirit, it is vital to highlight and analyse those legislative measures that have been developed to ensure the alignment of customary law values and principles with those embodied in the Constitution. 2 1 1 The legislative evolution of customary law In carrying this debate forward, the intersection of the right to culture and the right to equality has ensured the development of legislative measures to ensure that despite the historic marginalisation of customary law, it also adheres to the prescripts of the Bill of Rights by prohibiting all forms of discrimination against both men and women.42 Since the advent of democracy, and the recovery from the impact of the Black Administration Act, various pieces of legislation have been developed to harmonise the relationship between customary law, common law and the promotion of gender equality within the traditional system. The major legislative measure for the harmonisation of customary law with the Bill of Rights is the adoption of the Recognition of Customary Marriages Act 120 of 1998 (“the Customary Marriages Act”) which defines customary law43 and gives equal status to the man and woman in a marital relationship. In section 6, it is provided 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”.44

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2005 SAJHR 246 See also the reference in Bennett “The Equality Clause and Customary Law” 1994 SAJHR 122 2005 SAJHR 247 1984 Journal of African Law 60 See s 9 of the Constitution S 1(ii) defines customary law as “customs and usages traditionally observed among indigenous African peoples of South Africa and which form part of the culture of those people” The Customary Marriages Act has been amended to include women in the succession to family property as a result of the decision in Bhe, which outlawed the automatic succession of males to inheritance In addition, the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 seeks to modify the customary law of succession to provide for the devolution of certain property in terms of the law of intestate succession in relation to persons subject to customary law

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This is in line with sections 9(2) and 9(4) of the Constitution, which require the adoption of national legislation to ensure the full and equal enjoyment of fundamental freedoms, thus seeking to ensure that women’s status under customary law ceases to reflect the unfair discrimination of the past, when women married under customary law had no legal capacity. Effectively, the Customary Marriages Act gives effect to the Promotion of Equality and the Prevention of Unfair Discrimination Act 4 of 2000 (“PEPUDA”) which seeks to eradicate all forms of social and economic inequalities, especially those that are systemic in nature and which were generated by our history.45 This is endorsed in section 8 of PEPUDA which is very specific on the elimination of gender inequalities as it prohibits any discrimination on the grounds of gender including: “(c) the system of preventing women from inheriting family property; (d) any practice, including traditional, customary or religious practice, which impairs the dignity of women and undermines equality between women and men, including the undermining of the dignity and well-being of the girl child…”

In addition, the adoption of the Traditional Leadership and Governance Framework Act 41 of 2003 (“the Traditional Leadership and Governance Framework Act”) enhances the role of traditional leaders to ensure the advancement and development of customary law in line with the prescripts of the Bill of Rights.46 Traditional leaders are not only required to take responsibility for the promotion of the right to gender equality but also to ensure that such objective is achieved.47 Section 3 of the Traditional Leadership and Governance Framework Act provides: “A traditional community must transform and adapt customary law and customs relevant to the application of this Act so as to comply with the relevant principles contained in the Bill of Rights in the Constitution, in particular by – (a) preventing unfair discrimination; (b) promoting equality; and (c) seeking to progressively advance gender representation in the succession to traditional leadership positions.”

This provision acknowledges the institutionalised subordination of customary law in terms of the Black Administration Act, as it affirms that the right to gender equality cannot be achieved overnight but requires affirmative measures that will progressively enhance its realisation. It is within this spirit that the evolution of customary law should be allowed to develop in order to establish an appropriate balance in the upholding of the customary law values and principles with those entrenched in the Constitution. Hence Nhlapo’s contention that customary law is no longer the “poor cousin” and common law the “big brother”, but that it can affirm and develop its own values and principles alongside the general fabric of common law.48 45 46 47

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See the Preamble of PEPUDA See s 4 of Ch 2, and Ch 5 This Act is itself under review in order to provide for the recognition and withdrawal of kingships, etc See the Traditional Leadership and Governance Framework Amendment Bill, 2008 GN 707 in GG 31108 of 2008-06-03 The Judicial Function of Traditional Leaders: a Contribution to Restorative Justice (2005) unpublished paper presented at a conference of the Association of Law Reform Agencies of Eastern and Southern Africa (ALRAESA) Cape Town, 14-03-2005

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In this regard, the legislative evolution and legitimacy of customary law gives effect to the democratic and founding values in the Constitution that are based on human dignity, achievement of equality and the advancement of human rights and freedoms.49 The transformative nature of the Constitution, which is described as the cornerstone50 of South Africa’s constitutional order, entrenches its supremacy and the rights of all people in the Republic.51 It also obliges the state not only to respect, protect and promote the rights in the Bill of Rights, but also to go beyond the narrow confines and limits of the law and fulfil those rights.52 In this regard, the application and enforcement of these rights applies to all law including customary law and binds everyone without distinction including the executive, the judiciary and all organs of state.53 Without providing a deeper analysis of these legislative measures, Andrews affirms that they signify another nail in the coffin of the legal dualism that characterised colonial and apartheid South Africa.54 It also gives effect to the constitutional vision for all the legal systems including customary law. But how has the judiciary fared in this process? 2 1 2 The judicial development of customary law The courts play a key role in the quest for striking a balance between the application and development of customary law vis-à-vis the right to equality. This role of the courts is firmly entrenched in section 211(3), which reads: “The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.”

This is further endorsed in section 39(2) which reads: “When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”

This was affirmed by Mokgoro J in Du Plessis v De Klerk,55 who found that these requirements assign an affirmative responsibility to a court to apply and develop both common and customary law in a manner that imbues both systems of law with the values embodied in the Bill of Rights.56 It has been noted above that the nature and characteristics of customary law have resulted in misconceptions as to its significance for the promotion of African values and customs. These misconceptions were at least clarified by the analysis provided in Alexkor. First, the court identified and classified customary law as a system of law which is not written down and which is known to the community and prac-

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See the founding provisions in s 1 of the Constitution S 7(1) Ss 2 and 3 S 7(2) S 8(1) “Big Love: the Recognition of Customary Marriages in South Africa” 2007 Washington and Lee Law Review 1483 See also Bekker & Boonzaaier “How equal is equal?: a Legal-Anthropological Note on the Status of African Women in South Africa” 2007 DJ 277 278 1996 3 SA 850 (CC) Para 167

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tised and passed down from one generation to another.57 In order to develop a firm understanding of this system, Corrin Care distinguishes “custom” from “customary law”.58 She refers to the former as a reference to all the normal behaviour within the group and to the latter as a system of rules that governs the behaviour entrenched in custom within the group.59 Secondly, the Court held that the interpretation and translation of the cultural rights guaranteed in the Constitution must be determined by reference to customary law, not common law.60 The Court referred to the decision of the Privy Council in the case of Oyekani v Adele61 and stated that the dispute between indigenous people cannot be determined by importing English conceptions of property law, but should be determined by its own indigenous values and principles. Thirdly, the Court acknowledged that customary law is not a static system of law, but a system that evolves and develops with the changing needs and within the context of its values and norms that are consistent with the Constitution.62 Fishbayn affirms this analysis by noting that it maintains the identity of a cultural group through acts of collaborative narration which organise changing materials into a story of identity and continuity.63 This analysis and the affirmation of customary law as a valuable source of law, which has the potential to develop its own values and principles within the framework of the Bill of Rights, brings to the fore the debates on the right to culture, the right to equality and the judicial development of customary law. Herbst and du Plessis note that there are proponents who argue that customary law is distinct from human rights.64 This distinction is based on the idea of community and community rights, while human rights are individualistic in nature. Chanock traces this distinction to the growth of the state and modes of regulation everywhere, both where communities are relatively homogenous and where they are culturally and religiously diverse.65 However, Lehnert notes that the changes in the socio-political cultural discourse and the distinction between the two systems does not reflect the true nature of customary law, in that individuals adhering to the customary system have rights pertaining to the group.66 The adherence to the customary law values and the exercise of individual rights within the group are based on a common understanding

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Alexkor Ltd v Richtersveld Community 2003 12 BCLR 1301 (CC) para 53 “The Status of Customary Law in Fiji Islands after the Constitutional Amendment Act 1997” 2000 Journal of South Pacific Law 1 4 Alexkor Ltd v Richtersveld Community 2003 12 BCLR 1301 (CC) para 50 (1957) 2 ALL ER 785 788G-H Alexkor Ltd v Richtersveld Community 2003 (12) BCLR 1301 (CC) para 53 1999 International Journal of Law, Policy and the Family 147 “Customary Law v Common Law Marriages: a Hybrid Approach in South Africa” 2008 12(1) EJCL http://www ejcl org/121/art121-28 pdf 1 12 (accessed 05-05-2009) See also Andrews “Striking the Rock: confronting Gender Equality in South Africa” 1998 Michigan Journal of Race & Law 307 308 “Neither Customary Law nor Legal: African Customary Law in Era of Family Law Reform” 1989 International Journal of Law, Policy and the Family 72 Chanock argues that the colonists of the past brought an intellectual confusion about the nature of law in their own societies to Africa, which was compounded by their functionalist models of social control 2005 SAJHR 241

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of shared values, based in turn on tradition.67 This encapsulates the mechanisms for the application of customary law, which are couched in respect and dignity, the mechanisms for the maintenance of order and mechanisms for the resolving of disputes which were developed to ensure that customary law worked efficiently within the traditional context.68 The contestation between individual and collective rights has further been narrowed to the rule of male primogeniture and the right to equality which includes the right to inheritance and succession to property. The rule of male primogeniture has been criticised for its lack of sensitivity to gender equality which includes women’s and children’s rights.69 The interface between customary law and common law was predicted by the Court in the Certification70 judgment. The Court held that patriarchal principles which underlie and undermine the core of indigenous law would be outlawed by the Bill of Rights.71 This is not disputed, but the question which arises is the manner in which the Court is fulfilling its role to the complete destruction or overhaul of customary law values and principles, as will be shown below. Also, does the contest between customary law itself and the general principles of equality negate the development of the customary law agenda in the succession battles? Lastly, will customary law always succumb to common law principles as has happened in the past? The judgment of the Supreme Court of Appeal in Mthembu v Letsela72 (“Mthembu”) endorsed the discriminatory impact of the male primogeniture rule which reduces the quality of protection afforded to both the right to equality and customary law. Although this decision was remedied in Bhe, it put the entire system of traditional values and principles into disarray. In Mthembu, the court upheld the rule of male primogeniture as it argued that women married under customary law are excluded from inheritance under a matrimonial property regime.73 This entrenched women’s subordination and minority status. The same can be said of the Supreme Court of Zimbabwe decision in Magaya v Magaya.74 The court held that, in accordance with old African cultural customs which are not written down, women should never be considered adults within the family. They are junior males or teenagers and therefore African society dictates that women are not equal to men especially in family relationships.75 67 68 69

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Rautenbach “Modern Impact on Customary Succession Laws in South Africa” 2004 International Journal of Human Rights 674 Bennett “Conflict of Laws” in Legal Pluralism 25 See Mamashela “New Families, new Property, new Laws: the Practical Effects of the Recognition of Customary Marriages Act” 2004 SAJHR 617 See also Ssenyonjo “Women’s Rights to Equality and NonDiscrimination: Discriminatory Family Legislation in Uganda and the Role of Uganda’s Constitutional Court” 2007 International Journal of Law, Policy and the Family 341; Evans & Gaze “Between Religious Freedom and Equality: Complexity and Context” 2008 Harvard International Law Journal 40 See Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 1996 4 SA 744 (CC) Para 200 2000 3 SA 867 (SCA) Paras 31-32 1999 (1) ZLR 100 (SC) See also Knobelsdorf “Zimbabwe’s Magaya Decision revisited: Women’s Rights and Land Succession in the International Context” 2006 Columbia Journal of Gender and Law 1 26

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This reasoning destroys an argument for the development of customary law alongside common law within the framework of the Bill of Rights, as it leaves the contest between constitutional provisions and customary practices open without guidance on how to align the two systems. Even the Bhe judgment, in remedying the discriminatory impact of the male primogeniture rule, fails to advance customary law. The Constitutional Court imported the common law conceptions of intestate succession instead of allowing the development to occur within the rule itself so as to include women, as argued by Ngcobo J in his minority judgment. The Court reasoned that the common law principles as envisaged in the Intestate Succession Act 81 of 198776 are the basic mechanisms for determining the content of the interim regime that would ensure that all children, including extramarital children, women who are survivors in monogamous unions and unmarried women would not be discriminated against.77 It is submitted that this approach is not in line with the legitimate role that customary law has to play, as it limits the development of the principles of equality and non-discrimination within the framework of customary law. It legitimises the dominance of common law principles over those of customary law, as was the case under the Black Administration Act. The importation of common law principles limits those of customary law which could have been enhanced by drawing an appropriate balance between competing interests. Besides, the essence of the substantive principle of equality is an understanding that, in any dispute between customary law and its practices and the right to equality, the principles of equality should supersede any aspect of either customary law or common law that violates them. This is the gist of the equality clause in the analysis of the competing rights, which is misplaced by the arguments that the right to equality is supreme and therefore trumps the right to culture because of its internal limitations. In this regard, it should be understood that the issue is not whether the right to equality will negatively influence the development of customary law. It is the manner in which the contestation between the two rights is interpreted that establishes an appropriate balance in the development of these rights. As evidenced by Bhe and Shilubana (to be discussed below), the Court grapples with the approach for reconciling customary law principles with those of the common law to ensure that African women do not find themselves disadvantaged. In the context of customary marriages, the Customary Marriages Act prohibits all forms of discrimination against women. The discriminatory impact of section 7(1) of the Act, which limited the application of the Act to marriages concluded after its commencement date on 15 November 2000, has just been remedied by the Constitutional Court in Gumede v President of the Republic of South Africa.78 This case was heard on appeal from the Durban High Court which declared invalid section 7(1) of the Customary Marriages 76 77 78

See s 1 Bhe v Magistrate Khayelitsha; Shibi v Sithole; SA Human Rights Commission v President of the RSA 2005 1 BCLR 1 (CC) para 121 2009 3 BCLR 243 (CC)

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Act.79 This section provided that the proprietary consequences of a customary marriage entered into before the commencement of the Act continue to be governed by customary law. The High Court further declared invalid that part of Zulu customary law which deemed the husband to be the owner of all the property on dissolution of the marriage,80 since such a rule meant that Mrs Gumede would not be entitled to either of the properties her husband owned and that she would be left without a home on divorce. The Constitutional Court confirmed the order of invalidity of the Durban High Court and stated that the adjustment of customary law within the framework of the right to equality serves a number of important constitutional purposes. It held that the process of the harmonisation of customary law with the spirit and purport of the Bill of Rights would: “[f]irstly, ensure that customary law, like statutory law or the common law, is brought into harmony with our supreme law and its values, and brought in line with international human rights standards. Secondly, the adaptation would salvage and free customary law from its stunted and deprived past. And lastly, it would fulfil and reaffirm the historically plural character of our legal system, which now sits under the umbrella of one controlling law – the Constitution.”81

The Court substantiated its finding by holding that we must remain mindful that an important objective of our constitutional enterprise is to be united in diversity.82 The importance of this judgment lies in remedying the discriminatory impact of section 7(1) of the Customary Marriages Act which defeated the purpose of section 6 of that Act and the general equality clause in the Constitution. Furthermore, its importance also lies in the express rejection of the importation of common law principles as it was argued by the respondents that Mrs Gumede still had a remedy under the Divorce Act 70 of 1979 which would have required her to justify why she was entitled to the share of the property.83 This illustrates the tension between the simultaneous constitutional commitment to the right to exercise customary law practices and the right to gender equality. The Mthembu and Bhe judgments make the Court vulnerable to criticisms of being insensitive to the foundational values in the Constitution, which gives equal recognition to these rights. 3 Equality and the erosion of customary law values and principles 3 1 The facts and legal issues considered and the reasoning of the Constitutional Court “The Chief is dead, long live … who? 84

The dispute in Shilubana arose out of the decision of the Royal Council of the Valoyi traditional community to develop the customary law of succession 79 80 81 82 83 84

See Gumede v President of the Republic of South Africa D & CLD 13-06-2008 case no 4225/06 See s 20 of the KwaZulu Act on the Code of Zulu Law 16 of 1985 Gumede v President of the Republic of South Africa 2009 3 BCLR 243 (CC) para 22. Para 22 Para 13 Curet “Field Museum of Natural History” 2002 Ethnohistory 259 260

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to chieftaincy by “electing” the daughter of the late Hosi who passed away in 1968 where she could have succeeded him.85 The purpose of the election was to align the customary law rule of male primogeniture with the Bill of Rights, since the new constitutional dispensation equates the “girl child” with the “boy child”.86 Shilubana was heard on appeal from the decision of the Supreme Court of Appeal which had upheld the rule of male primogeniture,87 which was in turn heard on appeal from the Pretoria High Court.88 The argument advanced in both the High Court and the Supreme Court of Appeal was that as far as the Valoyi traditional community was concerned, there was neither precedent nor evidence of a female being appointed as chief even if she was first born.89 In this regard, the Constitutional Court was called upon to decide the following: • whether the traditional community had the authority to develop their own

customs and traditions so as to promote gender equality in the succession of traditional leadership in accordance with the Constitution;90 • whether the community had the authority to restore the position of traditional leadership to the house from which it was removed by reason of gender discrimination;91 • the relationship between traditional community structures and courts of law envisaged by the constitutional democracy;92 and • the application of customary law as required by the Constitution whilst preserving the institution and role of traditional leadership and functioning of a traditional authority that observes customary law.93 In establishing whether the decision of the Valoyi traditional community was legitimate, the Court held that it was necessary: • to consider the traditions of that community which involve an enquiry into

the past practices of the community concerned;94 • to respect the right of communities that observe systems of customary law to develop their own law and to take into account the history and usage of customary law by the community concerned;95 • to make courts cognisant of the fact that customary law, like any other law, regulates the lives of people and therefore requires flexibility, but that the imperative to facilitate development must be balanced against the values of legal certainty, respect for vested rights and the protection of constitutional rights;96 85 86 87 88 89 90 91 92 93 94 95 96

Shilubana v Nwamitwa 2009 2 SA 66 (CC) paras 3-5 Para 67 Shilubana v Nwamitwa 2007 2 SA 432 (SCA) See Nwamitwa v Phillia 2005 3 SA 536 (T) See Nwamitwa v Phillia 2005 3 SA 536 (T) 540F; Shilubana v Nwamitwa 2007 2 SA 432 (SCA) para 46 Shilubana v Nwamitwa 2009 2 SA 66 (CC) para 1 Para 1 Para 2 Para 2 Para 44 Paras 45-46 Para 47

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• to make a court engaged in the adjudication of a customary law matter

mindful of its obligation under section 39(2) even though the development of customary law by the courts is distinct from its development by a customary community;97 • to ensure that a court strives to recognise and give effect to the development occurring within the community and that the provisions of section 39(2) are acted upon.98 This is supplemented by Church and others who argue for the broader interpretation of competing values in the development of common law, an interpretation which applies equally in respect of customary law.99 This interpretation not only acknowledges what needs to be done in the development of customary law, but also the actual translation of such into reality in order to establish the essence and content of the customary law values and principles. In giving effect to this contention, Church and others identified that this broader interpretation requires the need: • to identify the common law sources; • to determine whether they are relevant; and then • to develop or modify them in accordance with the needs of the day; and if

developed in this way;

• to establish or examine whether it accords with the spirit and values in the

Constitution.100

The purpose of these factors is that they seek to ensure that the determination of the legitimacy of a customary law rule should not be fused within the concept of the right to equality in the tracing of its sources and origins. The goal is to determine the evolution of the customary law itself rather than confining it to a mere balancing of constitutional interests. Since these requirements were not addressed by the Court, it is therefore, submitted that this limited the robust development of customary law within the framework of the Bill of Rights. It further resulted in the narrow interpretation of these competing values and principles, while a broader one could have facilitated the extent to which the effectiveness of the law may be determined in order to establish its significance for social transformation. This is affirmed by Moseneke DCJ, who says that the cultivation of a judiciary that unfailingly embraces the development of the jurisprudence as envisaged in the Constitution is an important component of transformation.101 With regard to the first issue, the Court examined whether the reliance on past practice establishes the customary law rule with certainty. It held that the legal status of customary law norms cannot depend simply on their having been consistently applied in the past because the recognition of past practice

97

Para 48 Para 49 Human Rights 72 100 72 101 See Rabkin “Moseneke wants Wider Application of the Constitution” Business Day (2008-10-27) 4 98

99

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prevents any new development.102 The reference to past practice is the essence of determining and understanding the nature of customary law for the purpose of examining the concept of succession in customary law. This, in turn, assists in analysing the context in which the constitutional validity of the customary law rule may be determined. If there will be no reference to the past practice because it will prevent the development of new customary norms, it inhibits the potential of a court to establish the background of a customary law rule with sufficient certainty. In addition, the Court’s acknowledgement of the evolving nature of customary law which is influenced by both internal and external factors103 requires not only a mere reference to past practice, but a deeper synthesis and analysis of the customary law rule. The analysis with reference to the past practice helps not only to preserve customary law as a legitimate source of law and to serve the needs of those subscribing to it, but to contribute to the development of the law in general. This is important for the development of customary law, considering its evolving character to meet the changing circumstances of the communities that observe the particular rule in question. This is also one of the strategies that may assist the court in taking judicial notice of customary law, particularly where it can be ascertained with sufficient certainty. This is important, because in the past customary law had to develop within the framework of the repugnancy clause of the Black Administrative Act104 which resulted in it being applied through the prism of common law.105 Therefore, the reference to the past is not an attempt to derail the progress made but a transformative measure that seeks to ensure that the constitutional values are not simply imposed on the development of customary law rules. Even though the repugnancy clause seems to be affirmed in the Constitution by making the application and development of customary law subject to its conformity with the Bill of Rights,106 the essence of this limitation in the Constitution is the development of appropriate tools to ensure that it does not disappear as a legitimate source of law by which many South Africans live. In respect of the second issue of whether the traditional authority was justified in restoring chieftaincy to the house from which it had been removed as a result of gender discrimination, the Court held that section 211(2) of the Constitution specifically provides this power to traditional authorities in order to make constitutionally-driven changes in traditional leadership.107 Mireku emphasises that Ms Shilubana could not succeed her father in 1968 for no other reason than that customary law classified women as minors.108 The idea 102

Shilubana v Nwamitwa 2009 2 SA 66 (CC) paras 55-56 See para 46, as the Court highlighted that the parties would be required to place the evidence of the present practice in a community before the Court, which would examine it in the context of the community and acknowledge any developments that may have occurred 104 See ss 2(2) and 20 See also s 1(1) of the Law of Evidence Amendment Act 45 of 1988 105 See the analysis by Deveaux 2003 Citizenship Studies 161 106 See s 211(3) 107 Shilubana v Nwamitwa 2009 2 SA 66 (CC) paras 72-74 108 Judicial Balancing of Parallel Values: Male Primogeniture, Gender, Equality and Chieftaincy Succession in South Africa (2006) unpublished paper presented at conference on Law and Transformative Justice in Post-Apartheid South Africa hosted by the Nelson R Mandela School of Law at the University of Fort Hare, 04-10-2006 103

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that Ms Shilubana was denied access to the throne due to gender discrimination is misconceived. It is misplaced because the essence of the rule of male primogeniture in this regard, as noted by Bekker and Boonzaaier,109 is the affirmation of the concept of the family and collective rights and responsibilities within each respective family grouping. The function of the law of succession is therefore to counteract the disruptive effect of death on the integrity of the family unit. The centrality of succession to chiefdom through the patrilineal system enhances the values of marriage within the customary law framework. It is a practice for girls or women to get married and so doing assume the name of the family into which they have married. In this instance, it was vital for the rule of male primogeniture to develop along the lines of descent traced through the paternal side of the family, where the order takes the form of succession on death, primogeniture and by males in the male line of descent.110 In this manner the rule asserts the family bloodline by ensuring the preservation of its identity.111 The rule of male primogeniture on succession to chieftaincy also gives due recognition to the name and cultural identity of the Valoyi traditional community which has been preserved for a number of generations. This identity is not just a mere description of a cultural belonging, but the treasure of the cultural heritage of the community concerned. The Court in this instance reduced to nothing the value of the customary law rule of male succession to chieftaincy by not recognising the locally defined rule since time immemorial which had constituted the cultural identity of the Valoyi community. In addition, the Court did not balance the development of the customary law rule of “male primogeniture” with the right to equality in terms of the differentiation approach it adopted in Harksen v Lane NO112 in establishing the arbitrariness of the male primogeniture rule against Ms Shilubana. This could have assisted in establishing the extent of the impact of the differentiation on Ms Shilubana. The Court in Minister of Finance v Van Heerden113 emphasised that: “It is … incumbent on courts to scrutinise in each equality claim the situation of the complainants in society; their history and vulnerability; the history, nature and purpose of the discriminatory practice and whether it ameliorates or adds to group disadvantage in real life context, in order to determine its fairness or otherwise in the light of the values of our Constitution”.114

However, the Court ignored the approach adopted by Moseneke DCJ in Van Heerden and failed to draw a balance between the two competing rights in terms of section 9(2), which would have placed it in a better position to determine the effect of the differentiation on Ms Shilubana as envisaged in section 9(3). The Court further compromised the approach it adopted in Ex Parte 109 110 111 112 113 114

“Traditional Leadership and Governance” in Bekker, Rautenbach & Goolam (eds) Introduction to Legal Pluralism 2 ed (2006) 113 See Rautenbach, du Plessis & Venter “Law of Succession and Inheritance” in Bekker, Rautenbach & Goolam (eds) Introduction to Legal Pluralism 2 ed (2006) 91 See Janse van Rensburg Mthembu v Letsela: the Non-Decision (2000) unpublished paper presented at the Congress of the Society of Law Teachers of Southern Africa (SLTSA), 03-07-2000 1997 11 BCLR 1489 (CC) para 51 2004 11 BCLR 1125 (CC) Para 27 (footnote omitted)

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Minister of Safety and Security: In Re S v Walters115 in its analysis of the competing interests. In this case, Kriegler J held that when there is a constitutional challenge based on legislation or customary law as a primary source of law there has to be a threshold enquiry aimed at determining whether the rule of customary law constitutes a limitation on one or more guaranteed rights, such as equality, as contended by Ms Shilubana. This enquiry entails examining (i) the content and scope of the relevant protected rights; and (ii) the meaning and effect of the impugned customary law rule to determine whether there is any limitation of the protected rights.116 If there is indeed a limitation, the Court will have to weigh-up the nature and importance of the rights to determine the extent of the limitation as against the importance and the purpose of limiting the rights of women to chieftaincy.117 This approach entails the nurturing of South Africa’s rich diversity and the proper balancing of the interpretation of indigenous values with those entrenched in the Constitution. This not only means that customary law must be developed in a way that meets the objectives of section 39(2), but also that it must be done in a way that is most appropriate for the development of customary law within its own paradigm.118 The Court in Bhe held that the development of customary law should not be undertaken in a piecemeal fashion as it would provide inadequate development of the rules of customary law.119 This means that the Court cannot simply replace customary law with common law whenever there is a constitutional challenge to the former. This is against the spirit and purport of the Bill of Rights as far as the development of customary law is concerned. This is the essence of the value-laden nature of customary law which could have been properly balanced with the right to equality in the determination of the role of the community in developing its own customs. The continual development of customary law to promote the exercise of individual rights by adapting to changing circumstances, as was highlighted in Alexkor, is not unique to South Africa but evident in the rest of Africa as well. In essence, even though human rights do not translate easily from one setting to another, they need to become part of the consciousness of ordinary people. When studying the interaction between customary law and human rights, it is essential to be cognisant of the way in which culture itself is contested.120 In other words, the significance of the traditional system cannot be ignored in the belief that reform strategies will eventually change practice at local level. This belief may lead to the continuation of discriminatory practices.121

115

2002 7 BCLR 663 (CC) Para 26 Para 27 See also s 36(1) of the Constitution 118 See also Carmichele v Minister of Safety and Security 2004 2 BCLR 133 (CC) para 55 119 Bhe v Magistrate Khayelitsha; Shibi v Sithole; SA Human Rights Commission v President of the RSA 2005 1 BCLR 1 (CC) para 113 120 Kent “Custody, Maintenance and Succession: the Internationalization of Women’s Rights and Children’s Rights under Customary Law in Africa” 2007 Michigan Journal of International Law 507 121 See Chirayath, Sage & Woolcock Customary Law and Policy Reform: engaging with the Plurality of Justice Systems (2005) prepared as a background paper for the World Development Report 2006: Equity and Development. 116 117

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With regard to the third issue, the Court held that it must strive to recognise and give effect to the development in a customary community of its own laws and customs to the extent that this development is consistent with the continuing and effective protection of rights and the operation of law.122 This would give effect to the objectives of section 39(2).123 This is not disputed, but it is the task of the Court, which is located within this framework of contestation in the development of customary law vis-à-vis the right to equality, to ensure that both these values evolve within the domain of the Constitution in line with the basic and consistent norms of the legal order that established them. However, in abdicating judicial responsibility to the community without having followed the approach it adopted in the past in analysing the contest between the right to equality and the development of customary law, the Court has undermined the requirements of section 39(2) and the express affirmation of the role of the Court in section 211(3). These sections make it the responsibility of the Court to shape up the contestation between private individuals, state, civil society and vice versa. These provisions further require the Court not to shrink from this duty124 and leave a void which will make it difficult to determine with sufficient certainty the extent to which customary law may develop its own values, within the framework of the Bill of Rights.125 In addition, these provisions require the Court to provide guidance to communities on the extent to which they may engage in the process of developing their own customs. As it stands, communities have been left without a proper guideline of how to develop their frame of reference in developing their customs except for the equal recognition of the “girl child” and the “boy child” in the Constitution. This is against the spirit advocated by Ngcobo J in his minority judgment in Bhe in which he stated that when dealing with customary law which forms part of our law, section 39(2) imposes an obligation on the Court to develop customary law in order to bring it in line with the Bill of Rights.126 He supported this view with reference to Carmichele v Minister of Safety and Security:127 “The Carmichele case applies equally to the development of indigenous law. Where a rule of indigenous law deviates from the spirit, purport and objects of the Bill of Rights, courts have an obligation to develop it so as to remove such deviation. This obligation is especially important in the context of indigenous law. Once a rule of indigenous law is struck down, that is the end of that particular rule. Yet there may be many people who observe that rule, and who will continue to observe the rule. And what is more, the rule may already have been adapted to the ever-changing circumstances in which it operates. Furthermore, the Constitution guarantees the survival of the indigenous law. These

122

Shilubana v Nwamitwa 2009 2 SA 66 (CC) para 49 Para 49 124 See the judgment of O’Regan J in Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs 2006 3 BCLR 355 para 171 125 See Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the Republic of South Africa 2000 2 SA 674 (CC) para 49 126 See Bhe v Magistrate Khayelitsha; Shibi v Sithole; SA Human Rights Commission v President of the RSA 2005 1 BCLR 1 (CC) para 212 127 2004 2 BCLR 133 (CC) 123

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considerations require that, where possible, courts should develop rather than strike down a rule of indigenous law”.128

This is contrary to the approach of the majority as it strikes down the male primogeniture rule without allowing it to develop alongside common law. Himonga also affirms that even though this development may be affected by the power dynamics in decision-making within the family, which may also compromise the interests of women, it seems to provide the basis on which those observing the system of customary law can be persuaded to respect the new laws and to promote their implementation.129 In respect of the fourth issue the Court in Shilubana held that in determining how to apply a customary law rule, the test of certainty, uniformity and long-term observation of a custom, as well as the reasonableness of such a custom was not applicable.130 In this regard, the Court distinguished Van Breda v Jacobs131 from the facts before it. It pointed out that Van Breda dealt with proving custom as a source of law and that the court in that case treated it as an immemorial practice that could be regarded as filling normative gaps in common law.132 According to the Court in Shilubana, the effect of such a treatment is that the proving of a custom no longer serves as an original source of law capable of independent development, but survives merely as a useful accessory. What is of greatest concern is the contention that the interpretation of the decision of the Valoyi community in the development of their own customs could also mean that, even if it had hitherto not been lawful under customary law, the authorities effected a development to the law to bring it in line with the Constitution.133 Thus the following questions arise: • Why would the Court legitimise a decision that was made unlawfully? • Does this mean that customary law must be trampled without allowing

its own procedures to be given due recognition in the decision making process? • Does this not enhance the criticisms against the Constitution that it imposes western ideas which are foreign to the principles and values of customary law? These questions highlight the difficulty in understanding the approach of the Court, as it effectively destroys societal changes in the decision-making procedures of customary law. It undermines the evolution of customary law that is built on existing and familiar rules of succession which must be understood

128

Bhe v Magistrate Khayelitsha; Shibi v Sithole; SA Human Rights Commission v President of the RSA 2005 1 BCLR 1 (CC) para 215 129 “The Advancement of African Women’s Rights in the First Decade of Democracy in South Africa: the Reform of the Customary Law of Marriage” in Murray & O’Sullivan (eds) Advancing Women’s Rights (2005) 82 130 Shilubana v Nwamitwa 2009 2 SA 66 (CC) paras 52-56 131 1921 AD 330 132 Shilubana v Nwamitwa 2009 2 SA 66 (CC) para 54 133 Para 60

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and developed in the context of customary law itself.134 If the interpretation of the decision of the Valoyi community could also mean its validation despite the fact that it was taken contrary to the prescripts of customary law, it shows little understanding of its values and principles. This compromises the initiation of the developments in order to give effect to the necessary changes in the advancement of customary law. It also does not take into account the fact that customary law is capable of its own development within the framework of human rights, without having to import common law principles which may lead to the destruction or undermining of customary law. In essence, customary law should be developed within its own value system before being replaced by a system completely foreign to the living law practised by the communities. In supporting this contention, however, Ngcobo J disagreed with the discriminatory rule of male primogeniture in Bhe, as he argued that “the Court had an obligation to apply customary law and to participate in its development in a way that was consistent with the Constitution, particularly the right to equality where women are also allowed to succeed the deceased.”135

This is the greatest challenge for the development of customary law, as it also puts the functioning and powers of traditional leaders into disarray. It is not denied that traditional leaders have to adjust their functioning to the changing socio-political and cultural conditions by ensuring that the development of customary law is not frustrated by the stagnation of the pre-constitutional dispensation.136 However, the Court’s rigid interpretation of its role vis-à-vis that of the traditional community reinforces the marginalisation of customary law and does not recognise its flexible character. As noted above, customary law would be capable of its own development if the Court had given it the chance to develop inside its boundaries in line with spirit of the Bill of Rights. In fact, the Court undermined the emerging jurisprudence on customary law which Lehnert attributes to the limited understanding of customary law concepts among judges.137 Powles opines that it should be acknowledged that judicial training and attitudes play their part in the development of customary law.138 It can be concluded that the failure of the Court to trace the sources in order to establish the significance of the cardinal rule of succession to chieftaincy139 has actually threatened the customary law values that sustain the communities observing those values.

134 135 136 137 138 139

Bhe v Magistrate Khayelitsha; Shibi v Sithole; SA Human Rights Commission v President of the RSA 2005 1 BCLR 1 (CC) para 164 per Ngcobo J Para 170 Shilubana v Nwamitwa 2009 2 SA 66 (CC) para 45 2005 SAJHR 263 “Common Law at bay?: the Scope and Status of Customary Law Regimes in the Pacific” 1997 Journal of Pacific Studies 61 Mireku Judicial Balancing of Parallel Values

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3 2 The extension of chieftaincy to other sections of society including commoners140 The greatest challenge created by Bhe was the repudiation of a cardinal rule of customary law instead of bringing it into conformity with the national framework on equality. The intersection of the right to culture and equality acknowledges the apparent conflict that may exist between the two competing interests, hence the requirement for their consistency with the provisions of the Bill of Rights. The equal recognition of these rights ensures that they cannot be nullified, but should instead be modified in terms of the spirit of the Bill of Rights. This was not the case in Shilubana where the essence of the customary law rule of succession to chieftaincy was completely undermined by the lack of a proper understanding of the rationale and authority of customary law and the manner in which it operates.This has led to confusion and disagreement on the approach to be taken in ensuring the alignment of customary law values with the prescripts of the Bill of Rights. What is more discomforting is the lack of distinction between Bhe and Shilubana. Bhe should be distinguished from Shilubana because the former dealt with the right to succession in terms of family and private law relationships.141 The latter dealt with the important role of the functioning of traditional authorities which is governmental in character. Traditional authorities have played a significant part in the recognition of their role and in the usefulness of their institutions in local administration. Customary law empowers the chiefs to carry out functions of a public law nature, which is quite distinct from succession in a private law relationship. In addition, they have been given a constitutional role to be involved in the administration of customary law, to engage in rule-making and law enforcement and dispute resolution.142 In this regard, the chiefs employ traditional authority to administer the affairs of the community and extended family groups.143 This constitutes a substantial role of traditional authorities in the development of their own customs in line with the social change objectives entrenched in the Constitution.144 Without examining this functioning any further, the interpretation given by the Court in Shilubana shows the problem in understanding this role. By confirming the “election” of Ms Shilubana, the Court has undermined the status of chiefdom and completely destroyed the “cardinal rule of customary law”145 of patrilineage as it was intended to preserve the family and cultural identity of the community.

140

A “commoner” means a person who is not born into the royal family See the minority judgement in Bhe v Magistrate Khayelitsha; Shibi v Sithole; SA Human Rights Commission v President of the RSA 2005 1 BCLR 1 (CC) paras 171-174, where Ngcobo J analyses the role of the successor (eldest son (Indlalifa) or eldest male in the family) and his responsibilities in preserving the family unit and succession to the position and status of the deceased in terms of customary law 142 See Chs 5 and 6 of the Traditional Leadership and Governance Framework Act 143 Mqhayi Ityala lamawele 43 144 See s 212(1) See also Ch 3 of the Traditional Leadership and Governance Framework Act 145 Mireku Judicial Balancing of Parallel Values 141

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An additional problematic aspect of the Shilubana judgment is its uncertainty regarding the “sociological approach”146 to chieftaincy. The Court held that neither the sons nor the daughters of Ms Shilubana would succeed her, but that a child born of the male Nwamitwa bloodline would succeed her instead.147 This uncertainty has the potential to create a pool of candidates, which may arise either by their own efforts or by those of a powerful group, where there is no definite successor determined by customary law. This does not prevent Ms Shilubana’s own daughters from being discriminated against in the near future for no other reason than by being born of a woman within the Nwamitwa bloodline. It also has the potential for the creation of factionalism and competition where strong individuals could manipulate the flexibility and vagueness embedded in the development of the customary rules of succession. This competition would enable the rich and powerful, as shown in Shilubana, to use the gap as a strategy to empower themselves at the expense of upholding South Africa’s cultural heritage. What makes this case more disturbing is the fact that Ms Shilubana is married and the right to access the throne has been extended to a commoner, thus undermining the preservation of the identity of not only of the family bloodline, but also of the traditional community itself. This is where the content and essential purpose of the rule of male primogeniture is lost, which could have been preserved by an acknowledgement of the valuable functioning of the customary law successor.148 This undermines the role of customary law itself as an independent source of norms and standards within the legal system. It further fails to take into account that customary law is a body of law that regulates the lives of many South Africans.149 In addition, the development of customary law is not meant to give prominence to the powerful, who are able to manoeuvre the legal system for their personal gain.150 In other words, the extension of chieftaincy to the commoner has failed to develop and show respect for customary norms, traditions and forms of participation and societal interaction which could have been more appropriate and given lasting expression in treasuring the name of the family.151 4 Conclusion The Shilubana judgment has undermined the system of succession to chieftaincy. This development illustrates the underlying tensions that exist between customary law and the non-discrimination principles and values. While both are affirmed by the Constitution, little guidance is given on how to reconcile the competing interests. The greater emphasis and the absolute 146 147 148 149 150 151

Shilubana v Nwamitwa 2009 2 SA 66 (CC) para 90 Para 90 Higgins “Constitutional Chicken Soup” 2006 Fordham Law Review 710 Shilubana v Nwamitwa 2009 2 SA 66 (CC) para 43 with reference to Alexkor Ltd v Richtersveld Community 2003 12 BCLR 1301 (CC) para 51 See the report by Matlala “Woman Chief dents Egos” Sowetan (11-06-2008) 3 in which it is indicated that instead of building the community, the Court has actually divided it See also Ngubane “Rural Women, Land Rights and the Communal Land Rights Bill” 2003 INDONSA 14

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application of the principles of equality in this case have actually undermined the potential of customary law to play any legitimate role in the development of the principles of non-discrimination. This narrow interpretation of the customary law rule of male primogeniture frustrated the development of customary law, which has for a long time been downtrodden and prevented152 from developing securely alongside common law. It has further frustrated the attempts for it to be used by those who prefer it to common law. As it stands now, customary law’s application and enjoyment occurs through the prism of common law, and is no longer based on custom and tradition, which formed the framework for its own application and development. This entrenches the controversies and questions the legitimacy of customary law as an independent source of law, which brings us back to the debates on the role of customary law in effecting social change. As Kennedy notes, it further classifies us and tells us who we are, what we value, who has the power and who does not.153 SUMMARY This article analyses Shilubana v Nwamitwa 2009 2 SA 66 (CC) and the legal framework in which it was decided, and considers its implications for the future of the customary law of succession to chieftaincy in South Africa. It is argued that the characterisation of gender equality as irreconcilable with the values and principles of customary law undermines the very social change objectives that are entrenched in the Constitution.

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Du Plessis “The Future of South Africa: Perspectives of integrating Different Cultures – Means of Law” 2001 Legal Policy Forum 1 2 See Kennedy Just Law: the Changing Faces of Justice – and why it matters to us all (2005), as she argues that societies are now more complex and mixed than they were in the 20th century – people are better educated, more demanding and much more conscious of their rights