Gender and Customary Law

ABSTRACT

Customary Law are the customs and usage that are traditionally observed among indigenous African people of South Africa and which forms part of the culture of these people. One particular contentious area of customary law for women’s rights are the customary practice involved with succession, inheritance and polygamous marriage. The law of succession realized in customary law have received severe criticism both before and after the 1996 constitution.

Many cultures in customary law traditionally practice patriarchy, which offers men greater legal rights and privileges than women. The customary law of succession is concerned with the inheritance of property and succession status of the deceased, whereby it is limited largely to male and not females especially those of the patrilineage. There are certain rules such as a male cannot be succeeded by a women, principle of male primogeniture and the allotment of property, which they create gender inequality when it comes to males and females in the South African Customary law.

The principle of male primogeniture violates the rights of women and girl children to human dignity that and right to equality is guaranteed in section 10 and section 9 of the constitution respectively. This rule of the principle of male primogeniture implies that women are not fit or competent to own and administer property. And as a result, it gives effect to subject women to status of perpetual minority, placing them automatically under the control of male heirs simply by virtue of their gender and sex.

1  INTRODUCTION

Customary Law is formally recognized by the 1996 Constitution, although Customary Law is recognized by the Constitution of the Republic, there are certain customs in Customary Law that are deemed to be discriminatory in Gender, specifically in women. This Article will look at the extent which those customs, specifically the customary law of succession, inheritance, and the recognition of polygamous marriage by the Recognition of Customary Marriage Act 120 of 1998 are measured against the Bill of rights. Therefore with all the development in South Africa legal system, and the explore the impact that the constitution has had on customary law of succession. The aim is to show that instead of developing customary law and advancing some of the principle as the male primogeniture which are applied in customary law. The court are more inclined to invalidate these principles instead of adopting them in such a manner that would be consistent with the constitution which will be in line with the changing values of the communities.

2 UNDERSTANDING CUSTOMARY LAW

2 1 DEFINITION OF CUSTOMARY LAW

Customary law forms an essential part of South Africa’s legal and cultural heritage, reflecting the traditional values and norms that guide community life. Customary Law are the customs and usage that are traditionally observed among indigenous African people of South Africa and which forms part of the culture of these people.[1]  In the case of Mabena v Letsoalo the court that there two forms of customary law living and official customary law.[2] The court noted that it had to recognize the principle of living actually observed law as this would constitute a development in accordance with the spirit, purport and objects of the Bill of Rights.[3] Living customary law refers to the actual practice within the community those are the customs and usage that are traditionally observed among indigenous people of south Africa which form part of their culture, While official customary law is the version of these customs that has been formally recognized written down in statues.[4]

 In addition customary law is a system of law that is passed on from one generation to the other and it is developed through the year to meet the changing needs of communities.[5] In the past unlike the common law, Customary law has not featured in the conventional South African Jurispudence as a result a court dealing with customary law matters was established in order to apply the provision of the Black Administrative Act.[6] Morever this is due to fact that statutory regulation that have been set in place undermine living customary law which is exclusively based on the daily practice of people. Furthermore, even though customary law was seen through the lens of common law in the past it must now form an integral part of our law and like all law, its validity depends on the Constitution of the Republic of South Africa.

2 2 RECOGNITION OF CUSTOMARY LAW BY THE CONSTITUTION     

Section 2 of the Constitution provides that the constitution is the supreme law of the country and any law or act that violates any right conferred in the constitution is invalid and the obligation imposed by it must be fulfilled.[7] The Constitution itself envisages a place for customary law in our legal system. Certain provisions of the Constitution put it beyond doubt that our basic law specifically requires that customary law should be accommodated, not merely tolerated, as part of South African law, provided the particular rules or provisions are not in conflict with the constitution.[8] Further, section 39(2) specifically requires a court interpreting customary law to promote the spirit, purport and objects of the Bill of Rights.[9]  Also, section 39(3) states that the Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by customary law as long as they are consistent with the Bill of Rights.[10]  Section 211(3) states that the court must apply customary law when that law is applicable, subject to the Constitution and any legislation that speacifically deals with customary law.[11] This section does give recognition to Customary law provided that the customs that are practiced does not violates the rights that are in the Constitution.

2 3 RECOGNITION OF CUSTOMARY LAW BY LEGISLATION

Two major statues dealing with customary law post 1994 are the Recognition of customary marriages Act and the Reform of Customary law of succession and Regulation of Related matters Act they both define customary law as customs and usage traditionally observed among the indigenous African people of South Africa which forms part of the culture of those people.[12]

The Recognition of Customary Marriage Act 120 of 1998 was enacted to give full legal recognition to customary marriage conducted in accordance with African customary law. Section 2(1) of the Recognition of customary marriage states that a marriage which is valid under customary law is recognized as a valid marriage and will enjoy the same legal status and protection as civil marriage.[13]Section 6 of the Recognition of Customary Marriage integrates Customary law with Constitutional principle as it provides that wife in customary law have full and equal status and capacity.[14]

The Reform of Customary Law of Succession and Regulation of Related Matters Act aims to modernize traditional succession rules by abolishing the rule of male primogeniture and aligning customary law with common law principles of intestate succession Act to those who die Intestate under customary law and provide guidelines to protect womens rights.[15]

3 GENDER AND CUSTOMARY PRACTICE

3 1 THE RULE OF MALE PRIMOGENITURE

While Customary law plays an important role in maintaining cultural identity it has also shaped distinct gender roles that often disadvantage women in social and legal context. Intestate Sucession was based on Male Primogeniture Testate succession a black person was restricted to making a will in certain ways.[16] Freedom of testation was limited to certain types of property by section 23 of the Black Administration Act as follows: All movable property belonging to a black and allotted to him or accruing under black law or custom to any woman with whom he lived in a customary union, or to any house shall upon his death devolve and be administered under black law and custom; All land in a tribal settlement held in individual tenure upon quitrent conditions by a black shall devolve on his death upon one male person, to be determined in accordance with tables of succession prescribed under subsection (10) 65 All other property of whatsoever kind belonging to a black shall be capable of being devolved by a will.[17] Individuals are not free to decide how and on whom their estates will devolve. Customary property, which is mainly land and livestock, attracts group interest and cannot be devolved by will.[18]

The principle of male primogeniture violates the right of women and girl children to human dignity as guaranteed in section 10 of the Constitution.[19] The rule implies that women are not fit or competent to own and administer property.[20] Its effect is also to subject women to a status of perpetual minority, placing them automatically under the control of male heirs, simply by virtue of their sex and gender. Their dignity is further affronted by the fact that as women, they are also excluded from intestate succession and denied the right, which other members of the population have, to be holders of and to control property.[21]

4 CHALLENGES AND GENDER INEQUALITY

4 1 GENDER BASED INEQUALITY UNDER TRADITIONAL PRACTICES

Despite the recognition of customary law within South Africa’s constitutional framework, many women continue to experience gender-based inequalities under traditional practices. In several customary systems, women are still excluded from inheriting property or holding positions of authority within the family and community structures.[22] For instance, widows have historically been denied the right to inherit their deceased husband’s estate, leaving them economically vulnerable and dependent on male relatives.[23] Such practices not only reflect patriarchal norms but also conflict with the constitutional right to equality and human dignity.

Furthermore, in some rural areas, limited legal awareness and strong adherence to tradition make it difficult for women to challenge discriminatory customs.[24] These challenges outline that while legal reforms exist, the gap between law on paper and law in practice remains a significant barrier to achieving gender equality in customary law.[25] Customs such as polygamous marriage whereby a man is given the privilege to into marriage with multiple women. Section 7 (6) of the Recognition of Customary Marriage Act allows for a husband in an existing customary marriage to enter into a further customary marriage by requiring him to apply to a court for an order to approve a written contract that regulates the future matrimonial property system of all marriage.[26]

4 2 CHALLENGES IN A POLYGAMOUS MARRIAGE

In the case of Mayelane v Ngwenyama the court established the necessity of existing wife consent, the court ruled that consent of the first wife is a requirement for the validity of a subsequent customary marriage this was to uphold constitutional values rights to dignity and equality.[27] Furthermore Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women places an obligation on the states to ensure that women and men enjoy the same rights freely to choose a spouse and enter into marriage only with their free and full consent and same right and responsibilities during marriage and its dissolution, however this conditions are compromised in polygamous marriage where only one party has the agency to marry additional women and where wives are compelled to compete for material resources.[28] As a result its discriminating against women and violating their right to dignity and equality because the Recognition of customary marriage does not allow for polyandry in South African customary law.[29]

5 CONSTITUTION AND LEGISLATIVE INTERVENTIONS

5 1 CONSTITUTION AND LEGISLATIVE INTERVENTION ON CUSTOMARY

The Constitution of the Republic of South Africa provides a powerful framework for protecting gender equality while recognizing the importance of cultural diversity. Section 9 states that everyone has the right to equality which guarantees that everyone is equal before the law and prohibits discrimination on the grounds of gender, sex, or culture. At the same time, Section 31 safeguards the right of communities to enjoy and practice their culture, but only in ways consistent with the Constitution’s founding values of human dignity, equality, and freedom.[30] To give practical effect to the principle values of the constitution, Parliament enacted legislation such as the Recognition of Customary Marriages Act 120 of 1998, which grants women in customary marriages equal legal status and property rights.[31]

Similarly, the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 ensures that women and children can inherit property on an equal basis with men.[32] These legal interventions illustrate South Africa’s effort to harmonize customary law with the constitutional vision of gender equality and social justice. Section 2 (1) of the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 provides that the estate of or part of estate of any person who is subject to customary law who dies after the commencement of this Act and whose estate does note devolve in terms of that person will must devolve in accordance with the law of intestate Succession as regulated by the Intestate Succession Act subject to subsection 2.[33]

6 JUDICIAL DEVELOPMENTS

6 1 REFORMING DISCRIMINATORY ASPECT OF CUSTOMARY LAW TO ALIGN   THEM WITH THE CONSTITUTION

South African courts have played a critical role in reforming discriminatory aspects of customary law to align them with Constitutional values. The case of Bhe v Magistrate of Khayelitsha concerns the rule of male primogeniture.[34] In this case the deceased died in 09 October 2002.[35] During his lifetime he and Ms Bhe lived as husband and wife for twelve years and they had two minor daughters born from their union.[36] In terms of customary law, the deceased’s property had to devolve to the eldest surviving male in the family, which in this case was the deceased’s father, who had indicated his intention to sell the deceaseds property to cover the deceaseds funeral expenses.[37] Ms Bhe applied to the court on behalf of her two minor daughters for order to declare the rule of male primogeniture unconstitutional.[38] The court had to answer the question whether the two minor daughters had a right to inherit from their fathers intestate estate.[39] The court ruled that the rule of male primogeniture was unconstitutional because it prevented the deceased two minor daughters from inheriting their father estate which was a violation of their right to equality.[40]

6 2 TENTION WITHIN CUSTOMARY LAW CUSTOMS AND PROTECTION OF CONSTITUTIONAL RIGHTS                                                                     

The Constitution is committed to protecting the right to inequality as well as the right to culture.[41] This dual protection has resulted in the development of these competing interests and equal protection of laws.[42] This tension manifested in customary law is viewed as a source perpetuating gender discrimination one of the case that highlights this tension is the case of Shilubana v Nwamitwa.[43]  In this case Hosi Fofoza (chief) of the valoyi traditional community has died in 1968, his eldest daughter, the applicant in accordance to the principle of male primogeniture that governed Succession to chieftainship.[44] The eldest daughter of the chief was not considered in participation, the royal family of the valoyi unanimously resolved to confer chieftainship on the applicant, however the respondent Richards son argued that under customary law he would succeed his father Richard upon his death as the eldest son of the chief.[45]

 Submissions where made to the court by the amicus curiae that if the choice of the applicant being conferred as Hosi is view as a development of customary law, they submit that it is one that should be encourage, regardless of whether there is a constitutional imperative that traditional communities abolish male primogeniture in succession decision. [46]The authority for traditional communities to bring their own customs in line with the constitution includes the ability for such communities to remedy previous discrimination. [47]The Constitutional court held that the contemporary practice of the valoyi reflected a valid legal change that resulted of the applicants succession to chieftainship as a result of traditional authoritys development of customary law in accordance with the right to equality.[48] The Court acknowlages a woman’s right to become a traditional leader, making a significant change in challenging gender bias within customary leadership structures.

7 Conclusion

 The intersection of gender and customary law in South Africa presents difficult challenges because customary law is part of South African law. And most customs are patriarchal, which discriminate against women. The constitutional court’s ruling in Bhe v Magistrate’s Court of Kayselitsha, Shilubana and others v Nwamitwa aims to address these issues and challenges to balance between customs and human rights to promote gender equality and dignity in customary law and align with the Constitution. These judgments demonstrate how the courts have interpreted customary law in a way that respects cultural traditions while ensuring compliance with the Constitution, and through such decisions, the judiciary has become a powerful instrument for advancing gender justice and modernizing customary law in South Africa.

BIBLOGRAPHY

1 BOOKS

a)The Consitution of the Republic of South Africa, 1996

56. b) Nhlapo T, Himanga C (editor) African customary law in South Africa, Cape Town,2014)

 2 JOURNALS

a)Mtswei and Maimela “The role and effects of the Constitution in customary law of succession” (2023) De Jure Law Journal 687,693.

2018. b) Cotton and Diala “Silence in Marriage Laws in Southern Africa: Womens Position in Polygamous Customary Marriages” Vol 32 No 1 (2018.

3 CASE LAWS

a ) Mabena v Letsalo 1998 2 SA 1068 (T) para 1074.

1. b) Mayelane v Ngwenyama and Another CCT 57/12 [2013] ZACC 14 para [33].
2. c) Bhe v Khayelitsa Magistrate [2005] 1 BCLR 1 CC para [ 10].
3. d) Shilubana and others v Nwamitwa ( CCT 03/07) [2008] ZACC para [3].

4 Legislation

 Recognition of Customary Marriage Act 120 of 1998.

1998. The Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009.
1999. The Black Administration Act 38 of 1927

 [1]Thandabantu Nhlapo,Chuma Himanga(editor) African customary law in South Africa,2014)  56.

[2]Mabena v Letsalo 1998 2 SA 1068 (T) para 1074.

[3] Mabena v Letsalo 1998 2 SA 1068 (T) para 1074.

[4]Mabena v Letsalo 1998 2 SA 1068 (T) para 1076.

[5] Mtswei and maimela “The role and effects of the Constitution in customary law of succession (2023) De Jure Law Journal 687,688

[6]Mtswei and maimela “The role and effects of the Constitution in customary law of succession (2023) De Jure Law Journal 687,688

[7] Section 2 of the Constitution of the Republic of South Africa,1996.

[8] Section 2 of the Constitution of the Republic of South Africa,1996.

[9] Section 39 subsection 2 of the Constitution of the Republic of South Africa,1996

[10] Section 39 subsection 3 of the Constitution of the Republic of South Africa,1996

[11] Section 211 Subsection 3 of the Constitution of the Republic of South Africa,1996  

[12] Mtswei and maimela “The role and effects of the Constitution in customary law of succession (2023) De Jure Law Journal 687,689.

[13] Section 2 Subsection 1 of the Recognition of Customary Marriage Act 120 of 1998.

[14] Section 6 of the Recognition of Customary Marriage Act 120 of 1998.

[15] The Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009.

[16] Mtswei and maimela “The role and effects of the Constitution in customary law of succession (2023) De Jure Law       Journal 687,689.

[17] Section 23 Subsection 10 of The Black Administration Act 38 of 1927

[18] Section 23 Subsection 10 of The Black Administration Act 38 of 1927.

[19] Section 10 of The constitution of the Republic of South Africa.

[20] Section 23 of The Black Administration Act 38 of 1927.

[21]Section 23 of The Black Administration Act 38 of 1927.

[22] Mtswei and maimela “The role and effects of the Constitution in customary law of succession (2023) De Jure Law       Journal 687,693.

[23] Mtswei and maimela “The role and effects of the Constitution in customary law of succession (2023) De Jure Law       Journal 687,693.

[24] Mtswei and maimela “The role and effects of the Constitution in customary law of succession (2023) De Jure Law       Journal 687,693.

[25] Mtswei and maimela “The role and effects of the Constitution in customary law of succession” (2023) De Jure Law Journal 687,693.

[26] Section 7 of The Recognition of Customary Marriage Act 120 of 1998.

[27] Mayelane v Ngwenyama and Another CCT 57/12 [2013] ZACC 14 para [33].

[28] Article 16 of the Convention on Elimination of all forms of Discrimination Against Women 1979.

[29] Cotton and Diala “Silence in Marriage Laws in Southern Africa: Womens Position in Polygamous Customary Marriages” Vol 32 No 1 (2018).

[30] Section 9 of The Constitution of Republic of South Africa,1996.

[31] Recognition of Customary Marriages Act 120 of 1998.

[32]The Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009.

[33] The Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009.

[34]Bhe v Khayelitsa Magistrate [2005] 1 BCLR 1 CC para [ 10].

[35] Bhe v Khayelitsa Magistrate [2005] 1 BCLR 1 CC para [10].

[36] Bhe para [10].

[37] Bhe para [17].

[38] Bhe para [13].

[39] Bhe para [31].

[40]Bhe para [31].

[41] Mtswei and maimela “The role and effects of the Constitution in customary law of succession” (2023) De Jure                      Law Journal 687,698.

[42] Mtswei and maimela “The role and effects of the Constitution in customary law of succession” (2023) De Jure Law Journal 687,698.

[43] Shilubana and others v Nwamitwa ( CCT 03/07) [2008] ZACC para [3].

[44] Shilubana and others para [3].

[45]  Shilubana and others para [4].

[46] Shilubana and others para [17].

[47]Shilubana and others para [17].

[48] Shilubana and others para [ 33].