Authored By: Aphenathi Ngaleka
University of the Western Cape
Introduction
The constitutional recognition of African customary law has transformed South Africa’s legal system into one that entrenches legal pluralism; however, the continued struggle for substantive gender equality within customary law communities holds an unneglectable concern: has constitutional transformation genuinely altered women’s lived realities or merely reformed the law on paper?[1] Customary law holds a special position in the Constitution as a recognised entity of law in s39(2) and 211 of the Constitution of the Republic of South Africa, thus creating the “coexistence” of many legal systems,[2] However, this recognition has led to implications stemming from the tension among cultural rights, gender equality, and constitutional supremacy. Gender equality remains one of the most controversial issues in South African customary law because it lies at the intersection of two of the most important commitments of our legal system: the promotion of cultural diversity and the promotion of equality. Although it is recognised, customary law practices have historically limited women’s rights in areas such as inheritance, property ownership, marriage, and traditional leadership.
While constitutional reform and judicial intervention have significantly advanced women’s rights under customary law, persistent social, institutional, and practical barriers suggest that the constitutional promise of gender equality remains only partially fulfilled. This article argues that a true transformation requires more than legal reform; it requires an effective realisation of women’s rights in practice. In doing so, this article examines the historical position of women under customary law, analyses the constitutional and judicial developments aimed at promoting gender equality, and evaluates the challenges that continue to impede substantive equality.
Historical Position of Women under Official Customary Law
The historical position of women under customary law is best understood through the examination of the impact of colonial codification of indigenous African legal systems. In precolonial societies, customary law existed as a flexible and evolving body of norms that adapted to the socio-economic levels of the precolonial communities.[3] However, colonial administrators sought to codify customary rules as governance facilitation, thereby transforming them into a rigid and state-controlled framework.[4] Through instruments such as the Natal Code of Native Law, colonial authorities selectively codified customary practices and often reinforced patriarchal interpretations that privileged male authority in matters such as succession.[5] Furthermore, the application of the repugnancy clause subjected Customary law to European standards of morality, justice, and public policy, making its recognition compatible with colonial legal values.[6] Women were treated as minors under customary law, with limited proprietary rights and restricted access to inheritance, particularly through the existence of the male primogeniture rule, which prioritized male heirs in the devolution of the family property.[7] As Diala highlights, customary law developed within a context of legal pluralism characterised by the coexistence of state law and indigenous norms; however, colonial intervention significantly altered its content and development.[8] The result reflects a customary law that is influenced by colonial assumptions of gender and authority rather than lived experiences of African communities.[9]
Notably, scholars often argue that the discriminatory features associated with customary law were not directly impacted by indigenous legal by themselves. Rather, colonial codification consequently turned customary law into a rigid system of rules, creating what is commonly known as “official customary”, which is different from the flexible and adaptive norms observed in living customary law.[10] This differentiation is crucial in assessing the reforms of contemporary customary law on whether they have transformed customary law or merely corrected the alterations inherited from the colonial era.
Constitutional Transformation of Customary Law
South Africa’s constitutional project is rooted in the principle of transformative constitutionalism, which seeks to address historical patterns of exclusion and inequality through legal and social transformation.[11] Consequently, with the advent of constitutional democracy, the legal framework of South Africa adopted universalism approach, which departed from the historical treatment of customary law. Under apartheid, customary law was viewed as a subordinate system of law. However, following the recognition, not only were the norms of customary law recognised, but it also initiated a transformative process aimed at aligning customary law with the values of equality, dignity, and freedom enshrined in the Bill of Rights.[12]
Central to this transition lies a relationship between s9 and s211 of the Constitution. While s211 requires the courts to recognise and apply customary law where applicable, s9 prohibits unfair discrimination, which includes discrimination based on gender.[13] This is where the central tension that this article seeks to examine arises. While customary law derives legitimacy from cultural relations and community practices, constitutional supremacy demands that all law, including customary law, comply with fundamental rights.[14] Consequently, this has raised concerns and the need for courts to seek a balance between the two as courts increasingly interpret customary law through the lens of equality, dignity, and substantive justice.
The transformative project of the Constitution does not seek to abolish customary law nor replace it with common law principles. Rather, it seeks the development and facilitation of customary law along with compliance with the constitutional values.[15] This is highlighted in s39(2), which requires courts to promote the spirit, purport and object of the Bill of Rights when developing customary law.[16] Significantly, this provision recognises customary law not as a static system but as a body of living law capable of adaptation and change. As Diala notes, the legitimacy of customary law lies in its adaptation to social changes and community expectations.[17]
Nevertheless, the transformation of customary law remains in question. While judicial intervention has dismantled may discriminatorily rules, questions persist regarding whether legal reform has translated into substantive equality for women within customary law communities.[18] The continued challenges relating to access to justice, legal literacy, and the implementation of constitutional rights indicate that constitutional transformation is still an ongoing process rather than an achieved project.[19] Thus far, the challenges faced by South African courts are not merely the reform of discriminatory laws, but the promotion of customary law that complies with the values of the Constitution and that is socially legitimate in the face of the communities it ought to govern.
It may be argued that constitutional transformation has already achieved its primary objective of promoting gender equality within customary law. Through the Constitution, legislation, and judicial intervention, many of the formal legal barriers that historically disadvantaged women have been removed. Landmark decisions such as Bhe, Gumede and Shilubana invalidated discriminatory rules relating to inheritance, marriage and traditional leadership, thereby aligning customary law with the constitutional values of equality and dignity.[20] From this perspective, the legal framework governing customary law no longer discriminates against women, and therefore constitutional transformation can be regarded as substantially complete.
4. Judicial Development of Gender of Gender Equality in Customary Law
4.1 Inheritance Rights and the Demise of Male Primogeniture
The Constitutional Court’s decision in Bhe v Magistrate, Khayelitsha highlighted a turnover in the constitutional transformation of customary law. The court declared the customary law rule of male primogeniture unconstitutional on the basis that it unfairly discriminated against women and extra-marital children.[21] While the judgment advanced formal equality by including the disadvantaged groups in inheritance, it also sparked a concern about the extent to which courts should intervene in customary law matters.[22] Nevertheless, the case demonstrated that customary law should not be isolated from constitutional scrutiny where it undermines the values of equality and human dignity.
4.2 Women’s Rights Within Customary Marriage
The position of women in customary marriages was significantly strengthened in Gumede v President of the Republic of South Africa. The court established that the provisions denying women equal proprietary rights in customary marriages violated the constitutional guarantees of equality and dignity.[23] The judgement recognised that economic inequalities often reinforce gender discrimination and sought to place women on an equal footing with men. However, practical challenges relating to registration and proof of customary marriages continue to undermine the effective enjoyment of these rights.[24]
4.3 Women and Traditional Leadership
The Constitutional Court further advanced equality in Shilubana v Nwamitwa, where it upheld the appointment of a woman as a traditional leader.[25] Importantly, the Court recognised that customary law is capable of internal development in response to social changes.[26] The judgement challenged the assumption that traditional leadership is naturally vested in males and reinforced the principle that customary law can evolve without losing its cultural legitimacy.
Collectively, these judgments demonstrate a judicial commitment to balancing the two constitutional commitments. However, they also reveal the limitations of litigation as a mechanism for social transformation. Although courts can invalidate discriminatory rules, they cannot independently address the socio-economic and cultural factors that continue to impede the practical enjoyment of women’s rights.[27]
5. Persistent Gaps: Why Constitutional Transformation Remains Incomplete
Despite significant judicial intervention, the lived realities of many women suggest that the transformation is incomplete. Judicial decisions have removed many discriminatory rules, yet legal reform does not automatically translate into social change.[28] In many communities, women continue to face challenges stemming from cultural resistance, limited legal awareness, and unequal access to legal institutions.[29] This ultimately undermines the practical realisation of constitutional rights; as a result, the attainment of legal equality has not always translated into social equality.
Moreover, challenges surrounding the registration of marriages give rise to disputes concerning inheritance, succession, and matrimonial property.[30] Women in rural areas are particularly vulnerable, as limited access to legal services often poses difficulties in the enforcement of their constitutional rights.[31] This suggests the need for practicality rather than substantive equality only.
6. Beyond the Courts: The Future of Gender Equality in Customary Law
While constitutional litigation played a crucial role, a sustainable transformation cannot be achieved through courts alone. Greater emphasis must be placed on legal literacy, community participation, and the recognition of living customary law as it is practiced in communities.[32] Reform initiatives that engage traditional leaders and local communities are more likely to produce a long-lasting change than reforms imposed solely through judicial intervention.[33] Diala argues that the legitimacy of customary law derives from its responsiveness to community values and changing social conditions.[34] Consequently, legal reform should facilitate internal development within customary law communities rather than relying exclusively on judicial intervention. Furthermore, improving access to justice remains an essential component to ensure that constitutional rights are not merely symbolic. Furthermore, many women remain unaware of the constitutional protections available to them, reducing their ability to challenge discriminatory practices. Unless women can enforce their rights effectively, the constitutional promise of gender equality will only remain partially fulfilled.
7. Conclusion
South Africa’s constitutional framework has significantly transformed the legal position of women within customary law through legislative enactment and landmark judicial decisions. Cases such as Bhe, Gumede, and Shilubana, South African courts have dismantled many formal barriers that historically disadvantaged women and affirmed the constitutional values of equality and dignity. However, persistence of implementation challenges, limited access to justice, and the gap between legal reform and social reality demonstrate that constitutional transformation has not gone far enough. While a lot has been achieved, the attainment of substantive gender equality requires continued efforts so that constitutional rights are meaningfully realised within the everyday lives of women living under customary law systems. Until constitutional rights are consistently realised beyond the courtroom, the constitutional promise of gender equality within customary law will remain an unfinished project.[35]
Bibliography:
Books
Bennett TW, Customary Law in South Africa (Juta 2004)
Diala AC, African Customary Law in the Modern World (Routledge 2017)
Himonga C and Nhlapo T (eds), African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives (OUP 2014)
Case laws
Alexkor Ltd v Richtersveld Community 2004 (5) SA 460 (CC)
Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC)
Gumede v President of the Republic of South Africa 2009 (3) SA 152 (CC)
Shilubana v Nwamitwa 2009 (2) SA 66 (CC)
Constitution
Constitution of the Republic of South Africa, 1996
Journal Articles
Diala AC, ‘Legal Pluralism and the Future of Personal Family Laws in Africa’ (2021) 35(1) International Journal of Law, Policy and the Family 1
Diala AC, ‘The Meaning of Living Customary Law and its Continued Relevance in South Africa’ (2015) 48 Comparative and International Law Journal of Southern Africa 187
Himonga C, ‘The Future of Living Customary Law in African Legal Systems’ (2018) 12 Law and Development Review 731
Klare KE, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal on Human Rights 146
Legislation
Recognition of Customary Marriages Act 120 of 1998
[1] Constitution of the Republic of South Africa, 1996 s9 and 211; Shilubana v Nwamitwa [2009] (2) SA 66 (CC); TW Bennett, Customary Law in South Africa (Juta 2004) 43–47.
[2] Constitution of the Republic of South Africa, 1996, s 211; Anthony C Diala, ‘Legal Pluralism and the Future of Personal Family Laws in Africa’ (2021) 35(1) International Journal of Law, Policy and the Family 1.
[3] Bennett (n 1) 89–91.
[4] Bennett (n 1) 92–96.
[5] Devon Wall, ‘Customary Law in South Africa: Historical Development as a Legal System and its Relation to Women’s Rights’ (South African History Online, 2015).
[6] Bennett (n 1) 35–40.
[7] Bhe v Magistrate, Khayelitsha [2005] (1) SA 580 (CC) [84].
[8] Diala (n 4) 4–6.
[9] Anthony C Diala, ‘The Concept of Living Customary Law: A Critique’ (2017) 49(2) Journal of Legal Pluralism and Unofficial Law 143, 150–154.
[10] Anthony C Diala, ‘The Meaning of Living Customary Law and its Continued Relevance in South Africa’ (2015) 49 Comparative and International Law Journal of Southern Africa 187.
[11] Karl Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal on Human Rights 146, 150–151.
[12] Constitution of the Republic of South Africa, 1996, s9, 10 and 39(2).
[13] Constitution of the Republic of South Africa, 1996, s9 and 211.
[14] Alexkor Ltd v Richtersveld Community [2004] (5) SA 460 (CC) [51].
[15] Shilubana v Nwamitwa [2009] (2) SA 66 (CC) [43–49].
[16] Constitution of the Republic of South Africa, 1996 s39(2).
[17] Diala (n 3)192–196.
[18] Bhe v Magistrate, Khayelitsha [2005] (1) SA 580 (CC); Gumede v President of the Republic of South Africa [2009] (3) SA 152 (CC).
[19] Himonga C and Bosch C, ‘The Application of African Customary Law under the Constitution of South Africa’ (2000) 117 South African Law Journal 306, 320–325.
[20] Bhe v Magistrate, Khayelitsha [2005] (1) SA 580 (CC); Gumede v President of the Republic of South Africa [2009] (3) SA 152 (CC); Shilubana v Nwamitwa 2009 (2) SA 66 (CC).
[21] Bhe v Magistrate, Khayelitsha [2005] (1) SA 580 (CC) [91–93].
[22] Bennett (n 1) 452–455.
[23] Gumede v President of the Republic of South Africa [2009] (3) SA 152 (CC) [31–34].
[24] Chuma Himonga and T Nhlapo (eds), African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives (OUP 2014) 115–118.
[25] Shilubana v Nwamitwa [2009] (2) SA 66 (CC) [54].
[26] Shilubana v Nwamitwa [2009] (2) SA 66 (CC) [49].
[27] Chuma Himonga and T Nhlapo (eds), African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives (OUP 2014) 210–212.
[28] Diala (n 3) 194–197.
[29] Chuma Himonga, ‘The Future of Living Customary Law in African Legal Systems’ (2018) 12 Law and Development Review 731, 742–744.
[30] Recognition of Customary Marriages Act 120 of 1998.
[31] Chuma Himonga and T Nhlapo (eds), African Customary Law in South Africa (OUP 2014) 201–205.
[32] Anthony C Diala, African Customary Law in the Modern World (Routledge 2017) 68–72
[33] Shilubana v Nwamitwa [2009] (2) SA 66 (CC) [45].
[34] Diala (n 2) 68–72.
[35] Constitution of the Republic of South Africa, 1996, s9, 10 and 211.
