Judicial deconstruction of customary law for gender equality: Some thoughts on selected case law

abstract

With the Traditional Courts Bill (TCB) in the news over the past few months and confirmation of its return to Parliament before the end of this year, the question as to whether customary law poses an obstacle to achieving substantive equality for women in South Africa has been brought once again to the fore. The reinvention and bolstering of customary law in the case of the TCB has ensured support for the Zuma government in the rural areas, but it comes at the cost of its commitment to women’s equality rights. So where do we go when gender inequality is written into legislation under the guise of protecting customary rights? South Africa embodies a tension between the universal rights enshrined in the Bill of Rights¹ and the protection of a plural society characterised by its cultural diversity and identity. But gender equality and customary law do not need to be inherently in opposition. Innovative interpretations of customary law can accommodate both cultural diversity and gender equality. This article provides a critical case study of two significant court judgments, the Bhe² Sisters and Shilubana³, which among others, are examples of where the deconstruction of customary law practices has enabled the law to evolve, and for its citizens and communities to contribute to its development, reflecting the ‘living tradition’ of such law. These cases can be seen as catalysts for a more comprehensive process of deconstruction, providing a starting point for exploring how gender equality can in fact become part of an evolving social and legal culture, compatible with the values in the Bill of Rights.

keywords:

• customary law
• women’s rights
• feminism
• traditional leaders
• gender inequality

Notes

1. Chapter 2 Constitution of the Republic of South Africa, 1996.

2. Bhe and others v Magistrate, Khayalitsha and Others 2005 (1) BCLR 1 (CC).

3. Shilubana and others v Nwamitwa 2009 (2) SA 66 (CC); 2008(9) BCLR 914 (CC).

4. See for example Singh v Ramparsad 2007(3) SA 445 (D). The plaintiff sought legal recognition of her Hindu marriage so that she could apply for divorce. This marriage had taken place according to Vedic Hindu tradition but was never registered as a civil marriage. The plaintiff justified her request on the basis that because unregistered marriages were recognised under the Recognition of Customary Marriages Act 120 of 1998, the failure of existing legislation to recognise an unregistered Hindu marriage constituted a form of discrimination on the basis of religion. The court however did not agree and found that existing legislation covering marriage did not discriminate on the basis of religion. This judgment has been criticised for failing to take into account jurisprudence in relation to discrimination, as well as discrimination on the basis of gender and sex equality (Williams, 2010).

5. B15 of 2008 and B1 of 2012.

6. Hosi is the term for Chief amongst the Valoyi tribe.

7. See: http://www.dailymaverick.co.za/opinionista/2015-11-25-responses-to-rural-communities-are-shaped-by-prejudices/, site accessed 30 January 2016.

8. See: http://mg.co.za/article/2010-07-23-fury-over-traditional-system, site accessed 16 April 2016.

9. See facts of case as set out in court records.

10. See: http://mwnation.com/snatched-from-the-jaws-malawi-abolishes-600-000-child-marriages/, site accessed 17 January 2016.

11. See: http://rhrealitycheck.org/article/2012/02/06/moratorium-on-mutilation/, site accessed 17 January 2016.

Additional information

Notes on contributors

Annie Devenish

ANNIE DEVENISH is the acting Director of the African Ombudsman Research Centre (AORC) based in the School of Law at the University of KwaZulu-Natal. Her research interests include gender, development and identity in the context of political transition, and how practices of history, and critical histories of activism, can give depth and breadth to our understanding of contemporary problems and be harnessed to transform society. She has published on gender, labour activism and the informal economy, traditional health practitioners in southern Africa, and feminism and development in India and South Africa.