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South African Journal on Human Rights Volume 17, 2001 - Issue 3
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Original Articles

Its a ‘Black Thing’: Upholding Culture and Customary Law in a Society Founded on Non-Racialism

Marius PieterseUniversity of the Witwatersrand. Thanks to my colleagues at the Wits School of Law for their comments during a staff seminar at which an earlier version of this article was presented.
(Senior lecturer in law)
Pages 364-403 | Published online: 02 Feb 2017

  • See for instance F Kaganas & C Murray ‘The Contest Between Culture and Gender Equality Under South Africa's Interim Constitution’ (1994) 21 Journal of Law and Society 409–33; V Bronstein ‘Reconceptualizing the Customary Law Debate in South Africa’ (1998) 14 SAJHR 388–410; and W Van der Meide ‘Gender Equality v Right to Culture’ (1999) 116 SALJ 100–112.
  • A Costa ‘The Myth of Customary Law’ (1998) 14 SAJHR 525, 532.
  • Section 211(3) of the Constitution of the Republic of South Africa, Act 108 of 1996 (‘the Constitution’) provides that ‘[t]he courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law’.
  • While ‘legal pluralism’ is perhaps the more appropriate term to describe the South African situation where common law coexists with various religious and cultural legal systems which enjoy varying degrees of recognition (see MW Prinsloo ‘Pluralism or Unification of Family Law in South Africa’ (1990) 23 CILSA 324), the term ‘legal dualism’ fits better with the specific focus of this article, namely the distinction between common law, on the one hand, and African customary law, a system of law applying almost exclusively to black people, on the other. See the use of the term in JD Van der Vyver ‘Human Rights Aspects of the Dual System Applying to Blacks in South Africa’ (1982) 15 CILSA 306–18; and TW Bennett & NS Peart ‘The Dualism of Marriage Laws in Africa’ (1983) Acta Juridica 145–69.
  • T Todorov (trans C Porter) ‘Race and Racism’ in L Back & J Solomos Theories of Race and Racism: A Reader (2000) 64.
  • Ibid 64; 67.
  • The definition of ‘racial discrimination’ in art 1 of the International Convention on the Elimination of All Forms of Racial Discrimination, 1965 as ‘any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’ is arguably wide enough to include both racism and racialism. See also the reference to racialist doctrine in the preamble to the Convention. See further s 7(a) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, which treats dissemination of racialist propaganda as a form of unfair discrimination on the ground of race.
  • Section 1 of the Constitution.
  • Regarding the relationship between the value of equality as enunciated in s 1 of the Constitution and the right to equality in s 9 thereof, C Albertyn & B Goldblatt ‘Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality’ (1998) 14 SAJHR 248, 249 remark that the founding value of equality ‘gives substance to the vision of the Constitution’ and that ‘[t]he fact that there is a relationship between value and right — the value is used to interpret and apply the right — means that the right is infused with the substantive content of the value’. The same applies, in my view, to the founding value of non-racialism in relation to the right to equality in general and the prohibition of discrimination on the basis of race in particular.
  • Todorov (note 5 above) 65.
  • Ibid 64–67.
  • Ibid 67; 70. See also M Chanock ‘”Culture” and Human Rights: Orientalising, Occidentalising and Authenticity’ in M Mamdani (ed) Beyond Rights Talk and Culture Talk: Comparative Essays on the Politics of Rights and Culture (2000) 15.
  • Todorov (note 5 above) 70.
  • Chanock (note 12 above) 18–19; 35. See also HK Bhabha ‘”Race” Time and the Revision of Modernity’ in Back & Solomos (eds) (note 5 above) 354, 355; 357; 360.
  • AA Costa ‘Chieftaincy and Civilisation: African Structures of Government and Colonial Administration in South Africa’ (2000) 59 African Studies 13, 15. These perceptions were influenced heavily by Sir Henry Maine's famous work Ancient Law (1861).
  • Bennett & Peart (note 4 above) 145–46; TW Bennett ‘The Compatibility of African Customary Law and Human Rights’ (1991) Acta Juridica 23–25; GJ Van Niekerk ‘Indigenous Law, Public Policy and Narrative in the Courts’ (2000) 63 THRHR 403, 404; C Himonga & C Bosch ‘The Application of African Customary Law under the Constitution of South Africa: Problems Solved or Just Beginning?’ (2000) 117 SALJ 306, 307 n 6.
  • TW Bennett Human Rights and African Customary Law under the South African Constitution (1995) 58.
  • See Van der Vyver (note 4 above) 313; CRM Dlamini ‘The Ultimate Recognition of the Customary Marriage in South Africa’ (1999) 20 Obiter 14, 16; 38–40; Himonga & Bosch (note 16 above) 308.
  • M Chanock ‘Law, State and Culture: Thinking about “Customary Law” After Apartheid’ (1991) Acta Juridica 52, 53.
  • Costa (note 15 above) 17.
  • Ibid 17–23. In areas where no native chiefs existed, they were appointed for this purpose. See also J De Koker ‘Colonialism and the Status of Women in African Customary Law’ (1997) 22 Journal for Juridical Science 115, 118.
  • Costa (note 15 above) 17. For a discussion on the manipulation of chiefs under the system of indirect rule, see KB Motshabi & SG Volks ‘Towards Democratic Chieftaincy: Principles and Procedures’ (1991) Acta Juridica 104, 106–109.
  • Costa (note 15 above) 19.
  • On the recognition and application of customary law before unification and shortly thereafter, see De Koker (note 21 above) 118–120.
  • GE Devenish ‘The Development of Administrative and Political Control of Rural Blacks’ in A Rycroft (ed) Race and the Law in South Africa (1987) 26, 27; De Koker (note 21 above) 120.
  • Costa (note 15 above) 25; 33.
  • Section 5 of Act 38 of 1927.
  • Section 2(7) and (8) of Act 38 of 1927.
  • Sections 27–30A of Act 38 of 1927. Amended on numerous occasions, these powers included making regulations regarding the exhibition of pictures ‘of an undesirable character’ in tribal settlements or black compounds; the carrying by blacks of traditional weapons; the prohibition or regulation of public gatherings by blacks; the observance by blacks of ‘decency’; the sale of goods to blacks employed on the mines; the control and regulation of ‘tribal practices’ and the prohibition and regulation of the advertising of traditional medicine.
  • Costa (note 15 above) 33.
  • Established under ss 10 and 13 of Act 38 of 1927 respectively.
  • See TW Bennett ‘Conflict of Laws in South Africa: Cases Involving Customary Law’ (1980) 43 THRHR 27, 29 and Van der Vyver (note 4 above) 308–11 for problems associated with this ‘procedural pluralism’. Section 11(3) further determined that the legal capacity of a black person should be ‘determined as if he were an European’, except in relation to obligations governed by customary law in which case his capacity was to be determined under that law. Under s 11(3)(b) black women who were married at customary law were stripped of contractual capacity, proprietary capacity and locus standi. See III (b) below.
  • Bennett & Peart (note 4 above) 147. See also GN 1233 of 21 August 1936.
  • Bennett & Peart (note 4 above) 145. See also AJGM Sanders ‘Legal Anthropology in a Changing South Africa’ (1994) 27 CILSA 70, 71; M Chanock ‘Race and Nation in South African Common Law’ in P Fitzpatrick (ed) Nationalism, Racism and the Rule of Law (1995) 195, 197; AMO Griffiths In the Shadow of Marriage: Gender and Justice in an African Community (1997) 29; 33–34; Costa (note 15 above) 17.
  • Van der Vyver (note 4 above) 318.
  • Devenish (note 25 above) 28. See also Motshabi & Volks (note 22 above) 108.
  • For an exposition of the objectives and consequences of the Black Authorities Act, see Devenish (note 25 above) 28–30.
  • MCJ Olmesdahl ‘The Regulation of Family Life’ in Rycroft (ed) (note 25 above) 93, 102; PF Iya ‘Culture as a Tool of Division and Oppression: Towards a Meaningful Role for Culture and Customary Law in a United South Africa’ (1998) 31 CILSA 228, 235.
  • On the ‘homelands policy’, see Devenish (note 25 above) 30–38. On forced removals, see Olmesdahl (note 38 above) 101–04.
  • For a discussion of the objectives and recommendations of the Hoexter Commission, see F Van Heerden ‘Die Hoexter-Kommissie Insake Spesiale Howe vir Swartes’ (1984) 17 De Jure 356–64.
  • The subsection further prohibits courts from declaring ‘the custom of lobola or bogadi or other similar custom’ repugnant to the principles of public policy and natural justice.
  • See III (b) below.
  • J Church ‘Constitutional Equality and the Position of Women in a Multi-Cultural Society’ (1995) 28 CILSA 289, 294; Griffiths (note 34 above) 230–31; De Koker (note 21 above) 122–23.
  • R verLoren van Themaat ‘Die Verfyning van die Reg vir Swartes in Suid-Afrika’ (1980) 43 THRHR 237, 254; Van der Meide (note 1 above) 111; M Pieterse ‘Killing it Softly: Customary Law in the New Constitutional Order’ (2000) 33 De Jure 35, 36.
  • M Kline ‘The Colour of Law: Ideological Representations of First Nations in Legal Discourse’ (1994) 3 Social and Legal Studies 451, 455; 458–63. See also Chanock (note 12 above) 21–23 and L Young ‘Imperial Culture: The Primitive, the Savage and White Civilisation’ in Back & Solomos (eds) (note 5 above) 267, 268; 282.
  • Kline (note 45 above) 455; 466–68.
  • Ibid 455; 463–66; Chanock (note 12 above) 24–25.
  • See JC Bekker & PD De Kock ‘Adaption of the Customary Law of Succession to Changing Needs’ (1992) 25 CILSA 366, 371–72.
  • Kline (note 45 above) 454 states that ‘these often denigrating and stereotypical representations explicitly portray the targeted group in mystified terms, thus helping to rationalize, legitimate and obscure, at least for members of the dominant society, relations of oppression…. As part of this process, racist ideologies serve a consensus-building, unifying role for the dominant society by designating First Nations as “Other” against which the dominant society… may be constructed as a more cohesive unit’. See also PR Spiller ‘Race and the Courts in the Colonial and Modern Eras: (As Revealed in the Natal Supreme Court and the South African Appellate Division)’ in Rycroft (ed) (note 25 above) 55, 56; Prinsloo (note 4 above) 327 and Chanock (note 12 above) 23.
  • Bennett & Peart (note 4 above) 146–47; I Currie ‘Indigenous Law’ in M Chaskalson et al (eds) Constitutional Law of South Africa (1996, 5 rev 1999) 36–1, 36–19; Dlamini (note 18 above) 17.
  • See for instance Molusi v Matlaba 1920 TPD 389, 392 (‘[i]f that custom is one which we civilised people recognise, then no doubt it might be supported…’); Mokhatle v Union Government 1926 AD 71, 79 (‘[t]he exercise of such a power by the paramount chief is fully recognised by native law and custom, and is certainly also in keeping with the practice of civilised countries’).
  • Bennett (note 17 above) 59.
  • 1998 (1) SA 449 (T).
  • Ibid 459B–D.
  • Ibid 460A.
  • Ibid 452F; 461A–B.
  • Ibid 456A.
  • Ibid 458F–G.
  • Ibid 455C; 456G-I; 461E–G.
  • Pieterse (note 44 above) 45–46. See also Van Niekerk (note 16 above) 407.
  • See the discussion in SA Law Commission (SALC) Project 90 Report on Conflicts of Law (September 1999) 27.
  • Bennett (note 32 above) 31; Bennett (note 17 above) 54; Currie (note 50 above) 36–18; SALC (note 61 above) 32.
  • Under ss 22 and 23 of Act 38 of 1927. For a critical discussion of marriage as a choice of law factor, see IP Maithuft ‘Marriage and Succession in South Africa, Bophuthatswana and Transkei: A Legal Pot-pourri’ (1994) TSAR 262, 266–73.
  • On the application of these factors, see NJJ Olivier et al Indigenous Law (1995) 203–208.
  • Mokorosi v Mokorosi 1967–70 LLR 1 and Hoohlo 1967–70 LLR 318, as cited by Bennett (note 17 above) 54.
  • SALC (note 61 above) 32. See also Himonga & Bosch (note 16 above) 315 n 52.
  • Objections that emphasising ‘lifestyle factors’ in choice of law matters would ‘be giving effect improperly to class distinctions’ were rejected in Ex Parte Minister of Native Affairs: In re Yako v Beyi 1948 (1) SA 388 (AD) 398–99. Since, ‘lifestyle factors’ have continued to play a determining role in choice of law matters.
  • See for instance the remarks of the Appellate Division in Mokhatle v Union Government (note 51 above) 75 on Solomon Plaatjes, described as ‘a very intelligent and educated native’ whose education ‘has evidently influenced him in the forming of his opinions, which incline towards the introduction of modern civilised principles’. Plaatje's evidence on customary practices was accordingly disregarded. Education was regarded as a primary factor indicating choice of law in several early cases. See Ramothatha v Ramothatha 1934 NAC (N&T) 74, 76 and Ngwane v Nzimande 1936 NAC (N&T) 70, 74.
  • See SALC (note 61 above) 7; 33–34 as well as note 33 above and accompanying text.
  • Bennett (note 16 above) 20 and the cases cited there. See also Bennett (note 17 above) 55–56.
  • 1984 (2) SA 216 (O).
  • Ibid 221C-H.
  • SALC (note 61 above) 33; 72.
  • Ibid 33; 37.
  • Chanock (note 19 above) 54; Griffiths (note 34 above) 209–10.
  • See Chanock (note 34 above) 198–199; Iya (note 38 above) 232.
  • Chanock (note 19 above) 54; 63–64.
  • AJGM Sanders ‘How Customary is African Customary Law?’ (1987) 20 CILSA 405–10; De Koker (note 21 above) 117; Himonga & Bosch (note 16 above) 328–31. See, however, the noteworthy criticism of this distinction by Costa (note 2 above) 534–37.
  • In Hlope v Mahlalela (note 53 above) 457F–458F for instance, the Court chose to apply ‘official’ rather than ‘living’ law, characterising the latter as mere ‘cultural practice’ instead of ‘customary law’ (which the court ascertained from leading textbooks on the subject).
  • Costa (note 2 above) 535.
  • Bennett (note 16 above) 20; Chanock (note 34 above) 201.
  • 1997 (2) SA 936 (T).
  • Ibid 945E-946C.
  • Ibid 947C–D.
  • See IP Maithufi ‘The Constitutionality of the Rule of Primogeniture in Customary Law of Intestate Succession’ (1998) 61 THRHR 142, 146–47; Pieterse (note 44 above) 49.
  • 1998 (2) SA 1068 (T).
  • The court held that contemporary customary law allowed female heads of households to participate in lobolo negotiations, contrary to the rules of ‘official’ customary law. Mabena v Letsoalo (note 86 above) 1074B–1075E. See also Currie (note 50 above) 36–18A n 1; Pieterse (note 44 above) 47.
  • Chanock (note 34 above) 208.
  • See s 1(3) of the Law of Evidence Amendment Act 45 of 1988.
  • J Hund & HW Van der Merwe Legal Ideology and Politics in South Africa: A Social Science Approach (1986) 33; 36–37; Iya (note 38 above) 232–33. See also SALC (note 61 above) 85–87 for a discussion of problems relating to s 1(3) of Act 45 of 1988.
  • Conversely, courts have on a number of occasions refused to apply the provisions of the Code to Zulu's residing outside the province. See Bennett (note 17 above) 57–58; SALC (note 61 above) 93–95.
  • See Pretoria City Council v Walker 1998 (2) SA 363 (CC) paras 31–32; J Kentridge ‘Equality’ in Chaskalson et al (note 50 above) 14–24B-14-26B; J De Waal, I Currie & G Erasmus The Bill of Rights Handbook (2001) 220–22.
  • See De Waal, Currie & Erasmus (note 92 above) 222 and the authorities cited there.
  • Under the Constitutional Court's test for determining violations of the right to equality formulated in Harksen v Lane 1998 (1) SA 300 (CC) para 53. For a discussion of the test and the operation of the equality clause, see De Waal, Currie & Erasmus (note 92 above) 201–22.
  • See verLoren van Themaat (note 44 above) 254; Prinsloo (note 4 above) 330; Himonga & Bosch (note 16 above) 329.
  • AJ Kerr ‘Customary Law in All Courts’ (1989) 106 SALJ 166, 168–171 contemplates instances in which application of customary law to white people under s 1(1) would be feasible. See also Himonga & Bosch (note 16 above) 307.
  • Chanock (note 34 above) 208 n 2.
  • See Costa (note 2 above) 532; Van der Meide (note 1 above) 102.
  • J Julyan ‘Women, Race and the Law’ in Rycroft (ed) (note 25 above) 139; 147; KL Robinson ‘The Minority and Subordinate Status of African Women under Customary Law’ (1995) 11 SAJHR 457, 466–67; 471; De Koker (note 21 above) 128; Van der Meide (note 1 above) 102.
  • See the works listed in note I above.
  • Initially, such a claim was only available against black defendants. Where the defendant was not black, the claim fell to be decided under common law. Due to the non-recognition of customary marriages, courts were unable to found a duty of support arising from a customary marriage and accordingly did not award a claim for loss of support in such cases. See Van der Vyver (note 4 above) 307; Olivier et al (note 64 above) 137–38 and the cases discussed there. This discriminatory position was changed by s 31 of the Black Laws Amendment Act 76 of 1963, which allows the claim against defendants of all races (although it effectively remains applicable only to cases concerning black widows and children). The amount of damages claimable under s 31 is. however, limited to that payable under common law, and where a deceased leaves more than one widow, they have to share this amount. This puts widows of polygamous marriages in a less favourable position than those of monogamous or civil marriages. In light of the recent statutory recognition of customary marriages, the justifiability of a (somewhat inferior) separate system applicable to (black) customary widows is questionable. See the sceptical remarks on this remaining dualism by Van der Vyver (note 4 above) 307–08. For a discussion of s 31 and related cases, see Olivier et al (note 64 above) 138–43.
  • Julyan (note 99 above) 143. The provisions of the Matrimonial Property Act 88 of 1984 only became applicable to civil marriages between black people on 2 December 1988.
  • Bennett & Peart (note 4 above) 151–52; Julyan (note 99 above) 143.
  • Seemela v Minister of Safety and Security [1998] 1 All SA 408 (W). Although the Court was of the opinion that the provision did not withstand constitutional scrutiny, it did not make a finding of unconstitutionality due to jurisdictional limitations on High Courts in constitutional matters under the interim Constitution. For a discussion of the Seemela case and s 11(3)(b) in the context of the right to equality see E Knoetze ‘A Black Woman's Capacity to Litigate’ (1998) 19 Obiter 353–62.
  • For a discussion of the oppressive effects of s 11(3)(b) see Robinson (note 99 above) 461–68.
  • Marital power in civil marriages was abolished prospectively by the Matrimonial Property Act 88 of 1984 and eventually retrospectively by the General Law Fourth Amendment Act 132 of 1993.
  • Julyan (note 99 above) 143–44.
  • 1999 (2) SA 850 (TkD).
  • Ibid 859C–D.
  • Ibid 860E-861B. See also H Barker ‘Marital Power and Ancient Law’ (1999) De Rebus 41–43.
  • V Bronstein ‘Confronting Custom in the New South African State: An Analysis of the Recognition of Customary Marriages Act 120 of 1998’ (2000) 16 SAJHR 558, 565–67; 572–73.
  • Section 22 did not address the situation where a customary marriage was entered into after a civil marriage was concluded. A different position further applied in the former Transkei, where customary marriages could co-exist with civil marriages out of community of property. For an exposition of the different statutory measures applicable to dual marriages and the consequences of such marriages before Act 120 of 1998 see SALC Project 90 Report on Customary Marriages (August 1998) 32–39; E Bonthuys & M Pieterse ‘Still Unclear: The Validity of Certain Customary Marriages in terms of the Recognition of Customary Marriages Act’ (2000) 63 THRHR 616, 617–21. On the previous position in the former Transkei, see further MakhoUso v MakhoUso 1997 (4) SA 509 (TkSc).
  • Bonthuys & Pieterse (note 112 above) 621–623; Bronstein (note 111 above) 563.
  • Act 120 of 1998 repeals s 22(1)-(5) of Act 38 of 1927 and also ss 3 and 38 of Act 21 of 1978 (Tk).
  • Section 23(1) and (2) of Act 38 of 1927. See also Maithufi (note 63 above) 266–67.
  • As discussed in SALC Project 90 Discussion Paper 93 Customary Law: Succession (August 2000) 58–59. The SALC points out that s 23(2) would be rendered without purpose when land tenure rights are replaced by full ownership. Quitrent tenure has been converted into freehold tenure under the Upgrading of Land Tenure Rights Act 112 of 1991. See also s 8 of the Communal Property Associations Act 28 of 1996.
  • Maithufi (note 63 above) 267.
  • In fact, it is a recognised principle of the common law of succession that a testator may bequeath property belonging to someone else. See MM Corbett, HR Hahlo, GYS Hofmeyr & E Kahn The Law of Succession in South Africa (1980) 224–26 and the authorities cited there.
  • SALC (note 116 above) 57–59.
  • For discussion of reg 2 see Maithufi (note 63 above) 267–269; Maithufi (note 85 above) 143–44.
  • 2000 (2) SA 49 (N).
  • Ibid 52B–D.
  • Ibid 53F-I; 54B–D.
  • ‘Official’ rules of primogeniture determine that the deceased's eldest living male descendant or relative inherits the estate. See TW Bennett A Sourcebook on African Customary Law (1991) 397–435.
  • Mthembu v Letsela (note 82 above). See also the subsequent decisions in this matter, reported as Mthembu v Letsela 1998 (2) SA 675 (T) and Mthembu v Letsela 2000 (3) SA 867 (SCA).
  • Under s 1(1) of the Intestate Succession Act 81 of 1987.
  • This was argued in Mthembu v Letsela (see the SCA decision note 125 above 876I-J). All 3 judgments in the matter, however, focused only on gender discrimination and did not contemplate whether the rules of primogeniture indirectly and unfairly discriminated on the basis of race.
  • See SALC Project 90 Discussion Paper 95 Customary Law: Administration of Estates (December 2000) 2–11.
  • 2001 (2) SA 18 (CC).
  • Ibid para 22.
  • Ibid para 23. Sachs J described the Act as having ‘systematised and enforced a colonial form of relationship between a dominant white minority who were to have rights of citizenship and a subordinate black majority who were to be administered’ (ibid para 20). See also the Constitutional Court's remarks on the racialist character of the Act in Ex Parte Western Cape Provincial Government: In re DVB Behuising (Pty) Ltd v North West Provincial Government 2001 (1) SA 500 (CC) para 1.
  • Moseneke (note 129 above) para 21.
  • Ibid paras 25–27.
  • SALC Project 90 Discussion Paper 82 Traditional Courts and the Judicial Function of Traditional Leaders (May 1999) 2–3.
  • Ibid 3–6; 13–15.
  • For an exposition of the criminal jurisdiction of chiefs' courts, see Olivier et al (note 64 above) 191.
  • SALC (note 134 above) 4. For a discussion of the proceedings in Chiefs' Courts in the context of the right to a fair trial see CRM Dlamini ‘The Effects of Customs, Religions and Traditions on the Right to a Fair Trial in Africa’ (2000) 33 CILSA 318, 324–28.
  • As acknowledged by the SALC in its Report on Conflicts of Law (note 61 above) 46.
  • 1998 (3) SA 262 (Tk).
  • Under the Regional Authority Courts Act 13 of 1982 (Tk).
  • Bangindawo (note 139 above) 277I–J.
  • Ibid 273B–C.
  • Ibid 279H–I.
  • 2001 (1) SA 574 (TkD).
  • Ibid 607H-I; 620C–G.
  • Ibid 630A. See also 620I-J; 621C–G.
  • Ibid 612G-613B.
  • Ibid 616E-617D.
  • Ibid 618G–I.
  • Ibid 688G-630D; 632G–H.
  • SALC (note 134 above) 22–23.
  • Ibid 23.
  • See also Sati v Kitsile [1998] 1 All SA 530E, 535f-g, in which the Eastern Cape High Court rejected the argument that magistrates courts have jurisdiction to hear custody disputes over children of customary marriages under s 1(1) of the Special Courts for Blacks Abolition Act and s 1(1) of the Law of Evidence Amendment Act, read together. While not relying on the constitutional right to equality, the Court was clearly not prepared to allow differential treatment of black and white children in this respect.
  • See Van der Vyver (note 4 above) 318; Costa (note 2 above) 537–38. Also, all respondents to the SALC's Discussion Paper on Conflicts of Law have indicated their unease with the continued existence of legal dualism. SALC (note 61 above) 3–5.
  • Bennett & Peart (note 4 above) 159; Chanock (note 34 above) 208.
  • See for instance Chanock (note 19 above) 69–70; T Nhlapo ‘The African Customary Law of Marriage and the Rights Conundrum’ in Mamdani (ed) (note 12 above) 136, 140–41.
  • Article 1(2) of the UNESCO Declaration on Race and Racial Prejudice; 27 November 1978.
  • CRM Dlamini ‘The Role of Customary Law in Meeting Social Needs’ (1991) Ada Juridica 71–85; Bronstein (note 1 above) 399.
  • See art 27 of the Universal Declaration on Human Rights; art 15 of the International Covenant on Economic, Social and Cultural Rights: art XIII of the American Declaration of the Rights and Duties of Man; arts 17 and 29 of the African Charter on Human and Peoples' Rights; M Beukes ‘The International [Law] Dimension of Culture and Cultural Rights: Relevance for and Application in the “New” South Africa’ (1995) 20 SAYIL 126, 130–39; Iya (note 38 above) 230.
  • Beukes (note 159 above) 141–43.
  • See Dlamini (note 158 above) 73–74; 85; JC Bekker ‘How Compatible is African Customary Law with Human Rights? Some Preliminary Observations’ (1994) 57 THRHR 440, 446; T Nhlapo ‘Human Rights — the African Perspective’ (1995) 6 African LR 38, 39; Robinson (note 99 above) 457; T Nhlapo ‘Cultural Diversity, Human Rights and the Family in Contemporary Africa: Lessons from the South African Constitutional Debate’ in N Lowe & G Douglas Families Across Frontiers (1996) 237, 239; 244; IP Maithufi ‘The Effect of the 1996 Constitution on the Customary Law of Succession and Marriage in South Africa: Some Observations’ (1998) 31 De Jure 285, 293; Dlamini (note 18 above) 28–29; Chanock (note 12 above) 27; Nhlapo (note 156 above) 138.
  • Chanock (note 19 above) 68–69.
  • Beukes (note 159 above) 128–29; Nhlapo (note 156 above) 139–41; Iya (note 38 above) 231.
  • O Mireku ‘Culture and the South African Constitution: An Overview’ (1999) 14 SA Public Law 439, 443–44; Currie (note 50 above) 36–25; Nhlapo (note 156 above) 141; SALC (note 61 above) 22.
  • Van der Meide (note 1 above) 105. See also the remarks of Van Zyl J in Mhlekwa v Head of Western Tembuland Regional Authority (note 144 above) 628H–629D.
  • Nhlapo (1996) (note 161 above) 245–46: Van der Meide (note 1 above) 105.
  • Section 1 of Act 120 of 1998. See Bronstein (note 111 above) 559.
  • Mireku (note 164 above) 440; Currie (note 50 above) 36–26 - 36–27.
  • The tensions between culture and equality in this regard are often posited as an unfair imposition of human rights (which arc Western in origin) upon African value systems. Bronstein (note 1 above) 391–404 shows that these concerns can be overcome by viewing challenges to cultural practices as internal struggles within the particular cultural group itself. See also in general Kaganas & Murray (note 1 above); Van der Meide (note 1 above) as well as notes 182–183 below and accompanying text.
  • Currie (note 50 above) 36–27.
  • See Bronstein (note 1 above) 403; 410.
  • Pieterse (note 44 above) 53.
  • See further Prinsloo (note 4 above) 324–25; Olivier et al (note 64 above) 219–20.
  • For similar arguments in favour of unification see Chanock (note 19 above) 65; Y Mokgoro ‘Human Rights, Constitutional Rights, Women and Development’ (1993) 4 African LR 13, 17; Maithufi (note 161 above) 293.
  • SALC (note 116 above) 12.
  • SALC (note 112 above) 11.
  • SALC (note 61 above) 21–22; SALC (note 112 above) 11–12; 17; SALC (note 116 above) 12–13. Other practical problems relating to unification are discussed by Prinsloo (note 4 above) 327; 332–34.
  • SALC (note 112 above) 17.
  • The SALC Report on Conflicts of Law (note 61 above) 109–12 proposes that customary law be applied in all courts where parties have expressly or implicitly agreed on its application. In order to ascertain the content of customary law rules, courts are pointed towards textbooks, cases and expert opinions, and may also appoint assessors from communities in which a rule is alleged to apply.
  • The SALC Report on Conflicts of Law (note 61 above) 43 describes the repugnancy clause as ‘an unwelcome reminder of the superior role enjoyed [by] the common law in South Africa's legal system’ and recommends that it be repealed. See also Currie (note 50 above) 36–19.
  • See Bennett (note 17 above) 58–60; Himonga & Bosch (note 16 above) 310.
  • See in general PhJ Thomas & DD Tladi ‘Legal Pluralism or a New Repugnancy Clause’ (1999) 32 CILSA 354–63.
  • The Constitution (and therefore the Bill of Rights) is a majoritarian document drawn up and approved by representatives of all cultures, and protects the interests of all South Africans, regardless of race and culture. Bronstein (note 1 above) 410; Pieterse (note 44 above) 53.
  • See TW Bennett ‘The Equality Clause and Customary Law’ (1994) 10 SAJHR 122, 129; Bennett (note 17 above) 56–57; Currie (note 50 above) 36–18 - 36–18A. This was acknowledged by the SALC Report on Conflicts of Law (note 61 above) 26.
  • SALC (note 61 above) 110 (Draft Bill clauses 3–4).
  • For instance, application of customary law would have provided more protection to the respondents in Ngake v Mahahle (note 71 above) and Hlope v Mutilatela (note 53 above).
  • Conferring such jurisdiction on Chiefs' courts would not only require extensive training of traditional leaders in common law, but might also jeopardise the accessibility and cost-effectiveness of Chiefs' courts. See SALC (note 61 above) 47.
  • The SALC Discussion Paper on Traditional Courts (note 134 above) 29–33 suggests that, if Chiefs' courts are allowed to continue exercising criminal jurisdiction, such jurisdiction should be restricted to offences exclusive to customary law and minor common law offences.
  • The SALC Discussion Paper on Traditional Courts (note 134 above) 16 acknowledges that extending litigants' freedom of choice of forum is important to prevent claims of unequal justice.
  • Chanock (note 19 above) 66–67. In Mhlekwa v Head of Western Tembuland Regional Authority (note 144 above) 628H–629B Van Zyl J pointed out that statutorily established chiefs' courts (in casu, the Regional Authority Courts in the Transkei) departed significantly from traditional dispute resolution and rather represent an attempt to assimilate chiefs' courts with ‘Western’-style courts.
  • See SALC (note 134 above) 18–19.
  • Section 8(5) of Act 120 of 1998 determines: ‘Nothing in this section may be construed as limiting the role, recognised in customary law, of any person, including any traditional leader, in the mediation, in accordance with customary law, of any dispute or matter arising prior to the dissolution of a customary marriage by a court.’
  • For a discussion of such cultural factors, see Dlamini (note 137 above) 328–31.
  • The whole of Chapter III as well as ss 18–20; 24 of Chapter 4 of Act 88 of 1984 are made applicable to all customary marriages in community of property under s 7(3) of Act 120 of 1998, whereas s 21 of Act 88 of 1984 applies only to monogamous customary marriages under s 7(5) of Act 120 of 1998.
  • Section 3(1)(b) of Act 120 of 1998.
  • Section 3(6) of Act 120 of 1998.
  • Section 4(4)(a) of Act 120 of 1998.
  • Section 8(5) of Act 120 of 1998. See note 192 above.
  • Dlamini (note 18 above) 15.
  • SALC (note 112 above) 39.
  • See Bonthuys & Pieterse (note 112 above) 623–25.
  • Ibid 624.
  • For a discussion of customary principles relating to the dissolving of marriages, see Olivier et al (note 64 above) 58–71.
  • Pieterse (note 44 above) 43; Bronstein (note 111 above) 565–66.
  • See Bronstein (note 111 above) 570–72.
  • Ibid 572.
  • Maithufi (note 161 above) 293.
  • Amendment of Customary Law of Succession Bill (B 109–1998). See in particular clause 4.
  • See G Van Niekerk ‘Indigenous Law and Narrative: Rethinking Methodology’ (1999) 32 CILSA 208, 227; Pieterse (note 44 above) 49. Interestingly, s 8(c) of Act 4 of 2000 now declares inheritance according to principles of primogeniture a form of prohibited unfair gender discrimination. On the impact of s 8(c), see M Pieterse ‘The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000: Final Nail in the Customary Law Coffin?’ (2000) 117 SALJ 627, 630–33.
  • See the SALC's proposed Bill in SALC (note 116 above) 70–73.
  • Ibid 43.
  • See in general Olivier et al (note 64 above) 160–61.
  • SALC (note 116 above) 42–43.
  • On inheritance of the status of the deceased and the customary implications thereof, see Maithufi (note 161 above) 288–289.
  • The need for such a broad conceptualisation of ‘property’ to include customary interests is discussed by AJ van der Walt ‘Towards a Theory of Rights in Property. Exploratory Observations on the Paradigm of Post-Apartheid Property Law’ (1995) 10 SA Public Law 298, 328–30. On likely interpretations of the constitutional right to property see AJ Van der Walt Constitutional Property Clauses: A Comparative Analysis (1999) 349–52.
  • See A An-Na'im ‘Cultural Transformation and Normative Consensus on the Best Interests of the Child’ (1994) 8 International Journal of Law and the Family 62–81; MA Vahed ‘Should the Question: “What is in a Child's Best Interest?” be Judged According to the Child's Own Cultural and Religious Perspectives? The Case of the Muslim Child’ (1999) 22 CILSA 364–75; TW Bennett ‘The Best Interests of the Child in an African Context’ (1999) 20 Obiter 145–157.
  • The court in Hlope v Mahlalela (note 53 above) however declined to interpret the ‘best interests test’ from anything but a ‘Western’ perspective.
  • See in general Currie (note 50 above) 36–27 — 36–30.
  • On the ‘Africanisation’ of South African jurisprudence through a focus on the value of dignity, see Nhlapo (1996) (note 161 above) 246–51.
  • See S v Makwanyane 1995 (3) SA 391 (CC) paras 223–27 (per Langa J); 237–50 (per Madala J); 307–13 (per Mokgoro J); 374–75 (per Sachs J); Azanian Peoples Organisation v President of the RSA 1996 (4) SA 671 (CC) para 48 (per Mahomed DP); Hoffman v South African Airways 2001 (I) SA 1 (CC) para 37 (per Ngcobo J). The concept of ubuntu was included in the epilogue to the interim Constitution but does not appear in the 1996 Constitution. For critical analyses of the Constitutional Court's engagement with ubuntu, see A Cockrell ‘Rainbow Jurisprudence’ (1996) 12 SAJHR 1, 24–25; R English ‘Ubuntu: The Quest for an Indigenous Jurisprudence’ (1996) 12 SAJHR 641–48.

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