N ntlama? 1 Introduction

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N Ntlama?

1 Introduction

The advent of the new democracy in 1994 resulted in a new lease of life1 for customary law owing to its constitutional recognition as a legitimate system of law alongside common law. Prior to this period, South African legal history had been characterised by the apartheid system, which institutionalised the discrimination that permeated every sphere of society. As Meierhenrich correctly points out, the law was characterised by a system that:

  • demonstrated its ability by serving as an effective method of control;

promised to better the apartheid government's standing in the internal community by providing a modicum of legitimacy; and

embodied a sincere belief in its appropriateness.2

The development of customary law was not immune to this either, as it had fallen prey to a legal system that recognised it only in so far as it could be used to perpetuate the discrimination against the majority of South African citizens.3 Dlamini similarly indicates that the recognition of customary law was not born of any exceptional insight or sympathy that the apartheid government may have had for African customary law, but of other more prosaic reasons which were based solely on the need to facilitate more effective control over the African population.4 Moreover, Myers describes this period, which he refers to as "British indirect rule in South Africa", as one that systematically institutionalised "divide and conquer" by using customs, traditions, ethnic identity and legitimisation to impose government authority through indirect rule.5

Pursuant to the adoption of the 1996 Constitution,6 customary law is given formal recognition and placed on an equal footing with common law. This means that it is recognised as a legitimate system in South Africa's new legal order. The period following 1994 affirms the legitimacy of the various sources of the law which are reinforced by the supremacy of the Constitution7 and the independence of the judiciary.8 Basically, the post-1994 period is characterised by a firm recognition of the mixed legal systems which Rautenbach refers to as a "potjiekos". According to her, the system consists of common, civil and customary law layers which lay the foundation for the evolution of the values of the new constitutional dispensation.9 The importance of the doctrine of "potjiekos" lies in the fact that it affirms that the legitimacy of the law receives its effectiveness from the consent of the people, which was not the case in the past.10

In this regard, the purpose of the paper is to provide a critical overview and a comparative analysis of the constitutional protection of customary law in relation to its equal status with common law. The objective is to determine the substantive nature of its constitutional status and its contribution to the general framework of the law in South Africa. This purpose raises a number of questions but those will be limited to determining if the Constitution recognises customary law out of a genuine respect for indigenous cultures?

This argument is limited to section 8(3) of the 1996 Constitution and the jurisprudence that emanates from the Constitutional Court without a focus on the shortcomings of the latter, as that has already been argued elsewhere.11 The primary focus on section 8(3) and the Constitutional Court is justified by the fact that:

  • first, the Constitution provides a framework upon which the values of the new dispensation may be developed;

  • second, the Constitutional Court is the final determinant in the interpretation and application of the values of the new democratic order.

It is therefore argued in this paper that the constitutional protection of the customary law system conveys nothing more than the institutionalised dominant status of common law principles over those of customary law. It reduces the significance of customary law rules to a system in which it is a stepchild to common law that has to be "merely tolerated".12 This is evident from the remedies provided by the Constitutional Court in the adjudication of disputes arising from customary law as drawn from Bhe and Shilubana as noted.

Moreover, the intention is not to argue for a "national legal system" but for the values of customary law, like any other source of law, to be recognised and developed in their context within the framework of the new constitutional dispensation. In sum, the argument also acknowledges the debates which are beyond the scope of this paper on the legitimacy of the living v official customary law.

2 The demise of the institutionalised historical subjugation of customary law

The constitutional recognition of customary law, which RaoRane refers to as "aiming straight",13 alongside common law is highly commendable. As Makeri correctly points out "… because in the past it was disliked, ridiculed and discouraged by [apartheid rulers] ... it did not form part of their culture as it was alien to them and was systematically eroded and replaced with imported laws".14

This recognition is an acknowledgement of South Africa's rich diversity, which is deeply entrenched in the preamble to the Constitution, as it seeks to build a united and just society based on democratic values, social justice and fundamental human rights.15 The recognition of customary law as a stimulus16 for the development of the law in general is clearly evident in section 30 of the Constitution, which recognises the right to culture, as it provides that:

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.

This provision is reinforced by section 31, which also protects the right to culture by providing that:

  1. persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community:

  1. to enjoy their culture, practice their religion and use their language; and

  2. to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.

  1. the rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.

The importance of customary law is further reinforced by section 39(3), which states that:

the Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law or customary law or legislation, to the extent that they are consistent with the Bill.

The importance of the constitutional protection of customary law values and principles in the new dispensation was substantiated by Langa DCJ, as he then was, in Bhe, where he correctly pointed out that '…quite clearly 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',17 (author's emphasis).

Similarly, the place of customary law in the new democratic order was put into a substantive context by Sachs J in Christian Education South Africa v Minister of Education.18 Although this case did not deal directly with the protection of customary law rules, but rather with the challenge on the constitutionality of section 10 of the South African Schools Act19 and its impact on religious beliefs,20 it provided a synthesis of the constitutional recognition of customary law rules, as the judge argued that:
the presence of section 31 in the Bill of Rights may be understood as a product of the two-stage negotiation process resulting in the adoption of the final Constitution, in which one of the concerns was how community rights could be protected in a non-racial parliamentary democracy based on universal suffrage, majority rule and individual rights. Constitutional Principle (CP) XI declared that the diversity of language and culture should be acknowledged and protected and conditions for their promotion encouraged. CP XII stated that collective rights of self-determination in forming, joining and maintaining organs of civil society, including linguistic, cultural and religious associations should be recognised and protected… [and] they go on to emphasise the protection to be given to members of communities united by a shared language, culture or religion.21

Sachs J also points out that the protection of customary law rules is essential both for individuals and for the communities they constitute. If the community as a community dies, whether through destruction or assimilation, there would be nothing left in respect of which the individual could exercise associational rights. Moreover, if society is to be open and democratic in the fullest sense, it needs to be tolerant and accepting of cultural pluralism.22

In essence, the recognition of customary law rules envisages what has long been hoped for. Ellmann describes it as the vision of legitimation of the new South Africa. This author points out that "many black people felt that [the apartheid system] was a systematic block[age] of their aspirations and more bluntly as greed and blindness. They were all aware, in addition, that naked force, as well as the veiled force of law, was constantly being deployed to keep them in line".23

This vision was reinforced by the former President, Mr Nelson Mandela, in his inaugural speech on 10 May 1994, as the first black President of the Republic of South Africa. He stated that "our daily deeds as ordinary South Africans must produce an actual South African reality that will reinforce humanity's belief in justice, strengthen its confidence in the nobility of the human soul and sustain all our hopes for a glorious life for all" (author's emphasis).

It is in the context of producing a South African reality that Sibanda indicates that the constitutional recognition of customary law was motivated by the following factors:

  • there was a need to incorporate on equal basis a legal system rooted in African cultural traditions;

the majority of South Africans identified and conducted their lives in accordance with customary law; and

  • there was already a functioning customary legal system that could become part of the state's administration of justice.24

These factors are similarly endorsed by Sarre, as he notes that they entail:

  • the move towards reconciliation;

the identification of the lack of recognition as a possible factor in the alienation from society of the [great majority of South Africans];

bring[ing] about safer and less violent communities; and

help[ing] bring [South Africa] into line with its international commitments under several UN-human rights conventions and covenants [such as CERD which prohibits all forms of racial discrimination].25

It is deduced from these factors that the recognition of customary law confirms its significance and relevance as the courts seek to integrate it within the general framework of the law in South Africa.26 They also guarantee the right of everyone to live according to the legal system applicable to the particular cultural group to which they belong, as the specific recognition of customary law rules and principles gives effect to South Africa's diverse population. According to Fishbayn, this also indicates an expression of the desire to recognise the importance of a culturally based community for the wellbeing of individuals and society, and to make a space in which "difference" can flourish.27 This contention is endorsed by Grant, as he observes that the recognition of customary law values alongside common law cannot be underestimated because the Constitution makes space for cultural diversity.28

Hence, Sachs J in Christian Education concretised his argument by affirming that the protection of customary law rules:

underline[s] the constitutional value of acknowledging diversity and pluralism in our society and give[s] a particular texture to the broadly phrased right to freedom of association contained in section 18 [of the Constitution]. Taken together, they affirm the right of people to be who they are without being forced to subordinate themselves to the cultural and religious norms of others, and highlight the importance of individuals and communities being able to enjoy what has been called the "right to be different". In each case, space has been found for members of communities to depart from a general norm. These provisions collectively and separately acknowledge the rich tapestry constituted by civil society indicating in particular that language, culture and religion constitute a strong weave in the overall pattern.29

It is also drawn from Sachs' argument that, as Radar correctly highlights, there may be a diversity of cultures based on ethnic or religious differences, and of institutional cultures within the constitutional framework.30 These factors were contextualised by Andrews as she points out that ".… the new constitutional framework embraced a vision of a pluralistic society that strives to incorporate historically marginalized legal systems and institutions, including those of indigenous and religious [groups], within the broader South African legal framework".31 She further maintains that this incorporation, at least at the theoretical level, represents the rejection of the legacy of colonialism and apartheid and an ethnocentric bias that had regulated indigenous laws and institutions as inferior partners in law and governance.32

However, notwithstanding these positive developments, the limitation of the application of the Bill of Rights as entrenched in section 8(3) on the development of the values of the new constitutional dispensation to common law to the exclusion of customary law reduces the latter to nothing more than being the poor cousin33 of the former.

3 Section 8(3) and its potential to limit the development of customary law values

As noted above, the recognition of the historical subjugation of customary law to common law remains uncertain, as it raises more questions than answers. This uncertainty is traced back to the lack of consistency in the protection of customary law rules by the Constitution itself. The Constitution advances the development of common law principles over those of customary law. This is evident in section 8(3) of the Constitution which limits the development of customary law rules and principles by making specific reference to common law to the exclusion of customary law. For example, the application of the Bill of Rights applies to all law (which may include customary law) and binds the legislature, the executive and the judiciary and all organs of state.34 This means that, as argued by Ackermann J and Goldstone J in Carmichele v Minister of Safety and Security:35 "… there is a duty imposed on the state and all of its organs not to perform any action that will undermine the foundational and constitutional values of the new democratic order and to ensure that appropriate protection [is afforded] to [the different legal systems] through laws and structures designed to afford such protection".36

Despite the envisaged effect of the application of the Bill of Rights, of grave concern is its application to all law to the exclusion of customary law, as entrenched in section 8(3), which states that:

when applying the provisions of the Bill of Rights to a natural or juristic person in terms of subsection 3, a court:

  1. in order to give effect to a right in the Bill, must apply or if necessary develop the common law to the extent that the legislation does not give effect to that rights; and

may develop the rules of common law to limit the right, provided that the limitation is in accordance with section 36(1).37

It may be deduced that this provision institutionalises the dominant status of common law over customary law by failing to make a specific reference to the latter, as is the case with the former system of law. The exclusion of customary law in section 8(3) from the development of the law in general raises uncertainty as to its protection in the Constitution. This means that the application and evolution of customary norms and standards for the development of the law in general may be inferred from the concept of "all law". Generally, the concept of "law", without specific reference to either common or customary law, is essential for the regulation of relationships between citizens. However, the creation of the concept of "inference" in section 8(3), which is fused within the concept of "all law", waters down an argument by Kennedy. She argues that "law" is essential for the regulation of human relations and affirms its importance by noting that:

law [whether customary or common] matters … [and] is a cornerstone [and] supreme regulator [that] is a glue that holds together the constituent parts of society [because it] is what makes the centre hold, the mortar that fills the gaps between people and communities, creating a social bond without which the quality of our lives would be greatly undermined … [and] just law is the invisible substance which sustains social well-being, moral consensus, mutuality of interests and trust.38

Notwithstanding the significance of the "law" in the regulation of human relations, as Kennedy indicates, the inference of the absence of customary law from the concept of "all law" reverts to the historical subjugation of its application through the lens of common law, which was rejected by the Constitutional Court in Alexkor v Richtersveld Community.39 The inference defeats the importance of including customary norms in the Constitution, the purpose of which was explained by Moseneke DCJ in Gumede. He states that the objective of customary law's inclusion was to:

  • ensure that customary law, like statutory law or the common law, is brought into harmony with our supreme law and its values;

  • bring [it] in line with international human rights standards;

  • salvage and free customary law from its stunted and deprived past; and

  • lastly, fulfil and reaffirm the historically plural character of our legal system, which now sits under the umbrella of one controlling law – the Constitution.40

Moseneke DCJ substantiated his contention by arguing that "it bears repetition that 'it is a legitimate objective to have a flourishing and constitutionally compliant customary law that lives side by side with the common law and legislation'''41 (author's emphasis). In giving effect to Moseneke DCJ's contention, Mokgoatlheng J of the Southern Gauteng High Court in Maneli v Maneli42 reinforced the interrelationship that exists between the legal systems and the importance of not promoting one over the values of the other system. The Judge held that:

the recognition of … customary law and the civil law is reconcilable with the common law and a Bill of Rights. The logical extension and development of the [customary law values] to accommodate [common law] is not inconsistent with the prescripts of The Constitution. [In turn] the development … will be seen by the public not only as a progressive positive contribution to the advancement of the "undocumented customary law… practices" but also as a development of the common law and its jurisprudence.43

These arguments reinforce the centrality of customary law alongside common law, which not only guarantees its recognition but also its development in terms of the enjoyment of the benefits associated with the legal system in question. In addition, it is an affirmation of a legal system that may produce an egalitarian, non-sexist society that is available to all.44

It is also submitted that the concern over the specific reference to common law to the exclusion of customary law in subsection 3 does not mean that we should create another national legal system. Rather, there is a need to ensure the establishment of shared principles and values, whether through the customary or the common law value systems, in the establishment of a just society as envisaged in the preamble of the Constitution. This contention was earlier endorsed by Sachs J in S v Makwanyane45 as he argued:

we do not automatically invoke each and every aspect of traditional law as a source of values, just as we do not rely on all features of the common law. Thus, we reject the once powerful common law traditions associated with patriarchy and the subordination of servants to masters, which are inconsistent with [the values of the rule of law] and we uphold and develop those many aspects of the common law which feed into and enrich the [foundational values] enshrined in the Constitution. I am sure that there are many aspects and values of traditional African law which will also have to be discarded or developed in order to ensure compatibility with the principles of the new constitutional order.46

The quest for the interdependence of constitutional values advances the importance of a balance in their interpretation. This balance, as argued by Sachs J, gives effect to South Africa's subscription to the brain crust of the mixed legal systems in relation to the manner in which these values should be applied in a culturally diverse society and their implications for cultural diversity and difference.47 The failure to balance constitutional values, as evidenced by the exclusion of customary law from section 8(3), compromises an opportunity for the development of the values of the new democracy on an equal footing.48 It also undermines Langa DCJ's argument that if the development of customary law were to be undertaken through the lens of common law, it would lead to the fossilisation and codification which resulted in its marginalisation in the past. This means that customary law will consequently be denied the opportunity to grow in its own right and adapt itself to changing circumstances.49

It is also reasonable to deduce that the application of the Bill of Rights as envisaged in section 8(3) for the development of common law to the exclusion of customary law is not consistent with the Constitution itself. This contention is drawn from section 39(2) of the Constitution which is in direct contrast to section 8(3), as the former states that:

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, (authors' emphasis).

In the context of developing customary law within the framework of this provision, Van der Westhuizen J in Shilubana v Nwamitwa,50 (as indicated above, this author will not focus on the shortcomings in this judgment here) determines the factors that are essential for the development of customary law. He drew attention to what has been compromised by its exclusion in section 8(3), by holding that:

it is essential for the process of determining the content of a particular customary law [rule] to:

  • consider the traditions of the community concerned [because] customary law is a body of rules and norms that has developed over the centuries [and] an enquiry into the position under customary law will therefore invariably involve a consideration of the past practice of the community where such a consideration [should] focus [on] the enquiry on customary law in its own setting rather than in terms of the common law paradigm;51

respect the right of communities that observe systems of customary law to develop their law [as envisaged in section 211(2) [which] includes the right of traditional authorities to amend and repeal their own customs [because] customary law is by its nature a constantly evolving system [even though] under pre-democratic colonial and apartheid regimes, this development was frustrated and customary law stagnated. This stagnation should not continue, and the free development by communities of their own laws to meet the needs of a rapidly changing society must be respected and facilitated;52 and

be cognisant of the fact that customary law, like any other law, regulates the lives of people. The need for flexibility and the imperative to facilitate development must be balanced against the value of legal certainty, respect for vested rights, and the protection of constitutional rights.53

These factors are essential for the development of customary law but there is a potential for them to be compromised by the exclusion of the specific reference to the application of all the values of the new constitutional dispensation. Lehnert, too, points out that these factors hold a number of advantages that the common law value system cannot offer. He states that they:

  • give due recognition to customary law [as prescribed in various provisions that deal with it] by ensuring its continued application, albeit in a developed form… and similarly acknowledges its particular nature, namely, its flexibility, which is one of its key features and in fact, one of its major merits;

are also required to correct the dubious authority of much of the official customary law [which]… can be substituted with rules that reflect the current culture of South Africans… [and in turn] the development of the law and the application of living law can promote the realisation of human rights; and

have also the advantage that affected communities will accept a developed customary law rule more readily than a completely new rule [and] a rule that is rooted in the value system with which the people are familiar and which therefore reflects their cultural expectations has a much greater chance of acceptance than the imposition of rules based on values from outside the community.54

These factors were given credence by Langa DCJ, as he then was, in Bhe, where he argued that

it should however not be inferred … that customary law can never change and that it cannot be amended or adjusted by legislation [because] in the first place:

  • customary law is subject to the Constitution. Adjustments and development to bring its provisions in line with the Constitution or to accord with the "spirit, purport and objects of the Bill of Rights" are mandated;

second, the legislative authority of the Republic vests in Parliament; and

third, the Constitution envisages a role for national legislation in the operation, implementation and/or changes effected to customary law.55

It is therefore quite striking that section 8(3) enhances the development or application of common law rules over those of customary law. The significance of the parity of the legal systems is undermined by section 8(3) because the basic principle that underlies the equal recognition of these systems, as pointed out by Langa DCJ in Bhe, is that:

an approach that condemns rules or provisions of customary law merely on the basis that they are different to those of the common law or legislation, such as the Intestate Succession Act, would be incorrect. At the level of constitutional validity, the question in this case is not whether a rule or provision of customary law offers similar remedies to the Intestate Succession Act. The issue is whether such rules or provisions are consistent with the Constitution.56

It may be deduced from this contention that the limitation of customary norms and principles should not be frustrated by the continued historical stagnation of these values in the new constitutional dispensation. This frustration is evident in section 8(3), as Andrews draws attention ot the fact that '… [the formal] recognition of customary law also suggests that [even though the Constitution] is a celebration of cultural diversity, it also reflects a continued reticence about the [parity of legal systems in South Africa]'.57 On the whole, it advances an argument that had long been advanced by Koyana as he points out that 'regrettably, the new South African Constitution has done no better than the pre-1994 legislatures in the sphere of the recognition of customary law'.58

It should therefore be noted that there are positive developments that have taken place since the advent of the new democracy and those should not be overlooked, as Koyana contends but it may be thought that the question of whether or not the Constitution recognises customary law out of genuine respect for indigenous cultures still remains unanswered.

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