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Our law needs some cleansing

March 5, 2012

….Multiple legal systems are a colonial legacy that continues to bedevil most post-colonial societies throughout the continent. In a different world, it may not be as menacing to have multiple fora where people could have an option of whether they would like to have their dispute adjudicated.

A person could choose to either have religious, customary or common law applied to their dispute. In South Africa, however, this bill raises more questions than it provides answers. For women and other groups that are vulnerable to human rights violations there is an uncomfortable association between customary law and the apartheid legal order.

While customary law was treated with contempt and relegated to an inferior status, it was still able to connive against black women and subject them to double discrimination. On the one hand, there were the racist colonial laws and on the other there were some discriminatory aspects of customary law.

This legacy continues to be highlighted in the ongoing gender discriminatory in the allocation of land and the application of gender stereotypes in the resolution of disputes.

….Granted, some of the gender discriminatory aspects of customary law have been addressed by the constitutional court.

The court has decided that the exclusion of women, girl children and children who are not firstborns from the process of administering deceased estates was incompatible with the constitution.

The court has also decided that to exclude women, who were married before the law, which recognise customary marriages, from sharing equitably in assets, was also not consistent with the constitution.

The solution that the court came with was to harmonise customary law and to make the legal position of people who were subject to it similar to the position that applied to everyone in the country.

The court has also had to decide whether a woman was eligible for the office of traditional leadership.

In this instance the court had to reiterate that gender could not be a bar from inheriting the title of traditional leadership.

….Customary law is part of South African law. The discussion needs to be about how we make customary law an integral part of the legal system instead of continuing to treat it like the proverbial step-child of the South African legal system.

If parliament does not focus on how customary law needs to be developed and infused with the constitution in order to minimise its harmful features, it will be challenged.

If it is found wanting, slowly but surely the courts will declare those discriminatory aspects unconstitutional.

This bill could be one way of further fragmenting customary law with a view to ultimately destroying customary law.

Giving more powers to traditional leaders alone will not “prevent conflict, maintain harmony and resolve disputes where they have occurred, in a manner that promotes restorative justice and reconciliation and in accordance with the norms and standards reflected in the constitution”, as the bill says.

Read the whole column.


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