Beyond Bhe – Examining the Impact of Bhe v Magistrate Khayelitsha on the Customary Law of Succession and Gender Equality

Disputing the validity of a customary marriage is a commonly litigated matter in customary law. The dispute can be motivated by various factors, which include trying to deprive one spouse and their family of the patrimonial consequence of a marriage (Osman and Baase "The recognition of same-sex customary marriages under South African customary law" 2022 SAJHR 2). The requirements for validity of a customary marriage in terms of section 3(1)(a) of the Recognition of Customary Marriages Act 120 of 1998 (Recognition Act) are that both parties must consent to the marriage and be 18 years of age. Section 3(1)(b) further provides that the marriage must be negotiated and celebrated in terms of customary law. It has been accepted that this entails that lobolo and integration of the bride are part of the conclusion of a customary marriage (Maithufi "The requirements for validity and proprietary consequences of monogamous and polygynous customary marriages in South Africa: Some observations" 2015 De Jure 262). Section 3(1)(b) is, however, causing interpretive challenges in courts. It should be noted that some rituals can be waived by the two families or parties concluding a customary marriage (Bakker "Integration of the bride as a requirement for validity of a customary marriage: Mkabe v Minister of Home Affairs [2016] ZAGPPHC 4601" 2018 PELJ 6). The Constitutional Court has also confirmed that customary law is flexible and adaptable, and must be developed to be in line with the spirit, purport and objects of the Bill of Rights (Shilubana and Others v Nwamitwa 2008 9 BCLR 914 (CC) para 43; Bhe v Magistrate, Khayelitsha; Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa 2005 1 SA 580 (CC) para 41). The problem, however, is that courts merely accept that parties can waive integration of the bride without looking at the cultural group concerned and, more specifically, without asking whether that group allows for waiver of integration entirely.

The decision of the Constitutional Court in Bhe v Magistrate, Khayelitsha, Shibi v Sithole, South African Human Rights Commission v President of the Republic of South Africa (2005 1 SA 580 (CC)) refers. In this important decision, the Constitutional Court in its majority judgment, delivered by Langa DCJ, struck down the male primogeniture rule in the customary law of succession as unconstitutional. In considering the various remedies available to the court, it chose not to develop the offending customary law rule in terms of section 39(2) of the Constitution. In his minority judgment Ngcobo J, however, did opt for the development of the customary law, as ameans to prevent the (permanent?) abolition of the rule. In this discussion the court’s different approaches to the question whether or not to develop the customary law of succession will be assessed, with a view to placing into perspective the court’s approach to the application of the Bill of Rights to customary law generally. A discussion of the constitutional viability of the male primogeniture rule, as well as the relation between the particular facts of Bhe and the rule, falls outside the scope of this discussion. Of particularimportance is our viewpoint that, whereas at a cursory glance the decision seems to impact significantly on the constitutionality of a particular customary rule only (that is, the male primogeniture rule), it has more significant and far-reaching implications for the recognition and application of customary law as a system generally.

This chapter assesses the South African Human Rights Commission (SAHRC) against a number of referents provided by the holistic evaluative model. It briefly explains the nature of the holistic evaluation model. The chapter presents an extended analysis of the behavior, performance and promise of the SAHRC, as well as a discussion of the extent to which it has contributed to social change in South Africa. In terms of assessing the SAHRC's accessibility through observing the extent of public awareness of its existence and functions, it is pertinent to observe that, as the SAHRC has itself noted, the extent of its physical presence country-wide does affect its visibility. There is thus a connection between the three sub-aspects of accessibility. The Commission has made strenuous efforts to improve its visibility and raise the level of awareness within South Africa (and even beyond) about its very existence and functions. Keywords: Ireland; South Africa's Interim Constitution; South African Human Rights Commission (SAHRC)

Section 24 of the Constitution of the Republic of South Africa, 1996, provides that everyone has a right to an environment that is not harmful to their health or well-being. However, the protection of the environment faces challenges, such as the failure of municipalities to provide safe and sufficient drinking water, regularly collect waste and effectively deal with the spillage of sewage into water courses, amongst others. The imminent collapse of local government, which impacts all social, environmental and economic aspects of sustainability, intensifies these failures. Several mechanisms help ensure that municipalities fulfil their constitutional and legislative obligations – including those related to the protection of substantive and procedural environmental rights enshrined in the Constitution. Among these are civil protests and judicially ordered provincial interventions into failing municipalities. However, little attention has been paid to the role of Chapter 9 institutions in ensuring that local government respects, protects, promotes and fulfils its environmental rights obligations. Drawing on a mix of literature and the recently decided South African Human Rights Commission v Msunduzi Local Municipality case, this contribution advances the argument that the South African Human Rights Commission has vast potential to help protect and fulfil s 24 of the Constitution and also that litigation seems inevitable in propelling specific action. The authors also consider the interpretation of the constitutional environmental right and the use of structural interdicts in the case of breaches.

The preamble of the Constitution of South Africa, 1996 (the Constitution) contains the commitment to, amongst other things, establish a society based on democratic values, social justice and fundamental human rights, lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law and improve the quality of life of all citizens and free the potential of each person. One of the methods used to achieve these objectives is the inclusion of enforceable socio-economic rights in the Chapter 2 Bill of Rights.
 
 Despite numerous debates surrounding the issue of enforceability of socioeconomic rights, it has become evident that these rights are indeed enforceable. Not only does section 7(2) of the Constitution place the state under an obligation to respect, protect, promote and fulfil all rights in the Bill of Rights, including socio-economic rights, but the Constitutional Court has in various decisions passed judgment on issues relating to socio-economic rights, underpinning the fact that these rights are indeed enforceable.
 
 The fact that socio-economic rights have been included in the Bill of Rights and are enforceable is, however, not sufficient to achieve the aims set out in the preamble. In order for these rights to be of any value to the people they seek to protect, they need to be implemented. One of the ways in which the implementation of these rights is monitored is by means of the South African Human Rights Commission's annual Economic and Social Rights Reports. The aim of this contribution is to assess these reports and to establish the degree to which they contribute to good governance in South Africa with reference to, inter alia, the constitutional mandate of the South African Human Rights Commission, the reporting procedure and the evaluation of reports.

IT HAS BEEN WIDELY ACKNOWLEDGED that the South African Human Rights Commission's Inquiry into Racism in the Media was a watershed initiative in the annals of the nascent democratic South Africa. By undertaking the investigation, the Commission demonstrated the advantages of a nonjuridical approach to human rights promotion and protection. In particular, the mechanism of an inquiry serves multiple functions. It gives public expression to the values embedded in our Constitution and thereby it raised awareness of human rights. Second, it showed that ordinary South Africans who have reason to be concerned about violations of human rights would receive a sympathetic hearing. Finally, it demonstrated that everybody, however powerful, is subject to the law and the Constitution and can be made to account for their actions insofar as these affect the human rights of the others. The South African Human Rights Commission is an independent state institution established by law as provided for in the Constitution. National institutions for the protection and promotion of human rights are a recent development in international human rights practice. They have been established in order to ensure application of international human rights norms in the domestic sphere and to monitor the observance of human rights nationally. The United Nations General Assembly adopted the Paris Principles in 1993.1 The Paris Principles define the sphere of operation of national institutions and set out elements for the effective functioning of national institutions. Among these are independence,

South Africa has a undemocratic past. This past spans centuries of colonialism and decades of the apartheid regime. The adoption of South Africa’s Constitution in 1996 completed the transition to a constitutional democracy and provided the foundation for a new state and society.The redress of historical inequality lie at the heart of South Africa’s post-apartheid Constitution. The inclusion of justiciable socio-economic in the Bill of Rights was globally considered progressive and distinctive. In addition, South Africa’s inclusion of these rights demonstrated that socio-economic rights were also fundamental to rebuilding a nation and eradicating the inequality that characterised apartheid.Central to the effective realization of the range of human rights protected in South Africa’s Constitution are a number of institutions established for the purpose of strengthening constitutional democracy. This article analyses the main activities and assesses the role of the South African Human Rights Commission in the ensuring of realisation of socio-economic rights in the country.

The Constitution of South Africa, 1996, is committed to redressing poverty and inequality. This is evident in its inclusion of a range of justiciable socio-economic rights along with a strong substantive right to equality and non-discrimination. The South African Human Rights Commission is a state institution established by the Constitution to support constitutional democracy. It has wide-ranging powers to investigate, monitor and protect human rights, including an express constitutional mandate in relation to socio-economic rights. This article examines how it has sought to apply its constitutional and legislative mandates to various manifestations of poverty and economic inequality in South Africa. It focuses on three broad areas of the Commission’s work with a view to identifying its achievements as well as some of the key challenges it has faced. Based on this analysis, the article concludes by reflecting on the broader implications of the experience of the Commission for fourth branch institutions, specifically national human rights institutions, that apply a human rights lens to poverty and economic inequality.

This article considers case law where the courts have held that the South African Human Rights Commission does not have the power to make a definitive finding that a right has been violated, or issue binding directives to remedy a violation of human rights. It is argued in this article that these decisions cannot be faulted as it was not the intention of the constitutional drafters to create a Commission with binding powers. It is also not a requirement in terms of the international framework for national human rights commissions to have binding power. Furthermore, where foreign jurisdictions have sought to provide binding power to its human rights commissions, it has explicitly awarded such binding power either in the constitutional text or in the enabling legislation. This article argues that the Commission must use its soft power to establish respect for human rights and a culture of human rights, and should not adopt an adversarial approach. The Commission should therefore enter into dialogue with the relevant parties where it concerns the alleged violation of human rights, and the relevant parties would have an obligation to participate in this dialogue in protecting the integrity and effectiveness of the Commission.

The preamble of the Constitution of South Africa, 1996 (the Constitution)contains the commitment to, amongst other things, establish a society based on democratic values, social justice and fundamental human rights, lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law and improve the quality of life of all citizens and free the potential of each person. One of the methods used to achieve these objectives is the inclusion of enforceable socio-economic rights in the Chapter 2 Bill of Rights. Despite numerous debates surrounding the issue of enforceability of socioeconomic rights, it has become evident that these rights are indeed enforceable. Not only does section 7(2) of the Constitution place the state under an obligation to respect, protect, promote and fulfil all rights in the Bill of Rights, including socio-economic rights, but the Constitutional Court has in various decisions passed judgment on issues relating to socio-economic rights, underpinning the fact that these rights are indeed enforceable. The fact that socio-economic rights have been included in the Bill of Rights and are enforceable is, however, not sufficient to achieve the aims set out in the preamble. In order for these rights to be of any value to the people they seek to protect, they need to be implemented. One of the ways in which the implementation of these rights is monitored is by means of the South African Human Rights Commission's annual Economic and Social Rights Reports. The aim of this contribution is to assess these reports and to establish the degree to which they contribute to good governance in South Africa with reference to,inter alia, the constitutional mandate of the South African Human RightsCommission, the reporting procedure and the evaluation of reports.

Customary law shapes South African and Indonesian culture and society. However, adopting customary marital law into national legal systems is difficult. These include value conflicts between regional traditions and positive law’s universal principles, such as recording marriages, protecting children, and ensuring gender equality. Within Indonesia’s legal system, customary law practices are not well accommodated. Customary law is acknowledged under South Africa’s constitution, however its application is fraught with difficulties. This study aims to (1) comprehend positive law and its correlation with customary marriage law, (2) analyze the difficulties of integrating customary marriage law with positive law in South Africa and Indonesia, and (3) evaluate the future prospects of this domain. The study’s findings and suggestions might foster a more equitable society and promote legislation that honors universal ideals and traditional customs. This comparative and qualitative study use normative legal techniques to analyze pertinent literature, legal concepts, and norms. This paper highlights the main barriers to merging positive and customary marriage legislation. Examples are administrative obstacles like marriage registration and customary norms that conflict with human rights. The proposed framework respects traditional values to uphold human rights and social fairness. Keywords include normative marriage law, positive law, social justice, gender equality, and legal integration.

South Africa is a country that reflects the dilemma and difficulties faced by a developing country which is attempting to achieve gender equality and the protection of women’s human rights in the face of a massive legacy of both racial and gender discrimination and oppression. The promotion of gender equality and the prohibition of gender-based discrimination are addressed in both constitutional and legislative measures, and also separate structures to support this objective. Debates are currently taking place, both inside and outside government, about the necessity for establishing separate commissions like the Commission for Gender Equality (CGE) and the South African Human Rights Commission (SAHRC), amongst others. This paper critically examines the functioning of the CGE within the context of rising concerns about gender mainstreaming and its impact. This paper maintains that constitutional provisions and institutions assist in mainstreaming and making visible the issue of women’s emancipation and gender equality.

Customary Law and the Nationalist Project in Spain and Peru

Constitutionalism is central to achieve good governance in Africa, and the role of National Human Rights Institutions (NHRIs) in this regard is affirmed in Article 26 of the African Charter on Human and Peoples’ Rights and other laws. The South African Human Rights Commission (SAHRC) and the Nigerian National Human Rights Commission (NHRC) have ‘A’ status accreditation which suggests that both institutions are substantially in compliance with the Paris Principles. However, there remains the issue of whether the ‘A’ status reflects their viability or otherwise in reality. Through the lenses of legislative framework, qualification and appointments, financial autonomy and the nature of their recommendations, this article examines the ability of both institutions to effectively perform their functions towards the achievement of good governance. Thus, using doctrinal and comparative law methodologies, this article finds that while NHRC falls short in terms of legislative framework and other indicators like financial autonomy, appointment and dismissal, the SAHRC relatively meets the standard of the Paris Principle though with challenges. Although the Paris Principles provides that ordinary legislation is acceptable legal framework, such is not sufficient in the context of Nigeria. Therefore, for ordinary legislation to be regarded as sufficient, the context in which an NHRI operates should be considered. Also, arguments have been made for NHRI’s financial autonomy, it is posited that what is achievable in reality is relative financial autonomy not absolute financial autonomy. On recommendations, judicial decisions including the South African Human Rights Commission v Agro Data held SAHRC’s recommendations as non-binding. This article however argues that distinction needs to be drawn between recommendations requiring performance of an act as means to an end, and recommendations determining rights and obligations, as while the former should be binding, the latter may be non-binding to prevent usurpation of judicial powers.

Indonesia has various ethnics, races, religions, and customs and traditions spreading in the regions. Many ethnics in Indonesia have customary laws and enforce them towards the people committing criminals and the customary laws. As the criminal law code (KUHP) practicing the legality doctrine, which says that no action is punishable unless the existing criminal act is underway. Thus, in practice the written criminal act is applied instead of the customary law. However,in 2007 the bill of the Criminal Law Code adopted the contrary so that it triggered the debates. This research studies the relevance the Dayak customary criminal law in West Kalimantan to the national criminal law. The qualitative method used is based on documentationand field study through lnterviews with the concerned public officials and prominent figures of the Dayak society as a means of the data collection. This research found that there has been both written and unwritten customary criminal law. So has the Dayak customary criminal law in West Kalimantan. Some ethnics practice unwritten customary criminal law and some other can codify their customary law as we can see at the Kayaan Medalaam. The customary law is practiced by a customary institution while the unwritten one is by its society based on consensus and handed down hereditarily.