Abstract
In 2008, the Traditional Courts Bill (TCB) was introduced in South Africa’s Parliament to regulate customary courts in place of the apartheid-era Black Administration Act. The TCB has come under wide ranging attack from civil society across the country, including from people based in the former homelands where the Bill would have effect, for its perpetuation of colonial and apartheid distortions of customary law, and its continuation of the oppressions justified through these distortions. In this article, I examine some of the major epistemic developments in customary law in South Africa, from colonialism to the present, to highlight key logics and genealogies of power that form the foundation and framework for ‘official customary law’. This examination provides the context for analysing the epistemological de-linking from colonial frameworks represented in women’s claims to land, and reveals how changes in women’s access to land over the years allows for a reading of epistemological shifts and contestations in customary law. I read these developments alongside the content of the TCB to examine different references for custom represented in both colonially rooted knowledges and de-colonial knowledges that challenge the premises of the former.
Highlights
Since South Africa’s transition to democracy, with the promise of equality for all people, women across rural parts of the country have increasingly challenged constructions of customary law that deny them land rights [1]
After we reported the matter to the traditional court—it did not assist us to re-claim our home, instead, it emphasized that because our brother is a man he has the right to kick us out of our home built by our parents... by securing rights held by men, the Bill is likely to entrench discrimination against women [50]
The implicit power that would be given to traditional leaders to discipline what they perceive as deviance, coupled with the absence of explicit accountability structures in the Traditional Courts Bill (TCB), would increase women’s vulnerability in traditional courts
Summary
Since South Africa’s transition to democracy, with the promise of equality for all people, women across rural parts of the country have increasingly challenged constructions of customary law that deny them land rights [1]. To provide context for understanding the TCB’s epistemic roots and the legislative context in which it exists, I begin this article with background on the codification of customary law starting with the colonial and apartheid eras through to democracy This examination follows key legislative moments that reveal the distortion of traditional leadership and governance, especially with regard to land and women’s rights. After examining the historical and political contexts surrounding the TCB, I analyse responses to the TCB from people who would be directly affected by the Bill This analysis focuses on how women living under traditional leadership frame and communicate their experiences of land rights and how they imagine the TCB’s impact on these current experiences. The reflections in the submissions of different women’s understandings of how and why the TCB would erode their access to land shed light on the conditions and relationships that perpetuate “top down” framings of custom and, in doing this, perpetuate inequality and women’s disenfranchisement in the context of traditional governance
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