Abstract
The relevance of Mayelane v Ngwenyama (2013 4 SA 415 (CC)) has not been exhausted. Particularly the constitutional mandate undertaken by the Constitutional Court to "develop" customary law deserves closer scrutiny. In Mayelane the Constitutional Court, in seeking to vindicate the dignity and equality of women in polygynous marriages, examines the validity of a second marriage in terms of "living" customary law. The Court applies customary law as a "primary" source of law, while it simultaneously promotes the values enshrined in the Constitution, however – bearing in mind that the constitutional values of dignity and equality have their roots in international rights law – the Court is in reality dealing with normative plurality spanning subnational (customary), national as well as international regimes. Furthermore, each of these systems is embedded in its own socio-cultural context, and therefore the liberal individualism of international law could be "foreign" in a customary context, which values communalism. Hence, it is asked whether courts can accommodate pluralism by simply transposing norms and values such as dignity and equality from one system to another, particularly in cases where the court sets out to "develop" customary law. It is argued that norms and values have to be interpreted and applied with reference to their particular context and audience. Thus, there is a need for courts to contextualise and attune, or "translate" norms, whenever they are applied to another system.
Highlights
This article revisits the Constitutional Court case Mayelane v Ngwenyama1 to explore specific aspects of the intersection between customary law and constitutional norms
The South African Constitution has brought both positions into a normative "contact zone"3 by making customary law an applicable source of law in South Africa
As the Court states, the development of customary law implies a "process" that takes "the traditions of the community concerned" into consideration.28. In casu, such a process signifies to the Court that it must first ascertain the content of the relevant customary law, and determine whether and to what degree it diverges from constitutional norms and values, in order to "develop" it to be congruent with the latter
Summary
This article revisits the Constitutional Court case Mayelane v Ngwenyama to explore specific aspects of the intersection between customary law and constitutional norms. Mayelane is a prime example of the way in which judges grapple with normative and cultural pluralism Pluralism, in this context, refers to the intersection of multiple regulatory systems, which are distinct from one another. The matter raised a number of important issues, many of which have been dealt with by various writers, while others might well deserve further attention.6 One such concerns the "development" of customary law in view of its status as a legal system within the domestic system, and the corresponding role of courts to secure its rightful place therein. In Mayelane the Court has to "translate" the constitutional values of dignity and equality, with reference to women, in a way that will resonate with the adherents of customary law.. That when judges seek to fulfil constitutional mandates that could conflict, because it will affect "the persuasiveness of their judgment to both communities" having an interest in the outcome. With reference to the present case, the "communities" are, in broad terms, the (abstracted) national, as envisaged by the Constitution, and the subnational community of the Vatsonga. in Mayelane the Court has to "translate" the constitutional values of dignity and equality, with reference to women, in a way that will resonate with the adherents of customary law. If the translation is good, the judgment will be persuasive in its vindication of constitutional values and of customary law
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