The Continued Struggle of Customary Law Wives for Recognition of Their Inheritance Rights in South Africa

This article reviews 20 years of the operation of customary law in South Africa since this legal system was recognised in the Constitution as an equal component of the legal order together with the common law. The objective of the review is to discover whether customary law has been integrated into the mainstream of the legal system and, if so, in what form. The paper undertakes this task by analysing key judicial decisions and law reform initiatives that have had an impact on women’s rights, against the background of the protections that the Constitution gives to cultural rights. Using the notion of ‘living law’ as the point of departure, the paper concludes that the cause of integration has not been well-served by either the judiciary or the legislature, both of which have shied away from protecting the deep values embedded in customary law by deferring too readily to western notions that have found their way into the Constitution. The paper concludes by calling for a different approach that is more sympathetic to the values underpinning customary law even where, as sometimes happens, these have been obscured by practices that appear inimical to the Bill of Rights.

A fully justiciable Bill of Rights in South Africa's new constitu tion heralded fundamental change for all the inherited from the previous regime. African customary law was a particular target, since many of its rules are imbued with a patriarchal tradition, which is in direct conflict with the principle of gender equality. In a series of re markable cases that ensued in the South African High Court and appeal courts, the question whether customary law in fact violated the Bill of Rights came to depend on the version of the law in issue: the law that had been captured in codes, textbooks, and prece dents was regarded as inauthentic and tainted by the apartheid regime, whereas the law currently being lived by its subjects was re garded as the true customary law and thus more likely to be in line with fundamental human rights. Acceptance of the latter involved complex issues of proof, compliance with the Constitution, and the en dorsement of culture and tradition. This Article is concerned with the manner in which the courts transformed the living laws into a new brand of official law. I. THE POSITION OF CUSTOMARY LAW UNDER SOUTH AFRICA'S NEW CONSTITUTION When democratic elections brought an end to South Africa's fifty odd years of apartheid rule, not only did the country's political system undergo fundamental change, but also its law. Both the Interim and Final Constitutions (of 1993 and 1996, respectively) featured fully justiciable Bills of Rights and thus threatened a wholesale review of the public and private inherited from the old regime. Traditional leaders sought to have African customary law exempted from this process but they were unsuccessful' and a series of remarkable cases then ensued. It is many years since customary law in South Africa has been exposed to the full glare of public scrutiny, but now, through the courts, the public had occasion to reflect on the extent to which cus

The constitutional recognition of customary law in South Africa has opened a new conduit for the development of customary law. With the courts taking the lead in addressing customary law disputes, the interpretation of customary law has come with setbacks. This article argues that the development and reform strides made by the judicial and legislative institutions appear of modest benefit to the people they strive to protect, advance and regulate, especially during interpretation and reform. The article seeks to confront the judicial interpretation of customary law based on the recent High Court case of Sengadi v Tsambo. The court had to consider an application for four types of relief. The court deviated from the factual nature of customary law in relation to a spouse’s burial rights when it concluded that a valid customary marriage and all the validity requirements outlined under the Recognition of Customary Marriages Act had been met. Indicating the factuality of customary law when it relates to marriage and its link to burial rights, “that a male descendant of the household belongs to his paternal family, his place and existence being one with his paternal roots. His right to belong to his paternal family is absolute and customary.” The above ignored, yet crucial cultural practice informs the interpretation of customary law under the constitutional guise. The Constitution affirms the right to practise and observe one’s culture. In Sengadi v Tsambo, to determine the burial rights of a spouse, the court employed a narrow and strict interpretation instead of interpreting the cultural practice of bridal integration against a holistic customary background. The article advocates for courts to adopt purposive interpretational approaches in reforming customary law. It emphasises for the consideration of the interpretational rules and theoretical frameworks proposed by legal scholars to reflect the factual nature of customary law. As the positivist approach to customary law undermines the pluralistic nature of the South African legal system. The article pioneers for the recognition of living customary law as holistic, and an integral normative system of indigenous people of South Africa, while taking into account the history and context of this legal system.

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.

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.

In Mgenge v Mokoena & another [2023] JOL 58107 (GJ), the Gauteng High Court, Johannesburg, per Rome AJ, considered the validity of a customary marriage concluded between the bride (the first respondent) and the deceased groom with reference to the requirements outlined in section 3 of the Recognition of Customary Marriages Act 120 of 1998. The mother of the groom (the applicant) challenged the validity of the marriage certificate. The main issue under inspection is whether the applicant’s lack of participation in, consent to, or knowledge of the customary marriage is sufficient to rebut the prima facie proof of validity offered by the marriage certificate. In this contribution, I recount the Court’s systemic approach to determine if the applicant’s misunderstanding of the purpose or intention of the events that transpired and her absence in participating in the negotiations and entering into or celebration of the customary marriage invalidates the prima facie proof offered by the marriage certificate. I explore the Court’s approach to the requirements for a valid customary marriage, specifically the negotiation and celebration requirements, as well as the integration and physical handing over of the bride. I also briefly inspect the role of expert evidence and living customary law. This judgment demonstrates the dynamic and evolving nature of living customary law in South Africa and the approaches adopted by the judiciary when exploring customary law issues like the validity of a customary marriage.

Huweliksluiting én aanneming van kinders kragtens kulturele gebruike in stryd met die reg behoort kragteloos te wees – sed, ex Africa semper aliquid novi

This article begins by taking up the theoretical proximity between scholar and attorney Wilmien Wicomb’s conception, drawn from a hybrid of Derridean thought and cybernetic theory, of customary law within South Africa as a ‘complex system’, and the complexity theory of founding neoliberal legal thinker Friedrich Hayek, for whom cybernetic complexity theory was a substantial intellectual influence. Wicomb’s theoretical frame raises the question of the role the market plays and ought to play in the creation and maintenance of spaces within which customary law can function as an independent, constitutionally recognised source of law within South Africa. This question is of pressing importance at a moment when neoliberalism, understood as a mode of governance, is an active and harmful paradigm in the lives of members of customary communities, as well as in the legal culture more broadly, in South Africa, as an analysis of the legal norms present in South Africa’s ‘vision for 2030’, the National Development Plan, will demonstrate. Wicomb’s work, it is argued, offers an occasion for a critical rethinking of the status of customary law, its boundaries, and the kinds of legal institutions capable of responding to it at the contemporary legal moment in South Africa.

The study of the terms and mode of application of African customary law in South Africa has generally been neglected both by lawyers and African Studies scholars. In the case of lawyers, there is little interest in a law potentially relevant to seventy per cent of the population ‐ where that seventy per cent is for the most part unable to pay lawyers’ fees (Suttner, 1974a: 189). In the case of students of African studies, the segregated legal and judicial system may seem of marginal consequence, in the light of the more serious disabilities that people experience through more patently repressive laws, such as those regulating influx control, resettlement, banishment and so forth, let alone laws concerning directly political activities. It would nevertheless be wrong, I shall try to show, to dismiss this area as unimportant or innocuous. This paper seeks to demonstrate how the special court and legal system set up to deal with civil cases between Africans, contributes ideologically, economically and social...

The ‘land complaints’ files of the Transkei magistrates from the mid 20th century provide an under-recognised and important source regarding living customary law in South Africa. Land complaints were treated as ‘purely administrative’ rather than legal matters and hence not subject to appeals outside the Native Affairs Department, creating disincentives and obstacles to bringing claims grounded in living practice into fora where they might challenge official regulations and be ‘ascertained’ as customary law. Nevertheless, these sources reveal disputes, norms and practices that have not been recognised in official customary law, the administrative regulations governing land in the region or the post-apartheid jurisprudence on living customary law. I examine cases from the culturally conservative district of Bizana, in the north-eastern coastal Transkei, to highlight four issues: first, unmarried men could claim, acquire and maintain land rights; second, land would not revert to the headman for reallocation if its owner died or left the area; third, lending and sale of land took place, often without the approval of the headman; fourth, location boundaries were inconsistently followed as landholding cut across the boundaries used by administrators.

This article examines the evolution of Zimbabwe’s law of intestate succession since it gained independence in 1980, with a specific focus on improvements made to the welfare of widows married under customary law. It explores the influence of international human-rights legislation, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), in advocating for gender equality and women’s rights. The ratification of the African Union Protocol on the Rights of Women in Africa and the SADC Protocol on Gender and Development further supports women’s inheritance rights in Zimbabwe. The article highlights the significant strides made by the Constitution of Zimbabwe Amendment (No 20) 2013 in promoting gender equality and non-discrimination measures. The distinction between testate and intestate succession is examined, and light is shed on the historical flaw of male primogeniture within Zimbabwe’s intestate succession framework. The article discusses the landmark Magaya v Magaya case, wherein the Supreme Court declared male primogeniture unconstitutional, citing violations of the fundamental rights to equality and non-discrimination. The article also addresses the challenges and inconsistencies within customary inheritance laws that hinder the full emancipation of widows. Furthermore, the article explores the parties left behind after the death of the other party in civil partnerships, specifically examining the rights and entitlements of surviving partners. The study delves into relevant legislation, including the Constitution of Zimbabwe, the Administration of Estates Amendment Act, and the abandonment of the rule of male primogeniture. It also examines the introduction of section 68F(2)(b) to the Administration of Estates Act, which mandates the division of the net estate among surviving wives. This provision ensures that widows are provided for and acknowledges their contributions to matrimonial property. In addition, the study emphasises the need for consistent legal protection for widows and minor children against the misappropriation of matrimonial property. The study discusses the various types of marriage recognised in Zimbabwe, including civil marriage, customary marriage, and unregistered customary law union (UCLU). It places its primary focus on customary unions, highlighting the legal complexities they pose in determining marital status and inheritance rights. The article also explores the “immediately resident concept”, which grants surviving spouses the right to immovable property and household artefacts if they resided in the house prior to the deceased’s passing, providing some level of protection to widows. In conclusion, the article acknowledges the progress made in Zimbabwe’s law of intestate succession but stresses the necessity for further alignment with international conventions and the removal of barriers to ensure equitable inheritance rights for spouses, including those in civil partnerships. The article emphasises the importance of providing adequate legal protection and entitlements to surviving partners in order to enhance their welfare and address any potential disparities in inheritance rights.

Muslim personal or family law has never been afforded legal recognition in South Africa due to their potentially polygnous nature. A call for a more clear and concise judicial and legislative guidance was required; hence, the advent of the Muslim Marriages Bill (MMB). The Muslim Marriages Bill was introduced in 2003 to provide statutory recognition of Muslim marriages. The bill emanates from an investigation by the South African Law Reform Commission (SALRC) on Islamic Marriages and Related Matters. The bill sets out a statutory framework for the legal recognition of Muslim marriages and their consequences. The 2010 Bill (adapted version of 2003 bill) has yet to be enacted. This paper will examine religious freedom in terms of the South African Constitution, the status and pitfalls facing Muslim personal law in South Africa, the publication of the 2003 and 2010 MMBs and their impact on Muslim personal law and women’s rights in South Africa, their reception by the local Muslim population and gender activists in South Africa, a review of Muslim personal reform in other countries and the way forward.

Judicial interpretation and adjudication are complex and controversial processes that the judiciary has been grappling with for centuries. This persists in modern constitutional judicial processes, particularly when adjudicating ‘hard cases.’ African customary law cases are indeed hard or difficult cases. This is especially so when it comes to the development of African customary law. This article reflects on the jurisprudence of the Constitutional Court of South Africa regarding the development of African customary law. It is concluded that although there were some commendable strides in the development of African customary law in a few cases at its inception, the court has in subsequent judgments faltered. In these ‘hard cases’ the court has, in many instances, adopted a conservative, formalistic, literalistic approach, often using technicalities to either avoid the development of African customary law or simply abdicate its judicial responsibility. This flies in the face of the project of transformative constitutionalism and produces bad law when it comes to the court’s jurisprudence on the development of customary law.

Contemporary postcolonial scholarship often argues that common law Aboriginal title and the rights of indigenous peoples are regulated by colonial legal regimes that determine the limits of recognition and subjects indigenous peoples to oppressive forms of government. In this article, I challenge this view by focusing on the application of Aboriginal title in the South African land restitution program. I use theories of articulation and assemblage to illustrate how, in conditions of neoliberalism, Aboriginal title, indigenous rights, and living customary law are co-constituted through litigation and social activism involving both self-identified indigenous peoples and rural peoples who live by customary law. By tracking how Aboriginal title is brought into the efforts of indigenous and rural peoples to assert natural resource rights, we begin to see that this area of international common law is used much more creatively and expansively than is often acknowledged.

This special edition comprises a selection of contributions delivered at a conference hosted by the Chair in Customary Law, Indigenous Values and Human Rights at the University of Cape Town in collaboration with its research partner, the Research Chair on Legal Diversity and Indigenous Peoples at the University of Ottawa, on "The Recording of Customary Law in South Africa, Canada and New Caledonia" in May 2018.