Critical Essay on Custom Law in South Africa

Legal pluralism in South Africa is NOT a necessity for our time

The 1996 Constitution gave legal power to both the State and customary law, making South Africa a legal pluralist state.[footnoteRef:1] Customary law is derived from social practices that the community accepts as obligatory.[footnoteRef:2] While many South Africans live according to customary law, the law regulating the lives of people will vary across communities, ethnicities, religions, cultures, and provinces. The precise number of people who live according to customary law is difficult to estimate as people have a choice of the legal system to regulate different life transitions, such as in terms of land, marriage, and death. At the very least, there are more than 16 million Black South Africans who live in the former homelands under the traditional authority and will have some parts of their personal lives regulated by customary law. [1: (Bennett, 2004)] [2: (Bennett, 2004)]

Drawing a fine line between non-state law and similar non-legal social phenomena has been a continuing problem for legal pluralists.[footnoteRef:3] A German jurist named, Franz Von Benda-Beckmann goes so far as to argue that the attempt to arrive at a definition of law for anthropological purposes resembles a battlefield.[footnoteRef:4] Moreover, not only has no consensus emerged on what differentiates a “legal” system from a “non-legal” form of normative ordering, there is a division of opinion as to whether attempting to formulate such a definition is possible or even useful. Under a positivist approach to law, the question “What is law?” is answered in terms that take some centralized state organizations for granted and consider the presence of rules, courts, or sanctions as essential.[footnoteRef:5] Legal pluralists claim that non-state legal structures exist, raising the problem of how to distinguish law from other forms of social ordering. The question then becomes whether all forms of social control are the law or whether some other criteria can distinguish the legal from the non-legal. [3: (Allott & Woodman, 1985)] [4: (von Benda-Beckmann, 1986)] [5: (Roberts, 2013)]

The main issue surrounding legal pluralism is whether there is a fundamental difference between state law and non-state law. The relationship of legal pluralism to the State and state law has been highly uncertain. It is commented that this problem arises from the fact that legal pluralism makes sense only if it is assumed that one form of law is not objectively superior to all others in every respect.[footnoteRef:6] It is also observed, however, that we cannot assume all forms of law to be equally valuable either.[footnoteRef:7] [6: (Sack & Minchin, 1985)] [7: (Sack & Minchin, 1985)]

Land tenure is one of the most controversial topics in customary law together with research on women's access to land within customary law. However, recent studies have reported changes in the land rights of single women living in communal areas in South Africa[footnoteRef:8]. This is relevant to children, as children are disproportionately cared for by women in rural homesteads located in their former homelands. A recent survey of women in KwaZulu-Natal, Eastern Cape, and the North West indicated that women had greater access to land than in the past[footnoteRef:9] and that unmarried and widowed women's access to land had increased noticeably post-apartheid. With the decline of marriage, it was reported that it has become easier for women with children to be given a site. It was even stated that “a woman having children was the motive behind her family wanting her to get her own site because they consider her to be troublesome.”[footnoteRef:10] [8: (Classens & Smythe, 2011)] [9: (Budlender, Mgweba, Motsepe, & Williams, 2011)] [10: (Classens & Smythe, 2011)]

These changes have taken place in the context of severe poverty, unemployment, and increasing reliance on social grants in the former homelands. The changes were not shaped by legal reform but rather by local negotiations between women and land authorities where, it is argued, “the symbolic victory of equality and democracy during the 1994 transition changed the balance of power.”[footnoteRef:11] However, the locally negotiated practices and processes of change that have been achieved through customary law concerning residential sites are in danger of being jeopardized by a range of new laws that Parliament has enacted since 2003. This legislation includes the Traditional Leadership and Governance Framework Act of 2003, the Communal Land Rights Act of 2004, and the Traditional Courts Bill of 2012. In particular, the Traditional Courts Bill has raised concern as it may centralize power in traditional leaders and undermine the multi-vocal processes of negotiation underway in communities.[footnoteRef:12] [11: (Classens & Smythe, 2011)] [12: (Classens & Smythe, 2011)]

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Legal pluralism has therefore been shown to be potentially very helpful in addressing cognitive-type questions about how plural legal systems operate in practice in any given jurisdiction. It does not, however, currently have a great deal to offer in relation to answering normative questions about how plural legal systems could best relate to each other.[footnoteRef:13] This type of inquiry involves asking such questions as ‘How can we try to ensure that the different legal orders that exist in any particular jurisdiction operate in a way that maximizes their ability to cross-fertilize, support and enrich each other, rather than to undermine and conflict with each other?' The fact that legal pluralism does not currently greatly assist in addressing such questions, is possibly one reason why to date it has been largely overlooked by larger development agencies such as the World Bank and the United Kingdom's Department for International Development, which has recently started to become involved in the development and reform of non-state systems. [13: (Berman, 2007)]

Another area of customary law that conflicts with the given 'state' law is that surrounding children and families in terms of the customary law of succession, which outlines how an estate is administered and divided after the death of an individual. The recent reform of customary law by the Constitutional Court and legislature abolished the male primogeniture rule. It also removed all forms of discrimination against female or extra-marital children's right to inherit from their parent's estate.[footnoteRef:14] This is a critical development in strengthening the rights of children to inherit directly upon the death of a parent. However, this does not mean that such changes are practised on the ground and it is impossible to specify the living customary law on this matter across the country. Nonetheless, we can draw on a few examples to highlight, where the oldest male child has the right to succeed in the estate of an ancestor to the exclusion of younger siblings, both male and female, as well as other relatives. Some of the issues. A recent study found norms of equality within living customary law regulating matters of intestate succession in some parts of the country.[footnoteRef:15] There is widespread support for the right of children to inherit regardless of their age, sex, or birth status. Moreover, the study found cases in which widows (who have care of their young children) inherited in their own right. It has become increasingly common for parents to direct that a daughter should take over responsibility for the family home on their death.[footnoteRef:16] However, there is still evidence to suggest that succession practices sometimes deny a right of inheritance to legitimate heirs, most specifically widows, daughters, younger sons, and extra-marital children. In particular, the concept of family property is used to exclude women as in what was said previously. [14: (Bhe and Others v Khayelitsha Magistrate and Others, 2004)] [15: (Himonga & Moore, 2015)] [16: (Moore, 2015)]

The relationship between the State and other legal systems is at the heart of the debates about legal pluralism.[footnoteRef:17] This is because law-making and enforcing are two of the core functions of a State, arising from what certain political theorists term the “social contract” between members of society and the State. [footnoteRef:18] [17: (Santos, 2002)] [18: (Santos, 2002)]

As seen in South Africa and in other traditional societies themselves, there has been a strengthening of legal positivism, rather than a move towards a legal pluralist paradigm. This is seen to be due to new governing elites seeking out rapid development, international financing, structural reform, and rapid assimilation to the liberal capitalist model of the State.[footnoteRef:19] Acting on legal pluralism is likely to encroach on state power, which is problematic because not all states are totalitarian, but they all contain the seeds of totalitarianism since it is part of the underlying logic of the state to try to weaken, or even do away with, any authority that rivals its own. [footnoteRef:20] [19: (Hughes, 2010)] [20: (Rouland, 1994)]

One reason why the legal system has tried to stop incorporating customary law in South Africa is the belief by state institutions that a customary legal system constitutes a threat to them and to the system of legislation and case law that reinforces the authority and legitimacy of the State.[footnoteRef:21]Professors of Law, Bruce Ottley, and Jean Zorn explain that 'By monopolizing the law and its processes, the state reifies itself. Customary law, then, is viewed by the government, whether or not correctly, as a direct attack upon the legitimacy of the state. The government and the propertied classes that the state protects believe that by taking force into their own hands and solving disputes using their own methods, clans are, in effect, communicating to the state that it is not needed and that its monopolies over basic areas of social control are not needed.'[footnoteRef:22] [21: (Ottley & Zorn, 1983)] [22: (Ottley & Zorn, 1983)]

In conclusion, problematic legal pluralism has the potential to negatively affect a legal order's production and/or its cost functions. There are several inherent challenges when living with customary law. Given the evolving and dynamic nature of the law, ascertaining it and applying it in the courts is challenging. Furthermore, there are significant shortcomings in the ways in which the legislature recognized customary laws by simply, in some cases, adopting civil law concepts. In this way, the legislature, whilst operating within a legal pluralist society, does not recognize the true nature of living customary law.

References

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3. Berman, P. (2007). Global Legal Pluralism. Southern California Law Review, 1166.
4. Bhe and Others v Khayelitsha Magistrate and Others, 49/03 (CCT October 15, 2004).
5. Budlender, D., Mgweba, S., Motsepe, K., & Williams, L. (2011). Women, Land, and Customary Law. Johannesburg: Community Agency for Social Enquiry.
6. Classens, A., & Smythe, D. (2011). Marriage, Land, and Custom: Essays on Law and Social Change in South Africa. Cape Town: Juta & Co.
7. Himonga, C., & Moore, E. (2015). Reform of Customary Marriage, Divorce, and Succession in South Africa: Living Customary Law and Social Realities. Cape Town: Juta and Co.
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15. The Australian National University, C. (2019, August 8). Chapter 2. The Possibilities and Limitations of Legal Pluralism. Retrieved from ANU Press: http://press-files.anu.edu.au/downloads/press/p49351/html/ch02s03.html
16. von Benda-Beckmann, F. (1986). Anthropology and Comparative Law.