Social justice under customary law

October 15th, 2021

By Kgomotso Ramotsho

The University of Stellenbosch Law Trust Chair in Social Justice hosted a conference on customary law and social justice on 25 August 2021, under the theme ‘Customary Law, Culture and Social Justice: Has Transformative Constitutionalism Advanced Equality and Other Human Rights in Customary Law?’ The Law Trust Chair in Social Justice, Professor Thuli Madonsela, said that the conference was held to confer on customary law and social justice, as well as reflecting on transformative constitutionalism and whether it has advanced in gender equality and human rights. She added the conference was held because prisoners of hope believe that what has been done since the dawn of democracy must have meant something for social justice and the advancement of human rights for those living under customary law.

Prof Madonsela pointed out that the late struggle stalwart, Charlotte Maxeke, was a prisoner of hope as well. She added that Ms Maxeke believed that justice was the same as ubuntu, embracing the humanity of all people and ensuring that all public goods of the community accrued to every member of that group. Prof Madonsela said that as the Law Trust Chair in Social Justice, she regards social justice as the just, equitable and fair distribution of all opportunities, resources, benefits, privileges in a group and between societies. It embraces humanity, as well as the equal enjoyment of all rights and freedoms for all members of the community.

Prof Madonsela pointed out that when looking at social justice, the question that should be asked is whether the people living under customary law, have found their lives becoming socially just. If the Constitution – as a transformative tool – is being used to transform poor relations under customary law and between those living in customary law, to ensure that there is equality.

Keynote speaker, Minister of Justice and Correctional Services, Ronald Lamola, said that when he was invited to speak at the conference, a question came to his mind, namely, what was the true status of women in society – particularly in the South African society – where the society is governed by the Constitution, which by all accounts is the best in the world. He added that the question in his view becomes more pointed, if one concedes that despite the celebration of the 25 years of the Constitution, which is a lodestar towards a new society, the cultural and economic dominance of colonialism still lives deep within South African communities.

Mr Lamola said: ‘It is only if we consistently probe the true status of women, broadly in our communities, in our private spaces, in our churches, in the workspace and in our economy, that only then can we advance as a society.’ Mr Lamola pointed out that the supremacy of the Constitution demanded transformation in many areas of existing laws, including customary law and this demanded transformation in many areas and sectors. He added that different role players significantly contributed to shape and transform customary law and cultural practices to be in conformity with the South African Constitution.

Mr Lamola referred to the case of Shilubana and Others v Nwamitwa and Others 2008 (9) BCLR 914 (CC), where the court said:

‘South Africa is a country in transition. It is a transition from a society based on inequality to one based on equality. … The achievement of equality is one of the fundamental goals that we have fashioned for ourselves in the Constitution. Our Constitutional order is committed to the transformation of our society from a grossly unequal society to one “in which there is equality between men and women and people of all races”.’

Mr Lamola also said that the Alexkor Ltd and Another v Richtersveld Community and Others 2003 (12) BCLR 1301 (CC) case in 2003, laid very important principles, which addressed customary land rights and rights in the following year, the BHE and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and Others; SA Human Rights Commission and Another v President of the RSA and Another 2005 (1) BCLR 1 (CC) case addressed the customary succession and the inheritance rights of women and children. He added that the two cases have taught that customary law is subject to the Constitution, and it evolves and develops to meet the changing needs of the community. He added that customary law is a living law, and this is important in a community that is willing to transform. He pointed out that the court held that customary law illustrates vividly the political and conceptual difficulties, which are inherent in the public-private divide. Mr Lamola pointed out that customary law can exist within the prescripts of the Constitution. He said that s 221 of the Constitution says that customary law must be in line with the principle in the Bill of Rights.

Stellenbosch University’s, Faculty of Law Vice-Dean, Professor Juanita Pienaar, said that the Constitution should apply in the everyday life. She added that customary law is important, but also complex, it is dimensional, and it operates in various context and spheres. She pointed out that customary law is contentious but is part of South Africa and its history. More importantly, Prof Pienaar asked where social justice was in this context especially having regard to the challenges the country continues to face, such as poverty, social challenges, COVID-19, land reform, gender inequality and gender-based violence.

Deputy Minister of Correctional Services, Inkosi Patekile Holomisa said Apartheid birthed and nurtured unrealistic and violent behaviour that culminated in gender-based violence. He pointed out that it is the duty of the nation living in a democratic South Africa, to regress this scourge. He spoke about the phenomenon of lobola, that it does not mean the family of a man paying lobola is buying the woman, that a woman is not property to deal with as one pleases. He said that a woman remains a human being with the same rights as any other person, male or female. She is flesh and blood as a man, and when she is not in the mood, she must not be forced, and she deserves respect. The lobola just forms a familial bond between the two families, he added.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.