Victory for woman in developing customary law

The Constitutional Court yesterday handed down an excellent decision in Shilubana and Others v Nwamitwa and Others in which it clarified the relationship between the living customary law and the Constitution. And I am not just saying that because they agreed with the approach I had suggested council for the Gender Commission should take in her argument before Supreme Court of Appeal.

When the Royal Family of the Valoyi Tribe got together in 1996, they decided to change their custom that only the eldest male child of the Chief (or Hosi, as they call the Chief) could become the Chief. In 1966 the previous Hosi had died without any male children so his brother became Hosi. Now they decided to reintstate the daughter of the original Hosi as Chief. But the eldest son of the Hosi who had taken over the chieftainship in 1966 was not amused and he challenged this decision in Court.

In both the High Court and the Supreme Court of Appeal the judges argued that the Tribe could not ex-post facto change the custom to reinstate the daughter of the original chief because the discrimination occurred in 1966, long before the Constitution came into effect. It argued that the Royal family could not appoint the daughter as Hosi because chieftainship was a matter of birth for this Tribe and the Royal Family could not change this customary practice of the Tribe. The High Court and the SCA completely ignored arguments about the right of the Tribe to develop their living customary law to bring it in line with the Constitution – instead focusing on the long held traditions of the Tribe.

This line of reasoning was rejected by the Constitutional Court.

The Constitutional Court argued that customary law – like the common law – is adaptive by its very nature and that courts should recognise changes in customary law, especially where such changes bring the customary law in line with the values and spirit of the Constitution.

Said Judge Van der Westhuizen, writing for a unanimous Court:

Past practice and tradition may well be of considerable importance in customary law, but as one important factor to be considered with other important factors. It is also not to say that customary law must in the ordinary course be proven before a court before it can be relied upon. The time when customary law had to be proved as foreign law in its own land is behind us. Where a norm appears from tradition, and there is no indication that a contemporary development had occurred or is occurring, past practice will be sufficient to establish a rule. But where the contemporary practice of the community suggests that change has occurred, past practice alone is not enough and does not on its own establish a right with certainty, as the three-factor test set out above makes clear. Past practice will also not be decisive where the Constitution requires the development of the customary law in line with constitutional values.

The Constitutional Court accepted that there was no previous tradition in the Tribe that would allow for the appointment of the daughter of the original Hosi as chief. But it argued that it was clear that the Royal family acted in a way to bring their traditions and customs into line with the values and rights of the Constitution. In this regard it emphasized the importance of the right to (gender) equality in our constitutional dispensation.

Traditional authorities must have the power to make constitutionally driven changes to customs and traditions, because to find otherwise would be to frustrate the provisions of the Constitution which require respect for the living customary law. It would always be better for the community and not the court to develop the customary law and to bring it in line with the Constitution and that is why the traditional authority must surely have the power to develop the customary law in this way in this case.

Although the Court recognised that it had to balance the need for community led change of customary law with the value of legal certainty and the need to protect rights, this case deals with a single decision to install the daughter of the original Hosi as Chief and would therefore not lead to legal uncertainty about customary practices elsewhere in the country.

This case builds on the Bhe decision in which the Court imposed changes to the customary law rules on inheritance to bring them in line with the requirements of gender equality in the Constitution. It is sensitive to the needs of the community itself and emphasises the importance of respecting decisions by the community where those decisions are in line with the spirit and purport of the Bill of Rights.

It is also a victory for rural woman. Although the Court did not make a finding on whether customary law rules that reserve inheritance of the chieftainship exclusively for the eldest male child would be unconstitutional, I suspect this is the necessary implication of the judgment. This is the kind of judgment that would greatly upset the Congress for Traditional Leaders of South Africa (CONTRALESA), because it strikes a blow against the patriarchy.

I wonder what Mr Jacob Zuma would make of this. It is the kind of issue that would pit two camps of the Zuma coalition against one another. While Cosatu and the South African Communist Party would welcome the decision, CONTRALESA and other traditionalists will be up in arms. If I was a Mbeki supporter I would try and exploit this.

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