T W Bennett, Legal Pluralism and the Family in South Africa: Lessons from Customary Law Reform

• Citation: Vol. 25 No. 2
• Publication year: 2010
• topic: Constitutional Law

LEGAL PLURALISM AND THE FAMILY IN SOUTH AFRICA: LESSONS FROM CUSTOMARY LAW REFORM

T W Bennett*

INTRODUCTION: THE COLONIAL AND APARTHEID PAST

Understanding South Africa’s laws on cultural and religious diversity requires understanding its colonial and apartheid past. The most convenient date at which to begin such an inquiry is 1652, when the Dutch East India Company established a revictualling base at what is now Cape Town.1 Roman-

Dutch law was taken to be the basic law of the territory, and it still regulates most aspects of South African private law. In 1814, however, the Netherlands ceded the Cape to Britain, and English law was then imposed in all public and commercial matters.2

During the course of the nineteenth century, Roman-Dutch and English laws were merged gradually into a single legal system that has come to be considered the “common law” of South Africa.3 The two systems of law nevertheless remained markers of political difference, which, in the first half of

the twentieth century, sparked a spirited bellum juridicum, when purists called for preservation of the Dutch legal heritage.4 Today, however, these differences have been forgotten, and, since the birth of a new constitutional era, attention has shifted to South Africa’s many systems of customary and religious law.

In the early days of colonization, Holland and Britain refused to recognize any of the indigenous systems of law in the Cape.5 Later, however, when Natal and the Transkeian territories were annexed, the British government had to

* Professor, Department of Public Law, University of Cape Town; Fellow, University of Cape Town; Recipient, Alexander von Humboldt Fellowship; Member, Special Project Committee on Customary Law, South African Law Reform Commission; B.A., LL.B., Rhodes University; Ph.D., University of Cape Town.

1. François du Bois & Daniel Visser, The Influence of Foreign Law in South Africa, 13 TRANSNAT’L L. &

   CONTEMP. PROBS. 593, 595 (2003).

2. TW BENNETT, CUSTOMARY LAW IN SOUTH AFRICA 35 (2004) [hereinafter BENNETT 2004].

3. Id. at 34. The term “common law” as it relates to South Africa is generally used for purposes of distinguishing customary law, thereby denoting both English and Roman-Dutch laws, together with

   subsequent statutes, precedents, and authoritative writings. See id.

4. See du Bois & Visser, supra note 1, at 614–15.

5. BENNETT 2004, supra note 2, at 35.

rethink its policy.6 These annexations caused the colonial administration to become overextended, leading the British to co-opt the judicial and administrative services of traditional rulers and give the courts authority to apply local customary laws.7 Transvaal, the trekker republic in the hinterland, adopted a similar policy.8

After the Anglo-Boer War (1899–1902), the government of the new Union of South Africa (the state created out of the former British colonies and trekker republics) devised a uniform policy for the indigenous African population.9 Under the Black Administration Act of 1927,10 customary law was made applicable nationwide, but on strictly racial grounds and only in a special system of courts presided over by traditional leaders and native commissioners.11 These courts had jurisdiction over blacks only, and only blacks could be subject to customary law.12 Traditional leaders and native commissioners now became responsible for nearly all African civil, and minor criminal, litigation.13

While traditional leaders could apply only customary law, the commissioners’ courts, together with their Appeal Court, were given a discretionary power to apply the common law when the circumstances of the case required.14 Magistrates’ courts and the Supreme Court had jurisdiction

over both race groups, but they had no authority to apply customary law as a matter of law. Instead, the courts were obliged to treat the customary law as fact, to be proven in each case as if it were a foreign law or a species of common law custom.15

6 Id. at 36–37.

7 Id. at 37–38.

8 See id. at 39.

9 Id. at 40–41.

1. Black Administration Act 38 of 1927.

2. Id. §§ 9–10; BENNETT 2004, supra note 2, at 41–42.

3. BENNETT 2004, supra note 2, at 41–42.

4. See TW BENNETT, THE APPLICATION OF CUSTOMARY LAW IN SOUTHERN AFRICA: THE CONFLICT OF

   PERSONAL LAWS 47–49 (1985) [hereinafter BENNETT 1985].

5. See Black Administration Act § 11(1).

6. BENNETT 2004, supra note 2, at 44–45. Prior to reforms implemented in 1986, South Africa’s court system was divided on racial grounds; the courts of traditional leaders and native affairs commissioners catered exclusively to African litigation, with appeal to the magistrates’ courts and the Supreme (now High) Court. Id. at 139. The latter courts also catered, as courts of first instance, largely to civil litigation amongst whites and criminal prosecutions, regardless of the race of offenders. Id. at 140, 148. Racial distinctions were

   removed in 1986, and the courts of native commissioners were abolished. Special Courts for Blacks Abolition Act 34 of 1986; BENNETT 2004, supra note 2, at 141. Their jurisdiction was transferred to the magistrates’ courts. BENNETT 2004, supra note 2, at 138–41.

   The year 1948 ushered in a new government committed to instituting the structured system of racism that came to be known as apartheid. As far as customary law and the courts were concerned, this policy called for few changes to the existing system. The foundations for segregation had already been laid and the government only needed to tighten up on the laws and their enforcement. In the process, racial and ethnic classification became all important. Based on language, culture, and birth, Africans were assigned to

   one of eight (later nine) ethnic groups.16 Each was assigned a bantustan (later

   called a “homeland”) in an area set aside under the 1913 Land Act17 and fell under the jurisdiction of that unit.18

   
   

   As criticism abroad grew, the government embarked on a process of internal decolonization in what was designed to appear as a gratuitous grant of self-determination. In 1976, the government gave the Transkei homeland independence, soon to be followed by Bophuthatswana, Venda, and Ciskei.19 Thereafter, any charge that the country’s African population was oppressed by

   white rule could be countered by pointing to their freedom to live in their own self-governing territories.20

   
   

   The homelands had full power to determine the personal laws applicable to their citizens, including customary law. Within South Africa itself, the system established under the 1927 Black Administration Act remained in force until it became apparent, in the mid-1980s, that the apartheid scheme was failing.21 The government then began to reconsider its position.22 In 1986, the commissioners’ court system was abolished,23 and any mention of race was removed from the terms for recognizing customary law. Customary law was now potentially applicable to any person, regardless of race, and by any court in the country.24 By 1989, however, the significance of these reforms was

   
   

7. BENNETT 2004, supra note 2, at 110.

8. Black Land Act 27 of 1913; BENNETT 2004, supra note 2, at 110.

9. BENNETT 2004, supra note 2, at 110 (citing Promotion of Bantu Self-Government Act 46 of 1959).

10. Id.

11. See TW BENNETT, A SOURCEBOOK OF AFRICAN CUSTOMARY LAW FOR SOUTHERN AFRICA 35 (1991)

    [hereinafter BENNETT 1991] (quoting Hilgard Muller, Minister of Foreign Aff. (Republic of S. Afr.), Ambassador & Permanent Representative of S. Afr. to the United Nations, Address at the General Assembly of the United Nations (Dec. 21, 1964)).

12. BENNETT 2004, supra note 2, at 42.

13. The government began to rethink its position following, inter alia, the fifth report of the Hoexter Commission of Inquiry into the Rationalisation of the Provincial and Local Divisions of the Supreme Court.

    BENNETT 1991, supra note 20, at 81.

14. Id. at 82 (citing Special Courts for Blacks Abolition Act 34 of 1986).

15. Id. at 119 (quoting Law of Evidence Amendment Act 45 of 1988 § 1).

    eclipsed by the unbanning of opposition parties and plans for a democratic election.25

    
    

    1. THE NEW CONSTITUTION

       
       

       The Interim Constitution of 199326 did more than pave the way for democracy. It also introduced a fully justiciable Bill of Rights and a new era of nondiscrimination, with uniform standards for all people. The cynosure of both the Interim Constitution and the 1996 Constitution was a guarantee of equality. Under the 1996 Constitution, any unfair discrimination, whether direct or indirect, is prohibited on grounds including, but not limited to, “race, gender, sex, . . . ethnic or social origin, colour, sexual orientation, age, . . . religion,

       conscience, belief, culture, language and birth.”27 Because this provision

       applies both horizontally and vertically, courts and lawmakers were presented with the prospect of overhauling the entire legal system.

       
       

       1. Horizontal Application of the Bill of Rights

          
          

          Perhaps the most noteworthy feature of the Bill of Rights is its scope of application. When negotiations about the document started, it was generally assumed that fundamental rights would be applicable only vertically, i.e., to relations between citizen and state.28 In the Interim Constitution, however, the

          rights were also, in certain instances, applicable horizontally to relations between individuals.29

          
          

          The 1996 Constitution cleared up certain ambiguities in the Interim Constitution and carried horizontality even further. Section 8(2) makes the Bill of Rights binding on natural persons “if, and to the extent that, [a right] is applicable, taking into account the nature of the right and the nature of any

          duty imposed by the right.”30 The 1996 Constitution gives equal treatment

          specific mention in this regard. Section 9(4) provides that no person may

          
          

16. Gilian Slovo, South African Special, TELEGRAPH (London) (Apr. 17, 2010, 7:00 AM), http://www. telegraph.co.uk/culture/books/7597415/South-African-special.html.

17. S. AFR. (INTERIM) CONST., 1993.

27 S. AFR. CONST., 1996 § 9(3).

1. See Du Plessis v. De Klerk 1996 (3) SA 850 (CC) at 877 para. 45.

2. See, e.g., Mthembu v. Letsela 2000 (3) SA 867 (A) at 801–83 paras. 31–40.

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