South Africa’s optimistic Constitution makes a brave effort to create a culturally diverse society by granting citizens fairly strong rights to culture, language, and the pursuit of personal family laws based on tradition or religion.
The Constitution does this in the context of also entrenching a strong human rights culture via a wide-ranging Bill of Rights with arguably the most progressive non-discrimination clause in the world.
There are possibly many measures that can be used to gauge if, after some 27 years of democracy, South Africa is on track to achieve a truly multicultural society. I use the fate of customary law (particularly the customary law of marriage) within the country’s legal system as the lens through which to assess success or failure in this nation building project.
Customary law (sometimes termed indigenous law) is recognised by section 211(3) of the Constitution and put on an equal footing with the common law. It was a powerful stab at reconfiguring post-apartheid society along much more equitable cultural lines. The inclusion of this clause was to be read together with other sections in the Bill of Rights which set out complementary rights relating to culture, language, religion, belief and opinion.
Has customary law been integrated into the mainstream of the legal system? And, if so, in what form? The courts of law and the legislature are obviously the key players in this integration process. The courts interpret and apply the law in real-life cases, while the legislature makes new laws or amends and updates old ones.
I argue that both the courts and the legislature have failed to make the most of the opportunity provided by the Constitution’s obvious wish to create a truly culturally diverse society – however naive that wish might have been in the first place.
Doing what’s convenient
When the going gets tough, both the courts and legislature default to western cultural norms. This is because these norms are convenient – they are readily to hand or, in the context of a modern democracy, less controversial.
In the cultural debate in South Africa, the “elephant in the room” is simply this: the two contending cultures are not equal, and legislating a notional equality will not make them so in real life.
The truth is that western culture is powerful, transportable and globally marketed. Proof is everywhere – in daily value judgements and the language that’s used. In South Africa people still regularly ask: “were they legally married?” when they mean “were they married in church?”. This despite the fact that 2018 marks the twentieth anniversary of the passage of the Recognition of Customary Marriages Act.
I have concerns that in the area of family law in general – and marriage law in particular – it has been a case of one-step-forward-and-two-steps-backwards. For instance, the important issue of requirements for contracting a valid customary marriage has been thrown into total disarray. The courts hand down vastly inconsistent decisions about whether lobolo or bogadi), the participation of the family, a ceremonial wedding event, or other ritual, are compulsory, optional or irrelevant in the democratic era. It is also unclear whether the consent of the first wife is now a requirement to validate a further customary marriage by the husband.
The legislature, too, cannot escape criticism. Western influence has crept into the very statute recognising customary marriage. In terms of the Recognition of Customary Marriages Act marriages can be terminated only by a western court of law. (Since this provision is roundly ignored, South Africa sits with the problem of thousands of divorces which occupy the twilight zone of being valid in customary law and “illegal” according to statute. This future time bomb is a discussion for another day).
There is thus still a long way to go before South Africans can be satisfied that the project of integrating African values into the country’s legal system is on track.
Both the courts and the lawmakers appear to have little appetite for trying to preserve deep indigenous values.
This is especially true when the lure of a readily available western norm is too attractive to resist. This sounds like a controversial statement to make, but there is evidence of this. Take, for example, the Constitutional Court decision to strike down the customary law succession rule of male primogeniture and nominating the Intestate Succession Act as the stop-gap measure.
Following this, Parliament was supposed to develop a truly South African solution to succession in a culturally diverse society. Instead it lazily re-adopted the interim western statute that even the Court had hoped would be interrogated more intensely.
The way forward
The approach to law reform and judicial lawmaking that I propose is one in which African values are the starting point. This means accepting that African values exist. This might sound obvious. But a great many people deny that they do, or that they have any relevance in a modern society. These values display a different emphasis from the western world view, and South Africans need to accept that they have a positive contribution to make in creating a new society.
When a customary practice is being assessed for compatibility with the Bill of Rights, I believe it would ground customary law more sustainably in the legal system if the starting point was to understand and honour the African philosophy behind the practice in question.
It is being alive to the distinction between values and practices that I believe holds the key to creating space for a constructive infusion of African values into South Africa’s legal culture. Take an example from family law where the court may have to consider strengthening and preserving a value such as communal kinship solidarity, for instance, against claims based on people now acting more individualistically than in the past. The temptation would be great to default to the common law – the interests of the individual - as being more consonant with the Constitution, but the temptation may have to be resisted if the true kernel of an African worldview is to be preserved.
At the end of the day, creating a truly multicultural society will require hard work, goodwill and an avoidance of easy solutions. As far as I am aware, no other African country with a history of colonialism such as South Africa’s has really solved the problem of unequal cultures.
Updated to change “24 years” to “27 years” into democracy.