Historical evidence crucial for decisions about custom

The eve of Heritage Day presents an opportunity to reflect on how history and its making influence contemporary laws and debates about custom. Legal arguments about chieftainship and customary rights and entitlements often make reference to the past. What is the place of historical research in litigation? How do we construct an accurate view of customary practices as they have evolved over time, in order to make arguments about customary law? And, where might we find the evidence to help us construct such a view?

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New policies undermine security of tenure

A plethora of bills and policies has been released in recent times that hold negative implications for the security of tenure of people living in rural areas. These policies and bills cover issues ranging from traditional leadership to communal tenure to land restitution and redistribution.

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Customary status of “ukuthwala” debated since 19th century

Current debates over ukuthwala invoke the idea of custom to both criticise and justify the practice. Participants on both sides of this debate use historical claims to justify their position. The legal status of custom is not determined by history, but for many observers the popular legitimacy of custom depends on a practice’s deep historical roots. What is, then, the history of ukuthwala in the Eastern Cape? Do current forms of the practice have a historical claim to legitimacy, or are they perversions of a more benign practice?

The historical record shows that something like ukuthwala has been practised in the Eastern Cape for well over a century. Disputes over “irregular forms” of marriage that took place without the consent of a woman’s parents appear in the earliest colonial court records, beginning in the 1860s. The term ukuthwala itself began to appear in public discussions of marriage during the 1880s. People used the word to refer to a variety of irregular forms of marriage that took place without the consent of a woman, or of her father, or both.

As an alternative route to marriage, the term encompassed both consensual and forced marriages. In some instances, women were active and willing participants; as one woman told the local magistrate, “he is my man, I term him my husband. I went away with him. I never received my father’s consent. I went with him of my own free will.” In 1891, a Nqamakwe headman explained that ukuthwala cases were frequent and the woman “is generally a consenting party.” In such cases, couples used ukuthwala to persuade a woman’s family to accept their marriage.

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Feud between Pilane and Kgafela exposes chinks in the Bakgatla administration

The protracted and bitter battle between the leaders of the Bakgatla baKgafela, based in South Africa and Botswana, has everything to do with the riches of the “tribe”* and little to do with genuine concern for the plight of their subjects, who continue to wallow in poverty.

Not so long ago Kgosi Kgolo Kgafela Kgafela II and his royal uncle Kgosi Nyalala Pilane were inseparable. The two were more than just blood relatives; they shared the same vision for Bakgatla in Botswana and South Africa. Kgafela was the supreme leader of Bakgatla both in Botswana and South Africa, while Kgosi Pilane was Kgafela’s right hand man overseeing the “tribe” in Moruleng, North West province, South Africa. Pilane was Kgafela’s funder, while Kgafela was his protector.

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“Ukuthwala”: Even living custom must be developed to comply with Constitution

The cases of ukuthwala that have seized public attention over the last few years involve the violent abduction, and sometimes rape, of girls as young as 12 by older men. In addition to being illegal under criminal law, these abductions have been criticised by some scholars and traditional leaders for distorting the “real custom” of ukuthwala. Such criticisms allow advocates of custom to disavow these sensational cases without undermining the broader goal of both supporting customary law and, for traditional leaders, of asserting their own right to decide what counts as custom and what does not.

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