“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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Inclusivity vs. exclusivity: Zulu nationalism’s battle within

For most of the 100 years of the ANC’s history, two distinct strands of Zulu nationalism competed for dominance in the party, especially in KwaZulu-Natal: one conservative, and closed off; the other, progressive and inclusive of other communities.

Since the death of Zulu King Cetshwayo in 1883, the leitmotif of politics in what became known as Zululand has been how to hold together the communities within the larger Zulu community as a recognisable unit, following repeated attempts by colonial and, later, apartheid governments to break it up through divide-and-rule tactics and appointments of pliant chiefs, and civil wars within.

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Permanent link to this article: https://www.customcontested.co.za/inclusivity-vs-exclusivity-zulu-nationalisms-battle-within/

Validity of “ukuthwala” depends on definition of custom

Since 2008, a series of cases in which young girls have been abducted and forcibly married to much older men in the Eastern Cape and KwaZulu Natal has captured national attention. Journalists and community members have grouped these abductions together under the heading of ukuthwala cases. Men who have committed these abductions defend them as customary, and some traditional leaders agree. However, representatives from the Congress of Traditional Leaders of South Africa (Contralesa) and from women’s human rights groups have asserted that such forced marriages go against custom. Continue reading

Permanent link to this article: https://www.customcontested.co.za/ukuthwala/

Mayelane v Ngwenyama and Minister for Home Affairs: A reflection on wider implications

On 30 May 2013 the Constitutional Court decided in Mayelane v Ngwenyama and Minister for Home Affairs[acp footnote]CCT 57/12 [2013] ZACC 14 (30 May 2013).[/acp] that under Tsonga customary law, the first wife must consent to her husband taking an additional wife in order for the second marriage to be valid. The Court invalidated the subsequent marriage on the basis that consent from the first wife had not been given. The Court arrived at this decision after, inter alia, applying the constitutional rights of equality and dignity as they relate to the first wife and the husband.

This decision raises several issues concerning marriages and other aspects of customary law that are commented on in detail elsewhere. This article is limited to a reflection on the wider implications of the judgment in respect of two issues. The first is whether the decision applies to all customary law systems in the country. The second is whether the decision balances protection of the competing rights of the first wife and subsequent wives, taking into account legislation governing customary marriages, as well as the realities of its implementation. Continue reading

Permanent link to this article: https://www.customcontested.co.za/mayelane-v-ngwenyama-and-minister-for-home-affairs-a-reflection-on-wider-implications/

Sigcau case: Custom is found in practice, not in law or books

The Constitution, in Chapter 12, recognises ‘the institution, status and role of traditional leadership, in terms of customary law’. On the face of it, this provision was simply designed to bring traditional leaders into the constitutional framework. However, legislation dealing with traditional leadership was subsequently enacted and the question then becomes whether this legislation is consistent with underlying customary law. That is precisely what the recent Constitutional Court case of Sigcau v President of South Africa was about. Continue reading

Permanent link to this article: https://www.customcontested.co.za/custom-is-found-in-practice-not-in-law-or-books/