Traditional authorities and the new peasants in Zanu-PF’s Zimbabwe

A recent article by Congress of Traditional Leaders of South Africa (Contralesa) president Patekile Holomisa lauding Robert Mugabe as a “true African hero” begged the question: “What is the role of Zimbabwe’s traditional authorities in that country’s complicated political economy?” Holomisa didn’t ask. Rather, he wrote that Zimbabwe’s Fast Track Land Reform Programme (some call this simply “the land invasions”) have eventuated in a “land-owning peasant community … putting the land into productive use”.

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Permanent link to this article: https://www.customcontested.co.za/chiefs-and-zanu-pf/

Mmusi ruling a watershed moment for gender and customary law in Botswana

On Sep 3rd, the Court of Appeal in Botswana decided that the home of Edith Mmusi’s parents belonged to her and her sisters. In doing so, Botswana’s highest court struck a blow to rigid versions of customary law and breathed new meaning into the Botswana constitution’s provisions to prevent unfair discrimination.

Edith Mmusi’s story

80-year old Mmusi was born in the village of Kanye in southern Botswana. When her father died, she and her sisters contributed to the upkeep of the homestead and looked after their mother until her death in 1988. Mmusi moved from her parents’ home when she married but returned in 1991 after her husband’s death. Owing to a dispute with her in-laws, Mmusi was unable to inherit anything from her late husband’s estate.

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Permanent link to this article: https://www.customcontested.co.za/mmusi-ruling617/

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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Permanent link to this article: https://www.customcontested.co.za/historical-evidence-custom/

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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Permanent link to this article: https://www.customcontested.co.za/new-policies-undermine-security-of-tenure/

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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Permanent link to this article: https://www.customcontested.co.za/customary-status-of-ukuthwala-debated-since-19th-century/

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