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
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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/
Women’s Link Worldwide on Jun 18, 2013 gave a Bronze Gender Justice Uncovered Award to the High Court of Botswana for its decision in the case Mmusi v Ramantele in recognition of its significant contribution to promoting gender equality. However, the High Court’s decision was appealed, so the battle for women’s customary inheritance rights in Botswana has not yet been won.
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Permanent link to this article: https://www.customcontested.co.za/botswana-womens-inheritance-case-gets-gender-justice-award-but-legal-battle-unresolved/
In the same chamber that the 1913 Natives Land Act was passed, Parliament marked its centenary with a workshop on “Redressing the legacy of the 1913 Land Act” on June 7-8. Present were parliamentarians, traditional leaders, civil society and rural delegates, all of who were invited to contribute their views on land reform. The make-up of the room could not have looked more different than it did 100 years ago. And yet, even with the gains and advancements that have come with democracy, echoes of apartheid’s disenfranchisement could still be felt.
Disenfranchisement in South Africa was perpetrated using more than Casspirs and teargas. A more subtle form of violence did the work: the violence of exclusion. The process of categorisation into “tribes”; the related assignment to the artificial boundaries of “homelands”; the instalment of chiefs; and the imposition of official “customary law” – all these were achieved through the suppression of contrary and diverse voices.
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Permanent link to this article: https://www.customcontested.co.za/voices-that-matter-law-making-and-the-bantustans-100-years-on-2/
The government is proposing a communal land tenure model that is a crude version of the model contained in the Communal Land Rights Act (CLaRA) of 2004, struck down by the Constitutional Court in 2010.
This emerged at a workshop on “Redressing the legacy of the 1913 Land Act”, hosted by parliamentary portfolio committees at Parliament, Cape Town, on June 7-8. As part of a presentation titled “Communal land tenure reform – proposed policies”, Director General of Rural Development and Land Reform Mduduzi Shabane presented a diagram on a “communal land tenure model”.
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Permanent link to this article: https://www.customcontested.co.za/new-land-tenure-model-brings-back-unconstitutional-clara/