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Professor Thuli Madonsela, in her capacity as the Law Trust Chair in Social Justice at Stellenbosch University, convened a conference on Wednesday at which legal experts and academics engaged with developments in customary law and implications for social justice.


Western Cape, South Africa (29 August 2021) – Equal recognition and respect to the application of customary law and the common law in South Africa, while embracing transformative constitutionalism, was the main topic under discussion this week at an event hosted by Stellenbosch University.

Professor Thuli Madonsela, in her capacity as the Law Trust Chair in Social Justice at Stellenbosch University, convened a conference on Wednesday at which legal experts and academics engaged with developments in customary law and implications for social justice.

“Our aim was to assess the impact of transformative constitutionalism on advancing social justice, including gender justice in the implementation of customary law while mainstreaming our quest for systematising social justice conscious law and policymaking in customary law,” said Madonsela.

This is the second conference hosted by the Law Trust Chair during 2021 and is executed as part of the Chair’s mission to promote social justice scholarship, consciousness, and collaboration to accelerate social justice reform in academia and society.

Social justice is about the equal enjoyment of all rights and freedoms regardless of human diversity reflected in the just, fair, and equitable distribution of all opportunities, resources, benefits, privileges and burdens in a society and between societies.

“It is important that we eschew assuming the repugnancy or delinquency of customary law and treat it as we would treat any other law. This means appreciating its redeeming features, its problem areas and colonial distortions that exacerbated women’s vulnerability and other oppressive features of customary law,” said Madonsela.

The day’s deliberations kicked off with a keynote address by Minister of Justice and Correctional Services Ronald Lamola. He informed delegates that when preparing his keynote, he was confronted with the question: “What is the true status of women in society, particularly a society like ours which is governed by a Constitution which by all accounts, is the best in the world,” he asked.

“The question in my view becomes even more pointed if we concede that in spite of us celebrating 25 years of our Constitution which is a lodestar towards a new society, the cultural and economic dominance of colonialism still lives deep within our communities. Constructing a new society, finding balance and creating an equitable economic system and redefining cultural norms… require a systemic shift in all aspects of society.”

The Minister referred to recent court cases which, he explained, showed that while in the past indigenous law was seen through the common law lens, it must now be seen through the constitutional lens and as an integral part of our law. Like all law, it depends for its ultimate force and validity on the Constitution. Its validity must now be determined by reference not to common law but to the Constitution.

Lamola also expressed concern that in some areas in our country, females and children are still being abducted in the name of Ukuthwala, and women being suppressed and forced into marriages in the name of Ukungena.

“It is at platforms like this [Conference], where we need to educate society, help the law makers and the courts with our well researched papers to promote social justice by shaping our country with the laws that are in line with the supreme law of the land,” said Lamola.

The rest of the event consisted of several panel discussions and break-away sessions on aspects relating to customary law.

One such session – “The Anatomy of Customary Law: Separating Customary Law from Colonial and Contemporary Distortions” – heard from Professor Anthony Diala from the Department of Private Law at UWC.

“We have to understand the impact of colonialism and the spiritual and cultural effect it had. This must be part of any discussion on customary law. The attitude of “my way of life is better than your way of life” should also be considered when we talk about the topic. Some elders used this policy to exploit it for their own benefit, which was a distortion.

“Colonialism changed everything – we dumped every cultural practice. We have to talk about returning the spirit of indigenous laws, and integrate them into the constitutional values we practice now,” said Diala.

This view found resonance in the presentation of Adv Thembeka Ngcukaitobi SC, whose narrative provided examples of how colonial authorities such as Theophilus Shepstone distorted the conception of land rights and other customary law legal precepts. He decried early judicial tendencies to interpret customary law through the common law lens and to serve subordination interests. He alluded to the recent Ingwenyama Trust judgment as an example of true transformative constitutionalism and affirmed that within it customary law has the malleability for alignment with social justice and related human rights dictates of the Constitution.

Gender-based violence was a key theme that ran through several of the day’s proceedings, most notably in one of the afternoon’s parallel discussions around “Human Rights Dimensions of Ukuthwala”.

“It is important to consider how limiting this practice is on the lives of children, and how it is tied to the continuing spectre of poverty. Research shows that it is mostly younger girls from poorer, undeveloped communities that are victims of violent coercion by older men when they are forced into a marriage relationship,” said legal journalist Karyn Maughan, who acted as facilitator for this discussion.

Delegates also discussed topics such as Social Justice Dimensions of Land and Other Property Rights through a Customary Law Lens; Gender Equality and Customary Marriages; and Equality and Succession / Inheritance Challenges in Traditional Leadership and the Family.

Some of the key challenges noted, included uncertainties about marital status under customary law, enduring harmful traditional practices that trump inheritance rights of women and girls and greedy traditional leaders that evict families when the original holder of the permission to occupy passes on. Some of the speakers, including Nkosi Patekile Holomisa, attributed such injustices to colonial distortions of customary law, while others recognised the agency of traditional leaders and the abuse of power and greed that drives such injustices.

Also discussed was the prospect of leveraging data science tools for impact conscious law-making and the work the Chair is already doing with partners in data science and engineering, on this front.

Key speakers included Nkosi Patekile Holomisa (President of the Congress of Traditional Leaders of SA), Advocate Tembeka Ngcukaitobi (Member of the South African Law Reform Commission), Judge Mumbi Ngugi (Judge of the Appeal Court of Kenya), Ms Charlene May (Women’s Legal Centre), Professor Thuli Madonsela (Social Justice Chair, Stellenbosch University and M-Plan Convenor), Judge Tandazwa Ndita (Western Cape High Court), Advocate Joyce Maluleke (Director-General: Department of Women, Youth and Persons with Disabilities) and Professor Juanita Pienaar of Stellenbosch University.

“The outcome of the conference will be to emerge with a social justice research, teaching, and collaboration agenda to accelerate transformation in the customary law area. Consideration needs to be given to restating customary law even if we do not codify it.

“The uncertainties in customary marriages and land rights that affect ordinary people, particularly women and children cannot be reconciled with the social justice dictates of our constitution. In this regard, we will be convening a reading room of those that wish to take the conversation forward,” said Madonsela.

Sources: Thuli Madonsela 
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