- Human rights and customary law under the new Constitution
My paper was written in 1992 and published in Transformation 22 (1993) on the eve of the appearance of South Africa’s new Constitution. The legal future was unsettled. A bill of rights was to be enacted imposing a rule of equal treatment for all people in the country regardless of their race, sex or gender. At the same time, however, the freedom to practise a culture of choice was to become a guaranteed right. In other words, the stage was set for a head-on confrontation between traditional African cultures, long associated with gender discrimination, and the equality clause.
Culture and fundamental rights in the Interim and Final Constitutions
The new dispensation did nothing to resolve the conflict. The Interim Constitution (200 of 1993) introduced a fully justiciable bill of rights, with a provision prohibiting unfair discrimination on grounds including, but not limited to, race, gender, sex, ethnic origin or culture. This clause was retained as the highlight of the final 1996 Constitution as Section 9(3). In spite of reservations expressed about culture during the constitutional negotiations, the Interim Constitution required those responsible for the final instrument to protect cultural diversity (Constitutional Principle XI, Schedule 4 Act 200 1993). Culture therefore found a place in ss 30 and 31 of the Bill of Rights, although subject to strict limitations: ‘No one exercising [the right to culture] may do so in a manner inconsistent with any provision of the Bill of Rights’. This clause was inserted to prevent any attempt to ‘privatize’ offensive practices or to protect domestic relationships from constitutional review. Nevertheless, the drafters of the Final Constitution were obliged – mainly in deference to a lobby of traditional leaders – to elevate customary law to [End Page 73] the same footing as the common law. Until the 1990s, although this law had been recognised on fairly generous terms, the common law was taken to be the basic law of the land. But now the courts are specifically required to apply customary law (although, like all other law, subject to the Bill of Rights). As a result, customary law has a guaranteed status, one that is underscored by a right to culture.
That the final Constitution would contain these provisions could probably have been predicted in 1992; less likely was the scope of application given to the Bill of Rights. When constitutional negotiations had started, the public generally assumed that fundamental rights would be applicable only vertically (ie to relations between citizen and state). The Interim Constitution, however, allowed for horizontal application (ie between individuals), but only in certain circumstances – which prompted a burst of speculative litigation. The final Constitution cleared up these ambiguities, and carried horizontality even further: the Bill of Rights was made binding on natural persons ‘if, and to the extent that [a right] is applicable, taking into account the nature of the right and the nature of any duty imposed by the right’ (Section 8.2). In this regard, equal treatment was given specific mention: section 9(4) provided that no person may unfairly discriminate against another person on any of the proscribed grounds.1
Subsequent developments: customary law under attack
In the early 1990s, there was talk of ‘africanizing’ South African law, but, with the exception of ubuntu jurisprudence, this idea soon faded away. In fact, far from becoming a greater force in the legal system, customary law was presented as a choice target for reform, not only because it violated fundamental human rights but also because the version used by the courts was lagging far behind social practice. Hence, as soon as the Interim Constitution came into force, litigation was instituted to question such issues as a husband’s position as head of the household, the standards of justice in traditional courts, a woman’s right to inherit from a man and the validity of polygynous marriages. In most cases, the courts came down in favour of the Bill of Rights, but judges could not be expected to engage in comprehensive law reform. In their hands, the pace of reform would be too slow, the changes ad hoc and facilities needed to...