Harmonising cultural and equality rights

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Harmonising cultural and equality rights

under customary lawsome reflections

on Shilubana & Others v Nwamitwa 2009

(2) SA 66 (CC)

Devina N. Perumal aba

Faculty of Law, University of KwaZulu-Natal, Durbanb

High Court of South Africa, E-mail: [email protected]

Available online: 03 May 2011

To cite this article: Devina N. Perumal (2010): Harmonising cultural and equality rights under

customary lawsome reflections on Shilubana & Others v Nwamitwa 2009 (2) SA 66 (CC), Agenda,

24:84, 101-110

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Harmonising cultural and equality rights undercustomary law - some reflections on Shilubana &Others v Nwamitwa 2009 (2) SA 66 ( C C ~Devina N. Perumal

abstractThe equal recognition of the right to gender equality and the right to culture has created tensions between the applicationof cus tomary la w values and the co nstitutional agenda for th e reallsation of gender equality In South Africa. Thls tension hasresulted In customary laws being viewed as a source of potential confllct and as perpetuating Inequalities and prejudicesagainst women . The recognitionof traditional leadership and its institutions, in cluding the righ t to cultural practices, therefore,has created a new challenge relating to their role in the developm ent of cu stoma ry law values and princ~ples. he cons titutionalstatus of cus tomary la w has fuelled debates o n its recog nition and created the need for a delicate balance In court challengesIn the area of gender equality. Many of these court challenges have focused on the rule of male primogeniture in respect ofinheritance and successlon to property within the framework of famlly law relationships. One area of conflict that has notrecelved attention trom the cou rts, until the C ons t~tu t~on alourt was called upo n to consider the co nflict In Shilubana & Othersv N wam itwa 2009 (2) SA 66 (CC), 1s wo me n's successlon to traditional leadersh ~p nd publ~ c tatus. The Constitutional Court.in a ground-breaking judgment, concluded that the cu stoma ry law principle of male prlm ogenlture In the contex t of successlonto ch~e ftaincy oes indeed consti tute an infr~ngem ent f the r ight to gender equali ty.

keywordscustomary law, const~tutiona lism, ulture, gender equality, traditional leadership

Introduction inheriting property and are barred from holdingIn South Africa, African customa ry law - a system traditional leadership positions. Marginalised andof law characterised by an entrenched patriarchal suppressed by the dominant [male] interpretationsystem - underpins m uc h of the customary law, of the traditions an d customs, viz. that law sparticularly in the areas of marriage, property, of succession to chieftainship are inextricablysuccession, and access to political power, where linked with the African concept of family andwomen are frequently prohibited from owning or kinship, rural wom en are rendered ineligible to be

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Q) traditional leaders of their tribes or communitieson the basis of their gender.

Succession to chieftaincy or traditionalleadershrp is commonly characterised by astruggle against paternalism in most Africancultural traditions, because it is governed by thecustomary rule of male primogeniture. The thrustof the rule is that o nly males (not females) can beheirs. In practice this means that it is either theeldest male child or nearest male relative (father,male cousins and uncles) of th e deceased w ho areentit led to beco me heirs. The male primogeniturerule, like many customary rules and traditions,is infused with gender inequality and as suchhas been the subject of constitutional challengebecause arguably, it has contributed substantiallyto the current failure to realise gender equality ina democratic state founded on the values of non-racialism and non-sexism. In a country c om mittedto b oth diversity and equality, this 'clash' bet we encultural autonomy and gender equality poses anobvious and inevitable challenge.

Succession t o chieftaincy or traditiona l leadershipis com mon ly characterised by a struggle againstpaternalism in mo st African cultural traditions

This article analyses the decision in Shilubana& Others v Nw amitwa 2009 (2) SA 66 (CC)(hereafter referred to as M s Shilubana), where theConstitutional Court was invited to deliberate onwhether a woman can succeed her late father andbecom e a traditional leader of a tribal commu nity.in circumstances where a ma le heir was availableto succeed the traditional leader or hosi (chief).The u nderlying gende r issue being addressed, waswhethe r the Valoyi tribe could continue to obse rvethe male primogeniture rule (seemingly cardinalto customary law, but plainly discriminatory) ina constitutional democracy which prohibitsdiscrimination on the grounds of gender.

The aim of this article is to critically examinehow the Constitutional Court addressed this

concern in its attemp t to ease the strain betweencultural and equality rights that claims of culturalrecognit ion present to the achievement ofwomen's equality in the context of chieftainshipsuccession.Factual background of th e case2The background to the case concerns a dispute forthe right to succeed as hosi of the Valoyi Tribe inLimpopo between two cousrns. Phyllia Shilubana,a woman, and Sidwell Nwamitwa, a man, whosefathers w ere both chiefs and brothers.

M s Shrlubana's father, H osi Fofoza, was chiefof the Valoyi tribe. He succeeded his fatheronly because his elder sister was ineligible tobe hosi. Hosi Fofoza died in 1968 without amale heir. Ms Shilubana, his eldest daughter,was denied succession to chieftainship after hisdeath, because the customary law rule of maleprrmogeniture governed the succession order ofthe Valoyi. This had always be en the practice forover five generations among the Valoyi's. It wastherefore no surprise that Phyllia was overlookedfor the position, because it was inconceivable thata wom an could become a chref. Instead her uncle,her father's younger brother, Richard, succeededher father as hosi of the Valoyi tribe in Lim popo.

In 1996 the royal family of the Valoyi, togetherwith the participation of Hosi Richard, met andunanimously resolved to appoint M s Shilubana as his(Hosi Richard's) successor, based on the following :

Though in the past it was not permissible by theValoyi's that a female child be heir, in terms ofdemocracy and the new RSA Constitution it isnow perm issible ha t a female child be heir sinceshe is also equal to a male child ... The ma tter ofchieftainship and regency would be conductedaccording to the Consti tut ion of South A f r i ~ a . ~

In 1997, in the presence of the chief magistrateand 26 witnesses, Hosi Richard acknowledgedthat Ms Shilubana was the heiress to the Valoyi

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Ms Shiiubana during her ground-breakmg struggle to attain ch~eftaincy f her tribe

Chieftamship. The Royal Council accepted andconfirmed that Hosi Richard would transfer hispowers to Ms Shilubana. This resolution clearlystruck a blow to the five-generat~ons ld customentrenching patrilineal succession to chieftainship,to do away with discrimination based on gender.What makes this case especially intriguingis that the leaders of the Valoyi communitythemselves figured that the customary rule ofmale primogeniture ought to yield, because itviolated a central value of the new constitutionalorder, namely the principle of equal dignity forwomen. After all, the only reason Ms Shilubanawas denied the office in 1968 was because shewas a woman.

The history behind the current dispute startedfollowing the death of Hosi Richard in 2001, whenthe royal family, Tribal Council, representatives oflocal government, clvic structures and stakeholdersof various organisations met and confirmed thatMs Shilubana would become hosi. However,groups of community members voiced supportfor Mr Nwamitwa to succeed his father as hosiHosi Richard himself had, in 1999, withdrawnhis support for Ms Shilubana's appointment ashis successor. In 2002 the Provincial ExecutiveCouncil approved Ms Shilubana's appointment ashosi An inauguration ceremony was scheduled forMs Shilubana. However, Mr Nwamitwa interdictedit and instituted proceedings in the Pretoria High

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Q) Court seeking a declaratory order that he, andI not Ms Shilubana, was entit led to succeed Hosi..Ift Richard, because he as heir was the rightful(O successor to th e chieftainship of the Valoyi.Analysis of the High Cou rt decision4In seeking a declaration as to who the rightfulsuccessor to Hosi Richard was, Mr Nwamitwainvited the High Court to add ress four q uestions:(i) Whether, according to the customs and

traditions of the Valoyi tribe, a female co uld beappointed as hosi.

(ii) Whether Hosi Richard was appointed asho si or acting ho si wh en he succeeded HosiFofoza.

(iii) Whe ther th e royal family acted in term s ofthe customs and traditions of the Valoyi tribewh en they appointed M s Shilubana as ho si ofthe Valoyi tribe.

(iv) Whe ther the decision of th e Executive Councilof Limpo po Provincial Gove rnmen t, appointingM s Shilubana as ho si of th e Valoyi tribe, wasin accordance with the traditions and customsof the Valoyi tribe within the meaning of theConstitution (Repu blic of South Africa, 1996).

The High Court answered each of these questionsin Mr Nw am~twa'savour.

With regard to the f irst two questtons, theHigh Court reasoned that, at least prior to theadoption of the Interim Constitution, a womancould not be appointed hosi of the Va lo y~ ,~ndthat Hosi Richard was appointed hos i wh en hesucceeded Hosi Fofoza. W ith regard to the thirdquestion, the High Court concluded that MsShilubana had not been appointed in accordancewith the custom and practices of the Valoyi tribe.The High Court reasoned that spanning fivegenerations, traditional chieftaincy was retainedonly along the m ale succession line. Chieftainshipsuccession should therefore proceed down HosiRichard's family line, and not from the line of a

ho si to an other line, "pa rticularly by a ppointing afem ale".' It followed, as the eldest son of HosiRichard, that Mr Nwamitwa was therefore therightful heir to be Ho sio f the Valoyi tribe.

On the basis of this argument Ms Shilubana'sappointment as Chief was therefore not inaccordance with the Valoyi customs, because noprovision is made - nor was there precedence for-t h e appointm ent of a wom an as Hosi, even if shewas the first born. The community's decision, theCourt stated, "w as probably a bout of constitutionalfe r ~ o u r " .~ he High Court further maintained thatM s Shilubana's appo intme nt as hos i had no forceand effect because the traditional authorities had nolegal authority to appoint her. The H igh Court pointedout that in so far as the chieftainship successionprocess is concerned, the royal family plays a formalrole; it does not elect a chief, it m erely recognisesand con firms one.' Accordingly, the actions ofthe royal family could not and did not am ount to achange of the custom of chieftainship succession.

With regard to the fourth quest ion, theHigh Court found that the Executive Council 'sappointment of M s Shilubana as ho si was notin accordance with the practices and customsof the Valoyi tribe within the meaning of theConstitution. The problem for the H~ g hCourtwas the royal fam ~ly 's act of exceeding theirauthority in appointing M s Shilubana as hosi.Hosi Rlchard had an eligible heir, so it was notnecessary to shift the family l ines in the faceof a cardlnal rule of customary succession tochieftainship. Accordingly, the High Court held,the issue was one of l ineage, and not gender.Therefore there was no constitutional problemwith Valoyi customary law in this instance.''The Sup reme C ourt of Appealdecision1'The Supreme Court of Appeal was called uponto address the same four questions, and largelyaffirmed the Hlgh Court's judgment. The SupremeCourt of Appeal ultimately agreed with the High

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Court that its finding was not gender-based. TheCourt concluded that the facts of the case "do notbring [it] to the gender equality claim which the[applicants seek] to vindicate".12

Clearly, for the High Court and the SupremeCourt of Appeal, upholding the customary rule ofmale primogeniture. rather than gender equality,was more applicable to the resolution of thissuccession dispute. In so doing, both the Courtsfailed to acknowledge that male primogeniture, asapplied in this case, embodies the blatant injusticearising from the obvious fact that had the applicantbeen a man, s/he would have succeeded herfather as chief of the Valoyi tribe.

In this respect, the High Court and the SupremeCourt of Appeal reinforced the notion that officialcustomary law is fossilised and immutable tochange, thus claiming immunity from genderequality, and in so doing provides "an uncriticalsuperficial approach of the courts to customarylaw . . . has a serious bearing on the extent towhich women living under customary law mayenjoy human rights under the Constitution and theInternational Human Rights instruments that SAhas ratified" (Himonga, 2005: 107). Lehnert (2005:264) s~rnilarly riticises this kind of disingenuousjudicial approach to customary law, and observesthat this shortcoming may be due to the "limitedunderstanding of customary law concepts" amongjudges, which results in the rigid and mechanical"application of the principle of male primogeniturewithout even considering the changed practices inthe living [customary] law".

Clearly, the judicial approach adopted abovereinforces the idea that women who press forchange within traditional communities threaten thevalues that sustain those communities. The lessonfrom this judicial approach is that gender equalityis a value alien to traditional communities, one thatdoes not emerge from women's experience ofsubordination within them but is imposed by externalforces. In other words, the message conveyed isthat culture is often portrayed as essentially host~le

to women's equality - that cultural and equalityrights are irreconcilable, and in the end the one mustbe sacrificed in favour of the other.

The writer argues that this notion ofirreconcilability of gender equality and theprinciples of customary law flies in the face of theconstitutional call for substantive equality in itstransformative agenda for our society.Analysis of th e Co nstitutionalCourt decisionAn attempt to reconcile and thereby ease thetension between cultural rights and genderequality was demonstrated in the judicial approachadopted in the Const~tutionalCourt, where MsShilubana appealed the decision of the SupremeCourt of Appeal on the grounds that she had beenprevented from being appointed as hosi on thebasis of her gender - he obvious fact being thathad she been a man, she would have succeededher father as hosiof the Valoyi tribe.Did the royal family have the legal authority todevelop th e custom s and practices of th e Valoyi inl ine w ith the Constitutional objectives of {gender]equality?

In evaluating Mr Nwamitwa's claims thathe and not Ms Shilubana was the eligible heirto succeed his father as hosi of the Valoyi, theConstitutional Court ultimately had to consider anddecide whether the royal family had the authorityto restore the position of traditional leadership tothe house from which it was removed by reasonof gender discrimination.13 n other words, did theroyal family have the legal authority to develop thecustoms and practices of the Valoyi in line with theConstitutional objectives of [gender] equality? Inaddition, the Constitutional Court equally neededto address the relationship between traditionalcommunity structures and courts of law asenvisaged by our const~tutlonal ernocracy,l4 andhow courts of law are to apply customary law as

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required by the Constitution, while acknowledgingand preserving the institution and role of traditionalleadership and the functioning of a traditionalauthority that observes customary law.15

The Constitutional Court acknowledged thatcustomary law, like any other law, must accordwith the Constit~tion.'~he Constitution alsorecognises and provides specifically for theprotection of culture." However, it is important tonote that the right to culture and the applied right tothe application of customary law is not unlimited.Both sections 30 and 31 specifically provide thatthe exercise of the right to culture is subjectto the other provisrons of the Bill of Rights. Inother words, "customary law must be interpretedby the courts, as first and foremost answeringto the contents of the C~nstitution".'~he aimof protecting and maintaining cultural diversityWhere there was a dispute over the legal

position under customary law, both the traditionsand the present practice of the community

had to be consideredis given further impetus by the Constitutionalrecognition of the role of traditronal leaders.Section 211(2) of the Constitution includes theright of traditional authorities to amend and repealtheir own customs. The Traditional Leadershipand Governance Framework Act 41 of 2003(hereinafter Traditional Leadership Act) entrenchesthe powers of traditional leaders, and in particular,obliges traditional authorities to "progressivelyadvance gender representation In the successionto traditional leadership position^".'^ In addition,the preamble of the Traditional Leadership Actunambiguously stipulates that the institution oftraditional leadership must be transformed to be inharmony with the Constitution and the Bill of Rightsso that "gender equality within the institutionof traditional leadership may progressively beadvanced". Clearly, the Traditional LeadershipAct enhances the role of traditional leaders to

ensure the advancement and development ofcustomary law in line with the prescripts of theBill of Right~,~'whichncludes the ability for suchcommunities to remedy previous discrimination.In addition, Section 3 of the Traditional LeadershipAct places a legal duty on traditional leaders notonly to promote the right to gender equality butalso to ensure that it is progressively vindicatedfrom its institutionalised subordination withincustomary law.21

In determining the aforementioned issues, theConstitutional Court adopted a pragmatic approachby focus~ng he enquiry on the customary lawpractices within in its own setting rather than interms of the common-law paradigm, because ofthe distorting tendency of older authorities to viewcustomary law through legal conceptions foreignto it.22The Constitutional Court stated:

customary law is by its nature a constantlyevolving system. Under pre-democraticcolonialand apartheid regimes, this development wasfrustrated and customary law stagnated. Thisstagnation should not continue, and the freedevelopment by communities of their ownlaws to meet the needs of a rapidly changingsociety must be respected and fa~ilitated.'~

Furthermore, the Constitutional Court took theview that where there was a dispute over the legalposition under customary law, both the traditionsand the present practice of the community had tobe considered. If development happened wrthinthe community, the Court had to strive to giveeffect to that development insofar as it wasconsistent with the protection of constitutionalrights.24Referring to s21 (2) of the Constitution,the Constitutional Court provided that customarylaw had to be allowed to develop, and that theenquiry had to be rooted in the contemporarypractice of the community in question. TheConstitutional Court was quick to point out thatthe legal status of customary-law norms could not

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depend simply on their having being cons~stentlyapplied in the past, since that was a test thatany new development would necessarily fail.Development therefore necessarily implied somedeparture from past practice.'= The ConstitutionalCourt warned that courts should be wary ofapplying laws which communities themselvesno longer follow, because this would preventthe recognition of new rules adopted by thecommunities in response to the changing face ofSouth African society. The result would be contraryto the constitutional mandate of transf~rmation.'~The Constitutional Court accepted that the classictest (Van Breda Test)" for the existence of customas a source of law could not be applied tocustomary law where the development of livinglaw was at issue. In this regard, the Court tookthe view that although chieftainship successionamong the Valoyi had operated in the pastaccording to the principle of male primogeniture.the traditional authorities had a legal obligation todevelop customary law, and they had done so infurtherance of the constitutional right to [gender]equality. In other words, past practice and traditionwill not be decisive when the Constitution requiresthe development of the customary law to reflectthe constitutional values. It would still be a factorto be considered together with other factors."It followed, therefore, that Mr Nwamitwa couldnot base his claim exclusively on past practice. Inthe Court's view, the Valoyi authorit~es ntendedto bring an important aspect of their customsand traditions in line with the values and rightsof the Constitution. This they did in accordancewith the right to function subject to their ownsystem of customary law, including amendmentor repeal of laws.zg The Constitutional Courtopined that even if the royal family or traditionalauthorities had lacked customary authority to actas they did, they nevertheless had constitutionalauthority to do ~o . ~ ' T h eonstitutional Court foundthat the appointment of Ms Shilubana as a hosithus represented a development of customary

law, which was an essential step in respecting P)community-led change which in its (the Court's) .I.view was not outweighed by the requirements C )of legal certainty and the need to protect right^.^' @In a welcome move, the Court recognised thattraditional communities could alter their customarylaw simply by evolving and harmonising theiractual practices with the basic values of the newconstitutional order.

In the Court's view, Mr Nwamitwa only had anexpectation to be appointed hosi of the Valoyi tribeprimarily on the basis of past practice. This expectation,the Court held, could not override the decision ofthe traditional authorities to alter their customarylaw in accordance with the values and rights of ourdemocracy as embodled in our Con stit ut i~ n.~~

The Court recognised that traditional comm unitiescould alter their customary law simply by evolvingand harmonising their actual practices with thebasic values of the new constitutional order

The Constitutional Court accordingly ruledthat the High Court and the Supreme Court ofAppeal decision was incorrect, because it failedto acknowledge that the decision to appointMs Shilubana as Hosi was consistent with thestatutory obligation of the traditional authoritiesto develop and reform customary law so as tocomply wi th the Bill of Rights.Discussion of the ConstitutionalCourt judgm entThe judicial approach adopted by the ConstitutionalCourt can be hailed as a pragmatic approach to culturalpluralism in the struggle to reconcile what is oftenperceived as the two irreconcilables: cultural rightsversus equality rights. The Court's pragmatism liesIn the fact that it did not assume an inherent conflictbetween customary/cultural rights and equality,simply one of pitting tradition against equality, butinstead saw the customary dispute about genderequality as an intracultural conflict between two

Harn ion~s~ igultural ana equality r ights under cu s~ om a~ yaw - sonie re flecl ~on s n Shiiuhana & Olhers v Nwarn~twa 009 12) SA 66 ICC) 107


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Q) different interest groups battling to change theI)0 power relations within their very culture..*'r The Court took a historical and time-honouredtradition spanning five generations, and examinedit in its contemporary context to determine howthe rules are actually applied in the 'living la w' of atribal comm unity. The approach is anti-essentialistin that it emphasises consequences rather thanconcepts, and it justifies results contextually.The Court in so doing firmly set its face againstforms of gender discrimination and patriarchy thatstigmatise wo me n as dependants, reliant on m enfor access to resources and deprived of individualagency. The m essage conve yed is clear: rules andpractices that unfairly discriminate aga inst wo m enby relegating them to positions of subservience,dependence and lack of choice should/will notsurvive constitutional scrutiny.

The decision to ap point Shilubana as Hosi wasconsistent wit h the statutory obligation of the

traditional authorities to develop and reform customarylaw so as to comply with the Bill of Rights

Although the Constitutional Court concludedin its final analysis that when the royal familyconfirmed M s Shilubana's appointme nt as hosiof the Valoyi tribe, it was influenced by the newdemocratic dispensation under the Constitution,and in particular the need to make sure thatthe right to gender equal i ty was respected.However, in so doing the Constitutional Courtonly paid lip service to the vindication of genderequality because it failed to sho w how the Valoyileaders' appointment of M s Shilubana alteredcommunity traditions and practices in the serviceof the constitutional co mm and to dismantle genderinequality. The Court perceived the ap pointme ntof w om en as chiefs as a straightforward violationof formal equality: men can be chiefs, womancannot. The tension between gender equalityand customary law in the Court's analysis was

therefore resolved by the simple adding in ofwom en into the equation.

The Constitutional Court has in Presidentof Republic of South Africa v Hugo," insistedthat equality claims must be f~rmly ituated andunderstood in their social context. The Court inthis regard did not heed this necessary call, interm s of the d ifferentiation approach (equality es t)authoritatively formulated in the Harksen v LaneNo.34 The Harksen equ ality analysis is fortifiedby the approach adopted by Moseneke DCJ inMinister of Finance v Van Heerden .3"~ follows:

It is ... incumbent on courts to scrutinizein each equality claim the situation of thecomplainants in society; their history, natureand purpose of the discriminatory practiceand whether it ameliorates or adds to groupdisadvantage in real life context, in order todeterm ine its fairness or otherw ise in the lightof the values of the constitution.

The constitutional validity of the maleprimogeniture rule has been subject to the rigourof th e d ifferentiation approach encapsulated in theequality analysis of this Court in previous cases,36because it discriminates most conspicuously onthe grounds of gender. Had the Court follow ed suitand engaged in an equality analysis it wo uld havebeen able to make a contextual assessment of theimpact of the male primoge niture rule with specificemphasis and reference to the impact and degreeof d isadvantage suffered by M s Shilubana and otherwomen in her position. In addition, the purpose ofthe male primogeniture rule and the extent towhich it impaired her constitutionally guaranteedrights would also have been considered, within anoverall assessment of whether the complainanthas been treated with dignity (equal concern andrespect) as a conseq uence of the application of therule. The Constitutional Court's failure to engagein such an analysis was a missed opportunity toease the tension between cultural and [gender]

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equality rights in the context of deeply rootedcustomary practices, leaving the door open to afuture constitutional challenge to the practice ofmale primogeniture in the context of traditionalleadership and status.

This analysis is not suggesting that the lackof constitutional analysis necessarily has led thecourts to reach a constitutionally unacceptableresult. On the contrary, by ignoring an importantequality analysis the Court avoided a direct answerto the question of gender discrimination, by findingthat the appointment of a woman chief was adevelopment of customary law that answeredto and complied with the text, spirit and purportof the Constitution. Perhaps this was a case of'strategic pragmatism', avoid~ng a contentiousissue while not fully compromising on principle(woman can be traditional leaders). However,the issue of gender equality and public traditionalpower as a result remains partly unresolved.ConclusionThe judgment is significant in its recognition ofwomen's equal status with~n ustomary law and thecommunities it regulates. It represents a significantstep towards the conclusion that male primogenitureas the determinant of accession to chieftainshipviolates the constitutional guarantee of genderequality. Although the case does not directly assert theunconstitutionality of male succession, it affirmed thatsome traditional communities are already reforminga central customary institution (male primogenituresuccession) as a part of a broader effort to harmonisetheir practices with our democracy's foundationalcommitments. In not squarely confronting theunconstitutionality of male succession as a violationof gender equality, the Court left open the question ofwhether this is fair discrimination.

Traditional leaders argue that because culture isprotected by the Constitution, it has to be protectedat all costs. A variation of this interpretation isthat a failure to recognise customary law on itsown terms and simply applying the Constitution

is tantamount to imposing Western values andnorms on customary law. It is therefore nosurprise that arguments relating to women's rightsand customary law have arisen in the context ofwomen as members of cultural communities.The accommodation of the claims of traditionalleadership in the guise of a claim for culturalrecognition is of particular concern for the declaredequal rights of rural women, because traditionalleaders view themselves as the authoritativevoice in determining the content of customaryrules and practices. This is especially true where,in the case of African women's rights, culture isoften portrayed as essentially hostile to women'sequality (Ndashe, 2005: 36).Endeavours by traditionalists to maintain theirpatriarchal hold over women, under the guise of acentral, but discriminatory cultural practice, cannotbe exercised in a manner inconsistent with theConstitution. Ndashe (2005:37 ) puts it succinctly:

The internal limitation contained in the right toparticipate in, and belong to, a cultural groupmeans that if a custom was inconsistentwith another right in the Bill of Rights, thecustomary law rule has to yield in order toallow the right to prevail.

Courts are called upon to adjudicate and supportwomen's claims to equal concern and respectand the right to participate fully in public life. Anyother contention "destroys the coherence of ademocratic state . . . In such cases it is misguidedto see a judicial decision to remove a women'slegal disabilities as an attack on her culture"(Bronstein, 1998: 404). Bronstein correctly pointsout that the judicial decision does not destroy anyperson's cultural context, nor is it anticultural inits sentiment (Bronstein, 1998: 404). It simplyenhances culture as an evolving entity in keepingwith the nature of living law.

Reform must be thought of as the pursuit of asociety in which all people, including women, are

Harn io~i tsng ~11tu:alar7d ?q i j d l ~ t y ,g/i is under cilstoniary law - sonic! 1eflec:1011s11 Sli~iiihriqa& O r h e ~ s N w a n ~ ~ t w a009 (2 ) SA 66 ICCI


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Q) able to realise their dignity and self-worth to the contatned in the Bill of r~g hts n the constitut~on, InI fullest potential. The Constitutional Court therefore pa'lcular by-.- (a) preventing unfair discrimination;supported M s Shilubana's claim to full citizenship, (b) promo ting equal~ty: nd(O enabling her to participate fully in public life. After (c) seeking to progressively advance gender

all, in 1994 the Constitution recognised women representation in the successton to traditionalleadership po sltlons."as citizens of democracy, rather than subjects of 22 Note 1 Para 44.traditional law. This means that women should not 23 N~~~ Para 45,have to choose between culture and equality, "for 24 Note 1 Para 49.otherwise both rights will be rendered nugatory" 25 Para 55 .26 lbld.(Van der Meide, 1999: 111 . 27 Note 1 Para 53.

28 Note 1 Para 56.Footnotes 29 Note 1 Para 73.1 Also cited as Sh~lubana& Others v Nwamitwa 2008 (9) 30 Note 1 para 75.BCLR 914 (CC). 31 Note 1 Para 84.2 Sh~luba na nd Others v Nw amitwa 2009 (2) 66 at 70 -71. 32 No te 1 Para 783 Ibid. [Para 4 at 701 33 1997 (6) BCLR 708 Para 4.4 Nwam itwa v Phill~a nd Others 2005 (3 ) SA 536 (T). 34 1998 (1) SA 1300 (CC) Para 515 Note 2 539B-E. 35 2004 1 1 BCLR 1125 (CC) Para 27.6 Note 2 539G-541 B. 36 Mthem bu v Letsela and another 2000 (3 )SA 867 (SCA);Zondi7 Note 2 544E-546C. v President of th e RSA 2000(2) SA 49 (N); Bhe and Othe rs v8 Note 2 544G.9 Note 2 545B-F.10 Note 2 548E-H.11 Sh~lubana nd Others v N wam ~twa Com m~s s~onor Gender

Equality as Amic us Cunae) 2007 (2) SA 432 (SCA ).12 Note 1 Para 50.13 Note 1 Para 1.14 Note 1 Para 2.15 Note 1 Para 2.16 Section 21 l( 3 ) and Section 39(3).17 Sections 30 and 31

Magistrate K hayel~tsha nd O thers 2005(1) SA 580 (CC).ReferencesBronstein V 11998) 'Reconceptua l~sing the customa ry law

debate In South Africa' in S outh Af r~ ca n ournal of HumanR~gh ts, 4. 389.

Himonga C (2005) 'The advancement of African women'srights In the first decade of democracy in South Afr~ca:the reform of the customary law of marriage andsuccess~ on' n Acta Jundica, 82. 107.

Lehnert W (2005) 'The role of the court's In the conflict18 Per Langa DCJ tn Bhe and Othe rs v The M ag~strate, between African customary law and human rights' in

Khayelitsha and Others 2005 (1) BCLR 1 (CC) Para 41. South African Jou rnal of Hum an Rights, 21 : 24119 Section 2(3)(c). Ndashe S (2005) Hum an r~g hts, ender and culture - a deltberate20 See s4 of ch 2, and ch 5 of the Trad~t~ona leadersh~p nd confus~on?'n Agenda Specla1 F w s : Culture, 36.

Governance Framework Act 41 of 2003. Republic of South Africa. (1996) Con stitut~ on f the Republic21 "A trad~t~onalommunity must transform and adapt of South Afr~ca.Pretor~a:Government Pr~nter.

customary law and customs relevant to the appl~cation Van der Meide W (1999) 'Gender equality versus the rlght toof this Act so as to comply with the relevant p r~nc~p les culture' in South African L aw Journal, 116: 100.

DEVINA NADARAJAN PERUMAL is a Sentor lecturer in the Faculty of Law at theUniversity of KwaZulu-Natal, Durban, and Advocate In the High Court of SouthAfrica. Her research ~nterestsnclude issues in const~tut~onalaw, feminist legaltheory, anttdiscrimination law, multiculturalism and equality rights, and she haspublished in these areas. She serves on the Board of the KwaZulu-Natal Networkof Violence against Women and Children, and is also a Board member of AgendaFemin~stMedia. Email: perumald40ukzn.ac.za

110 AGENDA 84 2010

Documents

Harmonising cultural and equality rights