Customary law: If it can change, why can't Contralesa?

On 8 May, the Johannesburg High Court made a ground-breaking ruling. It declared that a woman who was taken in and treated as a daughter by another woman could inherit as her customary law heir. This is a reminder – just a small one – that we have not yet completely lost the plot when it comes to traditional leaders.

In 1992, the woman (only known as Ms K, to protect her privacy) was taken in by another woman in Soweto. She wasn’t just getting lodging, but an entirely new family. Ms K took the surname of the Soweto woman. All of this happened with the blessing of Ms K’s biological mother. The two lived together as mother and daughter for 15 years. In that time, the biological mother was barely in the picture at all.

In 2006, Ms K’s adoptive mother died intestate and without having formally adopted Ms K in terms of the Child Care Act 74 of 1983. She had no other biological or adoptive children. Furthermore, Ms K was now left with the responsibility of taking care of a disabled man and a 17-year-old girl, who had been looked after by the deceased woman.

Then a relative of the deceased woman showed up and on the basis that he was the nephew and therefore the natural heir, the estate should devolve to him. He made Ms K transfer the house into his name, began to remove some of the furniture and brought an eviction order for the three occupants.

That is when the Socio-Economic Rights Institute of South Africa (Seri) intervened. They argued before the court that, even though Ms K was never adopted in terms of the 1983 Act, she had been as far as customary law is concerned. In terms of the Customary Law and Succession Act, customary adoption practices are recognised and protected.

Dr Julian Brown, of the National Research Foundation Chair in Local Histories and Present Realities at the University of the Witwatersrand, gave expert evidence on behalf of Ms K. He told iMaverick that a major factor in the judge’s decision was the fact that the courts must now look at customary law as a living law that continues to change as it is applied in different circumstances.

Previously, customary law was accepted to be static, as noted by missionaries, African intellectuals and, in later years, the courts themselves. However, the Constitutional Court has ruled that customary law is fluid and varies from community to community, depending on specific cultural factors and customs, so whenever a court makes a ruling on a case based on customary law, it has to consider the context as well, not just the textbooks.

“The written form of customary law says that it is the male head of households who can adopt,” Brown said. “But since the courts have ruled that primogeniture is unconstitutional in most circumstances, Mrs K could be understood to have adopted Ms K. Since Ms K took her adoptive mother’s surname, participated in the funeral as  a daughter, and no other relative objected to the adoption for all these years, there is strong evidence that a customary law adoption took place.

“This application of customary law may not make sense if it was applied to 1840, but for the context in which it is being applied, that is how it should work,” Brown said.

“The Constitutional Court said that this is how customary law should be applied, but this must be one of the first times that a court examines customary law as it operates in urban areas.”

This stance of the courts will come as a relief to those worried about the erosion of rights in rural areas, where customary law applies a lot more than it does in urban areas. The Congress of Traditional Leaders of SA has been in the news a lot in the last few weeks, saying the laws permitting homosexual marriage in South Africa should be repealed. Contralesa secretary-general Setlamorago Thobejane said on the Redi Tlhabi show that constitutional protections of homosexuality should be removed, the government must repeal the Civil Union Act - which legalised same-sex marriages - and President Jacob Zuma should hold a referendum on the issue of same-sex unions because the majority of South Africans don’t support it.

Thobejane, who is the chief of the Bapedi ba Mmafefe in Limpopo, may perhaps have forgotten that it was the Constitutional Court that forced the hand of Parliament in the matter of same-sex marriage. The court ruled that it had the right to step in whenever a law (customary or civil) was blatantly unconstitutional.

Customary law comes under a lot of criticism for failing to protect the rights of women, especially in the rural areas. Princess NomaXhosa Sigcawu of the Gcaleka kingdom in the Eastern Cape had to go to the courts to force her family to recognise her as the rightful heir to the throne, which had been given to a nephew and not to her simply because she is a woman.

The president of Contralesa, Chief Patekile Holomisa, said at the time: “Legitimacy of ubukhosi [chieftainship] is derived from custom, not from the Constitution and the Bill of Rights. It is not automatic that a woman as the first-born is a successor. If a traditional council decides to go against the custom, the court can allow that, but we do not accept it.”

Unfortunately for Contralesa, and very fortunately for the millions who live on tribal lands under tribal authorities, the courts do not agree with this sentiment. The Constitution and the Bill of Rights apply everywhere. And it seems like the courts will continue to ensure that customary law is a “living law” and if Contralesa isn’t careful, they will find themselves in a situation where they are chiefs and kings in name only. Their own communities will not support them and the law they are supposed to be adhering to will be developed by someone else.

It’s started already – people are losing interest in tribal council elections. How long before they lose interest in traditional leaders? DM

Read more:

• Traditional leaders, the never-ending constitutional headache in Daily Maverick.


• South Africa: who controls the land anyway in Daily Maverick.

Photo by REUTERS/Mike Hutchings.