Plus ça Change, Plus c’est la Même Chose…?

A considered view into the rights of persons in the context of South African common law over the last century, with emphasis placed on women's rights under the various systems.

The Issues with the Common Law

Our Constitution allows for the recognition of customary law and traditional institutions. It, however, fails to address conflicts stemming from different customs and laws. The customary law enshrined within our common law – the meticulous record of the evolution of persons and property through the wild legal world – seems to be largely ignored. 
In the case of Incorporated Law Society v Wookey 1912 AD 623 the Appellate Court held that the word “person” as contained in the Cape Charter of Justice did, in fact, not include women. Thus Miss Wookey was unable to become an attorney [1]. De Villiers J.P. held that as long as the law, as administered in the courts, imposed disabilities upon women, it would be impossible to say that the prohibition on the ground of gender would become obsolete [2].
South Africa was not unique in this regard. In a series of landmark cases in the 1870’s, the United States’ courts came to similar conclusions. In Bradwell v The State [1872] USSC 16; 83 U.S. 130; 21 L.Ed. 442; 16 Wall. 130 (1 December 1872) the judges opined that “God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth.” In the case of In re Goodell 39 Wis. 232 (1875) the judges concluded that “Discussions are habitually necessary in courts of justice, which are unfit for female ears. The habitual presence of women at these would tend to relax the public sense of decency and propriety. If, as counsel threatened, these things are to come, we will take no voluntary part in bringing them about.”
A century has passed since the Wookey case and we stand, mobile device in hand, ready to take another snap shot.

The Constitution

The Constitution provided for the realisation of fundamental human rights, and all persons have found legal independence and dignity of person. A person enjoys identity and the protection of that identity as well of the group that person choses to be a part of. The protection even extends to those who had no choice in their identity.
In Bhe and Others v Magistrate, Khayelitsha, and Others 2005 (1) SA 580 (CC) the Constitutional Court developed the common, as well as customary, law as it related to inheritance by including children born out of wedlock as heirs. The court held that customary law was “inconsistent with the Constitution and invalid to the extent that it excluded or hindered women and extra-marital children from inheriting property”.[3]
The rights of all citizens, and those who happen to find themselves within our borders, are clearly defined and ferociously guarded by the Courts. In light of the development over the last century, there can be no other way forward than the progressive realisation of rights.

A Culture of Disregard and Disrespect

Innes A.C.J., as he then was, in the Wookey case, enquired as to how a married woman can appear for another when she cannot appear for herself. This question was born out of the peculiar legal status that women, at the time, had under the Roman-Dutch law. The reply from the counsel for Wookey was simple and elegant – apply your mind and develop the law [4]. 
Have we?

Inkhosi Yinkhosi Ngabantu [5]

The Traditional Courts Bill was introduced in January 2012 and allowed to lapse in early 2014. Noted historian Jeff Guy hopes that the next version is drafted with adherence to human rights and equality as well a comprehensive understanding of what it means to be a person [6]. Under Apartheid, chiefs were appointed to the people and they stood as representatives of a flawed regime [7]. The current ruling party has endeavoured to develop this system by entrenching corrupted versions of customary institutions, which may have the effect of creating parallel sovereign traditional states. 
The Bill, rumour has it, will be reintroduced before year’s end. Guy notes that the Traditional Leader and Governance Framework Act allows for the recognition of chiefs as traditional institutions. It further emphasises the recognition of tribes and identifies the elite to govern them.
In this regard, Achille Mbembe has argued that:
By unilaterally determining the content of customary law, chiefs and traditional leaders are in a position to capture, for their own benefit, the profits from land sales, mining deals, development projects, restitution claims, and tourism and heritage ventures. Chiefs’ ability to extend their governing and taxation powers has been enhanced. As some provinces show, they are now in a position to demand the multiple levies of the apartheid years in exchange for issuing letters to people showing proof of residence.” [8]
At the September Land Summit, organised by the Department of Rural Development and Land Reform (“DRDLR”), the rural representatives made it clear that “tribalism” is to be abolished under land-tenure policy. The proposed policy, fiercely advocated by the DRDLR, seeks to transfer ownership of land in communal areas to traditional councils. This could ultimately mitigate any land claims disputes between the elite and the destitute.
In a Panel Discussion concerning the issue of Land Reform and Traditional Leadership, hosted by SACSIS later that month, it became clear that the drive towards a cultural domination is part of a broad agenda to entrench the rights of traditional leaders. On this occasion Jeff Guy argued that the majority of these rights were found nowhere in our custom or history. He added that the outcome would be detrimental to the living nature of custom and customary law.
At the same discussion a representative of more than 5000 rural women, articulated a narrative that described rural women being denied basic rights, before traditional institutions, on the grounds of gender. The instances in which women are being denied the right to appear before traditional councils or to claim their inheritance is ever more increasing. 

The People 

Public discourse has made it clear that entrenchment of apartheid tribalism will benefit no one but the elite. Entrenchment of patriarchal institutions will inherently discriminate against women. The perpetuation of a bifurcated democracy will see the people most in need of protection continue to be the most oppressed. In a strongly argued case, Mbembe suggests: 
After years of unsuccessful … initiatives, the ANC is crafting a neoVerwoerdian strategy it hopes will enable it to fend off left attempts to puncture the 1994 dispensation. It is now trying to further entrench chiefly powers in government policy and also aims to consolidate patriarchy in rural areas and extend economic powers to traditional leaders.” Nelson Mandela held fervently that “Never, never and never again shall it be that this beautiful land will again experience the oppression of one by another”.
It is time that we critically evaluate the content of South African customary law and only thereafter allow it the opportunity to take root in our Constitution, and not supplant it?
[1] Page 623
[2] Page 642
[3] Page 588 I
[4] Page 626
[5] “a chief is a chief because of people”
[7] We are not unaware of the remarkable contributions made by chiefs, most notably Chief Albert Lutuli.
Chris Pieters