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Conference examines customary law in a transitioning SA society
Author: Corporate Communication and Marketing Division/Afdeling Korporatiewe Kommunikasie en Bemarking - Sandra Mulder
Published: 30/08/2021

​South Africa is transitioning from a grossly unequal society to one where there is equality between men and women, and between people of all races. So said Ronald Lamola, Minister of Justice and Correctional Services, in his keynote address at a Stellenbosch University (SU)_conference on customary law and social justice on 25 August 2021.

The Zoom event, hosted by Prof Thuli Madonsela, incumbent of SU's Law Trust Chair in Social Justice, attracted over 120 participants from both the public and private sphere, including government, the judiciary, academia, traditional leadership, and legal and civic organisations. Four conference panels explored themes such as the anatomy of customary law, the social-justice dimensions of customary property rights, gender equality and customary marriages, succession and inheritance challenges in traditional leadership, and gender-based violence in traditional communities.

Lamola assured the audience that South Africa's constitutional order remained committed to transforming society. Therefore, ongoing violations against women and vulnerable people were a cause for concern. “As South Africans, we know very well the crimes committed against women and vulnerable groups in our society. Some of these violations are perpetrated and motivated by customary practices," he said, with reference to practices such as ukuthwala, which allows females, particularly young girls, to be abducted and forced into marriages with older men.

The minister highlighted the advances made in customary law since the implementation of the Constitution of the Republic of South Africa, 1996. “Customary law only exists within the prescripts of the Constitution, which stipulates that customary law is protected. However, the rules of customary law must still be in line with the principles in the Bill of Rights, which protects the right to culture alongside the right to equality, non-discrimination and dignity," he said.

Lamola called on engagement platforms such as this SU conference to continue embedding the constitutional principles in South African society, educating people about their constitutional rights, and producing well-researched papers to help lawmakers and the courts craft a legal system that promotes social justice. “The Constitution, as the supreme law of the land, stresses the importance of redressing past injustices and achieving unity in diversity," he said. “The supremacy of the Constitution demands transformation in many areas of existing law, including customary law."

To date, various role players have helped shape and transform our customary law and cultural practices to conform to the Constitution, Lamola said. “Academics, researchers, the judiciary, traditional leaders and many others have been instrumental in aligning customary law with the Bill of Rights in particular," he said, and illustrated this with reference to cases concerning patriarchy and male primogeniture heard by the Constitutional Court. In the 2008 matter of Shilubana vs Nwamitwa, for instance, the Constitutional Court overruled the customary law forbidding females to become tribal leaders, allowing a woman from Baphiring near Rustenburg to succeed her late father as a tribal chief.

The minister also touched on other contentious customary laws concerning land rights, communal land ownership, the inheritance rights of women and children, and marriages. He concluded by reminding the audience that customary law was a “living law", which evolved and developed to meet the community's changing needs. This willingness to transform would be essential in facilitating the broad, systematic shift required in all aspects of society. “The status of women needs to be interrogated across the board. It is only through consistently probing the true status of women in our communities, our private spaces, our churches, the workplace and our economy that we'll be able to advance as a society," he added.

Main photo: A screenshot of Ronald Lamola, Minister of Justice and Correctional Services, while delivering his keynote address at a virtual (Zoom) conference of Prof Thuli Madonsela, incumbent of SU's Legal Trust Chair in Social Justice.​