Magazine article UNESCO Courier

South Africa: Blending Tradition and Change

Magazine article UNESCO Courier

South Africa: Blending Tradition and Change

Article excerpt

In South Africa's Herculean task of law reform, women's groups are in the vanguard of the movement to adapt traditional law to post-apartheid society

When former President Nelson Mandela married Graca Machel last year, their Western ceremony was simple and secret. But their customary marriage in the verdant hills of Xunu in the Transkei was treated like an occasion of state. Machel was welcomed in traditional dress by the elders of the Tembu clan in a ceremony beamed around the world. And Mandela's elders negotiated her bride price or lobola with Machel's Mozambican kin.

The event was significant for many reasons, yet above all, it moved traditional customs and laws from the fringes to the centre of South African society. It signaled a shift in power for customary law which the apartheid state treated as common law's "poor cousin".

A groundswell of innovation is underway to instill new authority, resources and dignity to customary law. Not only is the aim to correct historical injustice, but to rebuild trust in the criminal justice system and respect for the rule of law. The challenge lies in building a legal system which integrates common and customary law in line with the new constitution, enshrining such fundamental principles as gender equality. "The old, unequal relationship between common law as the big brother and customary law as the poor cousin is gone," says Professor Thandabantu Nhlapo of the South African Law Commission. "Both have to be judged in terms of the constitution." This harmonization process marks a major step in South Africa's Herculean task of legal reform. The first step lay in repealing apartheid laws. Next came the need to reconstitute the Law Commission, which was dominated by racist judges of the old regime. Now it must shape new laws to govern a new social order.

Customary law in South Africa has suffered similar travails to those of other African countries with a colonial past. Afrikaner governments inherited a dual legal system of common and customary law from British colonizers. They codified this mixed system into the Native Administration Act which in 1986 became the Black Administration Act - sculpted as a tool to divide, by fine-tuning the separate system of administration for blacks. Under the Act, customary law was tolerated so long as it wasn't deemed "repugnant" to common law, in which case it was nullified.

Swift, cheap justice

Yet customary law is probably the only form of justice known to many South Africans. About half the population lives in the countryside where traditional courts administer customary law in over 80 per cent of villages. The courts, which are also found in some urban townships, deal with everyday disputes like petty theft, property disagreements and domestic affairs - from marriage to divorce and succession. (The courts cannot impose fines of more than $6 and serious crimes are tried by formal courts.)

Justice is swift and cheap as the courts are run with minimal formalities and charge less than a dollar for a hearing. The judges use everyday language, and the rules of evidence allow the community to interject and question testimonies. These courts are close to the people who don't have the money or time to travel to towns for formal courts.

Yet the system is not without its critics - namely women, who are barred from serving as judges and often discriminated against as litigants. …

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