When the courts do that, something begins to confront us to redirect the focus of our law to speak and reflect the cultural philosophy of its diverse people, no matter how much we like to look away, says the writer.
Nkosikhulule Nyembezi
Vehemently disagreeing comes naturally to many of us and the fraught times we live in often make it seem easier to find divisions than bridging points.
But as noble as it is to stand up for our beliefs, there is also a wearing quality in being defined by our disagreements.
From the African customary law of succession, which deals with lineage progression and succession to the role, status and responsibilities of the deceased and the administration of the provident care of the family in a way that promotes social cohesion, to the common law of succession where the focus is on the transfer of property rights or assets of the deceased, the spats and blame games are easier to start than end.
More people are beginning to see it. Not clearly, but something is coming into view on the 30th anniversary of our democracy.
Think about court decisions that laudably promote gender equality and keep customary laws in line with the dynamic nature of society, as envisioned by the Constitution, but simultaneously raise questions about whether they are disconnected from sound African philosophy and, therefore, missed perfect opportunities to introduce an Afrocentric constitutional interpretative approach to developing customary law.
Think about court decisions in which, by using a common law individualistic approach to give effect to human rights instead of appreciating the communalistic nature of African societies anchored in the philosophy of uBuntu or isiNtu, the court unintentionally created more problems than it intended to solve as the consequences saw many African families’ legacies become extinct.
When the courts do that, something begins to confront us to redirect the focus of our law to speak and reflect the cultural philosophy of its diverse people, no matter how much we like to look away.
From August 20 to 21, the Centre for Legal Integration in Africa at UWC and the Department of Private Law at UCT convened a conference of jurists, scholars and practitioners to reflect on the impact of the Constitutional Court decision in Bhe and Others versus Khayelitsha Magistrate and Others (decided on October 15, 2004).
Together with colleagues Anthony Diala, Fatima Osman and others, we felt that, most importantly, the Bhe case was more than about just a widow from Khayelitsha who could not inherit her husband’s estate, and neither could her two minor daughters at the time inherit from their father’s estate because of their gender.
The judgment invalidated the rule that only the eldest male heir could inherit from the estate of a deceased family head, making it arguably the most significant judicial intrusion in African customary law since the end of apartheid. It has inspired law reforms and considerable scholarly commentary.
It initiated and influenced legal discourse on the role and place of customary law, including the judiciary’s constitutional role in developing customary law.
It also challenges a broad examination of its impact on the interaction of laws in South Africa, the pattern of the law reforms it has inspired, what law reformers should have done differently and how traditional communities have embraced the reforms.
A joke and a scholarly argument by Diala and others about how “our laws are better than yours” in discussions on the future of legal pluralism in South Africa sparked the idea of a conference that focused on why people hold the views they do about the consequences of the Bhe case, and what it might feel like to have convictions different from our own drawing from 20 years of experience.
In my interactions this week and beyond, I anticipated that people would not always see eye to eye. But my sense is that each time, they will leave with a better idea of why someone opposed to their opinion feels so strongly and find ways to affirm aspects affirming African customary values.
That is a small leap forward.
* Nyembezi is a researcher, policy analyst and human rights activist
Cape Times
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