Constitutional and legislative development is critical to the ongoing evolution of customary laws in the country, says Justice and Correctional Services Minister Ronald Lamola.
The Minister said although the courts have made decisions that have impacted the way customary laws are interpreted, the State itself should do more to develop laws to guide the way forward.
“[We] can still do more in evolving customary law, particularly for us not to wait for the courts to give some kind of directive and interpretation. There are still challenges in society that relate to some [customary] practises, which I believe that through legislation, we can be able to intervene.
“It also speaks to the role that we have in terms of constitutional development as the State that should not only be left to the ConCourt. The State should continue to develop the Constitution to respond to the changing situations in society and to comply with the Bill of Rights,” Lamola said.
The Minister was speaking during a virtual conference on Customary Law and Social Justice hosted by Stellenbosch University on Wednesday.
One way in which customary law has an influence on the evolution of law is through the land ownership question.
“In relation particularly to the land question and customary law, we see an important transformation in our law, which we must sustain; which in effect, is moved away from State ownership to recognising communal ownership in terms of customary law. The transformation project therefore requires a fundamental reassessment. These exercises demand the attention and participation of us all.”
Lamola said although customary law is continuously evolving, it has also been historically misrepresented.
“The distortion of customary law did not arise only from the imposition of statutory ‘customary law’ under colonialism and apartheid. It also arose from the failure to recognise the nature of customary law and its dynamism in the face of changing circumstances.
“[Now] the courts are obliged by section 211(3) of the Constitution to apply customary law when it is applicable, subject to the Constitution and any legislation that deals with customary law. In doing so, the courts must have regard to the spirit, purport and objects of the Bill of Rights,” he said.
Lamola reiterated that the Constitution remains the supreme law of the country.
“Customary law can exist within the prescripts of the Constitution. The Constitution (Section 211) says that customary law is protected, but the rules of customary law must be in line with the principles in the Bill of Rights. The Bill of Rights protects the right to culture and also protects the right to equality, non-discrimination, and the right to dignity,” he said.
However, the Minister acknowledged that women’s rights have often been trampled upon in the name of customary law.
“As South Africans, we know very well the crimes committed against women and vulnerable groups in our societies. Some of these violations were perpetrated, motivated by some of customary practices. It is still concerning that in some areas in our country, females, particularly children, are still abducted in the name of ukuthwala. Women are still suppressed and forced into marriages in the name of ukungena.
“[We] need to educate society, help the law makers and the courts with our well researched papers to promote social justice by shaping our country with the laws that are in line with the supreme law of the land,” Lamola said. – SAnews.gov.za