African customary law and constitutional rights in post-apartheid South Africa

South African lawmakers and courts have been wrestling for almost 20 years now with the task of treating customary law as fully a part of South African law. Basically, that task has two different elements, which are in some tension with each other: one is to respect African customary law as law, entitled to the same recognition and enforcement as European-based law, and the other is to subject African customary law to the constitution, again just as European-based law is.

Accomplishing both of these at once is not a simple matter, any more than striking the proper balance between judicial enforcement of constitutional rights and the people’s right to govern themselves ever is. If anything, the problems in squaring customary law with the constitution are somewhat harder. 

One reason is the sheer difficulty of ascertaining what customary law is. Judicial opinions and academic commentary of course make it very clear that the meaning of many familiar phrases of Western law is at least ambiguous – take the freedom of speech, for example, or the right to the equal protection of the laws, or the definition of negligence as a failure to take “reasonable” care.  But these are (mostly) debates over the meaning of legal rules, not over what the rules actually are.

With customary law, however, the question of what the rules actually are seems to be very much on the table. Customary law isn’t laid down in statutes or in court decisions; those are the instruments of formal lawmaking rather than of law that is the expression of a community’s congealed rules of life.

Apartheid-era efforts to formalize customary law didn’t go well. The whites who controlled the processes of formalization – court decisions or statutory codifications – probably neither knew well nor much respected the customs they purported to codify. Moreover, as whites formalized customary law they interacted with the Africans they governed, so that the customary law that came to be recognized was not a mirror of ancient custom. Rather it was the result of an interaction between whites and blacks in which people maneuvered for advantage: as the historian Martin Chanock has written, “customary law was not the dead hand of tradition, but represented the responses of living interests, though channeled in special ways, to new developments.” (Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia 237 (republished 1998)).

Even when all these problems are pulled away, finally, there is a fundamental conundrum: in principle law that consists of custom cannot be fully codified, since the moment the custom departs from the codification the “customary law” should depart from the codification too.

Now the fact that customary law fundamentally rests in custom wouldn’t be a problem if everyone knew the customs in question. But there are two difficulties with this idea. First, who is “everyone”? That is, what group is it whose customs are to be recognized? South Africa has a number of large African ethnic groups, but these groups have subgroups. Those subgroups in turn could have subsubgroups; how small can a social unit be and still have customs that should be recognized as law?

Second, within the relevant community, will everyone agree on what the customary law rule is? It's safe to predict that the answer will often, perhaps usually, be "no." Customs seem bound to resemble other social norms - most people will agree on some core propositions, but the further we move from that core the greater the disagreement. Inevitably, people read their social environment in somewhat different ways, for a myriad of reasons including experience and perception and calculation.

Both of these difficulties – the definition of the relevant community and the potential for disagreement among community members – were illustrated in the recent Constitutional Court decision of Mayelane v. Ngwenyama and Another (CCT 57/12, decided May 30, 2013). There the Court sought to determine whether customary law of the Vatsonga, the Tsonga people, required a husband in a customary law marriage to obtain his first wife's consent before marrying a second wife, in order to determine whether Mr. Hlengani Dyson Moyana, who died in 2009, had been married to Ms. Ngwenyama, the first respondent in the case. The majority (after calling for new evidence to be submitted directly to the Constitutional Court) concluded that the evidence - from the views of community members to those of experts – did not provide an answer, though the majority maintained that “[t]he perspective we gain from the evidence is not one of contradiction, but of nuance and accommodation.” (¶ 60) In the end the majority decided that it was clear that under the Vatsonga’s customary law the husband at least had to inform his first wife, and invalidated the supposed second marriage to Ms. Ngwenyama because there was no evidence the husband had done so. (¶ 87)

Meanwhile, three other members of the Court, in a judgment written by Jafta J, would have found that the customary law of the particular community in question required the first wife’s consent, and would have invalidated Ms. Ngwenyama’s marriage on that ground. (A fourth justice, Zondo J, also took issue with the majority’s use of the evidence; he too, however, would have invalidated Ms. Ngwenyama’s marriage.) Justice Jafta and his colleagues argued that those witnesses who maintained that the first wife’s consent was not required did not say “that the custom, as known to them, is practiced and followed by the applicant’s community which is relevant to these proceedings.” (Opinion of Jafta J, joined by Mogoeng CJ and Nkabinde J, ¶ 139) They continued: “It is not unheard of that within the same broader group of African people we find customary law rules which differ. This may occur as a result of development that takes place in various communities within a group.” (¶ 140)

Once the relevant law is discerned, as clearly as possible, the remaining question is whether it needs to be changed. In this case, the majority went on to try to clarify matters for the future by “developing” the customary law. (It’s striking that the majority ruled only prospectively in this regard, in order to avoid disestablishing marriages from years past. (¶ 86)) The majority ruled that henceforth customary law must require the first wife's consent as a prerequisite to additional marriages by her husband – “to the extent that it does not yet do so.” (¶ 75)

But the majority left for another day the question of whether a husband seeking to marry a third or additional spouse had to obtain the consent of all the current wives (¶ 84) – though Justice Jafta argued that “[t]o require the consent of the first wife only is not consistent with the equality clause.” (¶ 144) The majority also steered clear of any ruling on the constitutional problems involved in the obvious gender inequality of permitting husbands to have multiple wives while limiting wives to a single husband. (¶ 70) Figuring out what customary law is is hard; figuring out whether and how to change it to conform to constitutional rights is at least as difficult.

"For Martin Chanock: Essays on Law and Society"

Hot off the presses: “For Martin Chanock: Essays on Law and Society,” Volume 28, Number 2 of the Australian journal Law in Context, available here. I edited this issue, with Heinz Klug and Penelope Andrews, and all of us were very pleased to have the chance to help celebrate the work of Martin Chanock, a remarkable historian of African and South African law, and someone we’ve known and liked for many years.

For those who are interested, the editors’ introduction frames the issue and discusses the eight articles which appear in it, all of which respond in one way or another to Martin’s wide-ranging work. We also quote the eloquent personal tribute to Martin from Jianfu Chen, the former Head of School at La Trobe University School of Law, where Martin is now an Emeritus Professor; Jianfu said that Martin exemplified “decency,” and explained that “the seemingly easy task of being a decent person demands the output of the highest quality of human beings: honesty, integrity, passion, and compassion.” (Page 6)

I also wrote one of the eight articles, “A Bittersweet Heritage: Learning from The Making of South African Legal Culture.” Martin’s book, whose full title is The Making of South African Legal Culture 1902-1936: Fear, Favour and Prejudice (2001), is (I said) a “deeply unsettling …. argument that race was at the heart of the entire enterprise of South African judging, not only the regrettable decisions but also the admirable ones.” (Page 76) I am inclined to think that this argument is correct, provided it is understood as a systemic observation rather than an appraisal of each and every judge – since there were individual, remarkable judges who waged legal battle against apartheid even as they held office under it. In the article I sought first to understand how Chanock’s argument could indeed be true, or more precisely to understand how even upright judges, capable of decisions that helped preserve the claims of human rights through very dark days in South Africa, were nevertheless people of their time and not somehow disconnected from its appalling problems.

But then I asked whether it followed, if Chanock’s appraisal was correct, that the right response today, as South Africa seeks to eliminate the taint of racism in its law and its life, is to disestablish entirely the institution of judging as it was practiced before the end of apartheid. My answer to this question was and is “no.” The old system’s formalism, with its “austere, independent judiciary, engaged in determination of outcomes through the application of a highly rationalised and complex logical process” (page 84), certainly needs reshaping. Its elitist manner should be diminished and its substantive reasoning made to rest on the new egalitarian liberty embodied in the constitution – changes that the Constitution, and the Constitutional Court, have aimed to accomplish. But the fundamental stance of judicial objectivity, the aim of judging “without fear, favour or prejudice,” the commitment to the idea of judges as experts on the law – all these, I urged, are both a kind of formalism and integral to liberty, in South Africa and throughout the world.

I’ll set out here the last few lines of the piece (page 88):

If the courts are to listen, and to help shape a country in which other government actors also listen, then perhaps what South Africa needs is not to beware of formalism but to beware of formulas. Let us seek a constitution of no slogans, in which courts – continuing their historic role of providing a measure of independent judgment about society – deepen their contribution by being as sensitive as possible to the entitlements, and imperfections, of all who come before them.

And the other seven articles are interesting too!

On figuring out what customary law is, especially when it's changing

(With apologies for two months of non-blogging!)

Back from a conference in Cape Town honoring Martin Chanock for his distinguished work on South African legal history, customary law and legal education, I'm realizing that the task of making customary law part of a Western-style legal system -- as South Africa's constitution envisions -- is truly complex.

If customary law were written down, of course, it would be easy to apply it in the same courts that apply common law principles, statutes, and constitutional requirements every day. But if customary law is written down, it risks becoming detached from actual custom -- as indeed happened, notoriously, as whites created a body of customary law adjudication and legislation in the 19th and 20th centuries.

So, too, if customary law were definitively pronounced by a particular person, such as the chief, or by a particular body, such as a council of elders, then its contents would be readily determinable. But if customary law truly is the law created by custom, then it is entirely possible that even if custom at one time conferred such law-pronouncing power on the chief or the council, the custom has now shifted -- and because of that shift, the chief or the council no longer actually have customary sanction for declaring what customary law is.

Or another variation: Suppose that the chief, for instance, is still empowered by custom to make rulings about the content of customary law. But custom also makes clear that the chief's task in this process is not to make the law he (or she) prefers, but to discern the law that has evolved from the customs of the community. How should the chief go about doing this? At this point the chief is in something of the same position as the Western-style judge, though the chief has the substantial advantage of actually being closely familiar with the customs of the community (and the potential disadvantage of having his/her own personal or political interests quite directly at stake): for each of them, the problem is that the customs in question may be unclear or may be in the process of changing.

If a community at one time held a custom of, say, male primogeniture in inheritance, how would someone -- its chief, or a judge of the South African High Court -- tell whether that custom still held, and still had the force of law? If most of the community no longer adhered to the custom, would it no longer have the force of law? Perhaps the answer is obviously yes (that it would no longer be law), but what if most members of the community still declared the point to be a customary rule, and tried to cover up the moments when they themselves departed from the rule? Or what if most members of the community said they weren't sure if the custom was still part of their law, while the rest of the community asserted that it definitely was? Or what if current members of the community were divided in their views, but the chief, or the judge, was convinced that one view fitted much better with the accumulated history of the group than the other view did?

I imagine there are many variations on these questions, variations that are actually arising in real South African communities, and perhaps in many other nations where customary law remains important. (There may well be analogous questions in connection with the customary law of nations -- but I won't try to pursue that issue here.) There don't seem to be any obvious solutions, least of all for judges who aren't very familiar with the customs whose actual content and legal force they are attempting to grasp. It would be convenient if the problems could simply be handed over to traditional leaders such as chiefs, but that solution is logically a circular one if the extent of the traditional leaders' authority is itself one of the controverted issues of customary law. It's also problematic to the extent that chiefs' power, even if uncontroverted in terms of tradition, is subject to constitutional challenge for its inconsistency with constitutional liberties now guaranteed to South Africans in every context of their lives.

Perhaps the best that can be said is that a society committed to honoring customary law must begin by paying very close attention to it, and to the various views of it that different members of customary communities express. A good deal of South African law constitutional law now seems to be aimed at generating that kind of close attention to the actual views of actual, previously unheard, people -- and that effort is exactly on target.