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.

Creativity and Individuality

In “Navigating Nairobi: Artists in a Workshop System,” another of the chapters of African Art and Agency in the Workshop, Jessica Gerschultz describes the entire Nairobi art scene as, in effect, a permanent floating workshop. In this system, she writes, “[a]n artist builds his or her career through contacts with other artists—who provide leads within the system and share materials, expertise, and space…. It is the reliance on this social network, and the skills gained therein, that outweighs dependency on any one institution or individual.” (221)

At first blush, all this is surprising. Aren’t artists thought to be engaged in deeply solitary exploration of their own creative resources? If that picture of creativity is accurate, then the artist’s skillful maneuvering through the many levels of the Nairobi workshop seems more likely to interfere with his or her art than to enhance it.

But I’m realizing that the idea of the artist as deeply solitary is at best misleading. The artist may indeed be drawing on deep interior sources, but that’s not all he or she draws on. If it were, we wouldn’t all recognize, indeed take for granted, the existence of artistic schools and eras. Those shared esthetics don’t arise by accident; they’re the result of artists’ encountering each other’s work, and each other. As Till Förster, another contributor (and co-editor) of this volume says, a workshop “is often the place where artists become familiar with the aesthetic perceptions and normative expectations of others—be they fellow artists, teachers, or critics.” (“Work and Workshop: The Iteration of Style and Genre in Two Workshop Settings, Côte d’Ivoire and Cameroon,” at 326). In the world of twentieth-century English literature, my father, Richard Ellmann, once wrote a book, Eminent Domain: Yeats among Wilde, Joyce, Pound, Eliot, and Auden (1967), about the ways great writers engage with each other, which begins (at 3): "'Influence' is a term which conceals and mitigates the guilty acquisitiveness of talent." 

But there can be too much of a good thing, or rather too much social communication for the fostering of creative variation. As a general proposition, it seems safe to say that the more all-encompassing one’s social environment, the more one will conform to it. So in an Egba Yoruba family workshop, described by the anthropologist Norma H. Wolff in another chapter of this volume, “the imagination that fueled creativity imposed boundaries on innovation so that iteration of the family style was predictable.” (“‘A Matter of Must’: Continuities and Change in the Adugbologe Woodcarving Workshop in Abeokuta, Nigeria,” at 310). Förster also reports, by the way, that among the Senufo of northern Côte d’Ivoire, the carvers’ community is so significantly culturally differentiated from the larger group as to reasonably be described as a “tiny ethnic group living among the farming majority.” (Förster at 330.)

In that light, the Nairobi floating workshop begins to look like a very good way to foster fresh invention. Artists there, as everywhere, exist in a social situation – but in Nairobi there may be so many groupings and subgroupings, and so much freedom to move among them, that the artist is free, in fact obliged, to find the subgrouping of his or her choice. And even then the Brownian motion of the many component parts of this scene may guarantee that change is constant.

In today’s world, “what fosters change” is almost equivalent to “what is good.” It is worth remembering, though, that the striking works of African traditional art often seem to have been the product of cultures where much of what was to be admired was the faithful reproduction of the models handed down from the past. In the world in which that art was made, creativity was not absent; perhaps it flowed more slowly from generation to generation and yet very deeply.

Two days ago the Supreme Court decided, in Association for Molecular Pathology v. Myriad Genetics, Inc. (No. 12-398, decided June 13, 2013), that human genes can’t be patented. I’m glad the Court reached this decision, mainly for the nonlegal reason that it seems wrong, and creepy, for anybody to be able to own part of the human genome.

I’m also inclined to think that what people apparently can own is enough to encourage the genetic research we hope will bring us many benefits, without the symbolic or moral problems of making our own genes patentable. The Court decides that something called “complementary DNA” (cDNA), which essentially is DNA minus those components (“nucleotides”) that don’t contribute to the production of proteins in the body, is patentable because it’s a new thing rather than the original human gene. The Court also suggests that valid “method claims” could be made for ways to solve the scientific involved in finding particular human genes (we have about 22,000 in all, according to the Court’s opinion), as well as valid “application” claims for the use of knowledge about these genes, and – the Court explicitly doesn’t rule on this one – that perhaps it would be permissible to patent genes that scientists have altered.  It’s worth adding, though, that if all of this can be owned, the symbolic force of the statement that the human genome can’t be patented is somewhat diminished.

But what strikes me most about this decision is that although it purports to be an interpretation of the patent statute, the methods of interpretation applied to the statute are quite odd. The Patent Act’s Section 101, 35 U.S.C. § 101, as quoted by Justice Thomas in his opinion for the Court, says that:

Whoever invents or discovers any new and useful … composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

What Myriad Genetics did was to locate two genes – the BRCA1 and BRCA2 genes, which when they mutate can drastically increase women’s vulnerability to breast and ovarian cancer. There was an argument that Myriad had created a new chemical molecule consisting of just the elements of these genes, but the Court firmly rejects this argument, saying that it’s clear that what Myriad is trying to patent is not a new molecule but the identity of these genes.

Is a newly identified gene a "new and useful ... composition of matter, or any new and useful improvement thereof," as the statute requires? Arguably, yes. If matter is transformed from incomprehensible to comprehensible, one might say that it has been improved - from the point of view of us comprehenders. So, too, if a radio signal distorted by static is separated into meaningful and meaningless components, it has been "improved" - somewhat as the immense body of DNA molecular information has been broken apart so as to tease out these grimly meaningful genes. The statutory language doesn't easily fit this reading, I’d say, but it doesn't preclude it either.

But what drives the opinion isn’t, as least as the Court presents its reasoning, that kind of syntactic analysis. Rather, the Court follows its quotation from the Patent Act immediately with the observation that “we have ‘long held that this provision contains an important implicit exception[:] Laws of nature, natural phenomena, and abstract ideas are not patentable” (slip opinion at 11; emphasis added; bracketed colon in the original). I added the italics precisely to emphasize the point that this exception is not in the text.

The court then observes that this limit is itself limited, "for 'all inventions at some level embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.'" So the Court sees its task as applying a "well-established standard" - the delicate balance between encouraging innovation and stifling the flow of knowledge - to determine whether Myriad has or has not created a "new and useful ... composition of matter." All this seems quite reasonable, but none of these propositions is explicitly stated in the statute.

But here's the last oddity. Having declared that the ultimate, not textually declared, issue is the proper balance between incentives to invent and freedom of information, the Court doesn't seem to undertake that weighing directly. Instead, it focuses on arguing that Myriad's discovery, which everyone agrees revealed information about the body rather than creating new physical processes or things, simply isn't a "new ... composition of matter." In contrast, cDNA, which is made based on DNA and so arguably "dictated by nature," is not the same as nature. "[I]t is distinct from the DNA from which it was derived," and therefore patentable.

I find myself rather sympathetic to Justice Scalia, who filed a very brief concurrence in the result but not the reasoning of the case. He doesn't complain about the court's seeming assertion of and then disregard for broad atextual principles. He does say, however, that the Court has waded too far into biology as a basis for decision, and that for him the case turns simply on whether what Myriad wants to patent is or is not "identical ... To the natural state." That standard one can get, pretty straightforwardly, from the text's requirement that whatever is patented be "new."

So what’s startling about this case is that it asserts that the interpretive task is defined in terms that the statute by no means spells out – a somewhat unorthodox interpretive stance in many other fields of today’s legal world, and certainly unorthodox for Justice Thomas – but then it seems to go back to the text to do the work of decision. Apparently the language the court uses to describe its role is conventional in the field of patent law (a field on which I’m no expert!). Still, it’s often observed that judges cloak their innovations in the language of orthodoxy. This case almost seems to cloak orthodoxy in the language of innovation.

Must a court order be precise? Well, no, clearly not. To name what’s probably the most prominent US example of imprecision, the Supreme Court in Brown v. Board of Education II ultimately ordered that the school segregation cases before it “be remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.” Whether "all deliberate speed" was a wisely chosen (as well as imprecise) directive has been the subject of a great deal of debate. 

But in any event it’s one thing for a court to order the implementation of a profound constitutional mandate, and another for it to order the payment of a sum of money. For the latter, we might think, precision is simply essential – so essential that if it’s not possible for the court to specify the exact amount to be paid, then the court just can’t grant a remedy in the matter at all.

South Africa’s Constitutional Court, however, has recently disagreed, though on a closely divided vote (6-4). The Court concluded, in In the matter between Kwazulu-Natal Joint LiaisonCommittee and Members of the Executive Council, Department of Education,KwaZulu-Natal and Others (decided on April 25, 2013), that the provincial government of KwaZulu-Natal, by sending a notice to private schools stating the approximate subsidies it would pay them in 2009, had made an undertaking to pay those amounts, and that after the date for that first quarterly payment of the subsidy had come and gone, it was too late for the government to revoke its commitment as to the first quarter’s amount due. (¶ 48) That in itself was quite a bold decision, since it might have been argued that the government’s initial notice was a guide to expectations but not a binding commitment.

What’s most striking, however, is that the Court agreed that the government’s commitment was not to an exact sum. Instead, the circular in question had promised a subsidy at the “approximate funding levels” it stated (bold font and underlining in the original). (¶ 3) Having decided that that promise was binding for the first quarter of the year, the Court next faced the question of exactly how much the promise promised. The court answered, and ordered, that the province was obliged to pay “the approximate amounts specified in the notice.” (¶ 78)

Justice Zondo, in dissent (¶¶ 161-80), vigorously argued that that order was unacceptably imprecise. Certainly he was right that the order was imprecise, and the Court didn’t disagree. What the Court did say was that the province was obliged to pay “the approximate amounts,” and that the province was “obliged to engage with the schools” to agree on what the approximate amounts actually would be. What if they couldn’t reach agreement? Then the schools could return to court to litigate further. (¶ 75) I imagine the Court felt quite confident that the parties in fact would not feel it worth their while to return to court to fight over some presumably small area of difference between them. Surely the Court also hoped that the process of engaging with each other over the meaning of “approximately” would help the contesting parties to bridge their differences and to work together more fruitfully in the future.

The Constitutional Court has urged parties to engage with each other in other contexts as well, in particular in the fraught conflicts over housing that are a major area of legal struggle in South Africa today. In extending that approach to the field of school funding, the Court has in effect said that precision is a notch less integral to law than it might previously have appeared. And the Court is right that not all law is precise (though some of it is), and further right that no landmark identifies the exact boundaries between the precise and imprecise elements of a legal system. Whether this particular extension of the domain of the imprecise will ultimately prove workable is something only experience will answer.