Harmful traditional practices, (male circumcision - Electronic Thesis ...

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limitation on the rights contained in section 31(1). 151 With regard to the
potential conflict between the right to culture and other fundamental rights, the
court in Mabuza v Mbatha 2003 (7) BCLR 743 (C ) made the following
submission;
“… any custom which is inconsistent with the Constitution cannot withstand
constitutional scrutiny. … The courts have a constitutional obligation to develop African
Customary Law particularly given the historical background referred to above.
Furthermore, … when interpreting any legislation, and when developing the common law
or customary law, to promote the spirit, purport and objects of the Bill of Rights.” 152
In this case, the plaintiff, in a divorce action sought a court order declaring
section 7(1) of the Recognition of Customary Marriages Act 120 of 1998 in
conflict with the constitution on the grounds that it violated the right to equality
as contained in section 9. Furthermore, the plaintiff sought a declaration that
the customary marriage between the parties be regarded as a marriage in
community of property. According to section 7(1) of the Recognition of
Customary Marriages Act referred to above, the proprietary consequences of a
customary marriage entered into prior to the commencement of this Act continue
to be governed by customary law 153 .
The determination of the constitutional validity of section 7(1) of the Act was left
for later determination in terms of an order made in terms of Rule 33(4) of the
Uniform Rules of the Court 154 . The court however, emphasized the need for
customary law to develop in conformity with the values in the Constitution 155 . In
151 See fn 143 above at p 21. See also Matshekga JN, “Quo vadis? A discussion of the
universalism-relativism debate in the light of male circumcision in South Africa” in SA Public Law,
Vol 18, No. 1, 2003, University of South Africa, at p 401.
152 paras 30 -31.
153 See Editor’s Summary on p 743.
154 Ibid.
155 para 31. See also Bhe and Others v Magistrate, Khayelitisha and Others; Shibi v Sithole and
Others; SA Human Rights Commission and Another v President of the RSA and Another 2005(1)
BCLR 1 (CC) at para 41 where the following was stated: