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women at a local community level, which include
many indigenous women. This is a seemingly counterintuitive
position, as Claassens and Mnisi 4 point out:
Women’s rights activists and lawyers in Africa have
tended to treat the customary arena as inherently
dangerous to women’s interests, pointing to the frequency
and regularity with which the discourse of
the customary is used to disempower women and
bolster patriarchal interests. [...] In this context,
strategies to secure women’s land rights in Africa
have tended to avoid the customary law arena in favour
of formal legal initiatives such as the registration
of joint land titles for both spouses. However,
these legal strategies have also proven to be problematic.
Titling programmes are often captured by elites
and used to entrench the position of those with formal
rights (mostly men) at the expense of overlapping
‘secondary’ entitlements vesting in women,
especially unmarried women. Further, strategies
that focus on attaining individual ownership for
women have been criticised as relevant only to small
numbers of middle class women and for failing to
articulate with the concerns of women whose survival
is embedded within a web of reciprocal family
and community relationships, for whom the protection
and preservation of the land rights vesting in
the family or group may be a priority.
The significant difficulty of accommodating customary
law systems alongside state law has to do with the
nature of these systems. Customary law is not a unified
and static body of law that existed at a certain
point in history but rather a system constantly evolving
and adapting to its environment – which is precisely
why these systems have been so resilient in the
face of colonial and apartheid distortion.
Mnisi and others have acknowledged that “living
customary law” must be seen as distinct from official
customary law. To quote Mnisi, 5 living customary law is
a “manifestation of customary law that is observed by
rural communities, attested to orally. Although the term
‘living customary law’ gives the impression of a singular,
unified legal system being the referent, this term actually
points to a conglomerate of varying, localised systems
of law observed by numerous communities”. Official
customary law, on the other hand, is that which is
denoted by state law. She further argues that customary
law, as protected by the South Africa Constitution, refers
to both official and living customary law.
Significantly, a discussion on the nature of customary
law and its relation to state law has been opened
in the South Africa courts in the context of land tenure,
starting with the Richtersveld 6 case and recently
furthered in Tongoane 7 where the Communal Land
Rights Act was found unconstitutional in its entirety
in May this year.
In Richtersveld, the Supreme Court of Appeal held
that:
It is important to note that indigenous law is not a
fixed body of formally classified and easily ascertainable
rules. By its very nature it evolves as the
people who live by its norms change their patterns of
life. … In applying indigenous law, it is important
San woman speaking in a south African village – Photo: Paul Weinberg
24 Indigenous Affairs 1-2/10