South African Customary Law and Ethnicity: Challenges for South Africa

Vorster, L.P.

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Title:	South African Customary Law and Ethnicity: Challenges for South Africa
Author:	Vorster, L.P.
Year:	2001
Periodical:	South African Journal of Ethnology
Volume:	24
Issue:	4
Pages:	119-124
Language:	English
Geographic term:	South Africa
Subjects:	customary law constitutional amendments human rights women's rights children's rights Law, Human Rights and Violence Peoples of Africa (Ethnic Groups) Ethnic and Race Relations
Abstract:	This paper focuses on the effect of the constitutional transformation process envisaged for customary law in South Africa in order to meet the human rights values of human dignity, equality and freedom enshrined in the Constitution. Whereas human rights law emphasizes equality of people, South African customary law is underpinned by a descent system based on patriarchal notions of authority, implying that families and the community are represented by senior males as spokespersons. This feature is perceived by human rights activists to discriminate unfairly against women and children and is now outlawed as systemic discrimination by the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000. The promulgation of this Act suggests the outright eradication of practices perceived to be in conflict with the fundamental value of equality. The author concludes that this aggressive approach is not only culturally insensitive, but also shows a lack of tolerance for cultural diversity. The current approach may well have the effect of preventing people from embracing the fundamental democratic values perceived to be the cornerstone of a just and united nation. Drastic rather than gradual transformation of customary rules and practices perceived by cultural abolitionists and people in authority to be in conflict with fundamental and universal human rights will create legal uncertainty. Bibliogr., notes, ref., sum. in English and Afrikaans.