CULTURE, TRADITION, CUSTOM, LAW AND GENDER EQUALITY

MJ Maluleke*

Culture is like an umbrella under which some people like to hide from rain, and also
to shade themselves from the sun. But sometimes you need to fold it.**

1 Introduction

Traditional cultural practices reflect the values and beliefs held by members of a
community for periods often spanning generations. Every social grouping in the
world has specific traditional cultural practices and beliefs, some of which are
beneficial to all members, while others have become harmful to a specific group,
such as women. These harmful traditional practices include early and forced
marriages (Ukuthwala as practised currently), virginity testing, widow's rituals, 'u ku
ngena' (levirate and sororate unions1), female genital mutilation2 (FGM), breast
sweeping/ironing, the primogeniture rule, practices such as 'cleansing' after male
circumcision, and witch-hunting.

Despite their harmful nature and their violation of national and international human
rights laws, such practices persist because they are not questioned or challenged
and therefore take on an aura of morality in the eyes of those practising them.

* Mikateko Joyce Maluleke. Advocate of the High Court; Director in the Gender Directorate;
Department of Justice and Constitutional Development (Republic of South Africa). Presentation
delivered at the Conference of the South African Chapter of the International Association of Women
Judges (SAC-IAWJ) in partnership with the North-West University (Potchefstroom Campus), Faculty
of Law, Potchefstroom; LexisNexis; Juta and Do: Gender Directorate entitled "Equal access to
Education and Training for Women: Pathway to Decent work for Women", on 12-13 August 2011 at
Potchefstroom, South Africa.
** Ramphela "Speech".
1 Levirate unions occur when the deceased's surviving male relative inherits the widow of the
deceased. Sororate unions occur where the widower is inherited by the deceased wife's
surviving female relative. The inherited widow or widower becomes the wife or husband to
the surviving relative of the deceased.
2 FGM is not just the cutting of the clitoris; it includes disfigurement, and the changing of the form or
elongation of the labia as practiced by Tsonga and Sotho communities.
MJ MALULEKE PER / PELJ 2012(15)1

The purpose of this article is to discuss21the impact of culture, 3 tradition4 custom5 and
/ 428
law on gender equality. However, before the article discusses that matter it will
examine the influence of colonialism6, imperialism7 and apartheid on the African
culture, traditions and customs with particular reference to South African culture,
traditions and customs. This will include a brief review at what really constitutes
African culture, tradition and custom, and what is a colonial or imperial construct
which is now regarded as African culture, tradition and custom. It will be argued that
the primogeniture rule8 is not an original African cultural principle but a colonial and
imperial construct. In our dialogue about the revival of our culture, tradition and
customs we need to interrogate what is African and what is a colonial or imperial
construct.

The presentation will demonstrate that law reform and development have
traditionally focused on reforming state legal institutions to the exclusion of
customary legal systems, and that where the courts had an opportunity to develop
the customary legal systems they either reinforced archaic customary laws or
imposed western ideology. It will show that pre-colonial and pre-apartheid African
culture, traditions and customs were based on Ubuntu. It will conclude by showing
that harmful traditional practices, as outlined previously, are a violation of women's
human rights as guaranteed in the Constitution, perpetuate the inequalities between
women and men, and contribute to the extreme poverty that government is trying to
eradicate.

3 Culture is a combination of the ideas, customs and social behaviour of a particular people or society
(Weiner and Simpson Oxford English Dictionary).
4 Tradition is the transmission of customs or beliefs from generation to generation; it is a long
established custom or belief that has passed from one generation to another (Weiner and Simpson
Oxford English Dictionary).
5 Custom is a traditional and widely accepted way of behaving or doing something that is specific to a
particular society, place or time; it is things done habitually (Weiner and Simpson Oxford English
Dictionary).
6 Colonialism is the establishment, maintenance, acquisition and expansion of colonies in one
territory by people from another territory (Wikipedia [date unknown]a en.wikipedia.org).
7 Imperialism means creating an empire, expanding into the neighbouring regions and expanding
dominance. Its origins date back to the Romans. It involves political and economic domination of the
other (DifferenceBetween.net [date unknown] www.differencebetween.net). Imperialism takes the
form of political control and creating economic dependence.
8 The primogeniture rule is the right, by law or custom, of a firstborn to inherit the entire estate, to the
exclusion of younger siblings (Wikipedia [date unknown]c en.wikipedia.org).
MJ MALULEKE PER / PELJ 2012(15)1

21 / 428
2 Background

African culture has experienced rapid change since the colonial invasion.
Contemporary African culture is a mixture of traditional elements and alien features.
Local African culture was oppressed for many years by white South Africans, who
find their cultural roots in western countries. Western cultures tend to be more
individualistic and focused on individual achievements and personal interests,
whereas African cultures are collectivistic, group-oriented, and concerned with the
welfare of their community.

Native law was officially recognised in 1848, but only insofar as it did not infringe on
the humanitarian principles of 'civilised society' understood to be 'white society' in
that day.9 The aim was to maintain control over African people. The strategy adopted
was to manipulate the way of life through the codification of customary law, as seen
from the eyes of the colonisers. Many research reports and scholarly writings have
revealed that customary law and its practices have been tampered with. Writers such
as Prof Chanock and others argue that:

Although there is the view that colonialists 'invented' customary law as a way to
govern natives while under the auspices of paying tribute to their culture and
heritage, some other writers have argued that customary law was not so much
'invented' by them, but 'manipulated' so as to conform the actual practices of the
natives to their westernized ideals as part of their 'civilizing mission'. These writers
prefer to view the colonial influence more as 'imagination', rather than 'invention'.10

However, due to the living nature of customary law, there is one African principle that
colonialism and imperialism could not manipulate, i.e. Ubuntu. All Africans,
particularly indigenous Africans, will tell you that our parents always taught us about
Ubuntu. (It is not clear whether current parents are passing on the baton or not).
Ubuntu means, 'I am what I am because of who we all are'. Ubuntu underscores the
importance of agreement or consensus.

9 Wikipedia [date unknown]b en.wikipedia.org.

10 Wikipedia [date unknown]b en.wikipedia.org.
MJ MALULEKE PER / PELJ 2012(15)1

The overall concept of Ubuntu values

21 / people
428 as a community, rather than as
individuals. The Zulus and other peoples have a saying, 'umuntu ngumuntu
ngabantu', which means a person is a person through other persons. It is a
humanistic way of life which holds ethics and morals at the forefront of everything. All
African cultural, traditional and customary practices, including those pertaining to
women and children, were based on Ubuntu. The following section will look at the
international and national legal framework regarding cultural, traditional and
customary practices, and gender equality.

3 The international legal framework and the South African Constitution

South Africa is a member of the international community, and since the advent of
democracy has ratified, signed or acceded to many treaties, including the
Convention on the Elimination of all Forms of Discrimination Against Women
(CEDAW) which was ratified by South Africa in 1996 without a single reservation. 11
Given that South Africa also ratified the Optional Protocol on CEDAW, which
strengthened existing enforcement mechanisms, South Africa has committed itself to
be bound by the provisions of CEDAW and its Optional Protocol.12

Article 2 defines discrimination and includes violence against women as a form of

discrimination. Article 16 of CEDAW requires state parties to take all appropriate
measures to eliminate discrimination against women in all matters relating to
marriage and family relations. It further obliges state parties to ensure that 'the
betrothal and the marriage of a child shall have no legal effect and all necessary
actions, including legislation, shall be taken to specify a minimum age for marriage,
and to make the registration of marriages compulsory'.

The Protocol to the African Charter on Human and Peoples' Rights on the Rights of
Women (Protocol to the African Charter),13 article 2(1)(b) provides that state parties

11 South Africa ratified the CEDAW in 1996 and presented its first Country Report in 1998. Country
reports on the CEDAW are available on UN DAW [date unknown] www.un.org.
12 The Optional Protocol was signed by South Africa on 18 October 2005 and came into force on 18 January
2006.
13 The Protocol to the African Charter was adopted in 2003 and came into force on 25 November
2005 when it received its 15th ratification.
MJ MALULEKE PER / PELJ 2012(15)1

must enact and effectively implement appropriate

21 / 428 legislative or regulatory measures,
including those prohibiting and curbing all forms of discrimination, particularly those
harmful practices which endanger the health and general wellbeing of women. It also
contains important provisions on reproductive rights, marriage, divorce and
inheritance rights, among others.

In addition to the international commitments, the South African Constitution

enshrines the rights of all people in South Africa and affirms the democratic values of
human dignity, equality and freedom (section 7 of the Constitution), declares its
supremacy (sections 1(c) and 2 of the Constitution), and provides that any law or
conduct inconsistent with it is invalid.14 The right to equality, including gender
equality, is one of the fundamental pillars of the Constitution, and it is enshrined in
the Bill of Rights, which is justiciable.

On the other hand, the Constitution also provides for and protects the right to culture
(sections 15(3), 30 and 31 of the Constitution) and recognises traditional leadership
(sections 211, 212 of the Constitution), which recognition could be interpreted as
protecting polygamy as well as related practices such as 'spouse inheritance', 15
Ukuthwala16 and other customary practices which have the impact of undermining
the constitutional guarantee of gender equality. 17 However, the provisions protecting
the right to culture explicitly include a qualification stipulating that 'no one exercising
these rights may do so in a manner inconsistent with any provision of the Bill of
Rights' (sections 30, 31(2) of the Constitution). But what does this mean in practice

14 The Constitutional Court has reiterated the supremacy of the principle of equality in the
face of indigenous law that discriminated against women in several decisions. See Gumede v
President of the Republic of South Africa 2009 3 BCLR 243 (CC); Bhe v The Magistrate of
Khayelitsha 2005 1 SA 580 (CC).
15 This will be briefly discussed in par 4.4 below. See 'Consent to a customary marriage'
16 The practice of Ukuthwala will be briefly discussed in par 4.4 below. See 'Consent to a customary
marriage'. For a detailed discussion of this customary practice see Koyana and Bekker 2007 De Jure
139-144.
17 Section 9 of the Constitution explicitly acknowledges the intersectionality of different grounds of
discrimination as prohibited. The Promotion of Equality and Prevention of Unfair Discrimination Act 4
of 2000 (Equality Act) recognises patriarchy and discrimination on the grounds of sex and gender as
being of such a prevalent and serious nature that it specifically singles out these forms of
discrimination for special treatment. In addition to outlawing unfair discrimination, the Equality Act
contains provisions which encourage both the public and private sectors to create a non-sexist
society.
MJ MALULEKE PER / PELJ 2012(15)1

for a young girl in the rural areas who21

has to endure many harmful practices in the
/ 428
name of her culture?

Customary practices such as Ukuthwala, virginity testing, widow's rituals, and others
are entrenched, and in practice take precedence over equality in the villages where
they are carried out. It is therefore questionable whether the constitutional protection
of gender equality is making a difference to women living in communities with a
strong commitment to traditional norms and practices. These compromises on
women's right to equality can thus be interpreted to mean that women, as opposed
to men, do not have inherent rights.

In order to support this argument, the following section of this paper explores the
impact of the following harmful traditional practices: female genital mutilation (FGM),
early and forced marriages (Ukuthwala as practiced currently), virginity testing,
widows' rituals, 'u ku ngena' (levirate and sororate unions), breast sweeping/ironing,
the primogeniture rule, and practices such as cleansing after male circumcision,
witch-hunting, and other practices that impinge on gender equality.

3.1 The Children's Act 38 of 2005

Section 12 of the Children's Act: Social, Cultural and Religious Practices specifically
prohibits female genital mutilation and the circumcision of female children.
Contravention of this prohibition is an offence which may result in a sentence of a
fine or imprisonment of up to 10 years if found guilty.

The Children's Act also protects the privacy, bodily integrity and dignity of children,
especially female children, by prohibiting virginity testing with regard to children
younger than 16 years of age. Virginity testing may be practiced in relation to
children older than 16, on condition that the testing is performed in the prescribed
manner and that written consent is given.

3.2 The Promotion of Equality and Prevention of Unfair Discrimination Act,

2000 (PEPUDA)
MJ MALULEKE PER / PELJ 2012(15)1

The definition of discrimination in PEPUDA

21 / 428 was taken as it is from the CEDAW
definition of discrimination. Chapter 2 of the Act deals with the prevention, prohibition
and elimination of unfair discrimination, hate speech and harassment on any of the
prohibited grounds, as set out in the definition of 'prohibited grounds' (which is not a
closed list, but all of the 17 prohibited grounds are contained in the Constitution).

Section 8 of PEPUDA provides that the following constitute unfair discrimination:

Section 8 (a) gender-based violence,

Section 8(b) female genital mutilation, and
Section 8(d) any practice including traditional,
customary, or religious practice which impairs the
dignity of women and undermines equality
between women and men, including the
undermining of the dignity and wellbeing of the girl
child.

This means that all practices such as virginity testing, Ukuthwala and others that are
dehumanising young girls are regarded as unfair discrimination by PEPUDA. The
rights in PEPUDA can be enforced in the courts; there are specialised courts called
Equality Courts where the violation of all these rights can be reported.

3.3 The Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007 (Sexual Offences Act)

Having sex with a child without her consent following her kidnapping and abduction
(Ukuthwala) constitutes rape in violation of the Sexual Offences Act (section 15).
Regarding a child, the age of consent is 16; meaning that sex with an under-16
constitutes a sexual offence. Sex with a child that is 12 or below is rape, as a child of
that age is legally incapable of consent. The Act also prohibits other sexual activities
with children (sections 16 and 17), including sexual grooming (section 18).
MJ MALULEKE PER / PELJ 2012(15)1

Section 17 of the Sexual Offences Act 21

prohibits
/ 428 the sexual exploitation of children by
their parents and others. Parents, relatives or others who collude in, or aid and abet,
the Ukuthwala of a girl child commit the crime of the sexual exploitation of children.
These parents and relatives also face being charged with Trafficking in Persons,
under section 71 of the Sexual Offences Act.
MJ MALULEKE PER / PELJ 2012(15)1

3.4 The Recognition of Customary21Marriages

/ 428 Act 120 of 1998 (RCMA)

According to the Recognition of Customary Marriages Act, both the bride and
the bridegroom must consent to a marriage. The age of consent is 18 years of
age.

3.5 The Prevention and Combating of Trafficking in Persons Bill [B7-2010]

(the Bill)

The Bill prohibits the recruitment, sale, supply, procurement, transportation, transfer,
harbouring, disposal or receipt of persons by means of the use of threat, force,
intimidation or other forms of coercion; or by abusing vulnerability, for the purpose of
exploitation. Parents, relatives and others who hand over a child into a forced
marriage for financial or any other type of gain can be prosecuted under section 4
read with section 1 of the Bill.

3.6 The Transkei Penal Code 9 of 1983

Ukuthwala of young girls was also prohibited in Transkei under the Transkei
Penal Code. The Penal Code criminalised the abduction and kidnapping of
children under 18 years.

3.7 The Domestic Violence Act 116 of 1998

A victim of Ukuthwala may apply for a protection order under the Domestic Violence
Act against family members involved in her abduction.

4 Cultural, traditional and customary practices which are harmful to

women and children

The revival of traditions, culture and customs, and the practices derived from them,
after the demise of colonialism, imperialism and apartheid will definitely require us to
enter into a dialogue on the character of our ancestors and what is really indigenous.
However, the process should take the context into consideration. Some of the
MJ MALULEKE PER / PELJ 2012(15)1

cultural practices that were necessary

21 / 428then are unnecessary now due to
development, globalisation and other factors. Some cultural practices that need to be
scrutinised are discussed below.

4.1 Virginity testing

Virginity testing is practised mostly in KwaZulu Natal and the Eastern Cape. 18
Virginity testing is the practice and process of inspecting the genitalia of girls and
women to determine if they are sexually chaste. It is based on the false assumption
that a woman's hymen can be torn only as a result of sexual intercourse. 19 It is a very
controversial practice, both because of its implications for the girls tested and
because it is not necessarily accurate.

There are two schools of thought with regards to virginity testing. 20 One school of
thought submits that it is a form of sex education and it enforces abstinence from
sexual activities before marriage.21 Girls are taught not to allow boys or men to take
away their pride by having sexual intercourse with them before marriage. It is
believed that young women will abstain from sex because they fear being discovered
to be no longer virgins (the implication of this fear is what the writer has a problem
with). This is a stigma not only for the girl but for her entire family. It is believed that
virginity testing substantially reduces the spread of sexually transmitted diseases,
including HIV/AIDS, and further, that it reduces teenage and unplanned pregnancies
that lead to school dropouts.

The other school of thought (to which the writer ascribes) holds that the intention of
the practice of virginity testing might be good, but its flip side is gender bias. It does
not treat boy and girl children equally. There are implications for gender equality and
human rights as provided for in the Constitution. 22 The practice also appears to
threaten and objectify girl children so that fathers may get full lobola or bohali on
18 Reports from the KwaZulu Natal Rural Women's Movement and other NGOs in the Eastern Cape.
19 The use of tampons can break the hymen.
20 CGE Report on Virginity Testing 11.
21 CGE Report on Virginity Testing 11.
22 The provisions protecting the right to culture explicitly include a qualification stipulating
that 'no one exercising these rights may do so in a manner inconsistent with any provision of
the Bill of Rights' (ss 30, 31(2) Constitution of the Republic of South Africa, 1996).
MJ MALULEKE PER / PELJ 2012(15)1

marriage. This school of thought argues

21 that
/ 428the practice of virginity testing puts the
whole responsibility for safe sex, abstinence, and countering the spread of sexually
transmitted diseases solely on the shoulders of girls and young women, who are
often the victims of gender violence and gender inequality in so many other respects.

Women are expected to maintain a very high level of morality to be married to

'honourable' men who might have deflowered and/or impregnated a string of girl
victims, and might possibly even be HIV positive. On the other hand, virginity testing
poses a threat of discrimination against girl children who are not virgins (who in
many instances may have been raped). The reasons advanced for virginity testing
do not focus on prevention and protection.

4.2 Ukuthwala

Ukuthwala is a form of abduction that involves the kidnapping of a girl or a young

woman by a man and his friends or peers with the intention of compelling the girl or
young woman's family to endorse marriage negotiations. In ancient Africa Ukuthwala
was a condoned, albeit abnormal, path to marriage targeted at certain women of
marriageable age. It did not involve raping or having consensual sex with the girl
until the marriage requirements had been met.

Ukuthwala was not performed, however, with impunity; it incurred delictual liability for
the culprit in the form of the payment of a herd of cattle to the father or legal guardian
of the girl. Today Ukuthwala involves the kidnapping, rape and forced marriage of
minor girls by grown men old enough to be their grandfathers. It contradicts the
reasons advanced for practicing virginity testing.

Ukuthwala retards childhood development processes.

It burdens the girl child with the responsibility of being a wife

with a husband and in most instances children and in-laws to
serve or look after.
MJ MALULEKE PER / PELJ 2012(15)1

21 / 428 with problems ranging from HIV and

It is a health hazard,
other STIs to pregnancy-related complications such as infant
and maternal mortality and fistula-related diseases. 23
The social development of the child is stunted as the early
marriage and fast-tracking into the adult world skips organic
developmental phases. The abducted child is removed from
school, and dropping out of school deprives the child of
education opportunities, including tertiary education and
skills training.
Early marriage is a symptom of and exacerbates gender inequality. The
subordinate position of the girl or young woman is reinforced by the fact that
in most of the documented cases the girl children have been forced to marry
men old enough to be their parents or grand parents.
Community development depends on its people; this includes the level of
health, knowledge and education, skills and resources controlled by those
people. Since Ukuthwala undermines the girl-child's access to these
resources it indirectly undermines community development.
There is a proven link between a lack of education, underdevelopment and
poverty. Ukuthwala deprives girl children of opportunities to educate and
develop themselves. Furthermore, research indicates that the majority of the
girls and young women that are victims of Ukuthwala are from poor families.
Their lack of education and underdevelopment, due to Ukuthwala, deepens
their poverty and perpetuates the cycle of poverty. In many instances the
children born into poverty also tend to be poor. This contributes to the cycle of
poverty in the communities, particularly rural communities, where Ukuthwala
is rife.

4.3 Ukungena

In terms of the Recognition of Customary Marriages Act 120 of 1998 (RCMA), a

customary marriage must be negotiated and entered into in accordance with
customary law. Customary marriages include polygamous practices. Polygamy
includes levirate and sororate unions, although the RCMA is silent about this. As it
has been a cultural practice, it is still practised by some communities. If the inheriting
of the deceased's spouse is conducted according to the custom of that community,
and the widower or widow and the deceased spouse's relatives consent, then that
marriage is a valid marriage under the RCMA.

23 These health complications are consistent with the findings of the UN Secretary General's Report
on Violence Against Children (2006) and the findings of UN agencies such as WHO, UNICEF and
UNIFEM in countries that are bedevilled by forced and early marriages.
MJ MALULEKE PER / PELJ 2012(15)1

21 / 428
th
At the International Alliance of Women's 35 Congress held in South Africa in
December 2010, women from KwaZulu Natal and the Eastern Cape reported that
widows are forced to marry the brother or any male relative of the deceased
husband. The widow is required to choose a husband without knowing who she is
choosing because she is given a few sticks to choose from, and the stick she
chooses will determine who the husband is.

If she refuses to marry one of the men selected, she is banished from her home, and
she loses custody and all her inheritance. The consent might therefore be coerced or
unduly influenced by family members or the community. If the woman agrees to
marry the male relative due to a fear of violence, then the marriage is not valid. But
what are the implications for the woman of invalidating the marriage?

4.4 Male circumcision rituals or practices that affect women

Civil society organisations in the Eastern Cape, KwaZulu Natal and Limpopo have
been complaining about the ritual of the 'cleansing' of young men who have just
completed their circumcision process. The 'cleansing' involves the young men finding
a female, perhaps even a widow, and gang raping her to 'cleanse' themselves after
this ritual. This is definitely not rooted in Ubuntu. It is a criminal act.

4.5 Widows' rituals

Widowhood is a clearly defined social role for women, that is associated with
prescribed institutionalised cultural and religious norms and the concomitant social
sanctions if a deviation from the defined social role occurs. However, an altogether
different set of norms applies to men upon the death of their wives. 24 The
Commission on Gender Equality (CGE) conducted an in-depth country-wide study
on the experiences of widowhood in different cultures and in different geographic
areas in South Africa. The study revealed the following:

24 CGE Report on Widowhood.

MJ MALULEKE PER / PELJ 2012(15)1

21 / 428 discrimination against widows and

There is large-scale
widowers, including the imposition of burdens, obligations or
disadvantages, and the with-holding of benefits,
opportunities or advantages, as well as the regular
harassment of widows and widowers in the context of the
household, community, state and market-place.
A woman's status shifts drastically (downward) after the death of her husband
in contrast to the widower's status which remains unchanged (including in
terms of the administration of the estate).
A decrease in social status not only has implications for women's livelihood,
economic status and quality of life, but also increases their vulnerability to
discrimination, abuse, harassment and gender-based violence, as well as
their ability to assert ther rights.
Both women and men experience increased social pressure during
widow(er)hood, but in opposite directions: widows are pressured to remain
'loyal' and 'faithful' to their late husbands, and honour their memory, whereas
men are often pressured into a quick remarriage, regardless of their readiness
or wish to remarry.
If widows remarry, they rarely do so of their own free will. In some
communities widows may be forced into new conjugal relations with a male
relative or be forbidden to remarry, even if they wish to do so.

4.6 Witch-hunting violence against women

In his presentation at the CGE Conference, the then Premier of Limpopo, Adv Ngwako Ramahlodi,
said that the notion of witchcraft is itself not a new phenomenon in African culture. One would venture
to suggest that it is indeed a phenomenon amongst many nations of the world. In our situation our
culture recognises witchcraft as one of its main ingredients. 25 Thus, for many families, when spring
arrives a traditional healer is brought in to strengthen the kraal and all those who dwell in it against
any harmful spirits, including those wilfully engineered by witches. The problem with this practice is
that it involves violence when one is branded a witch. Most of those blamed for witchcraft are elderly
people and women. This practice is rife in Limpopo, and now lately in Eastern Cape and KwaZulu
Natal.

Witchcraft violence against women has been a global problem since time
immemorial. It was practised in Europe, as described by William Shakespeare in
Macbeth. Recently, in 2001 I was in Aarhus, Denmark, and I was invited to the
annual celebration of their witches' day. They make a bonfire and burn the dummy
figure of a woman on the fire.

25 CGE Report on Witchcraft Violence 1.

MJ MALULEKE PER / PELJ 2012(15)1

21 / 428
I asked my host the following questions:
Question: Why is it a woman who is burned?
Answer: It is women who are witches.
Question: How do you identify and verify that someone is a witch?
Answer: You tie her to a stone and immerse her in the river, and if she dies, she was
a witch.

In Ubuntu, old age or grey hair is a sign of wisdom and old people were respected,
not abused, discriminated against or burned to death. The main ethical values of
Ubuntu are respect for others, including women and children, helpfulness,
community, sharing, caring, trust and unselfishness. Morals such as compassion,
cooperation and communalism are highly valued and the wellbeing of the whole
community is a unified objective.

The patriarchal nature of our societies, as influenced by colonialism and imperialism,

explains why elderly women are targeted during witch-hunting. They are weak,
defenceless and therefore easy targets. It is criminal, and the perpetrators must face
the full wrath of the law.

4.7 Female genital mutilation (FGM)

Female genital mutilation (FGM) is disfigurement that includes cutting of the clitoris. It also includes
changing the form of the labia or elongating them, as practiced by Tsonga and Sotho communities. In
some societies FGM marks an important rite of passage into womanhood, while others believe it
guarantees virginity, curbs female sexual desires, maintains hygiene, prevents promiscuity and
increases fertility.26

Whatever the reasons for practicing FGM, the consequences are a health hazard. The practice is
normally performed without anaesthesia, using unhygienic methods and instruments. Its
consequences include sickness or death due to infection, haemorrhage, blood poisoning. 27 This is
torture, and the prohibition against torture is contained in s 12(1)(b) of the Constitution, and article 5 of
the African Charter on Human and Peoples' Rights.

4.8 Primogeniture rule

26 CGE Training Manual 11.

27 CGE Training Manual 11.
MJ MALULEKE PER / PELJ 2012(15)1

The primogeniture rule,28 which has just

21 /been
428 abolished by the Constitutional Court
in the case of Bhe, 29 was not a customary law principle but a colonial and imperial
construct imposed on Africans. The irony of it is that African males embraced it as
their customary principle because it benefitted them; therefore they are the ones who
were fighting against its being declared unconstitutional. The primogeniture rule was
conceived by the framers of the Natal Code to be one of the main pillars of the
'native law' to their own benefit. It was imposed on Africans in order for the state to
be able to litigate against one person rather than to have to join the whole family
when the head of the house died.30

The African traditional culture has an almost infinite capacity for the pursuit of
consensus and reconciliation, as opposed to being individualistic and competitive.
Further, in terms of African culture, there are no orphans because a child is a child of
a community in which the child lived. Decision making in the African culture (as
expressed in terms of the principle of Ubuntu) is by consensus - productivity is
optimised, not maximised, as the case may be in other cultures. Rewards are shared
and so is suffering, as opposed to the context of an individualistic culture, where
rewards are given according to individual merit and suffering is viewed as a penalty
for one's carelessness. Sustainable competitive advantage comes from loyalty to
group goals in terms of Ubuntu.

The writer argues that the previous generations were wise and innovative and
evolved with the times, and that customary law also evolved in line with the way of
life and enlightenment at that time. The case of Mazibuko v Mazibuko31 is proof that
African customary laws, practices and the way of life have evolved.

This case involved a suit between two brothers of the deceased; the eldest brother
and the deceased's twin brother. The family had given the estate of the deceased
twin brother to the surviving twin because they believed that twins are one person.

28 The Primogeniture Rule is the right, by law or custom, of a firstborn to inherit the entire estate, to
the exclusion of younger siblings.
29 Bhe v The Magistrate of Khayelitsha 2005 1 SA 580 (CC).
30 Chanock Law, Custom and Social Order.
31 Mazibuko v Mazibuko Natal Archives, 1 EST 2/1/2/1, Case 60/1929 quoted by McClendon 1997
Journal of Legal Pluralism.
MJ MALULEKE PER / PELJ 2012(15)1

The custom had evolved from the practice of killing one twin to recognising that they
21 / 428
are two people as one, and that both can live.

The eldest brother contested that view and won the case at the Natives Commission
and at the Natives Appeal Commission. The Native Commissioner's judgment held
that the 'custom' of twin succession did not have sufficient longevity to overcome the
Code's fundamental principle of primogeniture, since it originated only within the last
50 or so years, while the law of primogeniture had been observed by natives from
time immemorial.

The writer agrees with McClendon 32 when he argues that the Mazibuko case shows
that most of the African participants in 1929 had a very different conception of
custom and customary law from that of colonial officials. Rather than something fixed
and immutable, they were satisfied that although one practice had been followed 'in
the old days', another might be followed now, depending on the context and
circumstances.

5 Conclusion

The danger of these harmful traditional practices is that children and adolescents
whose rights to personal safety and wellbeing are violated are at increased risk of
long-life developmental challenges, HIV infections, and other physical, emotional and
social problems. These outcomes compromise national and international
development goals, including, among others, the MDG 33 goal 1: 'Eradicate Extreme
Poverty and Hunger,' and goal 2, which provides for 'Achieving Universal Primary
Education' in order to establish 'A World Fit for Children'. The goals on reducing child
mortality and improving maternal health are also affected.

The revival of tradition, culture and customs is part of the new national and
international identity; however, this revival must be rooted in a way of life based on
human rights, democracy and equality for all, and understood from a point of view of

32 McClendon 1997 Journal of Legal Pluralism 134

33 Millennium Declaration and Millennium Development Goals (2000).
MJ MALULEKE PER / PELJ 2012(15)1

Ubuntu. Thus, culture, tradition and customs

21 / 428 have to be balanced within the social
and legal context of the constitution and provisions of the Bill of Rights.
MJ MALULEKE PER / PELJ 2012(15)1

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CEDAW Convention on the Elimination of all Forms of Discrimination

Against Women
CGE Commission on Gender Equality
FGM Female genital mutilation
MDG Millennium Development Goals
UN United Nations
UN DAW United Nations Division for the Advancement of Women