July 2

By Katie Fernelius

This past weekend, Professor Catherine Admay and I left the comfort of the Constitution Hill in Johannesburg to travel to Limpopo province, braving an adventurous, six-hour drive on the M1. We were joined by Xoli Maloi, an award-winning journalist for ETV who visited Duke earlier this year on a fellowship. Xoli joined us to lend us her expertise in translating language and understanding culture, as well as to indulge her own personal curiosity. As researchers interested in documenting and analyzing constitutional space, it may seem odd to chase a diversion so far away from the court, but our trip helped us explore how far that constitutional space extends. Out of the seemingly endless corners of South Africa, why did we choose Limpopo? Because a small village of people called the Nwamitwas in the Valoyi community was involved in one of the most exciting South African court decisions of the last decade. There are a lot of ins and outs, but in summary, Tinyiko Lwandhalmuni Philla Nwamitwa Shilubana(it’s a mouthful, I know) was competing with her half-brother, Sidwell Nwamitwa for chieftanship of the Valoyi community. The Royal Council chose Shilubana prior to Hosi Richard’s death, but Sidwell claimed that their customs only supported male primogeniture. The problem is that both of their claims have roots in customary law: the Royal Council choosing the Hosi was customary for Valoyi, but so was male-issue succession. With the dynamic South African Constitution favoring

Tinyiko Lwandhalmuni Philla Nwamitwa Shilubana

Tinyiko Lwandhalmuni Philla Nwamitwa Shilubana

democratic principles and gender equality, the court case became highly contentious as many speculated at how the court would rule, especially as their decision would be decisive in delineating the relationship between customary and constitutional law. Ultimately, the court ruled that Shilubana should become Hosi in a landmark ruling written by Justice Johann van der Westhuizen. He wrote: “Customary law must be permitted to develop, and the enquiry must be rooted in the contemporary practice of the community in question. Section 211(2) of the Constitution requires this. The legal status of customary law norms cannot depend simply on their having been consistently applied in the past, because that is a test which any new development must necessarily fail. Development implies some departure from past practice. A rule that requires absolute consistency with past practice before a court will recognise the existence of a customary norm would therefore prevent the recognition of new developments as customary law. This would result in the courts applying laws which communities themselves no longer follow, and would stifle the recognition of the new rules adopted by the communities in response to the changing face of South African society. This result would be contrary to the Constitution and cannot be accepted.” Such a sentiment from the Constitutional Court is pretty incredible as it both asserts Constitutional authority while justifying their decision through the recognition of customary law as a living law. Personally, I was very excited to travel to Limpopo after reading this decision: “Finally,” I thought, “tradition and feminism are not conceived of as mutually exclusive!”

When we first arrived in Limpopo, my optimism persisted. We met with a group of women who discussed their joy with the decision. They had ridden on a bus on the same lengthy route as Admay and I in order to attend the proceedings at the Constitutional Court. They hailed the economic opportunities and gender equality fostered by the new Hosi Nwamitwa (who returned to her maiden name as Hosi). Solely looking at the ruling and our first meeting with select members of the Valoyi community, it would seem that constitutional and customary law are happily working in conjunction with each other to produce a more equitable, new South Africa, right?

Well, not exactly.

Just because a Court rules a certain way, doesn’t mean that everyone is going to agree with that ruling. (Justice Ginsburg scathing dissent on the Hobby Lobby case is enough proof of this!) A healthy discourse is fine and encouraged, but something insidious happens when citizens not just disagree with a decision, but don’t accept it—people begin to disinherit their constitution. Though we had an opportunity to interview more people in the community, as well as Hosi Nwamitwa herself, the most memorable interview I had was with the incumbent king of the Ba’Tsonga tribe, Risimati Wilson Mkhari. When asked about the decision, he expressed fierce opposition to a woman being Hosi as he said it was not sustainable practice. I was not surprised by his disagreement with the court decision, but I was shocked by his dismissal of the Constitution. He said: “It’s not a problem to visit the institution. It’s not a problem at all. I would love to visit the Constitutional Court if there’s a case which I’ve got an interest on. And as an incumbent king of Ba’Tsonga, I can tell you that there may be other cases in which people may take to the Constitutional Court, and if those cases will be in controversy of our customary practices, I can guarantee you, we will pause such kind of actions. Because we do not want a situation whereby people will want to democratize our customary practices in the name of courts.” His remarks revealed something very unsettling about constitutional culture in South Africa—that many South Africans, particularly those who largely abide by customary laws, do not see the new Constitution as relevant to them, but rather as a irrelevant system no different than the laws that came before it under apartheid and colonial rule. It was disheartening for me to see that constitutional space didn’t fully extend into this corner of South Africa, but it was also galvanizing: how can we take this incredible, dynamic constitution and translate that into something accessible and meaningful for all people, especially those who feel like the Constitution does not represent their identity or values? More on that in my next blog post…


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