Panel tackles customary law and traditional leadership

A discussion on property rights and traditional leadership turned its attention to the impact of customary law on local communities and women in particular.

Hosted by Wiser at Wits University on Monday afternoon, the panel discussion was part of the Public Positions on History and Politics series.

Director of the Rural Women’s Action Project (RWAR) Dr Aninka Claassens presented a paper which highlighted the negative impact of customary law on women.

She said these laws deny women their right to claim land because the law was formed pre-1994 in favour of a patriarchal system. According to Claassens, official customary laws deny ordinary citizens the right to exercise their democratic rights.

She told Wits Vuvuzela that these customary laws have serious repercussions on democratic rights for people in rural areas because they have to pay an annual tribal levy to show allegiance to their tribe.

“If you do not pay an annual tribal levy, you won’t get a proof of address letter from the chief and if you don’t have that you can’t get a child support grant, you can’t get an ID book,” Claassens said.

She said the situation is worsening with “people being forced to pretend to pay allegiance just to practice their rights as ordinary citizens.”

Gender activist, Nomboniso Gasa, from University of Cape Town, also weighed in on the customary law debate.

“… Government cannot say that because you live in Cofimvaba that this version of customary law must apply to you,” she said.

She continued to say that although she originally comes from Cofimvaba, a small remote area in the Eastern Cape, she thinks she should not be forced to obey certain customary laws.

Gavin Capps, from Society, Work and Development Institute at Wits, said living custom, which is not written in statute is not necessarily a bad thing but official customary laws underestimate democratic forms of decision-making.

However, he said, defining culture and deciding what part of it could be practised is a complex issue which cannot easily contested or changed.

“The point being then is the struggle over who defines culture, tradition and customary law and this has been an ongoing struggle ever since the project begun,” he said.