Bhe v Magistrate, Khayelitsha: A cultural conundrum, Fanonian alienation and an elusive constitutional oneness

• Jurisdiction: South Africa
• Pages: 256-280
• Citation: 2015 Acta Juridica 256
• Author: Sanele Sibanda
• Date: 15 August 2019
• Published date: 15 August 2019

Bhe v Magistrate, Khayelitsha:

Acultural conundrum, Fanonian alienation

and an elusive constitutional oneness

SANELE SIBANDA* AND TSHEPO BOGOSI MOSAKA

†

With reference to Bhe v Magistrate, Khayelitsha, this article critically examines the

interplay between customary and common law under the Constitution. More

precisely, it questions the implications of judicial and legislative approaches that

conceptualise customary law in cultural terms, whilst treating the common law as

immune from similar characterisation. The article argues that such an approach

results not only in the further entrenchment of misplaced notions of the cultural

ascendancy of the common law over customary law, but also further cements a

Fanonesque alienation of the adherents of both systems of law from each other and

indeed themselves. This outcome, it is argued, has serious implications for the

forging of a constitutionally inclusive citizenship.

[H]istory teaches us that, in certain circumstances, it is easy for the

foreigner to impose his domination on a people. But it also teaches us

that, whatever the material aspect of this domination, it can be main-

tained only by the permanent, organized repression of the cultural life of

the people concerned....In fact to take up arms to dominate a people is,

above all, to take up arms to destroy or at least to neutralize, to paralyze, its

cultural life. For with a strong indigenous cultural life, foreign domination

cannot be sure of its own perpetuation. (Emphasis added.)

A Cabral ‘National liberation and culture’in Unity and Struggle:

Speeches and Writings (1979)

The advent of WesternCulture has changed our outlook almost drastically.

No more could we run our own affairs. Wewere required to f‌it in as people

tolerated with great restraint in a western-type society. We were tolerated

simply because our cheap labour is needed. Hence we are judged in terms of

standards we are not responsible for. Whenever colonisation sets in with its

dominant culture it devours the native culture and leaves behind a bastardised culture

that can only thrive at the rate and pace allowed it by the dominant culture. This is

what has happened to the African culture. (Emphasis added.)

S Biko I Write What I Like (2004)

The unilaterally decreed normative value of certain cultures deserves our

careful attention.

F Fanon ‘Racism and culture’ in Toward the African Revolution (1964)

* Senior Lecturer, University of the Witwatersrand, Johannesburg; BA LLB (CapeTown)

LLM (Witwatersrand).

†

LLB (Witwatersrand).

256

2015 Acta Juridica 256

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I INTRODUCTION

Despite concerns as to the possibility of its demise at the commencement

of the democratic era in 1994, customary law as an area of study has

attracted and retained much academic and political interest.

1

Much of this

continuing interest can arguably be attributed to, f‌irst, the decision of the

drafters of the Constitution

2

to constitutionally recognise customary law;

and secondly, the legal and political contestation involving customary law

matters that has ensued over the past 20 years.

3

At the heart of debates

concerning customary law have been questions of culture and the

inf‌luence of constitutional developments on them, especially in light of

constitutionally enshrined cultural rights.

4

In this regard the debates have

manifested a pre-occupation with how, on the one hand, the guarantee

and protection of cultural rights (especially as enjoyed through the

practice of customary law) simultaneously entails, on the other hand, the

possibility of violating the constitutionally enshrined rights of others,

especially those of women and children.

5

Whilst revisiting these debates a blind spot has come to our attention in

as far as the relationship of customary law and the common law is

concerned. Admittedly less than obvious, the very existence of this blind

spot is somewhat intriguing especially when one ref‌lects contextually on

the history of these two systems of law together, their assigned roles under

colonialism and apartheid and their positioning relative to each other

during those periods. The blind spot in our view is this: that there is a

1

An example would be the Recognition of Customary Marriages Act 120 of 1998 which

has been criticised for effectively abolishing the customary law of marriage through the

production of a statute that creates an off‌icial customary law of marriage that is a mirror of its

common law counterpart. For some critical commentary on the subject, see C Himonga ‘The

advancement of African women’s rights in the f‌irst decade of democracy in SouthAfrica: The

reform of the customary law of marriage and succession’2005 Acta Juridica 82; J Bekker&Gvan

Niekerk ‘Gumede v President of South Africa: Harmonisation, or the creation of new marriage

laws in South Africa’(2009) 24 SAPL 206; and E Knotz e & M Olivier ‘To develop or not to

develop customary law: That is the question in Bhe’2005 Obiter 125.

2

Constitution of the Republic of SouthAfrica, 1996.

3

For example see F Kaganas & C Murray ‘The contest between culture and gender equality

under South Africa’sinterim Constitution’ (1994) 21 Journal of Law and Society 409; PK Rakate

‘The status of traditional courts under the f‌inal Constitution’ 1997 CILSA 175; TW Bennett

Human Rights and African Customary Law (1999); ZN Jobodwana ‘Customary courts and human

rights: Comparative African perspectives’ (2000) 15 SAPL 26; C Himonga & C Bosch ‘The

application of African customary law under the Constitution of SouthAfrica: Problems solved

or just beginning?’(2000) 117 SALJ 306; M Pieterse ‘It’s a ‘black thing’: Upholding culture and

customary law in a society founded on non-racialism’(2001) 17 SAJHR 364; Himonga (n 1); S

Sibanda ‘When is the past not the past: Ref‌lections on customary law under South Africa’s

constitutional dispensation’(2010) 17(3) Human Rights Brief 51; S Mnisi Weeks ‘The traditional

courts: Controversy around process, substance and implications’ (2011)35 South African Crime

Quarterly 3.

4

Constitution, ss 30 and 31.

5

I Currie&JdeWaalThe Bill of Rights Handbook 6 ed (2013). This is the oft-cited reason

why the two cultural rights provisions in the Bill of Rights are subject to internal limitation.

257

BHE V MAGISTRATE,KHAYELITSHA

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