A Progressive Reading of Customary and Religious Norms Associated with Heteronormativity in South Africa

• Jurisdiction: South Africa
• Date: 01 June 2023
• Pages: 1-21
• Author: Charles Maimela,Mutsi Mleya
• Published date: 01 June 2023
• DOI: 10.25159/2522-6800/12729

Article

Southern African Public Law

https://doi.org/10.25159/2522-68 00/12729

https://unisapressjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online ), ISSN 2219-6412 (Print)

Volume 38 | Number 1 | 2023 | #12729 | 21 pages

© The Authors 2023

Published by Unisa Press. This is an Open Access article distributed under the terms of the

Creative Commons Attribution-ShareAlike 4.0 International License

(https://creativecommons.org/licenses/by-sa/4.0/)

A Progressive Reading of Customary and Religious

Norms Associated with Heteronormativity in South

Africa

Charles Maimela

https://orcid.org/0000-0001-6529-3172

Associate Professor,

University of Pretoria

Charles.maimela@up.ac.za

Mutsi Mleya

https://orcid.org/0000-0003-2272-7000

LLD Candidate

University of Pretoria

u21806579@tuks.co.za

Abstract

Customs that enforce heteronormativity, generally also safeguard the interests

of society’s vulnerable, for instance orphans and widows, to name two

examples. The recognition that non-heterosexual people is a minority group

with legitimate concerns is important, as they could contribute to family support

while maintaining their identity and mental well-being. Non-heterosexual

individuals’ interests are protected in the current Constitution; however, their

protection must transform social support structures beyond written laws. Social

structures tend to accept change at a slower pace than progressive laws. In South

Africa the gender-normative and heteronormative are generally being

overridden by a ‘don’t ask, don’t tell’ code, where sexual minorities are

gradually gaining acceptance in a dominantly heteronormative society. In this

article, the authors argue against the customs of spousal inheritance and

ukuthwala, which, among others, are being imposed on non-heterosexual

people, because they suggest a person’s sexuality belongs to a clan. These

cultural practices may serve a purpose in society but could be interpreted to

support constitutional values. For instance, traditional healers as custodians of

culture have documented instances of being gender-fluid, when a female could

be possessed by a male spirit, thus requiring a female sexual partner. Indigenous

culture as it is known, has been tainted by capitalism, patriarchy, foreign

religion, and the absolute opinions of a few elders. Which begs the question

whether heteronormativity truly is a South African construct.

Maimela and Mleya

2

Keywords: Heteronormativity; gender-normative; sexual minorities; ukuthwala;

lobolo; ubuntu

Introduction

Heteronormativity may have been regarded as an African value but the era of

colonialisation and its accompanying norms of Christianity, patriarchy and capitalism

have reinforced it.1 These norms are at the core of sociological beliefs in South Africa,

creating the impression of being natural, but they were simply imposed b y a dominant

culture. It is the nature of the majority to inform culture, even in discussions about

decoloniality and transformation, which attempts to address injustice at the roots.2 A

picture of a societ y free from hate and dis trust is drawn in this article.’ Apart from

behaviour being directed by society, cultural belonging is a part of every individual’s

identity. To take away an element of an individual’s identity based on doubt or suspicion

about the individual’s sexual identity, is unjust.3

Pursuing uniformity of values concerning marriage leads to debates about what is

culturally authentic,4 who will benefit from lobolo, and who will take care of a deceased

family member’s children are, among others, explored in this article. Cultural belonging

also requires that all members of a soci ety have duties t owards set ideals or va lues, as

Bekker and Buchner-Eveleigh illustrate:

Whatever happens to the individual happens to the whole group, and whatever happens

to the whole group happens to the individual. The individual [in the spirit of ubuntu] can

only say: ‘I am, because we are, and since we are, therefore I am.’5

However, the literature indicates a need for a transformed understanding of custom that

allows for non-heterosexual members of society to participate in community activities.6

Sexual attract ion between same-sex individuals is a personal matter, and it cannot be

1 Sylvia Tamale, ‘Exploring the Contours of African Sexualities: Religion, Law and Power’ (2014) 14

AHRLJ 150, 151.

2 ibid 176.

3 Caroline Müller-Van der Westhuizen and Samatha Meyer, ‘The (Non-)recogn ition of Same-sex

Marriage in the Recognition of Customary Marriages Act 120 of 1998’ (2019) 44 JJS 44, 50; MEC

for Education: Kwazulu-Natal v Pillay 2008 2 BCLR 99 (CC) para 53. This case is about a student

with a nose-ring, as part of her culture, who was being discriminated against.

4 Adetoun Adebanjo, ‘In Search of a Middle ground: Addressing Cultural and Religious Influences on

the Criminalization of Homosexuality in Nigeria’ in Ebenezer Durojaye, Gladys Mirugi-Mukundi

and Charles Ngwena, (eds), Advancing Sexual and Reproductive Health and Rights in Africa:

Constraints and Opportunities (Routledge 2021) 134.

5 Jan Bekker and Mariana Buchner-Eveleigh, ‘The Legal Charact er of Ancillary Customary

Marriages’ (2017) 50 De Jure 80, 81.

6 Berry Nibogora, ‘Advancing the Rights of Sexual and Gender Minorities under the African Charter

on Human and Peoples’ Rights: The Journey to Resolution 275’ in Durojaye (n 4) 178; Müller-Van

der Westhuizen and Meyer (n 3) 50.