African customary law and its Impact on the rights of women : A study of South Africa and Lesotho

Abstract

Colonialism and apartheid were alien forces that changed the trajectory of customary law in the legal systems of South Africa and Lesotho. The effect of this interruption positioned customary law as a secondary legal system, compared to Roman-Dutch Law and English common law, which both form South African and Lesotho common law. The South African and Lesotho Constitutions currently recognise customary law as being on a par with common law. Nevertheless, customary law in its current state is distorted and underdeveloped. In both South Africa and Lesotho, customary law was encoded through legislation during colonial and apartheid times, with the intention of such customary law fitting in with Western standards. These Western standards formulated customary law to bear Eurocentric principles such as patriarchy and, in turn, discriminated against and excluded women’s rights and status in traditional environments. Therefore, this thesis focuses on the effect of colonisation and apartheid on customary law and the rights of women in traditional environments. The study argues that due to the marginalisation of customary law endured in the South African and Lesotho legal systems, women in traditional settings end up further marginalised, as evident from the judgments discussed in the study. Moreover, women, who were formerly protected under indigenous institutions like marriage, are now excluded from the collective group to which they belong in areas such as succession and inheritance, property ownership and traditional leadership roles because of the patriarchal systems that have dominated indigenous communities. This happens even though numerous women in contemporary societies are currently leading and heading households. The failure to develop customary law continues to restrict the way women are perceived in traditional contemporary communities and as a result this also affects their status. This thesis seeks to provide recommendations that can emancipate women in traditional environments, as well as the promotion of customary law in its living state.