Gender, land and the tension between african culture and constitution

Abstract

The main purpose of this mini-dissertation is to understand the relationship between gender, land, culture and the tension between African culture and the constitution in the context of communities under traditional authorities in South Africa. South African has a number of communities residing in the former ‘homelands’ or Bantustan States created by the apartheid government and colonists. These communities have their own cultures and custom and their relationship is generally governed by indigenous law. However some of their cultures and customs have been adulterated by colonists who imposed Western imported laws which subjected indigenous law to a repugnancy clause, whereby sections of indigenous law that were considered to be in conflict with the Western principles of justice, equity and fairness were regarded as inferior and unenforceable. For communities under traditional authorities land is very important as it is used for building a home and for subsistence farming. However all land in these communities is held in trust by the Chief who allocates it to communities members in line with indigenous law. With the adulteration of African culture and the introduction of legislation to enforce patriarchy in South Africa by colonists, as an example, by the use of the Black Administration Act of 1927, the system currently used to allocate land in traditional communities is gender based and discriminates against women and this creates tension between the currently used custom of allocating land and the Bill of Rights. The mini-dissertation proposes that that tension between African culture and the Bill of Rights could possibly be mediated using the African philosophy of Ubuntu