Bound by the bill of rights
Recognising our rich cultural diversity, the Constitution provides for and protects the freedom to participate in the cultural life of one’s choice, but only in a manner that is consistent with it. It accords parity of esteem to all our cultures and enjoins the courts to interpret and develop customary law in a manner that promotes the spirit, purport and objects of the Bill of Rights.
Underpinning both the imperative to recognise constitutionally compliant cultural practices and to develop unconstitutional practices in such a manner as to render them constitutionally compliant, and thus of equal force, is a call for cultural tolerance.
Three contrasting examples in recent months show what the constitutional imperative, on the one hand, to respect cultural diversity and, on the other, to interpret and develop customary law in a manner that promotes the spirit, purport and objects of the Bill of Rights means in reality.
The first example arose in the recent KwaZulu-Natal High Court matter of Stephanus Smit, NO and Others v His Majesty King Goodwill Zwelithini Kabhekuzulu and is a clear illustration of what is meant by cultural tolerance and respect.
This matter dealt with the Zulu practice of ukweshwama, which is a traditional thanksgiving observed by Zulus and is celebrated before the harvesting of crops. The ritual involves killing a bull with bare hands. Animal Rights Africa sought an interdict against the killing of the bull, saying that the way the bull is killed constitutes cruelty to animals.
The court did not grant the interdict sought because expert evidence satisfied it that the cultural practice did not in fact constitute cruelty to animals. The court held that the applicant’s uncritical acceptance of rumours about the true practice was symptomatic of an intolerance of cultural diversity.
Viewed in a historic perspective, it was indicative of a historical desire to inflict mainstream cultures of Western society on African cultures. This attitude was premised on a misguided belief that the applicant had a right to interfere with the religious and cultural practices of others that they found intolerable to their own beliefs.
The second example illustrates an instance where society should not tolerate a cultural practice that can never be rendered constitutionally compliant. It involves the ukuthwala (‘abduction”) practice, which involves abducting girls as young as 12 and forcing them to marry men who are old enough to be their grandfathers.
This practice is unconstitutional and unlawful, and no amount of development will permit it to pass constitutional muster. It violates the right to dignity, the right to education and the right to freedom and security of the person, and it is not in the best interest of the child. The third example arose in a settlement reached by the Congress of Traditional Leaders of South Africa (Contralesa) in the Equality Court regarding initiation and illustrates how practices that violate provisions of the Bill of Rights can nonetheless be developed in such a manner that they pass constitutional muster while retaining the core of the custom.
The case involved Justice Alliance South Africa and Others v Yamani and Others. In his application, young Bonani Yamani said that by being forced to go through traditional circumcision, his human dignity was seriously undermined.
In terms of the settlement, which was made an order of court, Contralesa accepted the right of adult males to choose whether to attend traditional circumcision schools according to their religious beliefs. In delivering the order, Judge Yusuf Ebrahim emphasised that consent was essential if the practice was to be both lawful and pass constitutional muster. The case was not about declaring traditional circumcision unlawful; instead, it developed it to bring it in line with the Constitution.
The settlement reached with Contralesa is of great significance. For although the Constitution requires that the courts develop customary law in a way that promotes the Bill of Rights, this body is arguably better placed to do so. This is so because of the complex nature of many customs such as ukweshwama, which in most instances involve invoking ancestral spirits.
Since the members of this tribunal are themselves immersed in those spirits, it would be better placed to interpret and develop customs in a manner that aligns them with the Constitution while retaining their spiritual and other essences. It is thus appropriate that the Constitution does not only enjoin the courts to develop customs, but also binds tribunals and other forums to do so.
Noluthando Ntlokwana is assistant director of the Centre for Constitutional Rights