Why SA should reform indigenous common law for the modern era

Any society that restricts the economic participation of half of its members is doomed to failure, and women make up roughly half of the population in any society.

Regression studies reveal that equality before the law is second only to inflation in terms of its contribution to GDP per capita growth.

One of the tentative hypotheses I have drawn from this is that the differences between men and women are one of the strengths of any society.

Women still bear the brunt of SA's social ills
South Africa has made important strides under the Constitution to ensure equality before the law for men and women, yet women still bear the brunt of South Africa's social ills.

Whether it is poverty or crime, women tend to suffer the worst consequences based on a range of datasets from a variety of sources. The latest of these is the National Income Dynamics Study – Coronavirus Rapid Mobile Survey (NIDS-CRAM), the study on the effects of the lockdown.

Women were found to have lost two thirds of the 3 million jobs lost between February and April 2020. This while having held 47% of the jobs in February, i.e., less than half.

Taking into account wave 2 of the NIDS-CRAM study, women accounted for 58% of the job losses between February and June of 2020. This will likely increase the incidence of poverty among women at a faster rate than among men.

The impact of the lockdown highlights the need for an indigenous, locally-initiated and -led project to reform indigenous common law (constitutionally known as customary law) to better protect the rights of women.

This effort should focus on the property rights of women in rural areas, which are first of all insecure because the land is owned by the government, and secondly, because of practices like male primogeniture, which gives priority to male children in inheritance.

Male primogeniture
Male primogeniture systematically excludes women from participation in the economy by denying them of the right to own assets.

It should be understood that male primogeniture as it was practiced in pre-colonial times was hardly exclusive in the sense of ownership. It was a more communal, and therefore harsher existence for everyone. Tribes controlled common land, and newcomers were allocated land to build their households.

Under this system, women enjoyed little participation in most cases, as was common throughout most of the world for most of human history.

Decisions were usually made by the male heads of households, although this varied since Africa is so diverse. But times have changed. Women have rightfully won recognition for their human rights, not a separate category of rights, but true equality under the law, except under their own common law, which is their rightful inheritance alongside men.

As in the case of England, the common law that exists in modern South Africa refers to many different local laws: practices, rituals, religion, property, etc.

Unlike England, however, there has been no attempt to standardise the common law, and this is a good thing. The common law is made by and belongs to the people in a way that legislation never could.

Reforming the common law
The common law embodies the people's most agreed-upon morality. It is those rules of conduct which command a man's heart, not his obedience. Reform is therefore not quick or easy.

It takes years, and there are signs that in the more urban areas, the nature of this law has already changed and adapted, in part due to the nature of property relations in those areas.

Reforming the common law is something individuals need only be aware of and convinced by the arguments for it to happen. Getting everyone to be aware of the arguments is usually the part that takes the most time.

There are serious benefits to this for South Africa. Rwanda experienced a rural economic boom after taking steps to secure property rights for rural dwellers. Yet the nature of the different varieties of common law is that solutions cannot be centralised – communities have to take the lead.

The judgment in Baleni v Gwede Mantashe, where the community of Xolobeni challenged the granting of mineral rights to a company without the common law consent of the community, demonstrates the special status indigenous common law necessarily plays alongside the Roman-Dutch common law.

In fact, that case showed that customary law cannot function well under a legislated expropriation regime without continuing the serious injustices of the past.

The judge relied on the Interim Protection of Informal Land Rights Act (IPILRA) in making the judgment. The Act was meant to be a temporary statute when it was enacted in 1996.

Parliament has had to renew it every year. The Act is remarkably well-written for a piece of government legislation, leaving it to the particular community to make their own rules for the alienation of land.

The significance of this judgment is that the judge decided that IPILRA's prohibition against violating property rights deemed informal (read: existing within common law and not legislation or the Constitution), trumps even the power of Parliament to expropriate mineral rights as expressed in the Mineral and Petroleum Resources Development Act. This is important.

Two different courts have issued decisions which amount to saying section 25 of the Constitution is insufficient to protect Roman-Dutch common law property rights, but IPILRA, which is temporary legislation, is sufficient to protect indigenous common law property rights.

The common law's treatment of gender issues
There needs to be a recognition of all of the different rules communities have developed for their land. It is their land, after all, and this is as true as it ever gets for any community, since this law often operates on consensus.

In Baleni for example, a majority was secured for the granting of the license according to the judgment, but this was unacceptable to the community.

Firstly, the community requires the assent of every household for the alienation of any part of their land. Secondly, the community specifically requires the consent of the families who will be most affected. Two reasonable requirements.

It is obviously a serious anomaly that IPILRA's provisions can be allowed to lapse simply by inaction of a legislature or even a minister, who must issue the extension for Parliament’s confirmation. The provisions of IPILRA or something like it should be made a fundamental part of our law.

Yet there will arise a constitutional conflict: the common law's treatment of gender issues. Those who care about promoting this system of law need to anticipate and deal with these issues before they are brought up in South African courts.

In conclusion
The risk is that the indigenous common law may be subordinated to legislation and Roman-Dutch law if women lose faith in its ability to protect their rights.

The upshot is that property rights, and therefore the rights of women, are complicated in this country because the law that people believe in and live under often enjoys secondary status.

Yet, this law often violates the rights of women which is something that does serious harm to the economy. The solution is not to abandon the common law, but to reform it – necessarily a bottom-up process.

This article was first published on BBrief on 10 November 2020
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