(2009) JLP 59: 67-85
The decision of the South African Constitutional Court in Shilubana and Others v Nwamitwa ( ZACC 9 (CC), the Shilubana case) appears to herald a more sympathetic understanding of customary law, but it also reveals the fact that customary law applies exclusively to the black community in South Africa while other racial communities are imagined and protected in terms of the rights in sections 30 and 31 of the Final Constitution (FC). This paper contends that this distinction is not only wrong but of no significant difference. It is further contended that protection of all racial communities should proceed on the basis of sections 30 and 31 of the FC because the framework of these two sections appears better suited for the protection of all communities if South African courts show a more sympathetic understanding of communal norms and institutions. This comment argues that the Shilubana case is a tentative but welcome example of this trend. In the case the CC upheld a decision of the Valoyi Tribe to appoint a woman as a traditional leader. This was a development of its customary law of traditional succession that had hitherto operated on the basis of male primogeniture. In recognizing a gender neutral traditional leadership institution, the Court demonstrated that institutions established by communal norms can exist and function on the basis of equality and other rights which are the hallmarks of a liberal constitution.
With reference to that decision this comment undertakes an overview of group rights in the FC. It considers the exclusive association of customary law with the ‘black’ community and questions whether this association has enhanced the group rights of the black community. It assesses the interpretation of the rights of members of cultural, linguistic and religious communities under sections 30 and 31 of the FC as interpreted in the Shilubana case and other cases to ascertain how far they advance group rights. It concludes by urging a unified interpretation of ‘communities’ and a more beneficial interpretation of ‘group rights’ that recognizes that all racial groups have their own customary laws and deserve a more sensitive recognition of their communal norms