Abstract

With reference to Bhe v Magistrate, Khayelitsha, this article critically examines the interplay between customary and common law under the Constitution. More precisely, it questions the implications of judicial and legislative approaches that conceptualise customary law in cultural terms, whilst treating the common law as immune from similar characterisation. The article argues that such an approach results not only in the further entrenchment of misplaced notions of the cultural ascendancy of the common law over customary law, but also further cements a Fanonesque alienation of the adherents of both systems of law from each other and indeed themselves. This outcome, it is argued, has serious implications for the forging of a constitutionally inclusive citizenship. [H]istory teaches us that, in certain circumstances, it is easy for the foreigner to impose his domination on a people. But it also teaches us that, whatever the material aspect of this domination, it can be maintained only by the permanent, organized repression of the cultural life of the people concerned. . . . In fact to take up arms to dominate a people is, above all, to take up arms to destroy or at least to neutralize, to paralyze, its cultural life. For with a strong indigenous cultural life, foreign domination cannot be sure of its own perpetuation. (Emphasis added.) A Cabral ‘National liberation and culture’in Unity and Struggle: Speeches and Writings (1979) The advent of Western Culture has changed our outlook almost drastically. No more could we run our own affairs. We were required to fit in as people tolerated with great restraint in a western-type society. We were tolerated simply because our cheap labour is needed. Hence we are judged in terms of standards we are not responsible for. Whenever colonisation sets in with its dominant culture it devours the native culture and leaves behind a bastardised culture that can only thrive at the rate and pace allowed it by the dominant culture. This is what has happened to the African culture. (Emphasis added.) S Biko I Write What I Like (2004) The unilaterally decreed normative value of certain cultures deserves our careful attention. F Fanon ‘Racism and culture’ in Toward the African Revolution (1964)