CULTURE, TRADITION, CUSTOM, LAW AND GENDER EQUALITY

In August 2011 Advocate Joyce Maluleke, Director in the Gender Directorate of the South African Department of Justice and Constitutional Development addressed the Annual General Conference of the South African Chapter of the International Association of Women Judges held in Potchefstroom on the dangers of harmful traditional practices such as early and forced marriages, virginity testing, widow's rituals, levirate and sororate unions, female genital mutilation, breast sweeping/ironing, the primogeniture rule, practices such as 'cleansing' after male circumcision, and witch-hunting. Although she considers respect for tradition, culture and customs to be part of the South African identity, she argues that cultural practices should be rooted in respect for human rights, democracy and equality. We publish her paper here as an oratio.


Introduction
Traditional cultural practices reflect the values and beliefs held by members of a community for periods often spanning generations.Every social grouping in the world has specific traditional cultural practices and beliefs, some of which are beneficial to all members, while others have become harmful to a specific group, such as women.These harmful traditional practices include early and forced marriages (Ukuthwala as practised currently), virginity testing, widow's rituals, 'u ku ngena' (levirate and sororate unions 1 ), female genital mutilation 2 (FGM), breast sweeping/ironing, the primogeniture rule, practices such as 'cleansing' after male circumcision, and witch-hunting.
Despite their harmful nature and their violation of national and international human rights laws, such practices persist because they are not questioned or challenged and therefore take on an aura of morality in the eyes of those practising them.
PER / PELJ 2012(15)1 3 / 428 The purpose of this article is to discuss the impact of culture, 3 tradition 4 custom 5 and law on gender equality.However, before the article discusses that matter it will examine the influence of colonialism 6 , imperialism 7 and apartheid on the African culture, traditions and customs with particular reference to South African culture, traditions and customs.This will include a brief review at what really constitutes African culture, tradition and custom, and what is a colonial or imperial construct which is now regarded as African culture, tradition and custom.It will be argued that the primogeniture rule8 is not an original African cultural principle but a colonial and imperial construct.In our dialogue about the revival of our culture, tradition and customs we need to interrogate what is African and what is a colonial or imperial construct.
The presentation will demonstrate that law reform and development have traditionally focused on reforming state legal institutions to the exclusion of customary legal systems, and that where the courts had an opportunity to develop the customary legal systems they either reinforced archaic customary laws or imposed western ideology.It will show that pre-colonial and pre-apartheid African culture, traditions and customs were based on Ubuntu.It will conclude by showing that harmful traditional practices, as outlined previously, are a violation of women's human rights as guaranteed in the Constitution, perpetuate the inequalities between women and men, and contribute to the extreme poverty that government is trying to eradicate. 3 Culture is a combination of the ideas, customs and social behaviour of a particular people or society (Weiner and Simpson Oxford English Dictionary).
Tradition is the transmission of customs or beliefs from generation to generation; it is a long established custom or belief that has passed from one generation to another (Weiner and Simpson Oxford English Dictionary).
Custom is a traditional and widely accepted way of behaving or doing something that is specific to a particular society, place or time; it is things done habitually (Weiner and Simpson Oxford English Dictionary).

Background
African culture has experienced rapid change since the colonial invasion.
Contemporary African culture is a mixture of traditional elements and alien features.
Local African culture was oppressed for many years by white South Africans, who find their cultural roots in western countries.Western cultures tend to be more individualistic and focused on individual achievements and personal interests, whereas African cultures are collectivistic, group-oriented, and concerned with the welfare of their community.
Native law was officially recognised in 1848, but only insofar as it did not infringe on the humanitarian principles of 'civilised society'understood to be 'white society' in that day. 9The aim was to maintain control over African people.The strategy adopted was to manipulate the way of life through the codification of customary law, as seen from the eyes of the colonisers.Many research reports and scholarly writings have revealed that customary law and its practices have been tampered with.Writers such as Prof Chanock and others argue that: Although there is the view that colonialists 'invented' customary law as a way to govern natives while under the auspices of paying tribute to their culture and heritage, some other writers have argued that customary law was not so much 'invented' by them, but 'manipulated' so as to conform the actual practices of the natives to their westernized ideals as part of their 'civilizing mission'.These writers prefer to view the colonial influence more as 'imagination', rather than 'invention'.including those prohibiting and curbing all forms of discrimination, particularly those harmful practices which endanger the health and general wellbeing of women.It also contains important provisions on reproductive rights, marriage, divorce and inheritance rights, among others.
In addition to the international commitments, the South African Constitution enshrines the rights of all people in South Africa and affirms the democratic values of human dignity, equality and freedom (section 7 of the Constitution), declares its supremacy (sections 1(c) and 2 of the Constitution), and provides that any law or conduct inconsistent with it is invalid. 14The right to equality, including gender equality, is one of the fundamental pillars of the Constitution, and it is enshrined in the Bill of Rights, which is justiciable.
On the other hand, the Constitution also provides for and protects the right to culture (sections 15(3), 30 and 31 of the Constitution) and recognises traditional leadership (sections 211, 212 of the Constitution), which recognition could be interpreted as protecting polygamy as well as related practices such as 'spouse inheritance', 15 Ukuthwala 16 and other customary practices which have the impact of undermining the constitutional guarantee of gender equality. 17However, the provisions protecting the right to culture explicitly include a qualification stipulating that 'no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of  Act) recognises patriarchy and discrimination on the grounds of sex and gender as being of such a prevalent and serious nature that it specifically singles out these forms of discrimination for special treatment.In addition to outlawing unfair discrimination, the Equality Act contains provisions which encourage both the public and private sectors to create a nonsexist society.
Customary practices such as Ukuthwala, virginity testing, widow's rituals, and others are entrenched, and in practice take precedence over equality in the villages where they are carried out.It is therefore questionable whether the constitutional protection of gender equality is making a difference to women living in communities with a strong commitment to traditional norms and practices.These compromises on women's right to equality can thus be interpreted to mean that women, as opposed to men, do not have inherent rights.
In order to support this argument, the following section of this paper explores the impact of the following harmful traditional practices: female genital mutilation (FGM), early and forced marriages (Ukuthwala as practiced currently), virginity testing, widows' rituals, 'u ku ngena' (levirate and sororate unions), breast sweeping/ironing, the primogeniture rule, and practices such as cleansing after male circumcision, witch-hunting, and other practices that impinge on gender equality.

The Children's Act 38 of 2005
Section 12 of the Children's Act: Social, Cultural and Religious Practices specifically prohibits female genital mutilation and the circumcision of female children.
Contravention of this prohibition is an offence which may result in a sentence of a fine or imprisonment of up to 10 years if found guilty.
The Children's Act also protects the privacy, bodily integrity and dignity of children, especially female children, by prohibiting virginity testing with regard to children younger than 16 years of age.Virginity testing may be practiced in relation to children older than 16, on condition that the testing is performed in the prescribed manner and that written consent is given.

The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (PEPUDA)
The definition of discrimination in PEPUDA was taken as it is from the CEDAW This means that all practices such as virginity testing, Ukuthwala and others that are dehumanising young girls are regarded as unfair discrimination by PEPUDA.The rights in PEPUDA can be enforced in the courts; there are specialised courts called Equality Courts where the violation of all these rights can be reported.

The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (Sexual Offences Act)
Having sex with a child without her consent following her kidnapping and abduction (Ukuthwala) constitutes rape in violation of the Sexual Offences Act (section 15).
Regarding a child, the age of consent is 16; meaning that sex with an under-16 constitutes a sexual offence.Sex with a child that is 12 or below is rape, as a child of that age is legally incapable of consent.The Act also prohibits other sexual activities with children (sections 16 and 17), including sexual grooming (section 18).
Section 17 of the Sexual Offences Act prohibits the sexual exploitation of children by their parents and others.Parents, relatives or others who collude in, or aid and abet, the Ukuthwala of a girl child commit the crime of the sexual exploitation of children.
These parents and relatives also face being charged with Trafficking in Persons, under section 71 of the Sexual Offences Act.

The Recognition of Customary Marriages Act 120 of 1998 (RCMA)
According to the Recognition of Customary Marriages Act, both the bride and the bridegroom must consent to a marriage.The age of consent is 18 years of age.

The Prevention and Combating of Trafficking in Persons Bill [B7-2010] (the Bill)
The Bill prohibits the recruitment, sale, supply, procurement, transportation, transfer, harbouring, disposal or receipt of persons by means of the use of threat, force, intimidation or other forms of coercion; or by abusing vulnerability, for the purpose of exploitation.Parents, relatives and others who hand over a child into a forced marriage for financial or any other type of gain can be prosecuted under section 4 read with section 1 of the Bill.

The Transkei Penal Code 9 of 1983
Ukuthwala of young girls was also prohibited in Transkei under the Transkei Penal Code.The Penal Code criminalised the abduction and kidnapping of children under 18 years.

The Domestic Violence Act 116 of 1998
A victim of Ukuthwala may apply for a protection order under the Domestic Violence Act against family members involved in her abduction.

Cultural, traditional and customary practices which are harmful to women and children
The revival of traditions, culture and customs, and the practices derived from them, after the demise of colonialism, imperialism and apartheid will definitely require us to enter into a dialogue on the character of our ancestors and what is really indigenous.
However, the process should take the context into consideration.Some of the cultural practices that were necessary then are unnecessary now due to development, globalisation and other factors.Some cultural practices that need to be scrutinised are discussed below.

Virginity testing
Virginity testing is practised mostly in KwaZulu Natal and the Eastern Cape. 18rginity testing is the practice and process of inspecting the genitalia of girls and women to determine if they are sexually chaste.It is based on the false assumption that a woman's hymen can be torn only as a result of sexual intercourse. 19It is a very controversial practice, both because of its implications for the girls tested and because it is not necessarily accurate.
There are two schools of thought with regards to virginity testing. 20One school of thought submits that it is a form of sex education and it enforces abstinence from sexual activities before marriage. 21Girls are taught not to allow boys or men to take away their pride by having sexual intercourse with them before marriage.It is believed that young women will abstain from sex because they fear being discovered to be no longer virgins (the implication of this fear is what the writer has a problem with).This is a stigma not only for the girl but for her entire family.It is believed that virginity testing substantially reduces the spread of sexually transmitted diseases, including HIV/AIDS, and further, that it reduces teenage and unplanned pregnancies that lead to school dropouts.
The other school of thought (to which the writer ascribes) holds that the intention of the practice of virginity testing might be good, but its flip side is gender bias.It does not treat boy and girl children equally.There are implications for gender equality and human rights as provided for in the Constitution. 22The practice also appears to threaten and objectify girl children so that fathers may get full lobola or bohali on 18 Reports from the KwaZulu Natal Rural Women's Movement and other NGOs in the Eastern Cape. 19 The use of tampons can break the hymen.The provisions protecting the right to culture explicitly include a qualification stipulating that 'no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights' (ss 30, 31(2) Constitution of the Republic of South Africa, 1996).
marriage.This school of thought argues that the practice of virginity testing puts the whole responsibility for safe sex, abstinence, and countering the spread of sexually transmitted diseases solely on the shoulders of girls and young women, who are often the victims of gender violence and gender inequality in so many other respects.
Women are expected to maintain a very high level of morality to be married to 'honourable' men who might have deflowered and/or impregnated a string of girl victims, and might possibly even be HIV positive.On the other hand, virginity testing poses a threat of discrimination against girl children who are not virgins (who in many instances may have been raped).The reasons advanced for virginity testing do not focus on prevention and protection.

Ukuthwala
Ukuthwala is a form of abduction that involves the kidnapping of a girl or a young woman by a man and his friends or peers with the intention of compelling the girl or young woman's family to endorse marriage negotiations.In ancient Africa Ukuthwala was a condoned, albeit abnormal, path to marriage targeted at certain women of marriageable age.It did not involve raping or having consensual sex with the girl until the marriage requirements had been met.
Ukuthwala was not performed, however, with impunity; it incurred delictual liability for the culprit in the form of the payment of a herd of cattle to the father or legal guardian of the girl.Today Ukuthwala involves the kidnapping, rape and forced marriage of minor girls by grown men old enough to be their grandfathers.It contradicts the reasons advanced for practicing virginity testing.
Ukuthwala retards childhood development processes.Their lack of education and underdevelopment, due to Ukuthwala, deepens their poverty and perpetuates the cycle of poverty.In many instances the children born into poverty also tend to be poor.This contributes to the cycle of poverty in the communities, particularly rural communities, where Ukuthwala is rife.

Ukungena
In terms of the Recognition of Customary Marriages Act 120 of 1998 (RCMA), a customary marriage must be negotiated and entered into in accordance with customary law.Customary marriages include polygamous practices.Polygamy These health complications are consistent with the findings of the UN Secretary General's Report on Violence Against Children (2006) and the findings of UN agencies such as WHO, UNICEF and UNIFEM in countries that are bedevilled by forced and early marriages.
includes levirate and sororate unions, although the RCMA is silent about this.As it has been a cultural practice, it is still practised by some communities.If the inheriting of the deceased's spouse is conducted according to the custom of that community, and the widower or widow and the deceased spouse's relatives consent, then that marriage is a valid marriage under the RCMA.
At the International Alliance of Women's 35 th Congress held in South Africa in December 2010, women from KwaZulu Natal and the Eastern Cape reported that widows are forced to marry the brother or any male relative of the deceased husband.The widow is required to choose a husband without knowing who she is choosing because she is given a few sticks to choose from, and the stick she chooses will determine who the husband is.
If she refuses to marry one of the men selected, she is banished from her home, and she loses custody and all her inheritance.The consent might therefore be coerced or unduly influenced by family members or the community.If the woman agrees to marry the male relative due to a fear of violence, then the marriage is not valid.But what are the implications for the woman of invalidating the marriage?

Male circumcision rituals or practices that affect women
Civil society organisations in the Eastern Cape, KwaZulu Natal and Limpopo have been complaining about the ritual of the 'cleansing' of young men who have just completed their circumcision process.The 'cleansing' involves the young men finding a female, perhaps even a widow, and gang raping her to 'cleanse' themselves after this ritual.This is definitely not rooted in Ubuntu.It is a criminal act.

Widows' rituals
Widowhood is a clearly defined social role for women, that is associated with prescribed institutionalised cultural and religious norms and the concomitant social sanctions if a deviation from the defined social role occurs.However, an altogether different set of norms applies to men upon the death of their wives. 24The Commission on Gender Equality (CGE) conducted an in-depth country-wide study on the experiences of widowhood in different cultures and in different geographic areas in South Africa.The study revealed the following:


There is large-scale discrimination against widows and widowers, including the imposition of burdens, obligations or disadvantages, and the with-holding of benefits, opportunities or advantages, as well as the regular harassment of widows and widowers in the context of the household, community, state and market-place.
 A woman's status shifts drastically (downward) after the death of her husband in contrast to the widower's status which remains unchanged (including in terms of the administration of the estate).


A decrease in social status not only has implications for women's livelihood, economic status and quality of life, but also increases their vulnerability to discrimination, abuse, harassment and gender-based violence, as well as their ability to assert ther rights.


Both women and men experience increased social pressure during widow(er)hood, but in opposite directions: widows are pressured to remain 'loyal' and 'faithful' to their late husbands, and honour their memory, whereas men are often pressured into a quick remarriage, regardless of their readiness or wish to remarry.


If widows remarry, they rarely do so of their own free will.In some communities widows may be forced into new conjugal relations with a male relative or be forbidden to remarry, even if they wish to do so.

Witch-hunting violence against women
In his presentation at the CGE Conference, the then Premier of Limpopo, Adv Ngwako Ramahlodi, said that the notion of witchcraft is itself not a new phenomenon in African culture.One would venture to suggest that it is indeed a phenomenon amongst many nations of the world.In our situation our culture recognises witchcraft as one of its main ingredients. 25Thus, for many families, when spring arrives a traditional healer is brought in to strengthen the kraal and all those who dwell in it against any harmful spirits, including those wilfully engineered by witches.The problem with this practice is that it involves violence when one is branded a witch.
Most of those blamed for witchcraft are elderly people and women.This practice is rife in Limpopo, and now lately in Eastern Cape and KwaZulu Natal.I asked my host the following questions: Question: Why is it a woman who is burned?
Answer: It is women who are witches.
Question: How do you identify and verify that someone is a witch?
Answer: You tie her to a stone and immerse her in the river, and if she dies, she was a witch.
In Ubuntu, old age or grey hair is a sign of wisdom and old people were respected, not abused, discriminated against or burned to death.

Female genital mutilation (FGM)
Female genital mutilation (FGM) is disfigurement that includes cutting of the clitoris.
It also includes changing the form of the labia or elongating them, as practiced by Tsonga and Sotho communities.In some societies FGM marks an important rite of passage into womanhood, while others believe it guarantees virginity, curbs female sexual desires, maintains hygiene, prevents promiscuity and increases fertility. 26atever the reasons for practicing FGM, the consequences are a health hazard.
The practice is normally performed without anaesthesia, using unhygienic methods and instruments.Its consequences include sickness or death due to infection, haemorrhage, blood poisoning. 27This is torture, and the prohibition against torture is contained in s 12(1)(b) of the Constitution, and article 5 of the African Charter on Human and Peoples' Rights.

Primogeniture rule
The primogeniture rule, 28 which has just been abolished by the Constitutional Court in the case of Bhe, 29 was not a customary law principle but a colonial and imperial construct imposed on Africans.The irony of it is that African males embraced it as their customary principle because it benefitted them; therefore they are the ones who were fighting against its being declared unconstitutional.The primogeniture rule was conceived by the framers of the Natal Code to be one of the main pillars of the 'native law' to their own benefit.It was imposed on Africans in order for the state to be able to litigate against one person rather than to have to join the whole family when the head of the house died. 30e African traditional culture has an almost infinite capacity for the pursuit of consensus and reconciliation, as opposed to being individualistic and competitive.The writer argues that the previous generations were wise and innovative and evolved with the times, and that customary law also evolved in line with the way of life and enlightenment at that time.The case of Mazibuko v Mazibuko 31 is proof that African customary laws, practices and the way of life have evolved.
This case involved a suit between two brothers of the deceased; the eldest brother and the deceased's twin brother.The family had given the estate of the deceased twin brother to the surviving twin because they believed that twins are one person.
The custom had evolved from the practice of killing one twin to recognising that they are two people as one, and that both can live.
The eldest brother contested that view and won the case at the Natives Commission and at the Natives Appeal Commission.The Native Commissioner's judgment held that the 'custom' of twin succession did not have sufficient longevity to overcome the Code's fundamental principle of primogeniture, since it originated only within the last 50 or so years, while the law of primogeniture had been observed by natives from time immemorial.
The writer agrees with McClendon 32 when he argues that the Mazibuko case shows that most of the African participants in 1929 had a very different conception of custom and customary law from that of colonial officials.Rather than something fixed and immutable, they were satisfied that although one practice had been followed 'in the old days', another might be followed now, depending on the context and circumstances.

Conclusion
The danger of these harmful traditional practices is that children and adolescents whose rights to personal safety and wellbeing are violated are at increased risk of long-life developmental challenges, HIV infections, and other physical, emotional and social problems.These outcomes compromise national and international development goals, including, among others, the MDG 33 goal 1: 'Eradicate Extreme Poverty and Hunger,' and goal 2, which provides for 'Achieving Universal Primary Education' in order to establish 'A World Fit for Children'.The goals on reducing child mortality and improving maternal health are also affected.
The revival of tradition, culture and customs is part of the new national and international identity; however, this revival must be rooted in a way of life based on human rights, democracy and equality for all, and understood from a point of view of Ubuntu.Thus, culture, tradition and customs have to be balanced within the social and legal context of the constitution and provisions of the Bill of Rights.
Rights' (sections 30, 31(2) of the Constitution).But what does this mean in practice for a young girl in the rural areas who has to endure many harmful practices in the name of her culture?14 The Constitutional Court has reiterated the supremacy of the principle of equality in the face of indigenous law that discriminated against women in several decisions.See Gumede v President of the Republic of South Africa 2009 3 BCLR 243 (CC); Bhe v The Magistrate of Khayelitsha 2005 1 SA 580 (CC).15 This will be briefly discussed in par 4.4 below.See 'Consent to a customary marriage' 16 The practice of Ukuthwala will be briefly discussed in par 4.4 below.See 'Consent to a customary marriage'.For a detailed discussion of this customary practice see Koyana and Bekker 2007 De Jure 139-144.Section 9 of the Constitution explicitly acknowledges the intersectionality of different grounds of discrimination as prohibited.The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality

20CGE
Report on Virginity Testing 11.21 CGE Report on Virginity Testing 11. 22


It burdens the girl child with the responsibility of being a wife with a husband and in most instances children and in-laws to serve or look after. It is a health hazard, with problems ranging from HIV and other STIs to pregnancy-related complications such as infant and maternal mortality and fistula-related diseases. 23 The social development of the child is stunted as the early marriage and fasttracking into the adult world skips organic developmental phases.The abducted child is removed from school, and dropping out of school deprives the child of education opportunities, including tertiary education and skills training.Early marriage is a symptom of and exacerbates gender inequality.The subordinate position of the girl or young woman is reinforced by the fact that in most of the documented cases the girl children have been forced to marry men old enough to be their parents or grand parents. Community development depends on its people; this includes the level of health, knowledge and education, skills and resources controlled by those people.Since Ukuthwala undermines the girl-child's access to these resources it indirectly undermines community development. There is a proven link between a lack of education, underdevelopment and poverty.Ukuthwala deprives girl children of opportunities to educate and develop themselves.Furthermore, research indicates that the majority of the girls and young women that are victims of Ukuthwala are from poor families.
figure of a woman on the fire.

The international legal framework and the South African Constitution
10However, due to the living nature of customary law, there is one African principle that colonialism and imperialism could not manipulate, i.e.Ubuntu.All Africans, particularly indigenous Africans, will tell you that our parents always taught us about Ubuntu.(It is not clear whether current parents are passing on the baton or not).
grounds, as set out in the definition of 'prohibited grounds' (which is not a closed list, but all of the 17 prohibited grounds are contained in the Constitution).
definition of discrimination.Chapter 2 of the Act deals with the prevention, prohibition and elimination of unfair discrimination, hate speech and harassment on any of the prohibited The main ethical values of CGE Report on Witchcraft Violence 1.
Further, in terms of African culture, there are no orphans because a child is a child of community in which the child lived.Decision making in the African culture (as expressed in terms of the principle of Ubuntu) is by consensus -productivity is optimised, not maximised, as the case may be in other cultures.Rewards are shared and so is suffering, as opposed to the context of an individualistic culture, where rewards are given according to individual merit and suffering is viewed as a penalty for one's carelessness.Sustainable competitive comes from loyalty to group goals in terms of Ubuntu.
26 CGE Training Manual 11. 27 CGE Training Manual 11. 28 The Primogeniture Rule is the right, by law or custom, of a firstborn to inherit the entire estate, to the exclusion of younger siblings.a