Defining Boundaries: Gender and Property Rights in South Africa’s Traditional Courts Bill

Abstract

In 2008, the Traditional Courts Bill (TCB) was introduced in South Africa’s Parliament to regulate customary courts in place of the apartheid-era Black Administration Act. The TCB has come under wide ranging attack from civil society across the country, including from people based in the former homelands where the Bill would have effect, for its perpetuation of colonial and apartheid distortions of customary law, and its continuation of the oppressions justified through these distortions. In this article, I examine some of the major epistemic developments in customary law in South Africa, from colonialism to the present, to highlight key logics and genealogies of power that form the foundation and framework for ‘official customary law’. This examination provides the context for analysing the epistemological de-linking from colonial frameworks represented in women’s claims to land, and reveals how changes in women’s access to land over the years allows for a reading of epistemological shifts and contestations in customary law. I read these developments alongside the content of the TCB to examine different references for custom represented in both colonially rooted knowledges and de-colonial knowledges that challenge the premises of the former.

Full text

Laws 2013, 2, 483–511; doi:10.3390/laws2040483
laws
ISSN 2075-471X
www.mdpi.com/journal/laws
Article
Defining Boundaries: Gender and Property Rights in South
Africa’s Traditional Courts Bill
Thuto Thipe
Centre for Law and Society, University of Cape Town, All Africa House, Middle Campus, Stanley
Avenue, Rondebosch 7701, South Africa; E-Mail: thuto.thipe@uct.ac.za; Tel.: +27-216-505-104
Received: 23 August 2013; in revised form: 3 December 2013 / Accepted: 3 December 2013 /
Published: 13 December 2013
Abstract: In 2008, the Traditional Courts Bill (TCB) was introduced in South Africa’s
Parliament to regulate customary courts in place of the apartheid-era Black Administration
Act. The TCB has come under wide ranging attack from civil society across the country,
including from people based in the former homelands where the Bill would have effect, for
its perpetuation of colonial and apartheid distortions of customary law, and its continuation
of the oppressions justified through these distortions. In this article, I examine some of the
major epistemic developments in customary law in South Africa, from colonialism to the
present, to highlight key logics and genealogies of power that form the foundation and
framework for ‘official customary law’. This examination provides the context for
analysing the epistemological de-linking from colonial frameworks represented in
women’s claims to land, and reveals how changes in women’s access to land over the years
allows for a reading of epistemological shifts and contestations in customary law. I read
these developments alongside the content of the TCB to examine different references for
custom represented in both colonially rooted knowledges and de-colonial knowledges that
challenge the premises of the former.
Keywords: Traditional Courts Bill; South Africa; land rights; women; customary law;
gender identity
Abbreviations
ANC: African National Congress; ANCWL: African National Congress Women’s League; BAA:
Black Administration Act; CONTRALESA: Congress of Traditional Leaders of South Africa; CLRA:
Communal Land Rights Act; DOJCD: Department of Justice and Constitutional Development;
OPEN ACCESS

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DWCPD: Department of Women Children and People with Disabilities; NA: National Assembly;
NCOP: National Council of Provinces; NHTL: National House of Traditional Leaders; TCB:
Traditional Courts Bill; TLGFA: Traditional Leadership and Governance Framework Act.
1. Introduction
Since South Africa’s transition to democracy, with the promise of equality for all people, women
across rural parts of the country have increasingly challenged constructions of customary law that deny
them land rights [1]. In this resistance to patriarchal framings of land rights, women have drawn on
both customary and constitutional law to claim these rights and to reframe them in ways that affirm
their material and social interests [2]. Over the past decade, the state has introduced a series of laws
related to traditional leadership and governance that threaten these localised developments around
women’s access to land. This article focuses on one of these pieces of legislation, the Traditional
Courts Bill (TCB). I examine some of the major epistemic developments in customary law in South
Africa, from colonialism to the present, to highlight key logics and frameworks that form the
foundation and framework for ‘official customary law’. This examination provides the context for
analysing the epistemological de-linking from colonial frameworks represented in women’s claims to
land, and reveals how changes in women’s access to land over the years allows for a reading of
epistemological shifts and contestations in customary law. I read these developments alongside the
content of the TCB to examine different references for custom represented in both colonially rooted
knowledges and de-colonial knowledges that challenge the premises of the former.
The TCB was introduced to Parliament’s National Assembly (NA) in March 2008 to replace
sections of the 1927 Black Administration Act. The Bill immediately drew widespread opposition from
civil society, which argued that it affords traditional leaders extensive, unaccountable powers [3–7].
Much of this opposition argued that these powers undermine the constitutional rights of people who
live under traditional leadership, including the right to due process, equality, and freedom of culture. In
June 2011, the TCB was withdrawn from the NA, partly because of opposition, but also because of
insufficient time to complete required legislative procedures around public consultation. The TCB was
reintroduced to Parliament’s National Council of Provinces (NCOP) in January 2012. Despite intense
public opposition, the Bill was reintroduced unchanged. The TCB is currently in the NCOP.
The TCB’s stated objectives include:
Affirm[ing] the values of the traditional justice system, based on restorative justice and reconciliation and to
align them with the Constitution… promoting social cohesion, co-existence and peace and harmony in
traditional communities… promoting and preserving traditions, customs and cultural practices that promote
nation-building, in line with constitutional values… [and] enhance[ing] the effectiveness, efficiency and
integrity of the traditional justice system [8].
In contrast to these objectives, a primary critique in the campaign against the TCB is that instead of
encouraging customary law to develop in line with the Constitution, if passed, the Bill would
perpetuate colonial and apartheid distortions of custom, and in some cases intensify these
distortions
[9–13]. Land is central to this argument [14]. The TCB would allow traditional leaders to
determine the content of customary law and to strip people of customary entitlements, which include

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land. Traditional leaders’ decisions on land carry extra weight under the TCB because the Bill would
make it an offence not to appear before a traditional court when summoned by a traditional leader,
would deny people living under traditional authorities the option of using state courts instead of
traditional courts, and would give decisions of the traditional courts the legal status of rulings made by
the magistrates’ courts. The TCB adopts the tribal authority boundaries used under the homeland
system as the jurisdiction of traditional authorities today [12,15], and in doing this literally reproduces
the previous demarcations of ‘tribe’. Opponents of the TCB have consistently argued that the Bill’s
framing of customary law directly contradicts Constitutional Court jurisprudence on “living customary
law” which argues that customary law be directed by practice, and the values that inform this practice,
rather than by rigid dictates and imposition of rules [10,11].
To read the ways that women have challenged patriarchal framings of land rights under customary
law, in the context of the TCB, I draw on public submissions to Parliament on the TCB in 2008 and
2012. Over this period more than 100 submissions were submitted to Parliament from across the
country, and across sectors, including non-governmental organisations, community based organisations,
labour unions, government departments and individual citizens. Because of limited advertising of the
TCB, many people living in rural areas indicated in their submissions lack of knowledge about the Bill
and the public participation process until close to the deadline ([13], pp. 6–13). Many communicated that
they were informed about the Bill and opportunities to provide input by civil society sources. The
exclusion of people who would be most affected by the TCB sparked outrage about silencing in the
submissions and was the most commonly raised theme in both the 2008 and 2012 submissions. The
state’s poor communication on the Bill meant that many of the submissions are from people who are
politically engaged and have some relationship with civil society organisations. This context of the
poor public consultation on the TCB created limitations in this article around sample and bias in terms
of the people who wrote submissions and whose experiences are captured in this formal body of
knowledge on public responses to the TCB. I discuss these limitations and ways that they impact my
analysis in this paper in greater detail in the following section. Along with this examination, I also
explore the theory that frames my engagement with the submissions and consider insights that these
submissions can offer in reading contestations around women’s rights to land under customary law and
also around the role of different knowledges in informing customary law.
To provide context for understanding the TCB’s epistemic roots and the legislative context in which it
exists, I begin this article with background on the codification of customary law starting with the colonial
and apartheid eras through to democracy. This examination follows key legislative moments that reveal
the distortion of traditional leadership and governance, especially with regard to land and women’s rights.
Next, I provide context for understanding the more recent political context in which the TCB was
introduced and in which it has been debated. To do this, I examine statements by South African
President, Jacob Zuma, the Women’s League of the ruling party, the African National Congress, and
the Department of Women, Children and People with Disabilities. The analysis of these statements
highlights competing knowledges on customary law even within the ruling party and national
government, and points to the diverse ways that knowledge around custom, identity and rights is being
imagined and articulated differently by actors in different social locations.
After examining the historical and political contexts surrounding the TCB, I analyse responses to
the TCB from people who would be directly affected by the Bill. This analysis focuses on how women

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living under traditional leadership frame and communicate their experiences of land rights and how
they imagine the TCB’s impact on these current experiences. This section builds on the themes
discussed in previous sections to reveal the different historical, political and social influences that
shape the ways that people are framing their rights under custom and the Constitution.
I follow the analysis of women’s framings of customary law in the submissions with an
examination of some of the Constitutional Court’s key judgments on customary law. This examination
affirms the challenges to patriarchal framings of customary law in the submissions, providing context
for understanding the judicial framing of customary law and illustrating how the Constitutional Court
has engaged with the distortions of customary law that are represented in official customary law. This
analysis of Constitutional Court decisions highlights how the Court has worked to align customary law
with the values of the Constitution and the democratic dispensation.
This article’s examination of the implications that the centralisation of power in traditional leaders
have on women’s access to land rights is significant because of the ways that it provides insights into
“the specificity of mechanisms of power, to locate the connections and extensions, to build little by
little a strategic knowledge ([16], p. 145).” Analysis of local contexts in which women are challenging
patriarchal domination in relation to land rights creates opportunities for reading de-colonial
constructions of customary law and the rights that these constructions afford different groups of
people. The reflections in the submissions of different women’s understandings of how and why the
TCB would erode their access to land shed light on the conditions and relationships that perpetuate
“top down” framings of custom and, in doing this, perpetuate inequality and women’s
disenfranchisement in the context of traditional governance.
2. Theory and Methodology
As mentioned in the introduction, there are significant limitations to what the submissions to
Parliament on the TCB can reveal about women’s experiences of claiming land in areas where the
TCB would have effect. The poor public consultation on the Bill resulted in significant sample bias,
which means that it is not possible to read the experiences communicated in the submissions as
representative of women’s experiences of interactions with traditional leaders or traditional courts
broadly. This reporting bias has potential to influence the types of experiences on traditional courts
that are captured in the submissions and to highlight some of the worst cases of abuse. This said,
submissions were from across the country, and importantly from across the former homelands. The
submissions describe a variety of different understandings of customary law that are informed by
diverse historical, political, economic and social contexts and illustrate the heterogeneity of indigenous
governance structures that people use. The overwhelming majority of the submissions opposed the
Bill. Apart from submissions by traditional leaders, none of the people based in areas where the TCB
would have effect wrote in full support of the Bill.
A significant number of submissions discussed the patriarchal norms and practices that shape
women’s experience of customary law and traditional leadership in many areas. Most of these
submissions described the systemic and structural challenges that women face, which focused on
macro-level problems rather than specific narratives that allow insights into the ways that people
navigate and engage with patriarchal understandings of custom. My engagement in this article is

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specifically with submissions that explicitly describe women’s claims to land and that go into detail
explaining how these claims to land confront and relate to patriarchal understandings of custom. This
points to another bias in the selection of submissions to examine, but was necessary for in-depth
qualitative analysis of the submissions. These submissions offer insight—in people’s own words and
voices—into traditional leadership, and experiences of customary law and traditional courts in
different locations. Because of the narrative format of these submissions, they allow for readings of
different constructions of customary law and of the ways that competing knowledges interact with
each other in people’s lives. In submissions from across the country, there are striking similarities and
continuities in the descriptions of the challenges that women face in accessing rights under customary
law. Although I do not explicitly engage with the majority of these submissions, they inform the
backdrop on which I read and locate the personal narratives that I rely on in this article.
Because of the limitations in the sample described above and my intentional engagement with
narratives related to land rights, I do not attempt to present the submissions examined in this article as
fully representative of women’s experiences of customary law in the former homelands. Rather, in the
context of significant literature describing women’s increasing claims and access to land, I seek to
examine epistemologies that reveal how people are breaking from patriarchal understandings of
custom to rearticulate rights under custom in ways that empower women. Through this reading of the
submissions, I am looking to map epistemological routes and to examine the constructions of different
norms and framings of legitimacy in discussions of custom. Reading these norms allows for a
methodology that provides insights into how power is framed, how different actors construct their
relationships to power, and how these actors exercise different types of power. Positioning this reading
of epistemologies in the context of women’s experiences of seeking land rights affirms the materiality
of these epistemic frameworks, locating them historically, politically and socially to give meaning to
different expressions of power.
My examination of the departures from dominant patriarchal framing of custom is informed by
de-colonial frameworks for imagining knowledge. I draw on Anibal Quijano’s thinking that to disrupt
the coloniality of power, and the coloniality of knowledge through which this power is exerted,
legitimised and normalised, it is imperative to decolonise knowledge [17]. As Walter Mignolo describes:
The grammar of de-coloniality (e.g., de-colonization of knowledge and of being and consequently of
political theory and political economy) begins at the moment that languages and subjectivities that have
denied the possibility of participating in the production, distribution, and organization of knowledge.
The colonization of knowledge and of being worked from top down and that is the way it is still working
today: looking from economy and politics, corporations and the state down … On the other hand, the
creative work on knowledge and subjectivity comes from the political society, from the institutionally and
economically des-enfranchised… In that sense, the grammar of de-coloniality is working, has to work, from
bottom up ([18], p. 492).
Through this de-colonial lens I examine the ways that women’s claims to land present alternative
knowledges to the historically dominant patriarchal framing of custom, and in doing this de-link from
colonially ascribed standards of legitimacy within customary law. I read these knowledges against
those written into the TCB to examine the different levels at which women’s (re)framings of custom
illustrate knowledge “from bottom up.” This examination of the development and treatment of different

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knowledges on customary law forms the basis for understanding power differentials discussed in
submissions on the TCB.
Central to my examination of the TCB’s impact on women’s access to land rights is the recognition
that women living under traditional leadership are not a homogenous group ([19], p. 9), and that
intersectionality is crucial to engage with because gender intersects with multiple other identities to
influence the ways that women experience customary law and land rights [20]. This qualification is
echoed by Ben Cousins who notes that women with elite identities, such being part of a royal family,
might have greater access to land than women without such links to powerful institutions ([21], p. 121).
This recognition of and engagement with intersectionality informs my use of the term power. I engage
with power as a dynamic and relational force
([16], p. 142) and use the term to refer broadly to social,
political, cultural, economic and other forms of capital that provide individuals and groups with
influence in different relationships. Related to this, I use authority to mean power that is legitimised
through various social and political institutions.
In examining the ways that authority is constituted through land, I draw on Christian Lund and
Catherine Boone’s work in which they argue that “control over land and over political identity does
not merely represent or reflect pre-existing authority. It produces it ([22], p. 2).” This understanding of
the relationship between land and authority recognises that authority is constantly reconstituted and
reasserted to respond to changing contexts and relationships. Shula Marks quotes Barrington Moore
who, in explaining the fluidity and dynamism in relationships of power, said:
The assumption of inertia, that cultural and social continuity do not require explanation, obliterates the fact
that both have to be recreated anew in each generation, often with great pain and suffering ([23], p. 217).
The constant potential for the redefinition of power relations means that for patriarchal norms to be
upheld they need to be constantly reasserted. In the context of women increasingly claiming land
rights, patriarchal knowledges must be bolstered and subjugated knowledges challenging patriarchy
supressed to maintain male dominance. Moore’s point about the constant recreation of culture and
social continuity is central to the analysis in this article because it points to the competition between
different knowledges and the ways that specific knowledges gain dominance over others “often with
great pain and suffering.” According to women writing on their experiences of custom in the
submissions, the TCB’s centralisation of power in predominantly male traditional leadership would
allow for the maintenance and reassertion of patriarchal power relations because of the unequal power
relations that the Bill promotes.
3. State Intervention in Customary Law from Colonialism to the Present
To understand why the TCB has evoked such widespread and intense opposition it is important to
understand the history of state intervention in customary law and the historical distortion of the
institution of traditional leadership through this intervention. This examination highlights the
development of official customary law through colonialism and apartheid, analysing the frameworks
and logics that these specific political projects propelled and also those that they simultaneously
marginalised. Because of the focus in this article on epistemologies, this examination concentrates on a
fairly narrow body of literature on colonial and apartheid influences on the institution of traditional

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leadership and land, and does not engage extensively with the broad body of literature on the
constitution of land rights and ownership in customary law. While I recognise the significance of this
literature in understanding the diverse ways that people derive and express rights to land, this
examination is beyond the scope of this article.
Peter Delius notes that historically traditional leaders gained legitimacy through the support of their
followers, and therefore needed to exert power in ways that could garner approval and not alienate
followers. Delius notes that in this context, declarations by traditional leaders that did not align with
practice often had little effect [24]. Aninka Claassens and Sizani Ngubane similarly discuss the ways
that accountability structures were historically built into governance systems with possibilities for
appeal made possible by the multi-levelled adjudication system. Claassens and Ngubane highlight that
in many places this layered system of governance continues, with senior traditional leaders serving as
part of the governance system and not as the only, or even the most superior, source of power in this
system [2]. This layered system of governance ensured accountability through checks and balances and
limited traditional leaders’ ability to abuse power [10]. This system of different levels offered more
opportunities for the protection of women’s rights and for protection against arbitrary interpretations of
custom that were without the backing of popular support.
The discussions above about sources of knowledge on custom form part of a broad body of
literature in which examples of the accountability structures that were historically central to traditional
leadership and governance systems are well documented ([15], pp. 25–27). These examinations of the
diversity of traditional leadership structures across South Africa and the complex organisation of these
structures dramatically disrupt narratives of traditional leadership as homogeneous or as singularly
autocratic. Much of this literature illustrates that opposition to the centralisation of power in traditional
leaders started with Africans resisting colonial interference in traditional leadership institutions as
chiefly power was extended. Opposition to the renewed, and intensified, centralisation of power in
traditional leaders under the TCB is therefore not an entirely new phenomenon, but is linked to past
resistances to the imposition of colonial understandings of chiefly authority, expressed through the
state’s distortions of custom in the sanctioning of chiefs’ autocratic power.
To provide context for the analysis of women’s current struggles in gaining land, I draw on the rich
body of literature examining the role that gender played in shaping the ways that the colonial, Union,
and apartheid governments manipulated customary law to serve state interests and to tighten control
through indirect rule [10,19,23]. My starting point for this analysis builds on Ben Cousins’
argument that:
A long history of state interventions means that it is necessary to take into account the impacts of past
policies. These are particularly marked in relation to the powers of traditional authorities, but also with
regard to women’s land rights ([21], p. 109).
While many of the scholars whose work I rely on warn against romanticising pre-colonial
customary law, they also state that past governments exaggerated existing patriarchy to consolidate
colonial land gains by shrinking the pool of Africans eligible to own land to men [2,10,19,21]. Shula
Marks notes the ways that the codification of 'native law' in late 19th and early 20th century Natal
tightened patriarchal control over Zulu women to the extent that “unless specifically exempted from

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the provisions of 'native law', they were regarded as perpetual minors, without legal status, and they
had no independent right to own property… ([23], p. 226).”
Research on changes in women’s land rights under customary law indicates that in the late 19th
through to the mid 20th century women’s land rights came under sharp restriction as pressures for land
increased under colonial and apartheid regulation ([24]; [25], pp. 199–200). Tara Weinberg’s research
details how during the early to mid 20th century, successive pieces of colonial and then apartheid
legislation stripped away women’s land rights as these regimes exercised tighter control on Africans’
movements and decreased the total area of African reserves [26]. As these developments unfolded,
“‘customary’ restrictions on women’s land rights were more strictly enforced by white officials, and
internalized by African men ([10], p. 83).” Claassens quotes Mills and Wilson confirming that, “rights
over fields came to be regarded as male property to be inherited by the eldest son ([10], p. 83).” This
literature demonstrates the profound impact that state legislation had on shaping understandings of
custom and undermining women’s land rights. It also illustrates how processes of establishing
masculinity as central to the right to land were acts of simultaneous creation and erasure that in
consolidating patriarchal values made other values less visible. While all African people suffered with
the brutal dispossession of land, women’s land rights were further curtailed with this
disenfranchisement masked as custom.
These changes around women’s rights to land depended on imbuing gendered identities with
specific meanings that could find support amongst the most powerful within local groups while
furthering state interests. These manipulations had profound material impacts on the ways that
gendered understandings of land rights curtailed women’s life options. It is important to note that my
discussions here of pre-colonial practices are not aimed at suggesting a return to these practices or at
commenting on their value or legitimacy. My objective is rather to emphasise how so much of what
pre-democratic administrations stressed as African custom was a reflection of colonial constructions of
custom and that were developed to further the interests of the minority-led state. From this starting
point, I examine how the influences of past approaches to legislating customary law can be seen in the
ways that current legislation on customary law adopts structural frameworks from the past. This
contextualisation offers insights into how state intervention can influence power dynamics between
different actors in the customary law context and shape the terms on which customary law is
experienced. It also sets the scene for understanding the structures and relationships that many women
are resisting by claiming land rights.
The Union government’s passing of the Native Administration Act in 1927 is evidence of the state’s
manipulation of institutions of traditional leadership and customary law. This Act was established to
formalise a model of indirect rule based on a “highly authoritarian understanding of chiefly rule ([24],
p. 213)” that created a separate court system for Africans
([27], p. 328). The Administration Act
appointed the governor general as the “supreme chiefs of all natives,” able to “rule all natives by
decree… subject to neither parliamentary nor judicial restraint ([28], p. 71).” As the supreme chief, the
governor general had the power to divide or combine tribes and to create new tribes as he saw fit. The
Act also gave the governor general the power to appoint chiefs and headmen, and to establish
chieftainships, providing the government with direct control over African traditional leadership. Peter
Delius notes that this Act was “a significant step in a longer process of the incorporation of

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chieftainship and its redefinition as an instrument of administration with power devolved from
above ([24], p. 223).”
The state’s rule over Africans through the institution of traditional leadership increased with the
advent of apartheid. In 1951 the Bantu Authorities Act was passed. This Act established tribal
authorities in areas assigned to chiefs and provided boundaries for these tribal authorities. Describing
the coercive measures that the state applied in implementing the Act, Peter Delius explains, “Groups
who readily accepted the establishment of tribal authorities were often allocated land claimed by
groups who had resisted the system ([24], p. 231).” In line with this moment in which the Bantu
Authorities Act afforded to chiefs greater power but resistance against increasingly repressive
governance mounted, the “broad tendency was for chiefs to use their enhanced power and reduced
popular accountability to attempt to assert greater control over the allocation of land” ([24], p. 232).
Barbara Oomen’s discussion of the significance of land in consolidating the power of apartheid
supported chiefs highlights the important role that land played in forcing apartheid sanctioned
structures and systems on African people. Oomen notes, “central to the chiefs’ political authority was
their authority to allocate land… access to land had been made dependent on accepting the political
authority of the traditional leader, with an inevitable insecurity of title as a result. Again, this can
hardly be considered a continuation of practices existing at the beginning of the twentieth
century ([29], p. 4).”
The Bantustan system, which grew out of the developments described above, was fiercely opposed
by political and intellectual leaders of prominent anti-apartheid organisations, and was often referenced
as an illustration of apartheid manipulation of African governance systems to further the interests of
the minority-led state [30–34]. These thinkers simultaneously challenged the distortion of local
governance structures and the material devastation that these distortions wreaked on African people’s
lives. Steve Biko said:
Why are we against the bantustan idea? Black people reject this approach for so many reasons, none of
which are as fundamental as the fact that it is a solution given to us by the same people who have created the
problem… At this stage of our history we cannot have our struggle being tribalised through the creation of
Zulu, Xhosa and Tswana politicians by the system ([34], pp. 82–86).
This discussion of resistance to the Bantustan system and its mode of tribalisation is to illustrate
consistent resistance to impositions of apartheid constructed knowledge on customary law and African
identity. It is also to illustrate the insidiousness of Eurocentric epistemology on institutions of
traditional leadership and governance that such resisted boundaries and frameworks could continue to
carry currency in the democratic, majority-rule dispensation. I use this specific point to argue that the
roots of knowledges must be interrogated to examine whose realities and interests they serve in their
reproduction, and what types of power relations they advance. Without such interrogation of the
matrices of power that different knowledges feed into, it becomes possible to reproduce the very
violence that new systems are aimed at addressing.
In explaining the significance of the TCB, the Department of Justice and Constitutional
Development (DOJCD) has been intentional in discussing colonialism’s negative impacts on
customary law, including conferring new powers on chiefs and headmen [35], and the necessity of

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addressing these impacts in the democratic dispensation. In its August 31, 2009 Report to the Portfolio
Committee on Justice and Constitutional Development, the DOJCD argues that:
The original character of administering justice by traditional leaders was distorted by the colonial and
apartheid regimes, through the Black Administration Act (BAA), 1929 [sic]. The BAA was the bastion of
segregation policy of the Apartheid order. It provided a separate administration dispensation for Africans
which was a system designed for second class citizens… Under the Apartheid dispensation the Traditional
Courts, as were all other courts, were used to administer unjust and oppressive laws of the government of the
day. The Chiefs had arbitrary powers of arrest and detention without trial and meted out corporal punishment
in a dehumanising manner. The due process of the law was not observed at the trial of persons suspected of
customary law crimes. Women were excluded from the traditional court structures… The objective of… the
Traditional Courts Bill is to preserve the African justice value system which has evolved over time, and to
ensure the effectiveness and efficiency of the traditional court system in the administration of justice [35].
While it engages with colonialism and apartheid’s damaging effects on customary law, the
DOJCD’s reflection on the BAA does not engage with how the TCB’s provisions respond to and
address the BAA’s legacies. Unlike many other engagements with the BAA in conversations about the
TCB [13], the DOJCD’s analysis of the need for the repeal of this Act does not substantively address
the content of the BAA in relation to that of the TCB. Most submissions on the TCB that discussed the
repeal of the BAA underscore that the repeal of apartheid legislation is not significant in itself. Rather,
it is made significant through the intentional breaking away from colonial and apartheid knowledges,
structures and practices, and through the development of knowledges that are empowering to the
people who apply them. This reasoning affirms that the symbolism of the repeal is not the primary
goal, but rather the goal is de-colonising the knowledge structures and matrices of power that
underpinned the BAA and allowed it to exert violence over Africans.
Much of the criticism of the TCB, and of other recent legislation on traditional leadership, has
focused on the relationship between the frameworks of custom and traditional leadership represented
in colonial and apartheid legislation and in current legislation [13]. In 2003, Parliament passed the
Traditional Leadership and Governance Framework Act (TLGFA). This Act adopted the same
boundaries used to define tribal authorities under the Bantu Authorities Act and applied them to
traditional councils today. Section 28 of the TLGFA provides for chiefs appointed and ‘tribes’ created
before 1994 to be recognised as senior traditional leaders and traditional councils, provided that they
comply with new composition requirements [36]. Section 4(1) (a) of the Act provides for traditional
councils to administer the affairs of traditional communities “in accordance with custom and
tradition [37].” By affirming pre-existing boundaries for defining areas where customary law is
practiced and structures inherited from the pre-democratic era, the TLGFA reaffirms many aspects of
the homeland systems.
The Communal Land Rights Act (CLRA) was passed in 2004, but struck down in its entirety by the
Constitutional Court in 2010. The CLRA reaffirmed the boundaries of the former homelands by
drawing from the definitions set out in the TLGFA. The Act gave traditional councils extensive powers
over communal land [38], enabling them to subsume under the ‘tribe’ communally owned land that fell
within the boundaries of the former homelands, and providing them with control over the occupation,
use and administration of communal land.

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The TCB draws on the TLGFA’s definitions and adopts its leadership structures and the boundaries
of the former homelands for traditional courts. In addition to reinforcing homeland boundaries the
TCB forces people within them to use the traditional courts, blocking the use of magistrates’ courts.
When read in conjunction, s 11(c) and ss 8–11, enable traditional leaders to unilaterally interpret
custom. This provision fundamentally alters power dynamics by denying people the opportunity to
challenge traditional leaders’ interpretations of custom, exaggerating traditional leaders’ roles in
shaping custom and weakening bottom up systems that privilege practice. Section 20(c) makes it a
criminal offence for people not to appear before a traditional leader if called. Central to this article is s
10(2)(i) which allows traditional leaders to issue an order “depriving the accused person or defendant
of any benefits that accrue in terms of customary law and custom [8].” Customary entitlements include
land and community membership
[11].
Locating the TCB in the context of historical constructions of customary law and governance
reveals continuities between the TCB, and other recent legislation on customary law, and colonial and
apartheid legislation. The mapping in this section of the genealogy of legislation on customary law
highlights the coloniality of knowledge in official custom, the ways that past administrations
intentionally constructed tribal identities and authorities, and how these identities were used to justify
the denial of land rights to Africans. This denial makes visible the ways that racialised frameworks of
law and of rights established the material boundaries that defined which people could claim rights and
which people were subjects of tribal authorities and therefore not rights-bearing citizens. This
examination also highlights the ways that constructions of gendered identities in official customary law
intensified patriarchal relationships, restricting women’s land rights and making it difficult to
challenge traditional leaders’ power. Through these processes, gender became written into customary
law in ways that furthered colonial power. This genealogy highlights the ways that the TCB not only
perpetuates the structural violence of colonial and apartheid engineering but also the ideological
struggles tied to these structures. Because the delineation of land rights in the former homelands was
so intrinsically connected to racist, nationalist political projects, it is not possible to reference those
boundaries without also referencing the ideological roots that gave them form and meaning.
4. Political Context
As the previous section highlights, traditional leaders and the institution of traditional leadership
have played a range of roles in different moments in South African history, and were central to past
models of indirect rule. Lungisile Ntsebeza poses the question “how traditional authorities managed to
to bounce back after independence from colonial rule ([39], p. 18).
”
In answering this question, he
points to the same moment as Ineke Van Kessel and Barbara Oomen ([40], pp. 262–66). This moment
was in 1987, when the Congress of Traditional Leaders (CONTRALESA) was formed and established
ties with the ANC. At this time, CONTRALESA was constituted by traditional leaders who supported
progressive causes espoused by the anti-apartheid movement, such as opposition to independent
homelands. Because of this identification, certain groups within the ANC read CONTRALESA as an
ally in the struggle and also an ally in growing support in rural areas where ANC influence was
weaker ([40], p. 569). Van Kessel and Oomen argue that the ANC saw this alliance with
CONTRALESA as important for broadening its political base in the early 1990s in the lead-up to the

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first democratic elections. This relationship between traditional leaders and the ANC, Oomen argues, has
continued into successive elections with traditional leaders viewed as being able to “deliver the rural
vote” ([29], p. 104).
A crucial moment in South Africa’s understanding of the role and place of custom in the country’s
broad legal framework was defined in the negotiations surrounding the development of the
Constitution. During this period, major women’s groups challenged traditional leaders who argued for
equality to be subject to customary law [41]. As an organised collective, these women’s groups argued
that if women’s protection under customary law was not secured in that moment then they would never
enjoy the full freedoms promised by democracy and the Constitutional dispensation [41,42]. The
guarantee to full protection of and access to citizenship rights was won in section 211(3) of the
Constitution, which makes customary law subject to the Bill of Rights. By securing the supremacy of
the Bill of Rights, including the equality clause, women’s groups ensured that custom could not be
used as a justification for violating the rights that women are entitled to as citizens of the Republic.
While the relationships between traditional leaders and the ruling party continue, and influence the
political landscape in which legislation on traditional leadership has been passed [43], there is diversity
of views on how to legislate traditional leadership and customary law within the ANC and between
government departments, as this section will examine. This diversity complicates the idea of custom as
obvious or unchanging and illustrates the ways that different understandings of custom and its content
are constantly at play. The political context in which the TCB was introduced is important to
understanding the logics central to the Bill’s constitution of power and the interests that these logics
serve. As the head of the executive branch of government, the President plays a pivotal role in shaping
the political climate and framing the state’s legislative interventions. Such framing of context for
understanding the role of customary law in people’s lives was illustrated at a November 2012
gathering of National House of Traditional Leaders (NHTL). On this occasion President Jacob Zuma
departed from his prepared speech that discussed flaws identified by civil society and other groups
around the Traditional Courts Bill. In impromptu remarks to the NHTL, the President said:
Let us solve African problems the African way, not the white man's way. Even some Africans who become
too clever take the position… they become the most eloquent about criticising themselves about their own
traditions and everything. It is this institution that must play a role to help all of us not to make ourselves
some things so that we cannot understand who we are, because if you are not an African you cannot be a
white, then what are you? What are you? You don’t know…. And you have a nation that cannot understand
who this nation is… freedom gave us an opportunity to re-identify and define ourselves, who we are. We are
Africans. We cannot change to be something else [44].
The President’s prepared speech stated, “government has come to a realisation, following public
hearings both in Parliament and in local communities, that there are genuine concerns as traditional
courts operate outside a proper legislative framework [45].” President Zuma went on to identify
critiques such as the centralisation of power in traditional leaders, discrimination against women in
many traditional courts, the entrenchment of Bantustan boundaries and the constitutionality of the Bill as
having been raised. He followed the listing of these critiques by giving the assurance that “all the concerns
raised in respect of the Bill are being addressed as part of the on-going parliamentary process [45].”

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When looked at separately, President Zuma’s prepared and impromptu sections of his address offer
two distinctly different takes on the TCB, its development, and the content that it relates to. The
section of his address that reflected the official government position on the TCB took into account the
major waves of protest from across the country, and importantly from rural constituencies, that spoke
out in opposition to the Bill. By identifying some of the key points of opposition to the Bill and
assuring government’s commitment to engaging with these concerns, this text reflects an
acknowledgement of the significance of the resistance to the TCB.
The impromptu section of this address was defiant and reverted to many of the premises for
understanding custom that fuelled protest against the TCB. President Zuma’s critique of the ‘sort of
person’ who opposes the TCB constructed opposing identities of people engaged in debate over the
TCB. The first identity, with which the President self-identified and aligned other proponents of the
Bill, was of an African who is proud of their heritage and history and who is deeply rooted in a
traditional understanding of what it means to be African. This framing of traditional leadership and
identity is not unrelated to that which the President referenced in a 2009 address to CONTRALESA, in
which he argued “(t)he institution of traditional leadership must be strengthened and afforded its
rightful place in the hearts and minds of our people [46].”
The second identity discussed in this address was of a self-hating African who has rejected custom
and abandoned heritage in pursuit of European ideals and a whiteness that can never be attained. The
fact that this speech was delivered to the National House of Traditional Leaders is significant. In this
context, the President’s statements suggest that the NHTL is the custodian of custom which identifies
and determines for others its content. By implicitly condemning critique of the TCB, President Zuma
limits the parameters of discussion around custom. The President’s dismissal of critiques that challenge
the power imbalances that the TCB promotes reinforces the systems that make it difficult for women to
challenge patriarchal attitudes to land rights and that promote unaccountable traditional leadership.
The two different approaches to the TCB reflected in President Zuma’s address speak to some of the
dominant discourses on the TCB. The impromptu section illustrates how proponents of the TCB have
anchored their support of the Bill in a discourse of the restoration of African heritage through the
increase of powers in traditional leadership structures. These structures are constructed as having been
stripped away through European conquest and needing to be restored for African identity to be
recaptured. The prepared section of the address communicates discourse from opposition to the TCB,
which has rejected the centralised model of customary law, arguing instead for the recognition of
diversity and complexity in customary law. This position challenges the very idea of custom that is
being advanced in the TCB arguing that this framing and articulation of custom does not reflect the
realities of people who have diverse histories and lived realities across rural South Africa.
As alluded to earlier, the ANC does not represent a monolithic entity and different perspectives on
the legislating of customary law have come from within the ruling party. This diversity from within the
ANC also impacts the political context in which the TCB is read and understood. The ANC Women’s
League (ANCWL) has come out in strong opposition to the TCB. In a November 2012 statement, the
League announced:
We believe that more consultation on the bill should be done with rural women who will be the most affected
if the bill comes into effect. The bill fails to ensure equal participation of women at all levels… The bill does

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not make allowances for appeals in other courts should women not be satisfied with the “justice” meted out
by the traditional courts. The NEC has instructed our Governance sub-committee to interrogate the bill and
ensure that the envisaged legislation does not reverse our gains in the struggles for gender equality and the
creation of a non-sexist society [47].
The ANCWL’s position on the TCB privileges women’s experiences of customary law and
traditional courts and emphasises that the Bill cannot meaningfully serve women without engaging
with and being informed by their knowledges on custom. This position makes central the need for
bottom-up knowledges in the development of legislation and suggests that the TCB is not informed by
such sources of knowledge. The ANCWL’s descriptions of harmful provisions within the Bill along
with the discussion about the need for greater consultation on the Bill with women draw the
connection between sources of knowledge, power relationships communicated through different
knowledges, and the materiality of these power relations in people’s lived realities.
The Minister of the Department of Women Children and People with Disabilities (DWCPD), Lulu
Xingwana, has similarly been critical of the TCB and its possible impacts on women. In the DWCPD’s
2012 submission to Parliament on the TCB Xingwana stated:
The Department of Justice and Constitutional Development admitted in the memorandum of the TCB that
the Bill was drafted on the basis of the Consultation with Traditional leaders, who are mostly male. The
Department does acknowledge that female traditional leaders, who are in the minority were probably
included but they still do not have first hand information and lived experiences that ordinary rural women
who are on the receiving end of the decisions made by Traditional courts have… The DWCPD would
recommend that in the light of the above admission, the views of rural women who constitute approximately
59% of the rural population should have been sought as traditional leaders would not be able to effectively
articulate the views, experiences and interests of women… The DWCPD recommends that the Bill be
completely overhauled, and re-written in consultation with the rural women themselves [48].
By emphasising the privileging of traditional leaders over other people who live under customary
law in the consultation process around the TCB, Xingwana makes central the role and significance of
positionality in the construction and communication of knowledges on customary law. In arguing that
even female traditional leaders likely do not have the same experiences and insights as “ordinary rural
women”, Xingwana highlights the importance of recognising intersectionality in engagements with
different sources of knowledge. This qualification that not all women experience traditional courts and
customary law in the same ways complicates the idea of bottom up engagements with knowledge by
arguing that multiple social, political and economic locations need to be read simultaneously as these
different positions all inform the ways that people experience relationships to power. Xingwana’s
position that the TCB be “completely overhauled” and rewritten based on more meaningful
engagement with different sources of knowledge speaks to the Department’s understanding of the
materiality of the different power relationships that are privileged in different knowledges. This
position affirms the need to interrogate the interests that are served in the reproduction of different
knowledges and to ensure that the interests of marginalised people are upheld in legislating of custom.
Both the ANCWL and the DWCPD challenge the framing of justice put forward in the TCB,
arguing that the Bill fails to meaningfully engage with knowledges based on women’s experiences of
traditional courts and therefore cannot be expected to reflect or serve women’s interests. This position

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illustrates a marked departure from the faulting of processes that listen to people who are “criticising…
their own traditions” as President Zuma critiqued dissidents of the TCB. Rather than framing
customary law as an unchanging body that should not be challenged because it reflects an essential
African identity, the ANCWL and DWCPD present customary law as a body whose function is to meet
the needs and serve the interests of the people who practice it. The ANCWL and DWCPD argue that
the TCB’s failure to engage with substantive critiques of traditional courts, and to engage with women
who use these courts, has led to its failure to offer meaningful protections to women.
5. Land Rights and Gender Relations in the TCB Submissions
The public submissions to Parliament on the TCB highlight links between patriarchal norms that
deny women access to land through traditional courts and the social vulnerability that comes with
tenure insecurity. These discussions speak to Lund and Boone’s argument, referenced earlier, about the
ways that control over land both reflects and reproduces existing authority. In denying women access
to control over land, traditional leaders not only assert their existing authority but also (re)declare land
as a solely masculine entitlement. Through these interactions, traditional leaders are able to consolidate
their institutional power and also the power associated with gendered identities. By exploring the
different ways that patriarchal relationships impact women’s property rights, this section illustrates
how different people understand the possible impacts of some of the TCB’s provisions, especially in
the context of their own experiences of traditional courts and customary law. In the context of the
previous section’s examination of historical processes of state intervention in customary law, both in
relation to traditional leaders’ powers and the marginalisation of women, this section reflects on the
ways that women’s rejection of patriarchal values around rights to land can be read as a de-linking
from colonially influenced knowledges on customary law and a representation of bottom-up processes
of knowledge production informed by different women’s lived realities.
As discussed earlier, there is significant sample bias represented in the submissions to Parliament,
and this article therefore does not attempt to present the experiences communicated through these
submissions as the only, or even the dominant, experiences of traditional courts. These submissions are
rather being used to examine how specific organisations of power influence the ways that different
knowledges on custom are treated, and what the material impacts of the treatment of these different
knowledges are on women’s lives. This focus on the materiality of epistemologies is aimed at
examining how people believe that the TCB might influence their experiences of customary law and
traditional courts if it is passed.
5.1. Land Rights as Masculine
Women writing submissions on access to land repeatedly spoke about the ways that their attempts
to gain land were thwarted by traditional leaders who insisted that land be acquired through men. The
submissions here illustrate some of the challenges that women face because of these understandings of
land rights, and the impacts that they have on their lives. Nikeziwe Dlamini from KwaZulu-Natal
demonstrates how land is used to entrench different relationships to power through gender identity:

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When I was 21 years old I went to a local traditional leader to ask if I could be allocated land to establish a
home for my two children. I was sent away and not allocated land in my own right as a woman. I was
advised to look for a male representative. My property is now registered under my sister’s spouse’s name.
This worries me a lot because I fear that should anything happen to me my children would not have a home
of their own and might be forcibly evicted. Most traditional councils expect women to be represented by
their male relatives. Imagine you are forcibly evicted from your marital home and expected to be represented
by the same marital male representatives and having your land registered under the name of the very same
male relatives who evicted you from your home. What does that mean?—they could still come back and
evict you. Because the property will still be registered under their name [49].
Dlamini, like many other women who wrote submissions, communicates different levels at which
she is challenging the patriarchal norms written into the expressions of customary law in her
community. She challenges these norms, and the knowledges that underpin them, first in the ways that
she frames and articulates the value of land and her right to it, and then in the act of seeking land from
a traditional leader despite the status quo that denies women these rights. In doing this, she explicitly
describes the ways that existing constructions of rights to land fail to adequately meet her needs and
protect her interests. She also explains why, because of this failure, understandings of eligibility for
land need to be broadened to include women and why knowledges about rights to land that privilege
men and masculinity need to be abandoned. Dlamini illustrates how despite women’s challenges to the
status quo, traditional leaders work to maintain male dominance and women’s dependence on men by
asserting the need for male relatives, regardless of the status of these relationships. Dlamini locates
these prejudices in the context of broader inequality in traditional leadership institutions and through
this discussion describes how and why women experience marginalisation in traditional courts.
She explains:
Women in rural areas are often seen as people of a lower social status and without economic power.
Therefore, women rarely stand a chance of being part of a traditional council composed mostly of men who
are in many instances biased against women and resistant to the notion of sharing real authority with
women… I believe that the Bill is likely to further lend legitimacy to the unequal and patriarchal power
relations to the further detriment of many women's ability to have access, control and ownership of land as
well as justice in the rural areas [49].
Also discussing the ways that the linking of land and masculinity in traditional courts disempowers
women, Monica Mkhize explains:
In 2005 my sister and I lost our natal home after our father had passed on: My second eldest brother colluded
with a local traditional leader and sold our home without our consent. We reported the matter to the
traditional court. The traditional leaders informed us that we need to go outside and talk as a family. My
brother nearly attacked us—he was so aggressive. When we went back to the traditional leader in the court
he informed us that our brother has a right to inherit our marital home from our parents. This was the most
painful experience of my life: My sister and I were coming home for the weekend. And when we arrived late
in the evening the gate was locked. We knocked on the door and the house was occupied by another family.
We had to look for accommodation somewhere else. After we reported the matter to the traditional court—it
did not assist us to re-claim our home, instead, it emphasized that because our brother is a man he has the

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right to kick us out of our home built by our parents… by securing rights held by men, the Bill is likely to
entrench discrimination against women [50].
By approaching both the traditional leader and the traditional court to request that they acknowledge
her right to the family home, Mkhize explicitly challenged knowledges on custom that privileged her
brother’s rights to the house above her and her sister’s rights. In affirming patriarchal understandings
of rights to land, and denying Mkhize and her sister’s rights, these institutions of traditional leadership
rejected Mkhize’s knowledge and allowed her brother to act with force in asserting the knowledge on
which his exclusive rights to the house were based.
Mkhize demonstrates how patriarchal understandings of customary law create dynamics through
which land links women’s personal and familial security to their relationships to men. These conditions
force women to be bound to male relatives, and in many ways dependant on these relationships for
belonging in the broader community and for ability to provide for themselves and their families.
Independence becomes constrained in situations where women cannot exercise rights in their own
capacity and are forced into relationships with men to ensure security. As Mkhize demonstrates, these
dynamics make women vulnerable to abuses of power by men, and limit options for recourse against
this abuse. The submissions illustrate that beyond enabling abuse, the patriarchal attitudes that
influence interpretations of custom and that lock women out of positions of influence in interpreting
custom deepen vulnerability by limiting possibilities for change and the recognition of women’s needs.
Both Dlamini and Mkhize’s statements in their submissions illustrate conflict that arises from
different knowledges on women’s rights to land confronting each other and competing for dominance.
Dlamini and Mkhize both argue for their rights to land and are met with, in some cases violent,
opposition to these claims to land rights. In both of these cases, traditional leaders draw from
patriarchal understandings of customary rights to land, which the literature examined earlier locates in
colonially constructed, or exaggerated, framings of gendered rights to land under customary law. In
this context, these women’s opposition to epistemologies that deny them rights to land can be read as a
departure from this rigid, colonially informed knowledge. Rather than relying on top-down
constructions of gendered rights to land, Dlamini and Mkhize discuss their right to land based on their
material realities and needs and use this bottom-up knowledge to demand that constructions of land
rights reflect and be responsive to their lived realities.
5.2. Reversing Past Gains
Many women’s submissions describe how past land rights have been undermined by the exercise of
increased, unaccountable power by traditional leaders. These submissions work to challenge
constructions of women’s social positions and rights as unchanging and illustrate the fluidity of many
positions and the potential for loss of rights if the TCB is passed. Funeka Miriam Mateza from the
Eastern Cape describes how her experiences of traditional courts and accessing justice in these spaces
have fundamentally shaped her identity as a woman. Mateza explains:
I purchased a vast portion of land that was allocated to me. It was transferred to me in 1983. Therefore, I
became a title-holder of the land that I was farming. I took over the land and farmed in what was a very
prosperous farm… In 1986, the chief Gecelo of the Gcina Tribal Authority expanded his rule and claimed

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the land that I was occupying as an owner. I was summoned to the traditional court and they asked me how it
was that I owned land when I was a woman. My response was that I had bought the land and therefore that I
was a title-holding owner of it. They asked to see the title deed. I showed them the documentation as
requested and the response that I received was that the title deed had no bearing on the matter as all land in
the area belonged to the chief. Moreover, the traditional court told me that as a woman, I couldn’t hold any
land in my name. They said that even if the land had been my husband’s and he had died, it would have been
given to my husband’s younger brother or my older brother. Therefore, I was told that I had to vacate the
land, as it belonged to the chief, and leave the community… They said that they feared that I would influence
their wives into doing bad things such as wanting to take over their lands after their deaths. I couldn’t
understand how it could happen that even though I had worked so hard to buy the land and held a title as a
testimony of my ownership, this had no significance. I was also confused as to why I couldn’t have land as a
woman as this area did not belong to the chief to begin with [51].
Mateza concludes:
(The TCB) will make the situation worse for women like me because it will give chiefs even more power
than they already have... The Traditional Courts Bill will make chiefs seem untouchable. Women will then
be even more afraid to challenge chiefs when the chiefs commit crimes against them [51].
Mateza’s account of her experiences illustrates how the centralisation of power in traditional leaders
allows for narrowly defined gender identities to be imposed on people, regardless of whether their
realities fit those constructions. The highly centralised model of traditional leadership that Mateza
describes, which concentrates power in traditional leaders and makes them unaccountable to the people
that they serve, speaks to similar organisations of power that were critiqued in the historical literature
examined earlier as reflecting colonially influenced representations of traditional leadership. In
challenging this expression of traditional leadership, and the top-down knowledge on custom imposed
through this model, Mateza speaks back to the representations of African governance structures as
homogenous and illustrates the ways that her reality does not conform to these representations. By
showing how she derived the right to her land from a source outside the traditional leader, Mateza
references other sources of authority that govern her life and illustrates the limitations of the traditional
leader’s power. Through this reference she locates herself as an actor existing and moving through
different systems of governance and she rejects the imposition of the Tribal Authority’s exclusive
authority over her life and land. In rejecting, or at the least challenging, this ascribed tribal identity
Mateza communicates an alternative knowledge on identity, specifically the rights derived from her
identity as a landowner. This bottom-up knowledge draws from Mateza’s experiences and uses them to
communicate why top-down, narrowly defined understandings of customary law, and of governance
systems that African people draw from more generally, distort historical realities of African people
participating in a variety of different governance systems and structures. These narrow definitions fail
to capture the complexities at play in the ways that people navigate and draw legitimacy from diverse
sources of authority.
The reversing of past gains illustrated in Mateza’s experiences demonstrates how this centralisation
of power enables the violent disciplining of identities that are constructed as deviant and that disrupt
social relations in ways that threaten traditional leaders’ power. The implicit power that would be
given to traditional leaders to discipline what they perceive as deviance, coupled with the absence of

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explicit accountability structures in the TCB, would increase women’s vulnerability in traditional
courts. This dynamic has the potential to limit opportunities for women to demand their rights and
positions of authority in relation to male counterparts.
Jennifer Williams, director of the Women’s Legal Centre, further explains how the TCB increases
women’s vulnerability, saying:
One of the possible ways of abusing power is through the exercise of the coercive powers which are
proposed by the Bill. A woman who challenges the exercise of authority is at risk of facing complaints that
she has acted inconsistently with custom, and that she has offended those who hold power. She can then be
brought before the very persons who hold that power, and be punished. This is unacceptable as a matter of
legal principle [52].
Williams’ description of the possible impacts of the TCB giving traditional leaders power to
interpret custom without any checks and balances means that women’s access to justice is dependent
on relationships to traditional leaders and the ability to conform to their expectations of custom. This
implicit power to define deviance increases women’s vulnerability in traditional courts and has the
potential to limit opportunities for women gaining rights and recognised positions of authority within
their communities and in relation to male counterparts.
The submissions illustrate that the patriarchal relationships that deny women property rights are not
uncontested and are not inherent to customary law. Women continue to challenge attitudes and
structures that deprive them of the security and stability linked with exercising land rights in their own
capacity. It is in this context of contested authority and of women (re)claiming property rights that
masculine centred constructions of custom are being reasserted in traditional leadership institutions.
5.3. Customary Entitlements and Constitutional Rights
The submissions show cases of women framing their rights to land through reference to customary
law, the Constitution and democratic principles of non-sexism, and often all of these. This range of
references to rights demonstrates how women are drawing from a range of legal frameworks in
framing their life experiences and locating their political, social and economic rights. Thandiwe Zondi
illustrates the interaction between discourses on customary law and constitutionalism saying,
Induna Makhaye said that he could not allocate land to me because I have no son. Furthermore he said that if
I had never married he could have allocated the land in the name of my brother on my behalf. However he
said that because I was a widow he could allocate land to me only in the name of a male relative of my
husband. Because of the fact that my husband’s family had evicted me I knew they would not vouch for me.
Furthermore I knew that I would not be secure on land allocated in their name… I believe that if enacted the
TCB will exacerbate my current tenure insecurity and entrench the problems that I am experiencing in trying
to secure land rights for myself and my daughters…In my view the royal family and council is using
distorted customary principles to their own material advantage in a way that undermines my rights and those
of my daughters to dignity, equality, security of tenure and equitable access to land. By entrenching and
increasing the powers of traditional leaders without adequate measure to check abuse of power the TCB is
entrenching structural discrimination against rural women [53].

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Zondi’s argument that the expressions of custom that are used to deny women land rights are
actually distortions of custom is echoed in other submissions. This framing of customary law
illustrates that custom is not uncontested and that many women understand customary law as a vehicle
intended to protect their rights. Zondi’s use of a rights based language and framework, often invoked
in reference to the Constitution and democratic dispensation [54], suggests that women are drawing
from a variety of sources of law to frame their rights and apply this framing in their lives. This
referencing of different sources of legal authority demonstrates that people living in the former
homelands do not have a singular identity related to traditional council areas or defined by customary
law. Rather, they have multiple identities, including those related to South African citizenship, and
draw on rights promised through these different identities in navigating different challenges. By
engaging with rights linked to multiple identities, Zondi challenges the singular identity that was forced
on African people through the narrow construction of tribal identities under colonialism and apartheid,
and illustrates the value of drawing on different legal frameworks to speak to different material needs.
The struggles for women’s access to land described in Zondi’s submission illustrate the central role
that land plays in entrenching social positions and power relations. These struggles illuminate the
dominant attitudes on gender and other identities that construct people’s ability to access land, and the
independence, security and sense of belonging that come with land. Centralising power in traditional
leaders increases individual leaders’ power and with this the chances of arbitrary decision-making in
traditional courts. The submissions describe patriarchal attitudes among traditional leaders as
especially pervasive and likely to negatively impact women’s access to land.
SJ Baloyi invokes discourses on equality and gender representation in her or his
1
discussion of
customary law and land rights, arguing that her or his traditional council’s discrimination against
women with regard to land rights flies in the face of these principles. Baloyi explains,
(T)he chief and his council’s conduct in dispossessing the land rights [of] women is discriminatory against
women and it [is] due to the fact that Nkhensani Traditional Council comprises of only men who do not have
any respect for women… if the bill is passed into law as it is, rural women and poor men will lose all the
informal land rights where they are presently making livelihood and able to produce to feed their struggling
families while the chief and his councillors sell land to people who can pay them huge amounts that are not
even used for the benefit of the community… By making a chief a presiding officer would imply giving the chief
powers that he or she never had under Customary law and only had … when apartheid powers were given to
chiefs who were in support of the system while oppressing traditional leaders who did not support the system.
So we feel that the bill is bringing back the unwanted laws of the Apartheid era where the new democratic
government was supposed to abolish any law that has anything to do with laws and practices of the past [55].
Like many other submissions, Baloyi’s links gender discrimination and vulnerability, highlighting
that the versions of custom applied in their traditional council are a reflection on the composition of the
council. This discussion of custom points to the flexibility inherent in custom, highlighting that it is
important who is able to influence the content of customary law as this will likely reflect whose
interests it serves. Baloyi demonstrates the frustration communicated in many submissions at the
1
This submission by signed off by SJ Baloyi on behalf of the Maphanyi Community Development Forum and Baloyi’s
gender is not clear from the text.

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introduction of legislation that continues understandings of custom that were introduced through
colonial and apartheid administrations, and in doing this perpetuates the power relations that served
these past administrations and not necessarily people who live under customary law. Baloyi’s explicit
reference to the framework for custom introduced under apartheid illustrates tensions around different
knowledges on custom and highlights the organisations of power that perpetuate top down framings of
custom, and related to this, the disenfranchisement of marginalised groups.
Many of the submissions from women who would live under the TCB reflect the challenges that
women experience in spaces where traditional leaders exert patriarchal power by insisting that land be
allocated to women through men. These reflections illustrate how because of the patriarchal values
underpinning many experiences of customary law, the TCB’s failures to acknowledge gender by
substantively discussing ways to ensure protections for women, allows for the possibility of the
legitimation of the discrimination that many women face in traditional courts. The submissions
examined here express alternative understandings of customary law, and the power relations that
impact women’s access to land, to those represented in the TCB. These submissions illustrate how the
power relations that the TCB promotes would undermine women’s access to land by encouraging the
centralisation of power in traditional leaders, and allowing for top-down movements of knowledge on
custom, in line with the knowledge architecture set out in colonial and apartheid models of traditional
leadership and customary law. By expressing knowledges on custom that are informed by different
experiences and realities, these submissions demonstrate “the creative work on knowledge and
subjectivity [that] comes from the political society, from the institutionally and economically
des-enfranchised” and bring to the fore contestations around the rights that women can claim under
custom, and implications that these rights have on women’s abilities to live their lives.
6. Living Customary Law and Women’s Land Rights
The challenges to patriarchal framings of customary law communicated through the submissions
have been affirmed by Constitutional Court judgments on customary law. The Constitutional Court has
repeatedly rejected the vision of customary law as static and has sought to recognise “living customary
law” which is responsive to changing conditions and reflected in practice. In sharp contrast to the
colonial and apartheid distortions of custom embedded in official custom, the Court has repeatedly
stressed that customary law is “not a fixed body of formally classified and easily ascertainable rules.
By its very nature it evolves as the people who live by its norms change their patterns of life”
([56], p. 52).
The Court has broken from historically dominant, codified representations and understandings of
custom and moved towards understandings of custom that recognise customary law as dynamic and
based on values whose expression through practice depend on context.
The majority of Constitutional Court cases addressing customary law have related to women’s
rights ([10], p. 73). Repeatedly the Court has upheld women’s rights in customary law, acknowledging
both the need for customary law to be in line with the Constitution ([57], pp. 321–25) and that
customary law itself is flexible and responsive to environment. In Bhe & others v Magistrate
Khayelitsha & others 2005 the Court decided that official customary law is a “poor reflection, if not a
distortion of the true customary law” and that “[t]rue customary law will be that which recognises and
acknowledges the changes which continually take place ([58], p. 86)”. This “living law” jurisprudence

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has created space for customary law to be informed by practice, privileging knowledges from the
bottom up rather than the top down.
The Constitutional Court’s interpretation of living law has been central to challenging
discrimination written into codified customary law, such as male primogeniture and restrictions on
ownership of family property to men [59,60], which are contained in the Black Administration Act. In
Bhe, Shibi v Sithole and Others 2005, and Gumede (born Shange) v President of the Republic of South
Africa and Others, the Court was consistent in challenging the rigid rules applied under codified
customary law, warning that through processes of colonial distortion this version of custom often
obscured features of customary law that, in their application, provided protections and rights to
women [10]. Living customary law is the model of customary law most advocated for in the
submissions on the TCB. Rather than relying on state designations of traditional leadership and
governance, this model draws legitimacy from the people that it serves and reflects the customary law
that is practiced in particular groups. Aninka Claassens and Sindiso Mnisi explain the significance of
engaging with living customary law in understanding women’s land rights under customary law:
It is because struggles over land rights are inherently bound up with contestation over the content of both
custom and rights that the emerging ‘living law’ jurisprudence in South Africa is so important. It enables us
to move beyond the discourse of false dichotomies and the distorted versions of customary law established
by apartheid precedents towards an examination of changing practice ([61], p. 515).
In the context of reading the ways that knowledge and power are being decolonised, living
customary law provides an important framework for understanding customary law and the ways that it
creates space for contestation and change. While the submissions examined in this article illustrate
examples of practices of discrimination and abuse, they also point towards critical engagement with
the sources of knowledge that inform these practices. It is not possible to know how these practices
will change over time, however it is possible to imagine that formally limiting avenues for challenging
discriminatory understandings of custom would negatively influence bottom up movements of
knowledge and further entrench top down understandings of custom and power relations. The critical
framings of custom and of the rights to which women ought to be entitled under custom communicated
through the submissions discourage paternalistic impulses to offer prescriptive solutions to problems.
They illustrate the sophisticated ways that people are identifying sources of discrimination and abuse
and explaining how matrices of power operate in their specific contexts to deny women access to
resources necessary to live lives of independence and dignity. Importantly, in the context of this
article, the submissions communicate the belief by people living under customary law that the TCB
would diminish opportunities for influencing custom and traditional courts in ways that recognise their
rights and serve their interests and would likely increase vulnerability.
The rights and protections that women secured in the transition to democracy have had profound
impacts around the country on the ways that people articulated and framed gender and rights
discourses, at national and local levels. The 2011 research by Community Agency for Social Enquiry
(CASE), which surveyed 3000 women in rural areas around the country on custom and land, found
that many women identified the democratic dispensation as key to their understandings and claiming
of rights. In focus group sessions related to this research, women discussed the ways that equality
came to the fore because of expectations of democracy, and how they drew from both customary and

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constitutional law in navigating questions of land [1]. These findings on women’s increasing access to
land rights have been supported by other research, including work by Aninka Claassens and Sizani
Ngubane [2], Ben Cousins [21], Stephen Turner [62], Aninka Claassens [10].
This literature illustrates the extent to which women around the country have internalised the values
of the Constitution and are acting on its provisions in their interactions under customary law by
claiming land rights. This research also revealed the extent to which change towards greater gender
equality around land under customary law is being instituted from the bottom-up, with people in rural
areas driving transformative practices in their own capacity.
The developments around women’s increasing access to land rights cannot be understood as
separate from broader political, economic and social dynamics. The framing of land rights is
dependent on a variety of external factors and authority in this area is in motion. Ben Cousins refers to
Cotula and Toulmin’s 2007 work which examines women’s increasing vulnerability in the context of
land commodification, urbanisation and changing demographics. This work reports that “where there
is increased pressure for land, men sometimes reinterpret customary rules in ways that weaken
women’s land rights” ([21], pp. 19–20). Also affirming the relational nature of land rights, Claassens
and Ngubane note:
Just as overstating the land rights of men relative to those of women undermined the bargaining position of
women within the family, so exaggerating the powers of traditional leaders in relation to land… undermines
land rights exercised at other levels of society, including at the level of the family ([2], p. 173).
The fluidity of land rights points to the need to monitor how they are constituted to understand how
power is distributed in different spaces and how this distribution impacts levels of vulnerability.
The different perspectives on customary law explored in this article demonstrate the vastly
divergent discourses on customary law in public spaces. It is in this context of contested
understandings of custom, and the different actors’ interests related to these understandings, that
struggles over women’s land rights under customary law take place. Christian Lund and Catherine
Boone describe the complex terrain shaping the constitution of authority and exercising of rights
around land, saying:
Social categories and property regimes must be constituted through practice. Institutions are only as robust,
solid and enduring as the power relations that underpin them, and the on-going processes of reproduction or
re-enactment that enable them to persist. This means that social boundary institutions and norms of
citizenship and belonging are not haphazard constructs. They generally reflect and are invoked to perpetuate
(or contest) prevailing power relations ([23], p. 9).
Practice around the country indicates that women are increasingly claiming land in their personal
capacity [1,10]. Simultaneously legislation is being introduced and enacted to counteract these
developments and cement patriarchal relations where they are prevalent. While the discursive
emphasis under the democratic dispensation on equality and on individuals as rights bearing citizens
has been affirmed by the Constitutional Court’s rulings on living customary law, these positions are
being challenged by current policies and rhetoric that rely on stereotypes of custom contained in
official custom. In this context, the identities and rights related to custom are in constant (re)definition.
With power over this definition being exerted from the bottom as well as the top, legislation that

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supports top down interpretations of custom threatens to silence voices that challenge official positions
and, with this, influence material inequalities.
7. Conclusions
The challenges to patriarchal framings of land rights captured in women’s submissions to
Parliament and in the literature on women’s increasing access to land illustrate the ways that
oppressive, colonially influenced framings of customary law are being publicly contested, both in
terms of the ways that they relate to different understandings of the content of custom and in terms of
their consistency with the Constitution and the protections that it promises to all citizens. In this paper,
I have examined how the descriptions of repression by traditional leaders reveal the ways that
patriarchal power relations are reinforced through top down understandings of customary law that vest
power to interpret custom in traditional leaders and not in the broader collective who practice
customary law. I have used the discussion of epistemologies related to custom and women’s rights to
land to reflect on the materiality of knowledge. Through this reflection, I argue that just as colonial
knowledge was not the end in itself, but was used to orchestrate a system of exploitation and
subjugation, decolonial knowledge is similarly not an end in itself but is intended to free a set of
relations that allow people to access rights that enable them to live lives of dignity. The challenges to
patriarchal framing of custom in the submissions illustrate attempts at influencing such power relations.
While the TCB would legislate within the knowledge architecture established by colonial and
apartheid administrations, the submissions present alternative conceptualisations of custom that take
the lived experiences of different people who live in the former homelands as their starting point.
These articulations of bottom-up knowledges on custom reflect different authors’ realities and attempt
to satisfy their material, social and other needs. Through this epistemic rupture, the submissions detail
how power is framed in relationships between traditional leaders and people living under their
leadership, how these actors exercise different types of power in their interactions, and how the
organisations of power that the TCB promotes would increase women’s vulnerability in terms of
accessing land. These discussions about different expressions of, and relationships to, power challenge
ideas of custom as static by revealing the constant negotiations between different actors and
highlighting the ways that understandings of custom are in motion and responsive to a variety of
factors, including legislation.
The Constitutional Court’s approach to living customary law broadens the framework for engaging
with customary law, empowering the people who live under it and who practice it in their daily lives to
adapt it in ways that are most responsive to changing needs and most inclusive in its protections. The
women whose submissions are examined in this article demonstrate their need for land by highlighting
how land is central to their ability to live independently, both socially and economically, and how it
creates greater space for them to shape family and other dynamics in ways that serve their interests.
This greater freedom also opens spaces for challenging hegemonic gender relations that privilege
masculinity and make women dependent on relationships with men for economic and social security.
The statements by President Zuma, the ANCWL and the DWCPD highlight diversity and
competition in knowledges on custom, even within the ruling party and departments within
government. The varying understandings of customary law communicated in the political analysis in

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this article capture the idea that current power dynamics do not exist in abstraction, but draw on and
gain legitimacy from past configurations of power and constructions of identity. The experiences of
hostility and opposition to women’s knowledges described in the submissions illustrate the connection
between epistemic and physical violences and highlight how the privileging of masculine and, chiefly,
knowledge is linked to the women’s experiences of vulnerability, abuse and social marginalisation
because of tenure insecurity. The epistemologies that the TCB draws on are central to the power
relations that the submissions argue that it would enable and are crucial to understanding how it shapes
the limits of possibility for women claiming rights and exercising power within the customary law
framework. The epistemic links between official customary law developed prior to 1994 and the TCB
explored in this article reveal that contrary to espousing the ideals of the Constitution and promoting
living customary law, the TCB threatens to reproduce past inequalities.
Different women’s personal narratives in the submissions offer insights into experiences of
traditional courts and understandings of customary law that highlight the harmfulness of the
concentration of excessive power in traditional leaders, and that reveal the need for inputs from
different voices in the development and interpretation of customary law. These perspectives on
customary law and the diversity of needs that traditional courts must serve and respond to, illustrate the
ways that understandings of law and governance need to expand to be more inclusive of and
responsive to women’s rights. The submissions demonstrate how, because of the patriarchal
underpinnings of many dominant framings of customary law, the gender neutrality assumed in the
TCB could further influence the privileging of men and of masculinity, and the epistemic and material
marginalisation of women.
Acknowledgements
My sincere thanks to Mbongiseni Buthelezi, Aninka Claassens, and Dee Smythe for their guidance,
feedback and support in the development of this article. I also thank the reviewers of this paper for
their generous and thoughtful feedback, and the team at the Centre for Law and Society for
their encouragement.
Conflicts of Interest
The author declares no conflict of interest.
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