1.

Transformative Constitutionalism of South Africa

Before 1994 South Africa was a country where human rights of a people were
disrespected, parliament has a power to make laws as they wishes and the laws of the
parliament cannot be challenged by any person or institution. 1 However, the adoption
of interim constitution in 1994 after a lengthy and difficult process of negotiation
between the Apartheid government and opponents brought many changes to the
country as well as to the people. The prominent changes were the extension of rights
and freedom to all peoples irrespective of racial qualification; the replacement of
parliamentary sovereignty by constitutional supremacy, the entitlement of priority to
bill of rights and the strong unitary government is changed to federal system of
governments.2 As a transitional constitution, the interim constitution was tasked with
ensuring the continuity of the state and facilitating the adoption of the final
constitution.3 In 1996, the constitutional assembly which was elected in 1994 national
election drafts and adopts the final constitution by involving 34 constitutional principles
that has been agreed during political negotiation.4 Constitutional court was mandated to
review and check the draft constitution’s consistency with constitutional principles. 5
After rejected once and several changes made to text, the final constitution was
certified by the constitutional court as consistent with constitutional principles and
come in to force in February 1997. 6This constitution include provisions which aimed at
transforming the state as well as the society by establishing democratic state with a
supreme constitution and granting fundamental rights and freedom to all citizens.

1.1 The meaning of Transformative Constitutionalism

Since the term transformative constitutionalism raised in many sectors after the fall of
Apartheid government in South Africa, many scholars attempted to give the definition of
transformative constitutionalism in there perspectives. Langa CJ has said ‘there is no
single accepted and stable definition for transformative constitutionalism because of the
word transformation by itself has changeable features’. 7 However, transformative
constitutionalism also defined as a constitutional law which has a purpose of
overcoming past discrimination and disadvantage suffered by group of people on the
basis of race, sex, color, e.t.c and at the same time provides equal rights and protection
to all South Africans.8 This characteristic of transformative constitutionalism is explicitly
expressed under postamble of the interim constitution and preamble of 1996
constitution. Transformative Constitutionalism of South Africa has the purpose of
transforming the society from one which discrimination and inequality deeply
1
Currie I & De Wall J, The Bill of Rights Handbook 5th ed(2005) Juta, Cape Town, p 1
2
Ibid n 1 above.
3
Ibid n 1 above.
4
Ibid n 1 above.
5
Section 72(1) of Interim constitution adopted on November 1993 and come in to force on 27 April 1994.
6
Ibid n 1 above.
7
Langa P ”Transformative Constitutionalism” 2006(17) Stellenbosch Law Review 351 p 1.
8
Pieterse M“ What do we mean we talk about transformative constitutionalism?”(2005) Volume 20 SAPL
p 158.
entrenched on grounds of race, sex, color e.t.c. to a new society based on equality,
democracy, social justice, dignity and freedom.9

In order to create the new society based on substantive equality requires the radical
change of the state as well as the society. 10 This includes the reallocation of power and
resource to all peoples; dismantling of the established systematic domination and
economic inequality caused by discriminative provision of opportunities to the
people.11It also demands the empowerment of vulnerable and disadvantage peoples
who suffered past discrimination through different measures like affirmative action. 12

In addition to the understanding of substantive equality in the context of social

vulnerability, transformation can be realized when the social and economic condition of
disadvantaged people is improved.13 Furthermore, substantive equality should be
understood in lights of subjection to past discrimination and disadvantage, the impact of
measures on vulnerable groups and providing remedial measures to such groups in
order to bring them to equality.14

1.2 Objectives of Transformative Constitutionalism

Transformative Constitutionalism of South Africa has objectives which intended to

transform the state and the society by creation of new society based on equality,
freedom and dignity. These are

A) Achievement of Substantive Equality

The primary objective of Transformative Constitutionalism is to establish substantive

equality in the country. This requires understanding of the systematic and entrenched
domination and inequality.15Moreover, examination of individual in the context of his or
her group and social and economic condition; the impact of inequality in vulnerable
groups and provision of remedial measures to uplift the disadvantaged groups are
required.16

The achievement of substantive equality is not only specified under the constitution as
right but also as a value that democratic republic of South Africa founded and the new

9
Pieterse M (n 8) above.
10
Albertyn C & Goldblatt B” Facing the Challenge of Transformation: difficulties in the development of an
indigenous jurisprudence of equality” 1998 (14)SAJHR p 248-249.
11
Ibid n 10 above.
12
Pieterse M( n 8) above.
13
Langa P( n 7) above.
14
Langa P (n 7) above.
15
Albertyn C’ Substantive Equality and transformation in South Africa’ (2007) 23 SAJHR p 4.
16
Pieterse M( n 8)above.
society wants to achieve.17 Section 9 of the constitution indicates that the establishment
of substantive equality as a main objective of transformation. Section 9(2) acknowledges
the rights of equality in lights of substantive rather than formal equality. 18It guarantees
equal rights and freedoms for all and include affirmative action measures and other
types of material redress to people who suffered from past discrimination and
disadvantages.19

B) Socio- economic transformation

Due to the discriminative nature of provision of resource and opportunities during the
Apartheid period, presently, there is a great difference of wealth in South Africa and
millions of people living with problem and poverty. 20Substantive equality cannot be
achieved without improving the socio-economic condition of socially vulnerable groups
and alleviating the poverty and economic inequality entrenched in the country. 21In order
to realize transformation, the provision of equal access to social and economic rights
should be assisted by the remedial measures which aimed at uplifting the people who
disadvantaged in the past.22

The preamble of 1996 constitution proclaims that the protection of socio- economic
rights for all South Africans together with civil and political rights. Additionally, the
constitution impose obligation on the state to protect socio-economic rights such as
right to education for all23, right not to be refused emergency medical treatment 24,and
right of children to basic nutrition, shelter, basic health care service and social service 25.

C) Transformation of Legal Culture

The maintenance of substantive equality and provision of socio- economic rights to all
by themselves are not sufficient to transform the country. 26The adjudication system of
the country should be changed from culture of authority to culture of justification. This
means all exercise of power in the country should be justified on the basis of
democracy, reasonability, human right standards and values of the constitution. 27
Mureinik states that transformation of the society of South Africa to a new society
based on equality, freedom, and dignity involves shifting of adjudication system from
culture of authority to culture of justification.28 Unlike in the Apartheid period, judges
17
Section 1 of 1996 Constitution of South Africa.
18
Pieterse M( n 8) at 162.
19
Section 9 (2) Ibid n 17.
20
Soobramoney v Ministry of Health, KwaZulu-Natal 1998(1) SA 765 CC,1997(12) BCLR 1696(CC) para 8.
21
Pieterse M( n 80 at n160.
22
Langa P( n 7) above.
23
Section 29(1) (n 17).
24
Section 27(3) n 17
25
Section 28(1)(b) n 17 .
26
Langa P( n 7) at 2.
27
Langa P(n 7) above.
28
Mureinik E” A Bridge to Where? Introducing the Interim Bill of Right”1994 10 SAJHR p 31-32.
required to base their decision not only to the Authority and law but also to the rights
and values of the constitution.29Transformative adjudication demands the decision of
judges to flow from honesty and reasonability of the case. 30Section 36 of the
constitution stipulates the shifting of the legal culture from culture of authority to
culture of justification. This section states that rights can be limited only when they are
justified in an open and democratic society based on human dignity, equality, and
freedom.31The value of the constitution must justify the limitation of the rights in order
to be restricted by law.

D) Constitutional law interference in private relations

Traditionally, the relationship between private persons was not governed by public laws.
But since most of discrimination and inequalities emanated from private relations like
workers-employers relation, family relation which cause women exposure to physical
and sexual violence and experience of social and economic dependency, the
transformative constitution of South Africa include ‘Private spheres’ to be regulated by
constitutional law and a subjected to consistency with human right standards and values
of the constitution.32Section 9(4) of constitution explicitly prohibits private parties from
engaging in discrimination and the government also obliged to enact legislation which
prohibits such acts.33The interference of constitutional law in private sphere is affirmed
under section 8(2) and (3) of the constitution. Additionally, section 39(2)of the
constitution empowered the courts to promote the spirit, purport, and objects of bill of
rights when developing customary law and common law which govern private
relations.34

Langa CJ does not specify constitutional interference in private sphere as an objective or

element of Transformative constitution of South Africa. 35 However, like Marius Peterse, I
believe that the relationship between private persons should be regulated by the
constitutional law in order to establish a new society based on democratic values, social
justice and fundamental human rights and various forms of disadvantage and
discrimination rooted in private relations.

2. Transformatory features of substantive equality

29
Ibid n 26 above.
30
Ibid n 26 above.
31
Pieterse M( n 8) at 163.
32
Pieterse M (n 80 at 160.
33
Klare K “Legal culture and transformative constitutionalism” (1998) 14 SAJHR p 155.
34
Section 39 (2) Ibid n 17.
35
Langa P( n 7) above.
As we have said earlier, Substantive equality recognizes the systematic and complex
nature of inequality and has a purpose of eradicating this entrenched domination and
disadvantage by providing remedial measures to overcome the past discrimination. 36 In
addition to this, examination of alleged right violation in relation to the systematic form
of disadvantage is needed in order to achieve substantive equality.37

Substantive equality, as a new concept in the country needs elaboration to be

implemented effectively. To this effect, Constitutional Court has been developed the
application of Substantive equality even if they are not uniformly
implemented.38Constitutional Court provides al least four characteristics of Substantive
equality which has a capacity to fulfill the purposes of transformative constitutionalism.
These are contextual understanding of a group from historical, social and economic
point of view; examining the impact of impugned inequality on the individual and his or
her group; recognition of difference as a positive feature of a society and assessment of
the purpose of the right and the underlying value as to addressing the systematic
inequality.39These characteristics have to be examined in order to maintain
transformative changes.

Based on the different forms of inequality and the constitutional claim they raised,
Catherine Albertyn classified equality claims as social and economic claims and claim
which has an inclusionary effect and transformatory effects.40

Social inequality claims are caused by stigmatization and discrimination of a particular

group’s culture, identity, values and behaviors while other group is respected and
privileged.41 This inequality claims recognition and inclusion of identities and values of
such group.42 Claims brought by gay and lesbian groups in South Africa are for social
recognition of their identities, relationships and families.43

Economic inequality claims are inequalities results when basic needs, opportunities and
material resources distributed unequally. Such claims seek to redistribution of resources
and opportunities.44

Since my purpose is to assess the transformatory features of substantive equality, I will

emphasize on the claims which has an effects of inclusion and Transformation.

Equality claims which result inclusion

36
Albertyn( n 15) above.
37
Albertyn C & Goldblatt B( n 10) at p 152.
38
Albertyn( n 15) above
39
Albertyn( n 15) above.
40
Albertyn (n 15) at p 2.
41
Albertyn( n 15) at p 2.
42
Fraser N, Justice interruptus(1997) p 23.
43
Albertyn (n 15) at p 2.
44
Albertyn (n 15) p 2
This claim has the purpose of recognizing a disadvantaged group rights and freedoms
with out correcting the structure, condition and the system that cause inequality. 45This
means it include the disadvantaged group to the rights which they have excluded in the
past. Nancy Fraser describes the inclusionary effect as remedies aimed at correcting
inequitable outcome with out disturbing the underlying framework that generates
them.46

Equality claims which result transformation

Transformatory approach has an objective of addressing inequalities by way of

restructuring the condition which create the disadvantage and discrimination. 47This
approach involves inspection of inequality in lights of group’s context and social and
economic conditions that shapes the group’s status and strives to dismantle the
entrenched disadvantage on the basis of new norms and rules which have not been
used to discriminate the group. More over, the remedy that are provided for inequality
should aimed at eradicating the past norm and structure which create the
disadvantage.48

Substantive equality, as a primary purpose of South Africa transformative constitution,

for some legal scholars and constitutional court justices, substantive equality involves
transformatory changes. I agree with this statement because, as we have seen in the
above, the characteristics which maintain Substantive equality are the same with
elements that result transformatory change.

2.1 Sexual orientation as aground under section 9 of 1996 constitution

Both the interim and final constitutution of South Africa include sexual orientation as a
prohibited ground of unfair discrimination.49This enables gay and lesbian people to claim
their equality and to obtain recognition for their life and relationships.50

Constitutional Court define the term ‘sexual orientation’ under national coalition case as
persons who erotically attracted to the member of the same sex. 51Sexual orientation is
included under the listed ground of section 9(3) of the constitution because couples in
the same sex relationships has been subjected to discrimination, humiliation and denial
of access to opportunities, facilities and accommodation. This increases their
vulnerability for physical and psychological violence and political marginalization. 52 As a
45
Albertyn (n 15) at p 3.
46
Fraser N( n 42) above.
47
Albertyn (n 15) at p 3.
48
Albertyn (n 15) at p 3.
49
Section 8 of the interim constitution and Section 9(3) of 1996 constitution.
50
Albertyn (n 15)at p 10.
51
Currie I( n 1) at p 216.
52
National Coalition for Gay and Lesbian Equality v Ministry of Justice (1999) 1 SA 6 (CC) Para 20.
result of recognition under the constitution, many cases brought to constitutional court
and the court grants range of rights to gay and lesbian couples according to section 9(3)
of the constitution such as invalidation of criminalization of sodomy, 53right to
immigration permit,54right to marry.55Equality jurisprudence of South Africa also has
been influenced by sexual orientation cases.56 Since the listed grounds of section 9(3)
has been used in the past to discriminate as well as have a potential to degrade and
oppress person’s inherent human dignity, if the case is brought on grounds of sexual
orientation, the existence of unfair discrimination is automatically presumed by the
law.57

2.2 Transformatory effect of protection of rights of couples in the same sex

relationship

Transformatory change addresses the inequality by correcting the structure which

cause the disadvantage and discrimination by using new norm and rules which remedy
and eradicate the disadvantage from its roots.58

The question that I will try to answer is, does the decision provided by constitutional
court regarding to sexual orientation cases results transformatory change? Does
constitutional court examines the elements which result transformatory change when
deciding on sexual orientation cases?

In order to say a constitutional court apply transformatry approach to sexual orientation

cases, it should assess the context of inequality that gay and lesbian peoples subjected
to and how it structure their social and economic condition. And the impact of
inequality on gay and lesbian people also should be considered. Additionally, the
difference of this people should be understand as a positive features of the society and
it should not cause any kinds of disadvantage and inequality as well as it should not
restricted by existing and dominant heterosexual norms.59

Most of the claims brought by sexual orientation cases are social recognition. When we
observe sexual orientation cases entertained by constitutional court, even if they
succeed to grant some rights which has not been given to gay and lesbian peoples in the
past, the court fails to apply some tests which contain transformatory effects. 60
Ministry of home affairs v Fourie is an important case which achieves granting a right to
marry to same sex couples. The decision of the constitutional court permits gay and

53
Ibid n 52 above.
54
National coalition for Gay and Lesbian Equality v Ministry of Home affairs(2000) 2 SA 1 (CC).
55
Ministry of Home Affairs v Fourie; Lesbian and Gay Equality Project v Ministry of Home Affairs (2006)1
SA 254 (CC).
56
Albertyn (n 15) at p 11.
57
Currie I (n 1) at p 217.
58
Albertyn (n 15)at p 13.
59
Albertyn (n 15) at p 11.
60
Albertyn C (n 15)at p 11.
lesbian peoples in to the protected social institution of marriage. 61 However, the court
define the equality rights in lights of equal dignity, respect and moral worth instead of
the context and impact of inequality which create discrimination on couples in the same
sex relationship.62This cause the undermining of the understanding the context of
inequality which shapes the lives of gay and lesbians and eradication of this systematic
inequality in a new norms and conditions. 63 The case entitled rights and recognition to
couples in the same sex relationship without correcting the structured and entrenched
norm and institution i. e marriage. 64 The use of dignity in definition of right to equality
results social inclusion and sameness rather than transformatory effects and
difference.65

National Coalition for Gay and Lesbian Equality v Ministry of Home Affairs is one of
sexual orientation cases which claims right of social recognition. 66 In extending the right
of immigration permit for same sex couples, constitutional court applies more of formal
equality approach.67Instead of acknowledging the difference of gay and lesbian peoples
for granting equality right the court applies sameness of these people and deserved
equal right like the others.68 Moreover, the norms and rules that have been used to
discriminate and disadvantage these people i.e. heterosexual norms of marriage are
used to entitle rights to same sex couple relationship.

So, the basic feature of transformatory approach i.e. difference is missed to be applied
by court in order to extend rights to couples in the same sex couple relationship. This
case demonstrates the rooted entrenchment of dominant institution and norms and
selected groups are socially included in this existing norms and institution.69

Unlike the above two cases, National Coalition for Gay and Lesbian Equality vs. Ministry
of Justice expressed the idea of difference for extending equal right to gay and lesbian
peoples.70 In this case, the court grants equal rights to couple in the same sex
relationship by recognizing their difference as positive features of the society. 71

Finally, as we observed from the above cases, even if rights are extended to gay and
lesbian people the approach which the court has followed is not fully transformatory
except for some cases. The decision of the court is including Gay and Lesbian to rights
granted to heterosexual couples rather than examining the their history, economic and
61
National Coalition for Gay and Lesbian Equality v Ministry of Justice (n 52) above and Albertyn (n 15)
page 11.
62
National Coalition for Gay and Lesbian Equality v Ministry of Justice (n 52) above.
63
Albertyn C (n 15) at p 12.
64
National Coalition for Gay and Lesbian Equality v Ministry of Justice (n 52) above.
65
Albertyn C and Goldblatt B ( n10) at p 257.
66
Albertyn( n 15) at p 11.
67
Currie I( n 1) at p 216.
68
Albertyn C and Goldblatt B ( n10) at p 257.
69
Albertyn (n 15) at p 12.
70
Albertyn (n 15) at p 12.
71
National Coalition for Gay and Lesbian Equality v Ministry of Justice (n 52) at para 20.
social condition, assess the impacts of inequality on gay and Lesbians and apply new
rules and norms which eradicate the systematic inequality.

3. Definition of Customary law and Common law

The constitution acknowledges South Africa as one sovereign democratic state and
establishing a common South Africa citizenship and recognizes and protects the diversity
of languages and cultures represented with in communality.72

The constitution of South Africa recognizes customary law as integral parts of legal
system.73Customary law’s relevance is expressed by courts judgment on different cases.
The constitution also recognizes traditional authorities which perform their function by
Appling customary laws.74

Customary law defined under customary marriage act 120 of 1988 as “a custom and
usage traditionally observed among the indigenous African people”. It is a law which is
practiced and used and exceptionally applied on indigenous black people. Mailula
Daglas define customary law as a system of law which is developed through
communities’ repetitive practice and usage and obeyed as a law by common application.
Nonetheless, since South Africa has been dominated by British colonization and
apartheid for a long time the customary law is not pure indigenous and clear from
influences.75

Like all other laws, including common law, customary law drives its validity and force
from the constitution.76Its validity is determined based on the constitution, not by
common law. This means customary applied equally with a common law since both
drives their validity from the constitution and their application is equally recognized by
the constitution.77 Section 211 (3) of the constitution impose obligation on courts to
apply customary law subjected to the constitution and other legislations that deal with
customary law. Furthermore, their interpretation and development should promote the
sprite, purport and objects of bill of rights.78
Common laws are laws that govern the private relationship of people. These laws
include the decision of courts which have given to prior cases. During the Apartheid
Period, customary laws were subjected to the common laws. But now, the constitution
recognizes the application of customary law together with common law to ensure the

72
Evadne Grant “Human Rights, Cultural Diversity and Customary Law In South Africa”(2006) Journal of
African Law 50 p 6.
73
Mailula D, ‘Abdication of Judicial responsibility, Cultural self-determination and development of
customary law: lesson from shilubana’ (2008) Volume 23 SA Public Law/Reg 215 p 1.
74
Mailula D (n 73) above.
75
Mailula D (n 73) above
76
AlexkorLtd vs Richterseld Community (2003) 12 BCLR 1301 (CC) para 51.
77
AlexkorLtd vs Richterseld Community( n 760) at para 51..
78
Section 39(2)constitution ( n 17).
maintenance of protection of human rights. Since the concern of this paper is to assess
the application of customary law, it will not say much on common law.

3.1 The status of customary law in South Africa constitution besides with common law

Since customary law recognized by the constitution as a part of legal system, their
validity is determined by the constitution rather than reference to the common law. 79
The constitution stipulates rights related to cultures and customs in different sections.
Sections 6 of the constitution appreciates and accept the diversity of languages and the
right to educated in the official languages of the choice. 80 The right to participate in
cultural life, the right to use languages and the right to practice a religion is also granted
under section 30 and 31 of the constitution. The emphasis given by a constitution for
maintaining cultural diversity is expressed by establishment of a commission for
promotion and protection of rights of cultural, religious and linguistic communities. 81

The recognition of customary law is also specified under section 211 (3) of the
constitution. The courts mandated to apply customary laws consistent with constitution
and any legislation which deals with customary laws. 82 Moreover, courts tribunals and
forum, when interpreting legislation, developing customary law and common law
obliged to promote the sprite, purport and objects bill of rights. The stipulation of all
these rights under the constitution shows the recognition of right to culture and
customary law as integral parts of lives of community as well as a law together with
common law.83

However, the right to culture and application of customary law is subjected to

limitations. The right to culture should be consistent with provisions of bill of rights. 84
Section 211 also demands the application of customary law to be subjected to the
constitution.85Courts, tribunals and forums also required to promote the sprite, purport
and objects of bill of rights when interpreting legislation and developing customary law
or common law.86

3.2 Customary law in relation with transformative constitutionalism

The main objective of transformatory constitutionalism is to heal the wounds of past

injustice & discrimination occurred to vulnerable groups like women and disabled. 87

79
AlexkorLtd vs Richterseld Community(n 76)at para 51.
80
Section 29 of the constitution (n 17)
81
Section 185 of the constitution (n 17).
82
Section 211(3) of the constitution (n 17).
83
Bennett T Customary Law in South Africa Cape Town (2004) p 84.
84
Section 30 and 31( n 17).
85
Evadne Grant (n 72 ) at p 7.
86
Section 39(2) of the constitution (n 17).
87
Langa P (n 7) p 1.
Due to South Africa past history of inequality and discrimination on basis of race and
gender, right to equality is one of important rights which is recognized by constitution. 88
Equality as a value and a right is a central to the task of transformation. 89 As of right,
equality is granted under section 9 of constitution by providing lists of grounds. And also
equality is one of the values which South Africa democracy is underlies on it. 90

The negotiation of interim constitution as well as a process of ratification of 1996

constitution the congress of traditional leaders of South Africa (COWTROLESA)
attempted to exclude customary law and traditional practice from the requirement of
right to equality and bills of rights.91

Customary law manifests disadvantages on women including lack of contractual

capacity and standing in law of customary wives, unable to own a land, inability to
inherit under customary laws of succession. 92This means, customary law has systematic
discriminatory effect on women.
There fore, in order to reconcile the this antagonistic features of customary law and
right to equality of women, the legislative adopts a new acts which amend and correct
the disadvantageous effect of customary laws on women rights such as Customary
marriage act 120 1998.93 Additionally, the constitutional court decides in different case
that the customary laws which has discriminatory effects to women rights are
contradictory to the transformative constitution of south Africa.94
Conclusion
In order to achieve substantive equality in transformative constitutionalism of South
Africa, an addition to the others, the decision provided by the courts for inequality
claims brought by disadvantaged groups should have an effects of transformation rather
than inclusion. The decision should aimed at eradicating entrenched and systematic
inequalities by examining the historical, social and economic conditions of the group,
88
Bhe v the Magistrate, Khayelitsha; Shibi v Sitole case CCT 69/03;Soth Africa Human Right Commission
v President of Republic of South Africa(2004) ZACC 17;2005 1 SA 580 (CC) Para 17.
89
Albertyn C & Goldblatt B (n 10) p 249.
90
Section 1 of the constitution .
91
Evadne Grant (n 72 ) at p 8.
92
Evadne Grant (n 72 ) at p 8.
93
Evadne Grant (n 72 ) at p 8.
94
Bhe v the Magistrate (n 88) above.
the impacts of inequality on vulnerable groups and establishment of new rule and norm
which provide remedy for the systematic inequality. In relation to Sexual orientation
cases brought by gay and lesbians, the approach that the constitutional court applies to
grant rights is more of inclusionary rather than transformatory. The court award rights
and protection to gay and lesbians in reference to the dominant and existing
heterosexual relationships. The difference of this people is not applied as a ground for
entitlement of rights. The subjection of the group to past discrimination and context of
the group is not used as a base for the extention of rights. This undermines the
transformatory effects of the case.

Regarding to the second question of the assignment, constitution recognize customary

laws equally with common law. But the constitution subjects the application of
customary law to the bill of rights and to the values of the constitution. Since equality is
recognized as right as well as as a value under the constitution, a customary law which
violates the equality rights either on women or others is inconsistent with the
constitution. There fore Courts, according to section 39(2) of the constitution should
develop customary laws in a way which is not violate the equal rights of women.

Bibliography

Books
1.Bennett T Customary Law in South Africa Cape Town (2004)

2. Currie I & De Wall J, The Bill of Rights Handbook 5th ed(2005) Juta, Cape Town.

Cases
1.Bhe v the Magistrate, Khayelitsha; Shibi v Sitole case CCT 69/03;Soth Africa Human
Right Commission v President of Republic of South Africa(2004) ZACC 17;2005 1 SA
580 (CC).
2. Shiubana and Others v Nwamitwa 2008(9) BCLR 914(CC).

3. National Coalition for Gay and Lesbian Equality v Ministry of Justice (1999) 1 SA 6
(CC)
4. National coalition for Gay and Lesbian Equality v Ministry of Home affairs(2000) 2
SA 1 (CC).
5.Ministry of Home Affairs v Fourie; Lesbian and Gay Equality Project v Ministry of
Home Affairs (2006)1 SA 254 (CC).

5.Soobramoney v Ministry of Health, KwaZulu-Natal 1998(1) SA 765 CC,1997(12) BCLR

1696(CC)

6. volks NO v Robinson 2005 (5)BCLR 466(CC).

Articles
1. Albertyn C’ Substantive Equality and transformation in South Africa’ (2007) 23 SAJHR

2. Albertyn C & Goldblatt B” Facing the Challenge of Transformation: difficulties in the

development of an indigenous jurisprudence of equality” 1998 (14)SAJHR

3. Evadne Grant “Human Rights, Cultural Diversity and Customary Law In South
Africa”(2006) Journal of African Law 50

4. Fraser N, Justice interruptus(1997).

5. Klare K “Legal culture and transformative constitutionalism” (1998) 14 SAJHR.

6. Langa P̎̏ ”Transformative Constitutionalism” 2006(17) Stellenbosch Law Review 351.

7. Mailula D, ‘Abdication of Judicial responsibility, Cultural self-determination and

development of customary law: lesson from shilubana’ (2008) Volume 23 SA Public
Law/Reg 215.

8. Mureinik E” A Bridge to Where? Introducing the Interim Bill of Right”1994 10 SAJHR

9.Pieterse M“ What do we mean we talk about transformative

constitutionalism?”(2005) Volume 20 SAPL.

Legislations

1. The South Africa Interim Constitution act 200 of 1993.

2. The constitution of the Republic of South Africa Act, No. 108 of 1996.

3.Customary Marriage act 120 0f 1998.