Thirty years after constitutional democracy, South Africa’s legal system still carries the imprint of its colonial past.
Speaking at the 7th International Social Justice Conference in Stellenbosch this week, Professor Thuli Madonsela, director of Stellenbosch University’s Centre for Social Justice, said undoing that legacy would require more than recognising indigenous law in the Constitution. It would require changing the way lawyers and judges are taught to think about law.
Madonsela emphasised that colonialism didn’t only conquer territory, it also restructured law and installed Western jurisprudence “as the sole measure of legal reason”.
“And in the process, relegated indigenous normative systems, legal systems, and knowledge systems to an inferior system of rules. Initially, they were not even regarded as laws, they were regarded as an inferior system of rules. The worst part of it is that a lot of it was also codified without knowledge of the rules,” she said.
The result, Madonsela said, was the distortion, marginalisation and stigmatisation of indigenous law. South Africa's constitutional transformation created space for indigenous values, she said. Ubuntu was recognised in the 1993 Interim Constitution, although Madonsela noted that South Africa wasn’t the first country to recognise such principles. Tanzania had already done so.
The Constitutional Court later drew on ubuntu in S v Makwanyane, the 1995 judgment that abolished the death penalty.
For Madonsela, however, recognising indigenous values isn’t enough. The first step, she said, was to “undo the cultural hegemony” of thinking shaped by the Global North. The second was to transform legal education so that it centred on “humanity” and “the interconnectedness of humanity”. The third was to allow ubuntu to inform legal reasoning whether or not parties explicitly invoked it.
But that requires a fuller understanding of what ubuntu means.
“It is not just, ‘I am because we are’, which is important,” Madonsela said. “At the core of it is every human being has equal worth. Every human being has equal dignity.”
She said it also meant that people had “equal or equitable responsibilities” to one another, to society, the environment and future generations.
And that raises a less comfortable question: what would a justice system built around those principles actually look like, she asked.
Madonsela turned to the criminal justice system and its treatment of offenders, using the story of Jabu, a poor and hungry 16-year-old who was caught trying to steal from a supermarket.
Jabu was sent to the adult section of a prison, where he was repeatedly raped and became HIV positive. He was also forced to join the 28s gang for protection. He was eventually released, but ended up back in prison.
Madonsela argued that Jabu's life could have been very different if he had been rehabilitated and the system had been designed to “re-ubuntify” him.
Then she turned to the other side of the criminal justice system: the victim.
Madonsela said that as a “high-minded feminist” she had gone to KwaZulu-Natal and other rural areas encouraging women to opt out of traditional legal systems and use state courts instead.
But the women she encountered challenged her assumptions. They told her they didn’t want magistrates deciding their rape cases.
Under the conventional criminal justice system, Madonsela said, the crime becomes a case between the state and the accused, with the victim appearing as a witness. The state decides whether to prosecute and what punishment to seek, while the victim may receive little in the way of direct restitution.
The women told her traditional courts worked differently.
“If I go to the traditional court, everyone must speak. There is no right to remain silent,” she recalled them telling her.
More importantly, said Madonsela, there was no complete separation between crime as a public wrong and a private wrong.
“If somebody steals my kettle, I get my kettle back first. Everything else is secondary,” she said. “If somebody has raped me, there is restitution that he or his parents must pay to me and my family. I had no answer to that.”
Advocate Lesala Mofokeng, a senior lecturer in African law at the University of KwaZulu-Natal and chairperson of the Foundation for Human Rights board, said the problem wasn’t necessarily that customary law had been left out of South Africa’s legal system.
He pointed out that Section 211 of the Constitution requires courts to apply customary law where it is applicable, he said.
But Mofokeng said customary law had historically been rejected by courts through concepts such as “public policy” and “public morals”, which reflected predominantly Western norms.
Although there were cases dealing with customary law, he said there wasn’t enough legal literature and guidance to help courts apply it properly.
“There are a lot of cases reported on customary law, but a lot of them would indicate to you that the courts were simply rejecting it,” he said.
Mofokeng agreed that African values could contribute to the criminal justice system, particularly through rehabilitation, restitution and alternatives to imprisonment. But he cautioned that incorporating customary law didn’t mean abandoning the protections of the modern justice system.
“Rape is a very serious crime and you need to protect people,” he said. “So you will remove the person from society if it needs to be.”
The question, he said, was whether imprisonment should always be the default response when other measures could be used to correct behaviour and address the harm suffered by the victim.
wendy.jdc@nationalmg.co.za