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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:The equality clause and customary law
Author:Bennett, T.W.ISNI
Year:1994
Periodical:South African Journal on Human Rights
Volume:10
Issue:1
Pages:122-130
Language:English
Geographic term:South Africa
Subjects:customary law
constitutions
1993
equal opportunity
External link:https://doi.org/10.1080/02587203.1994.11827532
Abstract:By implicitly recognizing customary law, and at the same time prohibiting gender discrimination, South Africa's 1993 Constitution has brought about a head-on confrontation between two opposed cultures. Because African culture is pervaded by the principle of patriarchy, the gender equality clause now threatens a thoroughgoing purge of customary law. The Constitution itself is not very helpful in providing answers to the question of whether the equality clause or customary law should prevail in specific situations. In the circumstances, the solution to a conflict between customary law and gender equality will have to be sought outside the parameters of the Constitution. Both the social implications of specific conflicts and their legal origins would be relevant. This article provides a brief inventory of these conflicts, organized roughly according to the means thought suitable for dealing with them, i.e. legislative action, horizontal application of the fundamental rights, the application of common law in place of customary law, and the invocation of the repugnancy proviso. Notes, ref.
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