Abstract

Keywords

African customary marriages; generosity; human dignity; succession; decolonisation; transformative constitutionalism.

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1 Introduction

Each legislation is a product of the politics of the day. 1

 Ntando Sindane. LLB LLM PhD. Lecturer, Faculty of Law, University of the Western Cape, South Africa. E-mail: nsindane@uwc.ac.za. ORCiD: https//orcid.org/0000-0003-4752-8550. An earlier version of this case note was presented as a conference paper at the Free State Centre for Human Rights on African Customary Law in 2022. I wish to thank the conference organiser, Prof Rita Ozoemena for creating a space for us to debate developments in customary law. I also wish to thank Ms Pulane Maine for patiently listening to me fuss over this paper from inception till publication.

1 I am indebted to Karin van Marle for the differentiation between Politics with a capital "P" and politics with a small "p". Sometimes the differentiation is simplistic and reductionist, but it is apt for the argument to be made in this case note. See Van Marle 2019 LDD 209: "Important here is to insist on the distinction between politics and the political, the former reflecting the notion of partisan politics, the latter, as articulated by Jean Luc Nancy and Philippe Lacoue Labarthe, calling for a retreat from partisan politics in order to reflect on the meaning of politics. This distinction is crucial for an understanding of the relation between law and politics, also when teaching law to students. At the heart of a critical jurisprudence lies the awareness of the need to retreat from partisan politics and to embrace a continuous rethinking of the political."

By "politics of the day", I am not referring to partisan politics and the public performative spectacle that usually accompanies it. I am instead talking about the values, goals, ethos and aspirations of the people that emerge through lawmakers and are evidenced in the text of the legislation. 4

4 See for example, Botha 2010 SAPL 40, where he makes use of the phrase "politics of the law", that draws somewhat of a distinction between Politics and politics. He opines that: "This [differentiation between Politics and politics] opens up the possibility of an alternative conception of the politics of law, which would avoid the dichotomised worldview and the quest for normative closure inherent in attempts to insulate legal interpretation from the corrosive effects of politics."

I am duty bound to decry the often unwarranted attempts by parties to tabularise and dissect constituent components of an otherwise rich and generous system of law to meet legal exigencies. The unfortunate consequence is to denude customary law of its inherent feature and strength – namely the spirit of generosity and human dignity. 5

5 Muvhali case para 52.

The assertion that generosity is a constitutive element in African customary law is not new, and it seems to be an opinion that courts have favoured in recent days, as in:

I pause to mention that when the decision in MM v MN is read together with the SCA's decision in Mbungela v Mkabi, both cases point to the open, generous, flexible communal spirit of customary law, which, when correctly embodied, places a high premium to the right to dignity and the community beyond narrow individualistic interests. 6

6 LNM v MMM (2020/11024) [2021] ZAGPJHC 563 (11 June 2021) (LNM v MMM case) para 29.

Some scholars, particularly those from the positivist and formalist legal traditions, 7

7 For a deeper discussion on the meaning of legal positivism and its impact on legal culture/reasoning, see generally Zitzke 2018 SAJHR 498.

commended for excavating the politics of the Act and arriving at the correct conclusion that generosity and human dignity are a constitutive element of African customary law.

In this case note I discuss the court's findings with the background of its reasoning that the inception of African customary law is born from the spirit of generosity. By implication, the court asserted that generosity is a constitutive element of customary law and insisted that this must be reflected in how both the facts and the law are interpreted where customary disputes are concerned. I briefly investigate the essence of "generosity", its historicity and its potential implications for customary law disputes, particularly those that have to do with customary marriages.

My argument is organised into four segments. Following this introduction, the second segment lays out the facts of the case whilst illuminating the parts of the court's finding that are central to the discussion of the case note. The third segment has the task of excavating a situational analysis that seeks to substantively grapple with the meaning of generosity, its historicity, and its implications for the adjudication of customary law disputes. This segment appreciates that the court's assertions as regards generosity have the potential to enhance some of the transformative aspirations of the post-apartheid constitutional arrangement. The segment further accepts that the present scholarly obsession with ascertaining legal certainty in customary law disputes is a missed opportunity to develop a jurisprudence of generosity which would give meaning to the omnipresent need to develop customary law and thus attain a nuanced living customary law. The fourth and final segment concludes this case note.

2 Facts

This case dealt with a dispute about the marital status of the applicant and the deceased. The applicant approached the court seeking an order declaring that the customary marriage entered into between her and the deceased on 22 December 2018 was a valid customary marriage as envisaged in the provisions of section 3 of the Act. 9

9 Muvhali case para 10.

The family of the deceased (hereinafter the primary respondents) 11

11 They are cited in their individual capacities as the first to sixth respondents. These are Rich Lukhele, Lindiwe Lukhele, Victor Lubisi, Victoria Lubisi, Siphamandla Lubisi and Mbali Lubisi.

The applicant and the deceased started their romantic relationship in 2009 at the University of Johannesburg, where they were both students. In 2009 the deceased was in his third year and the applicant was in her first year. 13

13 Muvhali case para 11.

The deceased died on 11 March 2021. The applicant told the court that the deceased's funeral arrangements were fraught with family conflict. As a result the applicant could not bury the deceased. He was instead buried 20

20 Although it was not at issue in the case discussed, the right to bury is something that has been at issue in many African customary law disputes. Conversely, it appears that most contestations as regards the validity of a customary marriage always feature disputes as regards the right to bury. Indeed, this was at issue in Tsambo v Sengadi 2019 4 SA 50 (GJ) (Tsambo case), and it is carefully studied in Manthwa and Ntsoane 2020 THRHR, where they demonstrate that there are three approaches to the question of who has the right in African customary law to bury. The first approach is that one's parents have the right to bury, the second approach is that one’s spouse has the right to bury, and the third option is one’s eldest son. Ntsoane and Manthwa lean towards the first approach only because they observe that African customs are based on the belief in ancestors (abaphansi/abezimu), so being buried by one's parents ensures that a person is buried in the land of their ancestors. For a deeper reading and analysis of the Tsambo matter, see generally, Radebe 2022 De Jure.

When the applicant approached the office of the Master of the High Court in Johannesburg to obtain the letter of executorship, the officials declined to grant it to her because the customary marriage was not registered with the Department of Home Affairs. 22

22 Muvhali case para 28.

The primary respondents disputed the existence of the valid customary marriage between the applicant and the deceased on various grounds. Firstly, they argued that of the R23,000.00 paid in respect of lobolo, R10,000.00 was for the purposes of the right to speak (also known as iVulamlomo) and was not part of the lobolo itself. Therefore, the actual amount paid was R13,000.00. 23

23 Muvhali case para 30; this argument was made with the intention of persuading the court that the lobolo was incomplete. This was an exercise in futility considering that previous court judgments have made it clear that the complete payment of lobolo was not a requirement for the completion of a valid customary marriage. See for example Rautenbach Introduction to Legal Pluralism 100-101.

At a more material level, the primary respondents were of the opinion that there was no valid marriage because the "celebration" requirement of section 3 of the Act was not met. According to the respondents, the occasion of 22 December 2022 was merely for the purposes of concluding the lobolo negotiations and not celebrations. 26

26 Muvhali case para 34.

[a] cow would be slaughtered by the family of the husband as a sign of acceptance of their new ‘makoti’. This custom is known as ‘imvume’- an acceptance custom. The family of the groom would then pour cow bile on the head of their ‘makoti', known as the ‘ukubikwa’ custom which represents that the new wife is introduced to the ancestors of the groom's family. The family of the bride must equally slaughter a cow and pour bile liquid on the head of the groom as a sign of recognising him as their lawfully wedded ‘mkhwenyana’ or groom. Both families must exchange half of the cow slaughtered to complete the acceptance and integration of marriage bonds between the families. The family of the ‘makoti’ must bring gifts to the family of the groom to lawfully recognise them as her in-laws also known as the ‘umabo’ tradition. In order to conclude a customary marriage, a second meeting of the families was required during which meeting the elders would be present and the handing over of the bride would occur at the deceased's home. The applicant's family would be requested to slaughter cows, give the bride clothes and neighbours and relatives would sing and dance. Once the balance of [t]he lobola is paid, the applicant and her family would be invited to the deceased's family home where the customary marriage would then be entered into and celebrated. This did not occur. 27

27 Muvhali case paras 35, 36, 37.

The applicant neither challenged nor contradicted the factual nature of the essence of the "celebration" requirement as enunciated from Swati customs and traditions. She did, however, assert that the luncheon that was held after the negotiations amounted to a celebration in terms of the Act. 28

28 Muvhali case para 43; the applicant argued that the lobolo negotiations and the luncheon were separate events even though they took place on the same day. At the conclusion of the lobolo negotiations, the primary respondents returned at 18:00 for the purposes of the luncheon. In the view of the applicant, the act of their returning for the second event was a tacit acceptance of the celebration of a marriage.

Furthermore, the court observed that according to African customs, the applicant was not uMakoti. 31

31 A careful reading of the case shows that there is a dispute in the connotation that is attached to the word "uMakoti". See for example Muvhali case para 31, where the applicant claims that being referred to as "Makoti" by the primary respondents implied that the primary respondents accepted her as their daughter-in-law. The primary respondents did not dispute this connotation of the word "uMakoti" but tacitly called for a relaxed reading of the term, preferring instead to argue that they used it in relation to her in "a manner of speaking" considering that the applicant and the deceased were cohabiting, rather than with the purpose of recognising her as their actual daughter-in-law in terms of customary law.

To respond to the question of whether a customary law marriage existed between the applicant and the deceased, the court had to contend with the primary respondent's claim that not all the elements in section 3(1)(b) of the Act were met. 32

32 Muvhali case para 50. There are three requirements for the subsistence of a valid customary marriage under the Act. These are encapsulated in s 3(1), and they are as follows: (1) the prospective spouses must be 18 years or older, (2) both spouses must consent to being married under customary law, and (3) the marriage must be negotiated and entered into or celebrated in accordance with customary law.

In respect of the primary respondent's claim that not all elements of the Act had been met, the court condemned the seeming tendency of people often to insist on a strict reading of the Act. 34

34 Muvhali case para 54, where the court specifically took issue with the primary respondent's strict reliance on Swati customs to aid their argument that there had been no customary marriage between the applicant and the deceased. The court likened this to the situation in the Tsambo case para 15, where the parties proffered a different interpretation to the celebrations that had occurred after the negotiations, and in a distinctly similar set of facts to the Muvhali case, the parties in the Tsambo case opposed the marriage and relied on customs and traditions.

generosity when it firmly asserted that the customary law rituals relied on by the respondents were not cast in stone. 37

37 Muvhali case para 55; the fact that customary law rituals are not cast in stone appears to be a widely accepted notion in African customary law adjudication. For example, see para 56, where the court invokes the Mbungela case, where it was held that the ritual of the handing over of the bride was important but not a key determinant of a valid customary marriage. Indeed, the court's assertion is confirmed by scholarly interlocutors such as Manthwa 2021 THRHR, where he asserts that the handing over of the bride is not a requirement as per s 3(1) of the Act, but that it is commonly accepted as an essential requirement mostly because of ancestral acquiescence.

Even if positivists/formalists were to argue for a strict reading of the principles and customs of African customary law, 38

38 See for example Koyana 2022 Speculum Juris 2, where he bemoans how courts almost always seek to overzealously develop customary law by "departing from its practices of the past." Koyana proposes that South African courts must give full unqualified recognition to customary law as a legal system, not subject to conformity with the Bill of Rights. Of course, this a purist and somewhat positivist approach to customary law. However, I must point out that the argument that African customary law must not be subservient to the Bill of Rights and the Constitution follows from existing criticisms of the Constitution's general handling of customary law; see for example, Zitzke 2018 SAJHR, where he demonstrates that the Constitution enjoins us to take African customary law more seriously but fails to give African law the prominence that it deserves. Indeed, this is an argument that is advanced in Monyamane 2023 SAPL, where he asserts that the Constitution renders the indigenous people of South Africa naked and defenceless in the sense that customary law has been adopted into a scheme that engages in the vernacularisation of foreign concepts.

Instead of engaging in a strict reading of the Act or even acceding to the primary respondent's strict insistence on adherence to Swati customs, the court opted for a contextual and situational analysis. For example, the court believed that the evidence in the making of a valuation certificate from Arthur Kaplan Jewellers dated 12 September 2016 submitted by the applicant, was more compelling than the claims made by the primary respondents. The court felt that this piece of evidence was significant because it confirmed that the deceased bought the engagement ring for the applicant approximately two years before the lobolo negotiations. 40

40 Muvhali case para 59.

deceased were not engaged to be married during the period September 2016 until 2018, when the lobolo negotiations took place, was patently incorrect.

Whereas it was common cause that none of the Swati customs were followed, the court took heed of the evidence that the family of the deceased communicated in a cordial tone with the applicant by way of WhatsApp and had invited her to some family events. The court felt that this spoke to the fact that they (the deceased's family) had not only recognised her as a daughter-in-law, but that they had accepted that as a fact, too. 41

41 Muvhali case para 60.

In the spirit of generosity, where reading situations and contexts is preferred over strict readings, the court proceeded to study the conduct of the deceased. It noted two incidents that it felt were crucial to consider: (1) when the applicant and the deceased had moved into their new home, there had been a WhatsApp group consisting of fellow homeowners of their neighbourhood. To this group the deceased introduced the applicant as "his wife", and (2) the deceased took out a FNB Law on Call Personal Plan where he registered the applicant as "a spouse". 42

42 Muvhali case para 62.

When all the above facts are considered in the context of the living, inherently flexible and pragmatic custom, a valid customary marriage existed between the applicant and the deceased from 22 December 2018 onwards. 43

43 Muvhali case para 64.

In summation, the court accordingly ordered that there had been a valid customary marriage between the applicant and the deceased as envisaged in the provisions of section 3 of the Act and that the applicant had been the customary wife of the deceased. Furthermore, the court granted leave to the applicant to register the customary marriage with the tertiary respondent posthumously.

The court's assertion as regards the dynamic and flexible nature of African customary law and its inherent generous nature leads to three indubitable conclusions: (1) unlike other systems of law, African customary law does not begin and end with the letter of the law as enunciated in legislation but prefers a deeply contextual reading of situations and realities, (2) when approaching African customary law disputes, courts must primarily concern themselves with arriving at a just outcome, and not merely strictly abide by

the legislation, and (3) the Act is a product of the Politics 44

44 Van Marle 2019 LDD 209.

3 Generosity in African customary law

3.1 Foregrounding the jurisprudence of generosity

The law is not a hard science; instead, it is a discipline in the humanities. This means that legal rules are inherently subject to interpretation and enunciation. As a result, the frequently observed obsession with legal certainty is misplaced. My argument is that the very strength of the law (especially African customary law) lies in its uncertainty. This is true of the transformative demands of the Constitution in the post-1994 era. Usually couched in the language of transformative constitutionalism, the post-apartheid constitutional arrangement is based on the notion of shifting from a culture of authority to a culture of justification. Klare's now famous definition of transformative constitutionalism is worth re-stating in his own words:

By transformative constitutionalism I mean a long-term project of constitutional enactment, interpretation, and enforcement committed (not in isolation, of course, but in a historical context of conducive political developments) to transforming a country's political and social institutions and power relationships in a democratic, participatory, and egalitarian direction. Transformative constitutionalism connotes an enterprise of inducing large-scale social change through nonviolent political processes grounded in law. I have in mind a transformation vast enough to be inadequately captured by the phrase ‘reform,’ but something short of or different from 'revolution' in any traditional sense of the word. 45

45 Klare 1998 SAJHR 150.

Klare's definition of transformative constitutionalism, read together with Mureinik's exhortation about shifting from the culture of authority to a culture of justification, 46

46 Mureinik 1994 SAJHR 32: "What the bridge is from is a culture of authority. Legally, the apartheid order rested on the doctrine of Parliamentary sovereignty. Universally, that doctrine teaches that what Parliament says is law, without the need to offer justification to the courts. In South Africa, since Parliament was elected only by a minority, the doctrine taught also that what Parliament said was law, without a need to justify even to those governed by the law. The effect of these teachings, at the apogee of apartheid, was to foster an ethic of obedience … If the new Constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to. It must lead to a culture of justification - a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command. The new order must be a community built on persuasion, not coercion."

must be consciously attentive to their role to interpret legislation in the mode of finding a balance between reform and revolution – that is to try using the law to bring about meaningful societal change; and (3) courts ought to disabuse themselves from their pre-1994 legal culture, precisely in their strict observance of parliamentary sovereignty, where the letter of the law was embraced in the same way as devout Christians embrace the word of God.

Against the background of Klare and Mureinik's insights into the essence of post-apartheid adjudication, Van Marle introduces 47

47 In this sense Van Marle introduces it only to the South African academy, but the idea of a jurisprudence of generosity is not new, because it has been the subject of scholarly attention in other disciplines and certainly in different parts of the world; see for example Malon 2011 AFLJ.

A ‘jurisprudence of generosity’ as [or is] one response to the gap between theoretical legal understanding and social transformation. I find this suggestive for post-apartheid jurisprudence. What lies at the heart of the notion of generosity for me is the idea of unexpectedness that breaks with the formality and predictability of law. 49

49 Van Marle 2007 Stell LR 194.

Van Marle's choice of words is worth a brief comment; of two words specifically. The first is "unexpectedness" and the second is "predictability". As I alluded to earlier, the law is not a hard science but rather a subject in the humanities. The words unexpectedness and predictability, as employed by Van Marle, speak precisely to this point. The expectation that the law must always be certain and that there must always be strict compliance with the provisions of the legislation is certainly the easier approach to embrace. Still, it is not in the spirit, tenor and ambit of the Politics of the day. The image of predictability and unexpectedness mirrors the constitutional transformative aspiration of freedom from colonial laws. Predictability and unexpectedness are expressions that call for a continued probe, exploration

and opening. 50

50 In Van Marle 2007 Stell LR 198, she alludes to the concept of "refusal" as one of the ways for women to specifically situate their forms of resistance, and thus contribute to the quest to radically transform society, and by implication the law too. She posits that this conception of refusal is a constitutive element of the jurisprudence of generosity because it entails a firm rejection of systems that aim to prevent forms of questioning, opposition or resistance. Refusal appears to be a dominant feature in various discourses. For example, see generally Tate From Post-Intersectionality to Black Decolonial Feminism, specifically at 43, where she defines refusal as: "the active, consciously enacted, turning away necessary to bring Black people and People of Colour into view as humans, and refuse white dominant intersectional racialization discourses, representations and imaginaries that we have all inherited, even when we do not want them. Turning away through refusal can be intellectual, psychological, political, but it can also be viscerally felt and can lead to community building through affection."

In a different text and in the context of a festschrift for Justice Albie Sachs, 52

52 Albie Sachs is often used as an example by many scholars who seek to make the point about transformative adjudication. See for example Botha 2010 SAPL, where he argues that Sach's works both as a jurist and a scholar demonstrate a jurisprudence that subverts and inverts traditional understandings of the politics of law.

Woolman proffers a substantive response to Van Marle, where he specifically takes issue with Van Marle's habit of not engaging more meaningfully with the full breadth of the Constitutional Court's

jurisprudence. 56

56 Woolman 2007 Stell LR 509.

From Woolman's rejoinder it becomes apparent that the difference between him and Van Marle is that he strongly believes in the power of the courts and the law to effect the substantive transformation of our society. In contrast she is somewhat suspicious of an overly optimistic acceptance of the law's transformative abilities. 59

59 Van Marle 2019 LDD 204.

Although framed as a retort, I find parts of Woolman's insights to be rather disingenuous; for example, his claim that Van Marle's statements as regards the limits of the law and human rights amounts to a sweeping rejection of the court's transformative potential is misplaced because this is not Van Marle's argument. To argue that the law and human rights are limited does not automatically lend itself to constitutional abolitionism. The latter is certainly not Van Marle's position. Instead, the jurisprudence of generosity, or even the "ethics of refusal", as understood by Woolman, speaks more to the need for courts to employ critical interpretative tools when adjudicating matters before them instead of strictly relying on positivist/formalist approaches. The term " "critical interpretative tools" implies the use of a generous, contextual and situational reading of the law and facts. This is the same sort of reading of the law and facts that I argue was carefully and quite correctly deployed by the court in its findings in the Muvhali case.

In some instances, when the limits of the law and human rights are exposed, they are done so with the intention of advancing an argument that says that in the efforts to transform society there is a need to shift away from the law. In this instance I do not think Van Marle's musings about the jurisprudence of generosity are an invitation for a shift away from the law. Instead, they are about finding ways to make the law and adjudication have a sharper transformative thrust. In this sense Van Marle and Woolman are not too far

from each other because they both inherently believe in the capability of the law and the court's ability to actuate some form of societal change (transformation). 61

61 Woolman 2007 Stell LR 519. This is so, especially because Woolman seems to agree with Van Marle on the issues that matter. For example, Woolman argues that "[his] initial take on three decisions - Barkhuizen v Napier, Masiya v Director of Public Prosecutions and NM v Smith - was that all three majority decisions reach spurious legal conclusions through rather tendentious reasoning. Van Marle and other commentators on South African legal culture have not altered my opinion of the outcomes or the route each majority took to reach those outcomes. However, Van Marle's writing does suggest that if one shifts (my emphasis) the prism through which one analyses this troika of cases, then one may arrive at a greater appreciation for the motivations that lay behind each decision."

A jurisprudence of generosity is, as Van Marle makes clear here, a natural and necessary corrective to systems of law that make people invisible. However, as cases such as Barkhuizen, Masiya and NM make clear, generosity is no substitute for justice, and an ethics of refusal is no substitute for the equally powerful demand for reasons and justification. The correct path leads neither to arid abstractions nor to stubborn solipsism. 63

63 Woolman 2007 Stell LR 522.

What is patently clear is that the jurisprudence of generosity, as unpacked by Van Marle and applied in the Muvhali case does not replace rules. Nor does it proffer an alternative concept of justice. Therefore Woolman and Van Marle agree with each other as regards the need to fundamentally uphold the rule of law, albeit from different methodological viewpoints.

As alluded to earlier, there is an element of decolonial critical legal studies that is worth discussing in this case note. Whereas transformative constitutionalism and decolonisation have distinct meanings and starkly divergent tools of analysis, 64

64 Sindane 2021 Pretoria Student Law Review 245.

interventions of decolonial thinkers in the humanities 66

66 For example, Grosfoguel 2007 Cultural Studies 211-223, Maldonado-Torres 2011 Transmodernity 1-15.

Decolonial critical legal scholarship calls precisely for nuance and flexibility in how courts interpret the law. It further insists that, among other things, the law must be understood within the parameters of contexts and situations. The most incisive thrust of decolonial critical legal scholarship is its ability to study society holistically and draw insights from the societal context that impacts how law is understood and has predictive options that seek to recreate legal adjudication. 69

69 Sindane 2022 SAPL 2.

The court and the parties in the Muvhali case referred to the principle and philosophy of ubuntu in passing but did not discuss/define it in detail. Ubuntu has been written about and debated quite extensively in the South African

legal academy. 71

71 See for example, Ncube "Calibrating Copyright". Also see Radebe and Phooko 2017 South African Journal of Philosophy, and Mokgoro and Woolman 2010 SAPL. Also, see Cornell and Van Marle 2005 AHRLJ, Cornell 2004 SAPL, and Bennet 2011 PELJ.

One might ask how and why I argue that ubuntu is a decolonial imperative. My response would be to canvass a definitional paradigm of ubuntu as studied by Ramose in his seminal work titled, "African Philosophy Through Ubuntu". 72

72 See generally, Ramose African Philosophy Through Ubuntu.

Religion, politics and law must be anchored upon the understanding of the cosmos as the continual strife for harmony. It is such anchorage which gives them authenticity and legitimacy. And this is the basis for consensus as the distinctive feature of ubuntu philopraxis. Peace through the concrete realisation of justice is the fundamental law of ubuntu philosophy. Justice without peace is the negation of the strife towards cosmic harmony. But peace without justice is the dislocation of umuntu from the cosmic order. 75

75 Ramose African Philosophy Through Ubuntu 46.

Ubuntu, when understood in the discipline of African philosophy, finds its decolonial imprimatur in its sacrosanct demand for justice – or, quite simply, its insistence on a society that is based on what is just. Decolonisation, as

mentioned earlier, is a justice-seeking project. It aims to complete the incomplete business of liberation for all colonised people of the world, particularly black people, who continue to labour under the vestigial force of colonialism, which keeps them in the zone of non-being. 76

76 Fanon Black Skin, White Masks 2.

Simply put, colonialism was a system that dis-membered colonised people from the family of human beings, thus dehumanising them. Decolonisation thus seeks to undo dis-memberment by re-membering the dis-membered. 77

77 Ndlovu-Gatsheni 2015 Australasian Review of African Studies 23. The word "dismemberment" and the phrase "remembering the dismembered" speak to trite decolonial theorisation that calls for the need to rehumanise all colonised/Black people who continue to be dehumanised by the unending colonial episode that persists long after the official/formal cessation of imperial/colonial conquests.

Of course, the return of land and other colonially stolen wealth was not an issue in the Muvhali case. However, there was indeed a question of justice. In determining whether a valid customary law marriage existed between the applicant and the deceased, the court opted not just to read the letter of the law, but it chose to respond to the question of whether finding against the applicant would be in line with ubuntu's demand-for-justice. An important factor to underscore is that the court's reliance on the jurisprudence of generosity stretches the ordinary meaning of the word "generosity" because the court's generous interpretation of the Act does not arise from sympathy or pity or some kind of reconciliatory notion. It is instead an expression of the pursuit of justice.

Whilst it may be easy to logically appreciate how generosity fits into Ubuntu like a puzzle piece because of the latter's relational characteristic, it is not as easy to link generosity with ubuntu's characteristic of being a philosophy that demands justice. I argue that generosity not only comports with the relational characteristic of ubuntu but also with its characteristic of demanding justice. This argument is uniquely relevant to the facts of the

case in the Muvhali case and ultimately the findings of the court therein. By claiming that African customary law is based on generosity the court drew not just from the relational characteristic of ubuntu but also mostly from its demand-for-justice characteristic. Finding that a valid customary marriage existed between the applicant and the deceased is generous in the sense that it exemplifies ubuntu's demand-for-justice characteristic, because it appreciates that a contrary finding would be contrary to ubuntu's aspiration for a society that is just. In the segment below I briefly demonstrate how a contrary finding by the court would have had unjust practical implications.

3.2 The practical implications of formalist/positivist readings

As discussed above, it would be easy to argue that accepting the jurisprudence of generosity would open African customary law to some level of uncertainty.

The purported legal uncertainty is a strength in the sense that it creates legitimate space for courts to deviate from a strict reading of legislation where the demand of justice dictates that they do so. The instance of Muvhali v Lukhele is a good example of how a strict reading of legislation would have led to an unjust court outcome.

At a practical level, there would have been two implications had the court embraced a strict reading of the Act; the first would have been a finding that the applicant and the deceased were not in a valid customary marriage. This would have had the implication of the applicant’s losing access to all if not most of the assets that she and the deceased had accumulated together. Most importantly, it is apparent that the family of the deceased thought that they had a legal claim to the house that the deceased and the applicant had lived in. Ultimately, that claim would have been vindicated had the court agreed that there had been no customary marriage between the applicant and the deceased.

The second practical implication would have related to the consideration that the applicant and the deceased had had a child together. 80

80 Muvhali case para 21.

In my analysis, the two practical implications set out above far outweigh the religious fetishisation of legal certainty and vindicate the court's approach to choosing a generous reading of the facts and the law.

4 In the final analysis

In this case note I have argued that generosity is indeed a constituent of African customary law. I have demonstrated that this is in line with the Politics of the day, which are constitutional imperatives, and decolonisation. To strengthen my argument I studied the court's findings in the Muvhali case, where the court was comfortable with the finding that the legislatively stipulated requirements of a valid customary marriage had not been met, but chose to deviate from the letter of the law and preferred instead a generous, contextual and situated reading of the Act and the facts of the case.

The court must be commended for the approach it took, and specifically its insistence on the jurisprudence of generosity. This bit of customary law adjudication is uniquely poised to be exemplary to other systems and disciplines of law, especially commercial, private and mercantile law adjudication, which often commits the sin of constitutional heedlessness 82

82 I borrow the phrase "constitutional heedlessness" from Zitzke 2015 CCR 259-290.

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Grosfoguel R "The Epistemic Decolonial Turn" 2007 Cultural Studies 211-223

Klare 1998 SAJHR

Klare K "Legal Culture and Transformative Constitutionalism" 1998 SAJHR 146-188

Koyana 2022 Speculum Juris

Koyana DS "Delivery of the Bride as a Requirement for the Validity of a Customary Marriage: The Final Verdict" 2022 Speculum Juris 1-16

Maldonado-Torres 2011 Transmodernity

Maldonado-Torres N "Thinking Through the Decolonial Turn: Post-continental Interventions in Theory, Philosophy, and Critique: An Introduction" 2011 Transmodernity 1-15

Malon 2011 AFLJ

Malon S "Amartya Sen's The Idea of Justice: A Jurisprudence of Generosity?" 2011 AFLJ 115-124

Manthwa 2021 THRHR

Manthwa A "The Relevance of Handing Over the Bride in Contemporary South Africa: Miya v Mnqayane (3342/2018) [2020] ZAFSHC 17 (3 February 2020). Vonnisse" 2021 THRHR 403-411

Manthwa 2022 Speculum Juris

Manthwa A "An Appraisal of the Hurdles with Ascertaining the Applicable Customary Law When Determining Conclusion of a Customary Marriage: ND v MM (18404/ 2018) (2020) ZAGPJHC 113 (12 May 2020)" 2022 Speculum Juris 223-232

Manthwa and Ntsoane 2020 THRHR

Manthwa A and Ntsoane L "The Right to Bury the Deceased in Terms of Customary Law: Whose Right is It? Vonnisse" 2020 THRHR 611-621

Mboti 2015 Journal of Media Ethics

Mboti N "May the Real Ubuntu Please Stand Up?" 2015 Journal of Media Ethics 125-147

Modiri 2018 SAJHR

Modiri JM "Conquest and Constitutionalism: First Thoughts on an Alternative Jurisprudence" 2018 SAJHR 300-325

Modiri Jurisprudence of Steve Biko

Modiri JM The Jurisprudence of Steve Biko: A Study in Race, Law and Power in the "Afterlife" of Colonial Apartheid (DPhil-thesis University of Pretoria 2017)

Mokgoro and Woolman 2010 SAPL

Mokgoro Y and Woolman S "Where Dignity Ends and uBuntu Begins: An Amplification of, as well as an Identification of a Tension in, Drucilla Cornell's Thoughts" 2010 SAPL 400-407

Monyamane 2023 SAPL

Monyamane L "Creating and Sustaining a 'Tunnel Vision' Argument for the Application of Customary Law: A Language Conundrum" 2023 SAPL 1-18

Motshabi 2020 Strategic Review for Southern Africa

Motshabi K "Decolonising the University: A Law Perspective" 2020 Strategic Review for Southern Africa 104-115

Mureinik 1994 SAJHR

Mureinik E "A Bridge to Where: Introducing the Interim Bill of Rights" 1994 SAJHR 31-48

Ncube "Calibrating Copyright"

Ncube CB "Calibrating Copyright for Creators and Consumers: Promoting Distributive Justice and Ubuntu" in Giblin B and Weatherall K (eds) What if We Could Reimagine Copyright? (ANUR Press Acton 2017) 253-280

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Ndlovu-Gatsheni SJ "Decoloniality in Africa: A Continuing Search for a New World Order" 2015 Australasian Review of African Studies 22-50

Radebe 2022 De Jure

Radebe KM "Tsambo v Sengadi (244/19) [2020] ZASCA 46 (30 April 2020); Sengadi v Tsambo; in re: Tsambo (40344/2018) [2018] ZAGPJHC 666; [2019] 1 All SA 569 (GJ) (8 November 2018): Assessing the Insurmountable Challenge in Proving the Existence of a Customary Marriage in Terms of Section 3(1)(b) of the Recognition of Customary Marriages Act 120 of 1998 and the Misplacing of Gender Inequality" 2022 De Jure 77-86

Radebe and Phooko 2017 South African Journal of Philosophy

Radebe S and Phooko M 2017 "Ubuntu and the Law in South Africa: Exploring and Understanding the Substantive Content of Ubuntu" 2017 South African Journal of Philosophy 239-251

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Ramose M "Towards a Post-Conquest South Africa: Beyond the Constitution of 1996" 2018 SAJHR 326-341

Ramose African Philosophy Through Ubuntu

Ramose MB African Philosophy Through Ubuntu (Mond Books Harare 1999)

Rautenbach Introduction to Legal Pluralism

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Sibisi 2021 PELJ

Sibisi "Consent and Other Ancillary Matters as Requirements of a Customary Marriage: LNM v MMM (2020/11024) [2021] ZAGPJHC 563 (11 June 2021)" 2021 PELJ 1-19

Sindane 2021 Pretoria Student Law Review

Sindane N "Why Decolonisation and not Transformative Constitutionalism" 2021 Pretoria Student Law Review 236-255

Sindane 2022 SAPL

Sindane N "Prophecy and the Pandemic: The Vindication of Decolonial Legal Critical Scholarship" 2022 SAPL 1-13

Tate From Post-Intersectionality to Black Decolonial Feminism

Tate SA From Post-Intersectionality to Black Decolonial Feminism (Routledge Abingdon 2023)

Van Marle 2007 Stell LR

Van Marle K "Laughter, Refusal, Friendship: Thoughts on a 'Jurisprudence of Generosity'" 2007 Stell LR 194-206

Van Marle 2009 Stell LR

Van Marle K "Transformative Constitutionalism as/and Critique" 2009 Stell LR 286-301

Van Marle 2019 LDD

Van Marle K "Hold Onto Critical Jurisprudence" 2019 LDD 202-218

Van Marle "Abandoning Certitudes"

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Transformation in South Africa: From Revolutionary Activist to Constitutional Judge (Routledge Abingdon 2015) ch 2

Woolman 2007 Stell LR

Woolman S "On Rights, Rules, Relationships and Refusals: A Reply to Van Marle's 'Jurisprudence of Generosity'" 2007 Stell LR 508-525

Zitzke 2015 CCR

Zitzke E "Constitutional Heedlessness and Over-Excitement in the Common Law of Delict's Development" 2015 CCR 259-290

Zitzke 2018 SAJHR

Zitzke E "A Decolonial Critique of Private Law and Human Rights" 2018 SAJHR 492-516

Case law

LNM v MMM (2020/11024) [2021] ZAGPJHC 563 (11 June 2021)

Mbungela v Mkabi 2020 1 SA 41 (SCA)

Muvhali v Lukhele (21/34140) [2022] ZAGPJHC 402 (18 July 2022)

ND v MM (18404/ 2018) (2020) ZAGPJHC 113 (12 May 2020)

Ngwenyama v Mayelane 2012 4 SA 527 (SCA)

Tsambo v Sengadi 2019 4 SA 50 (GJ)

Legislation

Constitution of the Republic of South Africa, 1996

Recognition of Customary Marriages Act 120 of 1998

List of Abbreviations