I.1 Mbuzini: At the End of the Map
The core ideas in this book were first seeded in my mind over 15 years ago. It was Wednesday, 22 August 2007 – a hot and dusty day at the near-end of winter in the deeply rural village of Mbuzini, in the Mpumalanga province of South Africa. I was carrying out participant observation as part of fieldwork I was conducting toward my doctorate on the interface between ‘living customary law’ and state law. I was drawn to using the ethnographic method, which is a primary method of cultural anthropology, for my case study because of the conviction, after law school, that more grounded, qualitative and textured empirical research methods based on direct interactions with people, their beliefs, behaviours and decision-making, were necessary to really understand the complex nature and needs of ‘living customary law’ and the people who live by it.
For those not familiar with such deeply rural sites as Mbuzini, at the far corner of multiple precarious nation-states on a plundered and marginalised continent (Eswatini, Mozambique and South Africa), the scene is worth describing in some detail. The grounds of the traditional council office were abuzz with activity. It was the third day on which people, hoping to be registered for a government-sponsored RDP house,Footnote 1 awaited administrative service in various queues. As on other Wednesdays, I was there to observe ‘libandla’ (the traditional council)Footnote 2 as it deliberated over policy matters and resolved community disputes. Seeing that ‘libandla’ had not yet gone into session, I sat outside Ndvunankulu (Chief Headman) Shabangu’s office and observed the surrounding environment while I waited.
A thin elderly man came and sat next to me and struck up conversation. I asked if I could interview him, and he agreed. It dawned on me then that I was in the right place to interview ordinary members of the community, and especially women, because there were plenty of them sitting around in pairs or small groups. During my discussion with the intriguing elderly gentleman, I learned that he was ‘inyanga’ (a medicine man) who had received training on how to support the government’s community health initiatives.
As he described it, following his many years of experience in his trade, he had received his government training for a week. Provided by teachers ‘hired by the government’, the training had transpired near the office where we were seated. Following this training, the old man, Mkhulu Nyanga,Footnote 3 was registered for his work which he described by saying: when doctors fail, they (traditional healers) fill in.
Mkhulu (grandfather) added that he has ‘ematsambo enhlolo’ (bones for seeing/investigating) which tell him if a person needs blood, in which case he will send the person to the doctor. When the person returns to him, they might receive further treatment, as appropriate. He opined that, when western medicine cannot resolve a problem, the doctors should refer people to them but, because ‘batsatsela phasi tsine bemutsi omnyama’ (they still under-estimate/undermine us as people of traditional medicine/traditional healers), they do not. In those instances, it is up to the family to send the person to traditional healers. Mkhulu Nyanga concluded: there is a need for ‘kubambisana’ (literally, ‘to hold/carry with one another’; in other words, co-operation). His language hereby coincided with that used by the Constitution of the Republic of South Africa to describe what it terms ‘cooperative governance’.
We were periodically interrupted but Mkhulu did not tire, for which I was grateful. Once, when we were interrupted, he joked to the passer by that he was propositioning me for marriage.Footnote 4 As it happens, he was old enough to be my grandfather, which is why I referred to him as ‘Mkhulu’. As we went on to talk about ‘customary law’ – and, within that, succession and inheritance – in the context of human rights and the South African democratic Constitution, and vice versa, I was struck by the imbricated patterns of tradition and modernity that were evidenced by his narrative. But it was only after Mkhulu Nyanga and I parted ways that I had a profound realisation – an epiphany – that has brought me to this book project. It is this epiphany (both personal and professional) whose holistic significance it has taken me the nearly two decades since that day’s chance encounter to understand more fully.
I.2 Introducing the Book
Over 30 years since becoming a liberal constitutional democracy, South Africa exists as a perplexing paradox: while arguably having the most progressive Constitution in the world, marked by bold socio-economic rights protections, the country is also the most unequal country in the world,Footnote 5 with growing poverty rates.Footnote 6 This book is founded on the argument that this alarming contradiction can be, at least, partly understood in terms of a ‘dis/empowerment paradox’Footnote 7 endemic to South Africa’s formal system of legal pluralism under the Constitution. Here, within a ‘single legal order’, different normative orders (whether formally or informally recognised) assert authority to apply sometimes contradictory rules and processes ‘to identical situations’.Footnote 8 Yet, one normative order with which ordinary people feel substantial affinity is largely ignored by the formal legal system.
In South Africa’s dominant legal system, the onto-epistemological perspectives and ‘moral visions’Footnote 9 of the indigenous numerical majority are minoritised,Footnote 10 even as that same demographic of the population is told that the adoption of the democratic Constitution of 1996Footnote 11 has fundamentally transformed South Africa to equally include the formerly dispossessed. This dis/empowerment is central to the ‘colonial unknowing’Footnote 12 carried forward by and under South Africa’s so-called transformative constitutionalism and might thus be called ‘constitutional unknowing’. While modern democracies purport to be ‘constitutional democracies’ that ‘are sustained by institutions through which popular opinion is sifted, refined, and converted into effective policy and action’,Footnote 13 the reality is otherwise. State institutions largely ignore popular opinion in favour of the opinions of the elite classes who – except in so far as they agree on preserving their privileged position – duel over which elite subgroup’s preferential views will prevail in and through government policy and action. South Africa is a case in point.
As the Preamble to the ConstitutionFootnote 14 announced, ‘We, the people of South Africa’ declared that we ‘recognise[d] the injustices of the past’ and signalled the belief ‘that South Africa belongs to all who live in it, united in our diversity.’ The Constitution was adopted ‘as the supreme law of the Republic’ to:
Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
Improve the quality of life of all citizens and free the potential of each person; and
Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.Footnote 15
The weighty constitutional commitments included social justice, the will of all the people as the basis of government, and improvement of the lives of the citizenry, thereby enabling the self-actualisation of all.
Yet, if we ask whether the transitional justice arrangements in the Constitution have indeed yielded restorative and social justice on the ground, the best answers have generally been presumed to come from a liberal understanding of constitutionalism.Footnote 16 This presumption is grounded in what H. Kwasi Prempeh calls ‘capital-city constitutionalism’, which centres the normative constructs and real-life concerns of elite urbanites while ignoring those reflected in the experiences of non-elite and predominantly rural Africans.Footnote 17 This constitutional design invisibilises the wealth of knowledge and resources contained in this democratic majority’s normative orders and institutions, forfeiting the (extent of) state legitimacy and government accountability that could be secured were they included.Footnote 18 The consequences of this presumption of the superiority of liberal constitutionalism have been immense in their failure to address, or even enable the people themselves to address, the needs and problems faced by most South Africans.Footnote 19
In this book, these consequences are understood in terms of the dis/empowerment paradox of South Africa’s constitutionalism. The Constitution structures the Rule of Law, limited government and the protection of individual rights in a manner that appears largely indifferent to the normative convictions, lived realities and everyday challenges experienced by its predominantly indigenous population. For most ordinary people, ‘the constitutionalism that would seem to matter the most is not always or necessarily the high constitutionalism of the political elites … but a low constitutionalism … that would address the rampant impunity and abuse of power by officials at the most basic level of the public administration’.Footnote 20
The dis/empowerment paradox describes a central conflict. On one hand, the promised Rule of Law, government’s limited power and accountability to the public and robust rights protection for the people government serves (that is, the promise of ‘high’ constitutionalism). On the other, the opposite reality on the ground (that is, the quotidian poverty and precarity of ‘low’ constitutionalism and the people who live under it) that ‘high’ constitutionalism appears to have delivered, often in far-off and out-of-sight places like Mbuzini. The latter, while allowing citizens limited – if any, tangible – accessible and effectual ways to change the situation (mainly the limited tool of elections).
This book confronts a disquieting but essential question increasingly raised by ordinary South Africans in protest): what is really meant by constitutionalism and the ‘Rule of Law’ in a country in which, over a quarter of a century after apartheid’s end, the dominant legal system of European origin is not indigenous to the 81% majority BlackFootnote 21 African population who also experience poverty at 64.2 times the rate of the settler white population?Footnote 22 Against the backdrop of the dis/empowerment paradox, the book presents a critical discussion of the possibilities (and limitations) of fully establishing living customary law – that is, vernacular lawFootnote 23 – and its indigenous values, on its own terms, under South Africa’s democratic Constitution.
This overdue ‘vernacularisation’Footnote 24 of the South African legal system is part of the solution to the challenge of the dis/empowerment paradox and should be given effect across the full legal landscape, starting with the key realms of property and housing. I use ‘vernacularise’ differently than it has previously been used to refer to international norms being (re)interpreted, adapted and applied in diverse local environments.Footnote 25 Instead, I use it to refer to what the internationally inspired constitutionalism should do by adopting and thus revising itself by being grounded in and thereby giving true expression to local, vernacular constitutional law as its primary basis wherever ‘constitutionalism’ goes.
For South Africa, the proposed solution starts with overcoming vernacular law’s present marginal accommodation in, rather than equitable (meaning substantively equal) integration into, South Africa’s legal system under which vernacular law continues to be subject to the dominant nature of South African law’s colonially-inherited form and culture. There exists a cultural and epistemic power or capital differentialFootnote 26 between the systems of ‘customary’ and ‘common’ lawFootnote 27 that must be addressed. The book thereby embraces a vision of pluriversality,Footnote 28 arguing that amalgamation – when rightly understood as a conscientiously and progressively formalised sociolegal syncretismFootnote 29 that is largely modelled upon the sociolegal syncretism informally engaged in by ordinary South Africans – could help to overcome the dis/empowerment paradox and thus strengthen South Africa’s Rule of Law.
This book does not attempt to mount a defence of cultural relativism over universalism, or vice versa,Footnote 30 or present the argument that the Constitution as such is a colonial and not an African document.Footnote 31 Rather, this book suggests amalgamating ‘customary’ and ‘common’ law with vernacular law as a way of constitutionally constitutionalising (hence, ‘common-ing’) – and, more importantly, transforming by decolonising – South African law and society. To be clear, the focus of my argument is not on ‘the Constitution’ but rather ‘constitutionalism’ – and, more specifically, Alter-Native Constitutionalism – as a vehicle for achieving the ‘transformation’ objectives set out in ‘the Constitution’.
I.3 Thinking at the End of the Map
When Mkhulu had to rush off to join the queue that had rapidly formed (as the police had finally arrived to take affidavits), I thanked him sincerely. I then went off to go sit in the sun as I was getting cold in the shadow of Ndvunankulu’s office building. I particularly wanted to speak to women now – after all, they were the primary subject of my ethnographic study on inheritance rights under ‘living customary law’.
I saw a few women but they seemed to be selling food. Given the severe precarity of life in Mbuzini, I internally celebrated that they were taking advantage of a prime business opportunity to sell basics to people just after they receive the much-needed social grants (pension, child and disability) dispersed monthly by the government, on which most rural households rely as their primary source of income. I did not want to get in the way of their opportunity to profit, so I ended up sitting next to a woman who was talking to another towards the fence, adjacent to the road. She, LaMake, was very warm and friendly. So was her companion, who appeared to be from Mozambique, LaMozam. The elderly woman, LaGogo, who sat under the shade of the tree by them both, was the most outspoken – she announced at least four times, during the hour and a half that I spent with the women, which clan she was from.
Before entering into deeper conversation, the women were duly interested to know who I was and where I came from. I am a daughter of the Mnisi clan, whose praise name begins ‘Mvuleni’ or ‘wena wemvula’ (you, of the rain). Mbuzini is under the authority of the Mlambo people who go by various iterations of their praise name, ‘Mlangeni’ (people of the sun), even in day-to-day interactions. Yet, some of the people I met in the local community were themselves – or were related to – Mnisis by birth, marriage or through extended family. In our culture, every one of those means made the people I met who were related to the Mnisis in these ways a legitimate (if somewhat distant) relative of mine; in other words, we were family.
Furthermore, though my people, BoMvuleni, had migrated from the Sotho nation centuries before, we (together with BoMlangeni and other clans) form the Swati nation. The General Act of the Berlin Conference on West Africa 1885 had divided us – at this precise geographic-turned-cartographic location – between what the British had named Swaziland (which has since reclaimed its vernacular name, Eswatini), South Africa and the previous Portuguese colony of Mozambique. It is for this reason – our shared cultural reference points and the need to undo the violence of our equally shared colonial historyFootnote 32 – that, from here on, I replace all references made to ‘the women’ with BoMake (the mothers).
Notwithstanding the gender and cultural affinity I felt toward them, BoMake were of particular interest because my ethnographic study focused on the decision in the then recent Constitutional Court case, Bhe and Others v Khayelitsha Magistrate and Others.Footnote 33 I was trying to understand the dissonance between, on the one hand, the solution the Court – located in the economic capital of South Africa, Johannesburg – had adopted for ensuring justice when it comes to women’s inheritance under customary law and, on the other hand, what communities in deep rural areas actually did in practice. This decision came down the day before I took my final African Customary Law exam in law school and barely two months before I would assume my position as law clerk to Constitutional Court Justice, Dikgang Moseneke.Footnote 34
In the Bhe decision, the Court concluded that it did not have enough evidence of the practice of living customary law on the ground to adopt it. The Court instead chose to replace the ‘customary’ principle of male primogeniture that had been legislated by the Union (British and Afrikaans) colonial-apartheid government in the Native Administration Act 38 of 1927 by adopting the division of assets prescribed by the Intestate Succession Act 81 of 1987 (promulgated by the apartheid regime). The Court then modified the Intestate Succession Act to accommodate the variation of family formation that can occur with polygynous marriages legalised by the Recognition of Customary Marriages Act of 1998.Footnote 35
Following important small talk about the season in which I had come and the food it did and did not allow me to sample – which reflected the grounding of my interlocutors’ subjectivities in their relationship to the landFootnote 36 as a source of their livelihood, and dignityFootnote 37 – I asked BoMake about the law. They said that they knew nothing about it. To my chagrin, even when I tried to press them on the question by rephrasing it in various ways, they responded that they were ignorant on the subject. Feeling slightly defeated, I let the matter go and sat with them as they conversed.
Could BoMake have been exercising what the indigenous (Kahnawà:ke Mohawk)Footnote 38 anthropologist, Audra Simpson, has referred to as ‘refusal’ in ethnography, ‘and the making of claims and the staking of limits’,Footnote 39 or what, in a similar vein, Savannah Shange has called an ‘abolitionist anthropology’?Footnote 40 BoMake’s words have provoked me to reflect on Simpson’s musings on ‘ethnographic refusal’:
The people I interviewed do know the different forms of recognition that are at play, the simultaneities of consciousness that are in work in any colonial encounter (including those with me) in the exercising of rights – and that knowledge translates into the ‘feeling side’ of recognition, one that is not juridical, is home-grown, and dignified by local history and knowledge.Footnote 41
For a start, the conversation between BoMake and me could be characterised – or experienced by them – as an encounter having colonial valences. The very phenomenon of ‘disciplining’Footnote 42 in which I was engaged – that is, studying them using the anthropological tools in which I was receiving training at the centre of the colonial project, Oxford – finds its roots in imperialism and continues to be complicit in structures and processes of silencing, marginalisation and oppression even today.Footnote 43 Furthermore, it departs from the presumption that I, as the researcher, mostly know and/or understand the issues and stakes better than, they, as the researched.Footnote 44
Refusal is indeed what I have come to recognise in the response BoMake first gave to my questions on juridical concepts of law, constitutionalism and rights. Reflecting on the very scholarly activity and process of self-legitimation and external validation in which I was engaged as a doctoral candidate, I find myself profoundly challenged by the piercing words of bell hooks:
Often this speech about the ‘Other’ annihilates, erases: ‘no need to hear your voice when I can talk about you better than you can speak about yourself. No need to hear your voice. Only tell me about your pain. I want to know your story. And then I will tell it back to you in a new way. Tell it back to you in such a way that it has become mine, my own. Re-writing you, I write myself anew. I am still author, authority. I am still the colonizer, the speaking subject, and you are now at the center of my talk.’Footnote 45
Yet, sitting with the discomfort of this recognition, I was then able to embrace BoMake’s refusal as a moment of agency that compels a shift toward correcting the implicit power imbalance between them and me, and between ‘the people’ and ‘the law’.
Hence, along with Simpson, I ask: ‘What is theoretically generative about these refusals?’Footnote 46 And, as Simpson aptly responds: ‘They account for the history …; they tell us something about the way we cradle or embed our representations and notions of sovereignty and nationhood; and they critique and move us away from statist forms of recognition.’Footnote 47 In sum, for us researchers, ‘[i]n listening and shutting off the tape recorder, in situating each subject within their own shifting historical context of the present, these refusals speak volumes, because they tell us when to stop. Whether or not we wish to share that is a matter of ethnography that can both refuse and take up refusal in generative ways.’Footnote 48 My goal here is to simultaneously refuse to ‘annihilate’ or ‘erase’ BoMake’s perspectives on law and society and take up the refusal they taught me as a basis upon which to question how transformative South African constitutionalism has really been.
Even if ‘refusal’ is over-theorising what BoMake were expressing in that moment because perhaps they were simply expressing a more passive indifference towards the formal rights regime, BoMake, in my view, rightly (if also gently) rejected the frame I put on the topics at hand in favour of one that was firmly situated in and ‘dignified by their local history and knowledge’.Footnote 49 They therefore subtly challenged the state’s authority as being epistemically and semantically superior, in my awareness, to their own autonomy. Compelling recognition of their epistemological and ontological sovereignty, they staked a claim for cognitive justiceFootnote 50 – and that, even in law.
I.4 What Is Law?
As I employ the concept, law is the body of norms, standards and criteria collectively used to guide both individual behaviour and group action, to regulate and, thus, define socially permissible activities. Law is also the means by which we judge the acceptability of those activities; address or even resolve the disputes arising from those actions (or inactions); and/or measure the manner in, and degree to, which commissions (and omissions) that do not adhere to the terms and expectations set by the relevant power are to be remedied as determined by the appropriate authority. In such instance, the relevant power and/or appropriate authority might be an individual, body or the collective.
The sources of these norms, standards and criteria can range widely from written texts (in western positivism) to the behavioural principles drawn from observing the natural environment (in indigenous naturalism).Footnote 51 Law (or ‘normative ordering’)Footnote 52 can govern any part of social life, including the constitution of the collective so governed as a polity – hence, constitutional law. That being so, vernacular systems of law lay claim to being constitutional polities and governments in the original sense of an aspiration articulated in America, France, Haiti and elsewhere in the eighteenth century: ‘Crucial elements are those of imposing curbs on the exercise of arbitrary power, advancing “the rule of law”, establishing a regime of limited government, and ensuring that the citizen’s basic rights are protected.’Footnote 53
This means that vernacular systems of law deliberately do not reflect liberal values and the ‘specific and deeply contentious governing philosophy’ surrounding the liberal constitutionalism that has become ‘an over-powerful theory of state-building, rapidly becoming the world’s most influential contemporary philosophy of government’.Footnote 54 Instead, they have followed their ‘own distinctive methods for development and application’.Footnote 55 That is, they have alter-Native ‘intellectual roots’ and have taken alter-Native sociocultural routes to their ‘contemporary residues’,Footnote 56 which I refer to as the normative convictions and values forming South African vernacular law.
My conception of law draws heavily on that of legal scholars primarily located outside of the traditional discipline of law (with the marked exception of those concerned with indigenous systems of law).Footnote 57 My understanding draws substantial inspiration from the definition of ‘legal system’ offered by social anthropologists, Franz and Keebet von Benda-Beckmann:
The most visible kind of plural legal constellation is the co-existence of two or more legal systems. By ‘legal systems’ we mean a body of legal rules and regulations conceived of as a totality and represented as a bounded symbolic universe by social actors, and for which often, but not necessarily, a claim of internal systematisation and coherence is made. Such orders provide substantive and procedural rules and principles for social, economic, political organisation, and usually also constitute persons or organisations as legitimate authorities for solving problems with the help of these conceptions.Footnote 58
Indigenous Africans make such claims about their own systems effectively holding constitutional authority.Footnote 59
The vernacular systems of law in South Africa have their own ‘legal tradition(s)’ in the way Anishinaabe/Ojibwe indigenous law professor, John Borrows, observes of Canada:
It has been said, ‘A legal tradition … is a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system, and about the ways law is or should be made, applied, studied, perfected, and taught.’ A legal tradition is an aspect of general culture; it can be distinguished from a state’s legal system if a national system does not explicitly recognize its force. Legal traditions are cultural phenomena; they provide categories into which the ‘untidy business of life’ may be organized and where disputes may be resolved. Sometimes different traditions can operate within a single state or overlap between states.Footnote 60
Hence, vernacular legal tradition(s) are the deeply held indigenous normative and axiological elements of vernacular cultures that are broadly considered by those who subscribe to those vernacular cultures to regulate collective living – regardless of whether the state’s legal order formally recognises them all or at all or whether the cultural subscribers render these norms and values ‘customs’ by always adhering to them in practice. The latter is why ‘customary law’ is a misnomer for the much broader character of vernacular law for ‘[w]hile some Indigenous law is customary, it can also be positivistic, deliberative, or based on theories of divine or natural law’.Footnote 61
Vernacular law extends the Bourdieusian sociological conception of law as more than rules but also culture (or ‘habitus’).Footnote 62 Hence, it accepts that ‘[l]aw includes both formal and informal elements … [and] pivots around deeply complex explicit and implicit ideas and practices related to respect, order, and authority’.Footnote 63 That being so, ‘[l]aws arise whenever interpersonal interactions create expectations and obligations about proper conduct’.Footnote 64 The result is the demand for justice in the form of a persistent (albeit not always explicit) call for those expectations and obligations to be publicly observed and enforced by a relevant authority and/or power. Indeed, even among EuroAmerican-trained lawyers, the subfield of ‘jurisprudence’ has developed to make sense of these theoretical and philosophical currents in terms of which ‘[w]e often analyse different legal systems by placing them within broader groupings or traditions to better understand them’.Footnote 65 The oft-cited distinctions between civil and common law traditions are cases in point. Yet, indigenous law traditions form another (and more distinct) category that is increasingly gaining the global recognition it has always deserved.
The constitutional unknowing wrought by South Africa’s purportedly transformative constitutionalism simultaneously manifests that liberal ‘[c]onstitutionalism has become the primary medium through which an insulated elite, while paying lip service to the claims of democracy, is able to perpetuate its authority to rule’.Footnote 66 In other words, in ‘constitutional law’ circles, liberal constitutionalism is wrongly ‘equated’ with ‘constitutional democracy’Footnote 67 and thus seen as what stands between democracy and ‘anarchy’. Instead, I will show that the neoliberal version of constitutionalism that has taken root in contemporary South Africa is, in fact, ‘an aberrant mode of governing that must be overcome if faith in a constitutional democracy is to be maintained’.Footnote 68
This book makes the case for Alter-Native Constitutionalism as a necessary avenue for ‘constitutional democracy’.Footnote 69 It argues that undoing the colonial unknowing of Black South Africans institutionalised through the uncommon-ing of ‘the common law’ of the land is essential to establishing a sustainable constitutional democracy in South Africa. This is because it took the construct of ‘lex nullius’ (meaning ‘empty [of] law’ and thus denying ‘the Natives’ a legitimate basis upon which to defend their land)Footnote 70 to create the legal and socioeconomic conditions of colonial-apartheid whose ‘afterlives’Footnote 71 oppress most South Africans today.
I.5 Rights at the End of the Map
I.5.1 What Rights?
In their conversation, BoMake spoke about a local woman they knew who had told her husband that ‘ulibele’ (he is slow/dull-witted). They expressed shock at the fact that she could say this to her husband and yet continue to live in ‘his’ house. Their discussion quickly moved on to the illogicality of some woman’s having sued her husband for maintenance in the civil courts while he lived in the same house as she. The women lamented that the people who would have advised the claimant to do such would then be laughing at her when she had thereby ruined her marriage. LaMake, the middle-aged woman who had first welcomed me to their circle, said that she would not sue a person she lived with in the same house for that must ‘kube likhuni’ (be very difficult). LaMozam agreed that if her husband bought her bread and soap and built her a house then she was fine; what more should she want?
I wondered if it was for my benefit that LaMake then observed that people said that it was their ‘right’: ‘to sue’. To that, LaGogo (the most elderly among BoMake) said that they could keep their rights for ‘these rights ruin things for us’. Having repeated this rejection, she added to it that, now that she is as old as she is, they come and tell her about rights; they should rather leave her alone. ‘Rights are fine’, she concluded, ‘for young people like yourself’ (she gestured at me). But LaMake, interjected to correct that, even for young women folk like myself, rights are a problem because they make us think we can disrespect our husbands, saying it is our right. But then, ‘will your rights take care of you?’, my new acquaintance asked, looking at me. ‘Take your rights then and sleep outside, on the street.’Footnote 72
It is important for me to clarify that I had asked BoMake about ‘malungelo’ (rights) that are protected by the Constitution. Though they denied knowledge of rights under the Constitution, they used the same word ‘malungelo’ in their discussion of local (vernacular) rights. This clarification is important because much of the literature on rights in South Africa says that people use different language for rights in their indigenous or vernacular understandings of law (‘amalungelo’) versus rights in their constitutional articulation (‘ama-rayiti’).Footnote 73 That was not the case in this conversation.
Yet BoMake were nonetheless talking about different conceptions of ‘rights’. That is, ‘rights’ as not just being entitlements they held which also had corresponding but separate duties held by others (as in liberal conceptions represented in South Africa’s Constitution) but, instead, ‘rights’ as being entitlements that are inextricably bound up with and contingent on social duties held by themselves as rights holders. In other words, their conception of ‘rights’ tied both rights and duties together into one, making BoMake simultaneously and inseverably rights- and duty-holders.
Now, nearly two decades later, recollection of my conversation with BoMake impresses upon me the urgency of other questions: namely, could BoMake’s conception of rights (‘malungelo’) find its original basis elsewhere than in the written democratic Constitution? If so, could I possibly trace it back to its enduring ‘alternative intellectual roots’,Footnote 74 perhaps in precolonial African society? As I will return to, the method I have arrived at as fitting is grounded in the memory carried (and sometimes not carried) by language. Hence, among the primary methods of the study represented in this book are historical and sociolinguistic analysis of early records in the original Ntu languages primarily of Southern Africa in contemporary context.
The centrality of indigenous languagesFootnote 75 to our understanding of precolonial societies, their intellectual and normative convictions, and their contemporary ‘residues’Footnote 76 is underscored by the vast oral and linguistic historical Ntu records that have yet to be interpreted alongside archaeological evidence excavated in Southern African sites.Footnote 77 In order to understand the complexities and nuances of what BoMake were seeking to convey we must pay close attention to precisely how their apparent refusal of liberal conceptions of rights was expressed. What resonance (or lack thereof) their articulations have with the ethical and sociolegal commitments that were expressed and manifested by their predecessors over the time periods scholars refer to as ‘prehistory’ (before written records) and even as far back as ‘deep history’ (human beginnings) must also be closely heeded.
There was a lull. Then one of BoMake illustrated the point they had been making on the senselessness of claiming state-based rights using the case of people applying for child support from their husbands while they are in the same home. They reported that one woman had done this and the court had granted her R200/$12 (at the time, most families were living below the poverty line of R400/$25 per person per month). The man had then, allegedly, turned to her and asked her if, now that she had this R200/$12 monthly, the child would obtain health care from this money as well as eat, sleep and study from it and not come and ask for any more money. The women agreed that that was stupidity.
LaMake added that now it seemed that state-based decision-makers were changing things so that if the woman claimed child maintenance and was working, they would then say that she had to meet the man halfway and he would therefore pay R100/$6 while the mother paid R100/$6. The women, almost in unison, exclaimed: ‘yikho loku okumangalele?!’ (literally: that’s what you sued for; meaning: that’s worth suing for?!). LaGogo added that the people who would have advised you to go and claim maintenance (child support) would have done so not knowing that things (with the law) have changed and there you would be stuck with a terrible situation – ‘bakumoshisile’ (they would have caused you to ruin things for yourself). Then those same people would turn around and laugh at your stupidity.
BoMake added another illustration of the flaws of the prevailing legal system, saying that it was like those women who got their husbands arrested. BoMake said that they would not do this. If they fell out at home, they would rather resolve things between them (‘sitilungisele tinto’) than get the police involved. If they followed a different path, they were sure: ‘Next thing, he gets arrested and comes back and you are homeless. You’ve ruined your own thing.’ Essentially, they agreed, ‘it’s your right but it is of no practical use’. Indeed, therefore, BoMake were making the exact observation made by Lacey and other feminist legal and political scholars about the importance of a situational analysis:Footnote 78 that the content and enforcement of formal legal rights entrenched in the Constitution are not equally valuable, in substantial terms, in their life circumstances, living in deep rural South Africa.
I.5.2 Of Margins and Borderlands as ‘Productive’/‘Generative’ Spaces
It is easy to overly simplify the narrative of ‘ordinary’ people’s day-to-day livesFootnote 79 – especially that of rural women located at the cartographic, sociopolitical and/or symbolic bordersFootnote 80 and marginsFootnote 81 the popular narrative of whom, skeletal and caricatured as it is, typically either robs them of agency and any productivity (capitalist or otherwise) or valorises their traditional virtue in ways that elide the complexities in their identities, values and struggles. Simpson describes the vicissitudinous history of how the state distorted indigenous identity formation, concepts of citizenship and intra-community recognition by legally imposing racialised pseudo-biological science on indigenous communities’ self-identity. Her Mohawk community, even having absorbed those conceptions, simultaneously displayed ‘alternative logics’Footnote 82 or, more precisely, in the words of the indigenous (Quechua)Footnote 83 social and political theorist, Sandy Grande, ‘alter-Native’ logics.Footnote 84
In my field site, I saw the same dynamic applying especially with respect to the gendered politics of exclusion and inclusion whose profoundly patriarchal character was substantially colonially inscribed.Footnote 85 It is this alter-Native and internally contested gendered aspect of BoMake’s story that I next want to focus on. In this step, I am mindful of the caution issued by Lila Abu-Lughod and Saba Mahmood, for instance, that it is misguided to assume – as do many of the popular and scholarly discourses produced by the Global North (understood in structural rather than geographical terms) – that the desire for individual freedom is universal when it is, in fact, historically contingent.Footnote 86
As commonly understood in the sociolegal and political thought of what Chandra Mohanty refers to as the One-Third World,Footnote 87 according with ‘Western (linear, temporal, hierarchical) constructs’,Footnote 88 the individual’s autonomy is the central concern. Yet, this common conviction is, at a minimum, confounded by the sentiment embedded in LaMake’s statement: ‘Take your rights then and sleep outside, on the street.’ As has been shown in feminist scholarship globally,Footnote 89 women’s orientations to concepts of individuality and freedom vis-à-vis family and community are complex.
As the conversation moved on, my interlocutors commented on some woman in their sights, LaMdlali, who it seemed they knew. They called her over. When she came, they teased LaMdlali and asked what she was doing when she should be home taking care of the children. Very theatrically, LaMdlali explained that she was doing work (even though she was sitting in the shade) because she was directing ‘the old man’ (her husband). She explained that, if he did not have someone with him to show him which queue, to tell him what he needed and to ask, as she does, what next, when and where, he would be there all day and nothing would get done. She then added that, when he is done with the current procedure, she will be the one to take out the R10/$.60 to get the necessary letter from the traditional council to accompany the government application for the RDP house.
LaMdlali laughed all the while but she was, evidently, being serious; as have many before her, she used humour to convey a socially fraught message.Footnote 90 In this instance, the socially subversive (by which I mean insecure, delicate and risky) and even activist message was about the ambivalences of matriarchy finding spaces in which to assert itself within (predominantly) patriarchal culture.Footnote 91 The other women then told LaMake to go and give her husband direction. She refused, saying she did not want to be shouted at and told that, if she thinks that he is dim-witted/sleepy (‘ulibele’) she should do it herself. However, after some time, LaMake decided to go and direct her husband a bit, after all.
When LaMake and LaGogo returned from the toilet, LaGogo said that the people who cleaned the toilet did not clean the floor, so it smelt like urine. LaMozam then made a profoundly perceptive point. She observed that they had worked for these houses; even if they had not paid a cent, they had worked for them by waiting in queues in which they got pushed, not eating, getting burnt by the sun and gathering filth (‘tinsila’) such as in the unclean toilet, leaving washing and other work accumulating at home. Her statement connected with years of scholarship she had probably never read on the ‘invisible labour’ performed by women, immigrants, and poor, racialised, marginalised and/or minoritised people globally.Footnote 92
LaMake noted that they should make the RDP registration more efficient, like the election queue, where there are different desks for different purposes and people go from one to the next until they are done. News then came that the reason why the barely moving queue had now ground to an absolute halt was because the single person writing the letters had declared that he was tired and was going out to stretch his legs. He had thus left the people standing out there, hot, bothered, hungry, exhausted and frustrated. To this, LaMozam reacted, ‘lemuntfu akanaluvelo; unemona’ (that person has no compassion; he is jealous/selfish) – ‘how could he get up and leave all these people like this?!’ LaMozam then concluded that these houses were not worth the anguish; a person was better off staying in their grass hut. Still, she continued to wait.
I.5.3 The Paradoxes of En-gendered Border Spaces
BoMake’s ‘differently situated subjectivity’Footnote 93 as both literally and figuratively representative of their social location warrant further accounting. In earlier moments while LaMake was directing her husband and LaGogo was in the restroom, I had asked LaMozam if she had lived in Mbuzini for a long time; to which she had responded that she had. When I asked if she was from Mbuzini, she said that she was from Mozambique but her family had moved here years ago. I asked if she went to visit Mozambique often, to which she said yes, then added that it is better to go via the border gate with your passport because then it is not difficult.
When she asked me if I had been shown the local pride that is the Samora Machel memorial site (where the former president of Mozambique crashed and died in a plane shot down by the apartheid government), I said yes. She then noted that Mozambique was close – if you just went over the mountain ‘here’ (she pointed) – but then added that it is a mission to travel that way because the soldiers demand money. When I asked her how much money, she said that it depended because each soldier sets their own fee. She told me, that, now that her passport had expired, she gave things (remittances) to people going over the border but she did not go over herself. She also added that she hated travelling by night – in the forest – which one had to do when going over the mountain (crossing the border without official documentation); by contrast, one could go through the gate by day, which she found much better.
It was clear, from LaMozam’s account and my walking the path to ‘no man’s land’, which LaMozam described, that the overlay of gatekeeping methodologies for the physical and metaphorical attributes of the international borders, and their compounding impacts, were substantial, both deeply woven with and contributing to the precarity of people’s lives in the surrounding areas. The precarity is not only economic. A product of settler colonialism and vast in its reach, it manifests itself, in the everyday life crises in places like Mbuzini, through profound financial uncertainty, pervasive military presence, environmental degradation, and other forms of social instability (exemplified by alcoholism and gender-based violence) woven through the constancy and ordinariness of severe poverty. In these and other ways, as an endemic and persistent ‘crisis’, the precarity of which I speak is ‘quotidian’Footnote 94 – and yet it is nonetheless recognised by those who live in and with it as being other than the way things once were or should be.Footnote 95
A textured view of this quotidian precarity is fitting. In continuing conversation, it emerged that LaGogo had had nine children following eight pregnancies (thus including a set of twins): six boys and three girls. Of her children, five were now deceased. Those who had passed on (one son had been a soldier) had left children to be cared for and she wished she could have had help for that. She told us the story of her return from what was then Swaziland, where she later revealed that she had had what she described as a very good marriage where she was well-provided for and even her in-laws took excellent care of her.
LaGogo said that her children were taken care of by the government and that she would have stayed but had needed to return to South Africa for the sake of government benefits. Her children, who she described as being older or grown and remaining in Swaziland receiving government aid (namely, food packages from Taiwan that she described as containing rice, beans and fruits), had told her to ‘buyela ekhaya utophila’ (return home so she would live/get a livelihood). In South Africa, she got government support in the form of money through grants. LaGogo noted that people get money in Swaziland too but, when LaMozam asked, she said that the money is not the same as that received in South Africa.
Exchanging stories of their comparable family sizes with LaGogo, LaMake shared that she had had seven pregnancies resulting in eight children (also including a set of twins). One of them had died, thus leaving her with seven children, three of whom are girls, including the youngest who is about 10 years old. In describing her marital situation, LaMake said that one day, when her husband had made her very mad, she had said to her children that, if their dad did not want to fix things ‘around here’, she would go and get herself a stand (a plot of land) near Samora Machel school and build there. The children, who she described as still being young and at school, had allegedly responded that she would go alone because they would stay ‘here at home’ and their father would buy them food. She added that she had not told a soul that because she knew that her mother-in-law would delight at the children’s reaction because she hated LaMake talking like that (that is, threatening to leave). The other women agreed that ‘you leave and the kids stay behind’; but when LaMozam asked, LaMake said that the youngest (a girl, Sthandwa) would probably leave with her because she would not be parted with her mother.
During this trade of descriptions of family size, LaMake had turned to ask me about myself: I told her that I was unmarried and, since she had then asked that too, that I have no child. LaMozam responded ‘wenta kahle utikhulele’ (you’re doing the right/good thing by growing yourself, focusing on your growing). As it happens, exactly three years after my encounter with BoMake, I would marry the man I met at a conference a few weeks before I had returned to my fieldsite and had this conversation with BoMake. I have also since had three children (including a set of twins) following three pregnancies (the first of which ended painfully, prematurely and terminally). For all the differences between BoMake and me, in this way, I entered the stream of the collective experience of joy and suffering brought by reproduction that BoMake revealed to me through their narratives. More precisely, I have slipped into the generational and economic turns that are demonstrated by the difference in numbers of births and numbers of deaths that were shared by LaGogo versus LaMake and then later by LaMake’s niece who had joined us for a time and gave us a glimpse into her story.
LaMake’s niece (it seemed by marriage) had come over and engaged in the expected initial efforts to establish relational positionality as a preface for further interaction. In their verbal dance, LaGogo had first referred to LaMake’s niece, LaMusha, by one surname and LaMusha had corrected her by situating herself in a different lineage. Once that etiquette was satisfied, LaMusha complained that she could not stand for long and so, even though she would probably find the women who were behind where she had stood in the queue upset with her when she returned as she had promised them she would do, they would have to forgive. Her aunt asked her why she would skip work for ‘this’ to which LaMusha responded that it was not possible to build a house with R800/$50; indeed, LaMusha said, one could not even with R2,000/$120. As LaMusha’s comment neatly summarised, precarity is manifested in the quotidian when work does not pay enough for people to meet their basic needs and must therefore stand in long lines for days – neither working nor at home with their children – to earn subsidised housing from the government.
LaGogo asked LaMusha if she was married. She said she was not; adding, ‘ngifela ukwaliwa’ (I am plagued by being refused/rejected). When asked how many children she had; LaMusha answered that she had four. When LaGogo later told her how many children she had, LaMusha exclaimed that that was a lot, and then added, ‘nitala ngatsi anitwa buhlungu’ (you (pl.) give birth/have babies as though you feel no pain). The artful conversation that followed between these two women separated by two generations was not only lyrical in its use of analogies and idioms but also fascinating as LaGogo tried to persuade LaMusha that it was not possible for a woman to be refused or wholly rejected. LaGogo shared the twists and turns of her initially unwanted and then ultimately successful courtship and marriage. She concluded that she and her suitor had had a very good marriage in which she found she was well-provided for, with even her in-laws taking excellent care of her. LaGogo ended that, even now, if LaMusha and the other women were to go to her home back in Swaziland, they would find that she had a lovely home.
Of course, the contrast between LaGogo’s representation of her home as ‘lovely’ and her having earlier shared that she had had to leave Eswatini because of such severe poverty that the government had to take care of her children and she had had to turn to the South African government to take care of her was striking. The contrast even seemed like somewhat of a contradiction. However, it reminds us that people’s stories are never only one thing but, rather, full of paradox. This is true even of quotidian precarity.Footnote 96
This same paradoxical nature substantially marks romantic relationships in the times of AIDS, which is perhaps part of what marks the gulf between LaGogo and LaMusha’s generations and their encounters with questions of love and marriage.Footnote 97 LaMusha went on to tell her aunt, LaMake, about a relative who was very sick and had been so for a very long time. It came out that he had AIDS. BoMake decried the fact that a person can give you HIV when you are faithful to him and he goes out and fetches it ‘from wherever it sits’ and brings it to you. LaMusha added that it did not help because one could be faithful but the person one is with might not be. Her aunt agreed and closed with, ‘I don’t know where this disease comes from’. To this, LaMusha responded that it had come from ‘amabhunu’ (white people, more specifically, Afrikaans-speaking). She added that that was why it was killing ‘us, black people, and not white people’. LaMusha then ended by saying that, if we were to return to white rule, it would be gone: ‘Anitsi sitse sifuna ukutiphatsa …’ (We said we wanted to rule ourselves, isn’t it …?) LaGogo chimed in with her agreement: ‘indeed, because we’d said we wanted to rule ourselves, they gave us this disease – “letinfene leti” (these monkeys); because that’s what they call us: “tinfene” (monkeys)’.
BoMake’s explanations of where the devastating immunosuppressant virus that is ravaging their communities comes from distorted but legitimate truths about their racialisation as ‘black’ and dehumanisation as ‘monkeys’ and how these processes are linked to the biological warfare perpetrated by the Afrikaner-led apartheid government. This is exemplified in the case of S v BassonFootnote 98 on the legacy of the so-called Dr Death who developed and deployed chemical weapons against the majority Black population on behalf of the apartheid government.Footnote 99 This explication takes an apocalyptic view of Black freedom and democracy as perpetually vulnerable to backlash and punishment from imperial powers who seek to permanently dominate the darker-skinned masses.
Thus, the seemingly mundane, unremarkable conversations about marriage, children and homes among some oppressed and, at least, passively resistant women are shown to be deeply political as feminists have long held, saying that ‘the personal is political’.Footnote 100 Through their conversations, BoMake reveal glimmers of profound resistance and refusal. The questions they canvass, while pertaining at one level to the health and physical survival of themselves and their children, are also fundamentally questions of a tenor much like what Black feminist, Audre Lorde, wrote when making the claim: ‘Caring for myself is not self-indulgence. It is self-preservation, and that is an act of political warfare’.Footnote 101 Hence, BoMake’s discussions of rights and law in context emerge as being ultimately sophisticated discussions of sovereignty against settler colonialism,Footnote 102 which they refer to by the shorthand of ‘ruling ourselves’ vis-à-vis ‘white rule’.
I.5.4 Positionality Matters
I centre BoMake’s story in this introduction because the approach I wish to take with this project is an indigenous (and, thus, decolonising) feminist theoretical approach.Footnote 103 Such an approach engages with how the domination of patriarchal identity and masculinist ideals have been pivotal, if not always explicit, expressions of colonialism’s profound impact on state and local institutions and the communities they rule over. It also highlights how, whether ‘passively’ or actively, Black and Indigenous women have exercised agency within, under and around these colonially formed institutions that oppress their communities and themselves as individual members thereof.Footnote 104
Indian scholar of the theory and praxis of transnational and postcolonial feminism(s), Mohanty, explains the primary work of this approach as rendering ‘power (and women’s lives) visible in overtly nongendered, non-racialized discourses’.Footnote 105 In addition, Mohanty urges that the ‘reimagination’ and ‘reconstruction’Footnote 106 for which feminists have long called must be grounded in the experiences of the most marginalised women in the world because:
If we pay attention to and think from the space of some of the most disenfranchised communities of women in the world, we are most likely to envision a just and democratic society capable of treating all its citizens fairly. Conversely, if we begin our analysis from, and limit it to, the space of privileged communities, our visions of justice are more likely to be exclusionary because privilege nurtures blindness to those without the same privileges.Footnote 107
Part of what I take from BoMake’s refusal (if only through their exercise of indifference) of knowledge of constitutional rights while embracing vernacular conceptions of rights is that, even in the very progressive case of South Africa’s purportedly ‘transformative constitutionalism’, constitutional law has typically originated from ‘the space of privileged communities’ and thus the ‘visions of justice’ in which it has resulted have necessarily been ‘exclusionary’. By contrast, I embrace Mohanty’s argument fully, and ground this book’s purpose in the lived realities of the remotely placed women in deep rural areas such as Mbuzini.
I have also shared this backstory on Mbuzini and my formative encounters with its people because positionality matters. Because it is humanly impossible to achieve objectivity in research, it is crucial that we all clearly state our positionality so as to allow others to more easily and freely check our biases.Footnote 108 And, of course, our motivation and situational perspective(s), as well as the ways in which we strive to mitigate our inherent biases, inform the credibility of our research findings.Footnote 109 From this standpoint I have tried to integrate my own positionality above and will conclude this introduction by sharing its more precise details, and how it has shaped (and maybe even determined) how I have approached this book project.
I.6 Concluding Remarks: Vernacular, Law and Me
BoMake have had an enduring impact on my thought life; the conversation I had with them is the seedbed from which I ultimately derive the language of ‘vernacular law’. That – ‘vernacular law’ – is what I have termed the normative convictions from indigenous principles and values processually evolved into communal prescripts by ordinary people attempting to respond, in practice, to sociopolitical questions emerging in and through their day-to-day lives. If one considers the linguistic derivations of ‘vernacular’, one notes that, according to the Oxford English Dictionary, vernacular means ‘(of language) spoken as one’s mother tongue; not learned or imposed as a second language’.Footnote 110 Frankly, for me, as a multilingual person whose first language learned was not the English language in which I now live most of my life, that definition resonates with my personal experience.
Even though the version of IsiZulu I grew up speaking at home, in Johannesburg, was by no means ‘pure Zulu’ or ‘Zulu A’ (as the version that originated from the rural areas of KwaZulu-Natal was referred to in juxtaposition or contrast), it was still my vernacular, my mother’s tongue, just as it was her mother’s tongue, and her mother’s before that, and so on.Footnote 111 My ‘Jo’burg Zulu’ (‘isiZulu saseGoli’) carried, and still carries as I teach my own children this same language as their first, the matrilineal heritage that continues to cradle me ‘phakathi komhlane nembeleko’ (in-between the back and the baby carrier), which is the place of safety on my mother’s back in which I physically rested and found comfort until I was at least two years old. There is a potency there that traverses boundaries of space and time, even once one is totally ‘modernised’, as so many of us Black Africans are – myself even more than most.
Put simply, English is my primary language with which I think even in the most intimate of moments, such as meditation and prayer. Having learned to speak it at age five and having been raised in ‘the Black Church’ that observed ‘respectability politics’Footnote 112 while attending a ‘white (Anglican Girls’) school’ that disallowed speaking anything other than (‘proper’) English as the language of deportment, in this day and age in which English is indispensable for professional success, I am fortunate to speak it with first language proficiency. Still, it will never be my mother tongue or, as I sometimes say to my husband jokingly: ‘English is not my mother’. And, in this present (hopefully, decolonising) book project, I have deliberately leaned into the vernacular and away from the colonial logics predominantly embodied in English, and to a similar extent Afrikaans, as the languages of South Africa’s British and Dutch settler colonisers.Footnote 113
Given my own personal hybrid background, the approach I take in this book project should not be surprising. I take my cue from my fellow South Africans (especially Jo’burgers) who seamlessly combine languages and cultures to meet their functional and social needs in daily life: what used to be termed ‘code-switching’ but is now better understood to be ‘transglossia’ and, more holistically, ‘translanguaging’.Footnote 114 The latter is a term that combines ‘transculturation’ and ‘languaging’ to recognise the inherent legitimacy of ‘the complex and multidirectional processes in the language practices of peoples’ of the Global Majority or Two-Thirds World which produce what Walter Mignolo calls ‘an other tongue’ that ‘has something of both parents (languages) but is always different from each of them’, as Fernando Ortiz described.Footnote 115 This is essentially what I term the ‘vernacular’ which, as I present in the coming pages, wholly applies to the subject of law as a cultural artefact and, as I systematically argue, should be applied to constitutionalism as well.
Hence, I cannot help but approach the subject of this book with particular attention to, and even an embrace of, imbrication (a term from the botanical sciences), hybridity (a term from the biological sciences), and syncretism (a term from the study of religion). I refer to these various forms of ‘blending’, ‘mixing’ and ‘melding’ as ‘vernacularisation’ – a term from the study of language, which Sally Engle MerryFootnote 116 popularised in reference to law and human rights, though she used it differently than I. My preference for it primarily arises out of my own diverse language history and my undergraduate study of sociolinguistics. I start from a position of never having known or experienced any identity in its ‘pure’ form – I do not know that anyone can genuinely make a different claim.Footnote 117 Nonetheless, it is time that South African law – and constitutionalism, in particular – honestly confront its positionality and culpability in substantially erasing the vernacular.
The best way I know how to explain what occurred between those SiSwati-speaking Mbuzini women, BoMake, and myself that day is that I asked them about ‘rights’ in a language that was ‘learned’, which they considered to be ‘imposed as a second language’. What their conversation among themselves went on to reveal was what ‘rights’ are in their ‘mother tongue’. Their supposed refusal to answer my question on constitutional rights – even if a function of how unintelligible my questions must have been to them or how relatively indifferent they are to the formal legal order – was a statement of (at least, partial) rejection of ‘those rights’ as not being their own. Their rejection occurs not just in a spatial sense (for instance, urban versus rural) but also in an ontological sense grounded in their self-description as ‘sisintfu tsina’ (literally: we are traditional/indigenous; figuratively: we are very rustic/backward people). BoMake did not recognise themselves in those rights ‘over there’ (spatially, on Constitution Hill in the urban landscape of Johannesburg) vis-à-vis ‘here’ (in rural Mbuzini, where they lived their lives).
In this sense, language and law, itself a social construct whose form and power heavily rests in language (especially in the written form), are not that far apart. Therefore, if we consider what diverse studiesFootnote 118 have repeatedly shown about the fact that many, if not most, South Africans at the furthest ‘margins’Footnote 119 think of ‘rights’ (and, by extension, the existing constitutionalism) as in many ways ‘other’, we must accept that, at the very least, constitutional rights in South Africa have not been sufficiently ‘vernacularised’ from ‘above’ to be seen ‘below’ as the people’s own.
While vernacularisation (as I have defined it) is not explicitly named by the Constitution, it is indispensable to achieving real transformation.Footnote 120 More importantly, if we take the knowledges and languages of ordinary South Africans seriously, we discover that creating from mixing what they learn with what they have ‘always’ known is their primary technology. A technology is an instrument or tool by which one (and, ideally, more than just one but many) can achieve more and/or do so with greater ease and/or efficacy.Footnote 121
Most importantly, if we take the vernacular knowledge(s) of ordinary South Africans seriously, we might understand that a not insignificant part of the failures of South Africa as a would-be ‘constitutional democracy’ can be accounted for by the fact that ‘transformative constitutionalism’ has been largely experienced as the forced imposition of a new language to learn, one that has not brought nearly enough of the deliverance that was promised. For this reason, vernacular law is important to equitably amalgamate as a way of common-ing South Africa’s constitutional system of law and its component parts. It is also for this reason that I am writing this book.
As part of the necessary undoing of colonial-apartheid and its afterlives, many have argued the law must take seriously the precariousness of life of most South Africans to achieve a depth of political change that will bring meaningful (material) relief.Footnote 122 I wholly agree, and would add that vernacularisation – that is, the undoing of ‘lex nullius’ by common-ing South African law – is central to that project. Of course, I understand that not all will agree that Alter-Native Constitutionalism is an appropriate solution or preferred path to South Africa’s liberated future. Nonetheless, I will make my case for it as fully as I am able in this book.
The book is divided into four parts: the first three are explicitly represented in the title (‘Alter-Native Constitutionalism’, ‘Common-ing “Common” Law’ and ‘Transforming Property’) while the fourth is a coda (‘Alter-Native Property’). Part I comprises a definitional chapter that explicates the indigenously feminist decolonising concept of Alter-Native Constitutionalism (Chapter 1) and two subsequent chapters that reveal the limitations of transformative constitutionalism through the devastating example of Komape and Others v Minister of Basic Education (1416/2015) [2018] ZALMPPHC 18 (23 April 2018) (Chapter 2) and explain the etymologies of the complainant parents’ vernacular normative convictions – centring on Ubu-Ntu – that were woefully misunderstood and dismissed by the court in Komape (Chapter 3). Part II systematically describes the technical elements essential to the amalgamation of ‘common’, ‘customary’ and ‘vernacular’ law that form the heart of the proposed Alter-Native Constitutionalism (Chapter 4) and then details the maladaptive constraints that underlie the constitutional drafters’ and legal establishment’s resistance to embracing vernacular law as part of South Africa’s ‘law of general application’, as well as the urgency of overcoming such resistance (Chapter 5).
With reference to the socio-political and material concern that is ‘property’, Part III sets out Alter-Native Constitutionalism’s approach to constitutional and statutory interpretation (Chapter 6), uses this approach to critique the ways in which the Constitutional Court has interpreted the property and housing clauses in the Bill of Rights largely to the exclusion of vernacular law (Chapter 7) and concludes by demonstrating how embracing the vernacular law conceptions of ‘human(e) existence’, ‘rights’ and ‘house’ would transform the sociolegal reality for South Africans by decolonising ‘property’ (Chapter 8). The coda in Part IV is a sample judgment that rewrites Baron and Others v Claytile (Pty) Limited and Another (CCT241/16) [2017] ZACC 24 to tangibly illustrate the promise of applying Alter-Native Constitutionalism to ‘property’. As the book’s summative parts make clear, the time has come for the vernacularisation of South African constitutional law in and through Alter-Native Constitutionalism.
