Luthuli Lecture Examines Customary Law in SA Legal System

A painting of Albert Luthuli unveiled before (from left): Professor Nhlanhla Mkhize, Mr
Londani Ngubane, Professor Thandabantu Nhlapo, Professor Mxolisi Mchunu, Mr Irwin Langeveld
and Advocate Vusi Khuzwayo.
A painting of Albert Luthuli unveiled before (from left): Professor Nhlanhla Mkhize, Mr Londani Ngubane, Professor Thandabantu Nhlapo, Professor Mxolisi Mchunu, Mr Irwin Langeveld and Advocate Vusi Khuzwayo.

Luthuli Lecture Examines Customary Law in SA Legal System

The 17th Annual Chief Albert Luthuli Memorial Lecture was hosted by UKZN in partnership with the Department of Sport, Arts and Culture (DSAC), the Luthuli Foundation and the Luthuli Museum.

Themed: Customary Law in the South African Legal System: The Role of the Courts, the Legislature and Civil Society, the programme director for the event was renowned broadcaster and news anchor Mr Peter Ndoro.

In his welcoming address, Deputy Vice-Chancellor of the College of Humanities Professor Nhlanhla Mkhize said the lecture celebrated the life and contributions of Nkosi Albert Luthuli as Africa’s first Nobel Peace Prize Laurette and a colossus in the liberation struggle. Mkhize noted how the event was not merely retrospective, but an urgent call to action in furthering Luthuli’s ideals which included a just society.

Paying homage to the former Chairperson of the Luthuli Museum Council, Mr Important Mkhize (who passed away earlier this year) as a revered figure whose absence was profoundly missed, he said he would be remembered for his unwavering dedication to safeguarding and promoting Nkosi Albert Luthuli’s legacy.

Acting Deputy Director of DSAC Mr Irwin Langeveld recognised the numerous heritage sites around the country, stressing the importance of the initiatives as a department in preserving history.

Commenting on the lecture which continues to serve as a platform to disseminate knowledge on Luthuli, produce dialogue and public engagement on the pertinent matters that affect South Africa, the continent and the world, and form collaborations, Langeveld said it was one of the many components of the Luthuli Legacy Project, launched in 2004, which entailed the:

  • refurbishment and transformation of the Luthuli home into a museum
  • construction of the interpretive centre
  • upgrading and restoration of the United Congregational Church of Southern Africa (UCCSA)
    – where Luthuli is buried
  • production of a documentary on the Life of Times of Chief Albert Luthuli

Chairperson of the Luthuli Museum Council, Professor Mxolisi Mchunu remarked on how 61 years ago Luthuli made his mark at the University of Glasgow, Scotland, when students elected him to be the first South African Rector (the second being Winnie Mandela), and established the Albert Luthuli Scholarship Fund in his honour for Black South African students to study at the university.

Author and Academic, Professor Thandabantu Nhlapo, the first recipient (in 1974) of the Albert Luthuli Scholarship, divided his keynote address into three parts – the citizens, courts of law and legislature. He said for ordinary people customary law could be viewed through various lenses of “enthusiasm, scathing criticism and deep-seated confusion” because of how distorted it had become with the introduction of living law. He highlighted customary marriage as one of the key talking points where a widow was often denied the status of daughter in-law so that she and the children had no say over the distribution of a deceased estate. Nhlapo said this was seen through the contestation of practices or rituals and or their correct performance that constitute a valid marriage. For example, whether ilobola was paid, if it was not discussed, paid in full/part, and paid to the wrong recipient, among other possible issues.

Examining how far customary law is at being a permanent and good structure of the legal system, he said the judiciary bore a heavy load with high volumes of litigation matters, most of which were customary. Nhlapo shared how South African courts at all levels, including the Constitutional Court, had been a leading force in defending and promoting customary law. He highlighted some judgements that have been instrumental in cementing the place of customary law in the legal system “by interpreting the language of the constitution in favour of customary law and securing the rights of the citizens”.

Commenting on the legislature, Nhlapo said: ‘The role of Parliament in preserving, strengthening, promoting and embedding customary law in the legal system is almost as crucial as that of the judiciary.’ He noted how Parliament should be leading the charge, because their mandate was to establish laws for the good of the country but said there had been problems in the different phases of its production which included, in the early phase, a lack of government implementation due to a lack of resources and capacity; a detachment from the needs of the population particular those in rural areas; and a few technical missteps in Parliament’s understanding of the requirements of the
constitution in relation to when and how it should intervene. Nhlapo listed corrective measures as cutting corners in respect of the process, especially in public consultation; missed opportunities to protect living law; and the confusion between what Parliament could do to intervene in legislation.

In his closing remarks, Mr Sandile Luthuli thanked their partners, all those in attendance, the entertainers, the programme director and the guest speaker. ‘Customary law is ultimately about human dignity recognising that Africans had and would continue to have effective systems of governance written or unwritten that should not be undermined.’

Advocate Vusi Khuzwayo was the respondent to lecture, where his remarks as a legal practitioner provided further context on the theme and deepened the audience’s appreciation of customary law in relation to South Africa’s constitutional democracy.

Nhlapo was gifted with a painting by UKZN student Mr Londani Ngubane, who is currently studying a Master’s degree in Visual Arts.

To view the Albert Luthuli Lecture, click here.

Words: Hlengiwe Khwela
Photograph: Sethu Dlamini