AFFILIATION TO A NEW CUSTOMARY LAW IN POST-APARTHEID SOUTH AFRICA

SUMMARY This article examines the possibility that in the post-apartheid South African legal system South African citizens can voluntarily change their customary law and affiliate to a new one in the true spirit of citizenship. The article argues that such a change would affirm the dignity of all South Africans and would significantly enhance the vision of a truly non-racial society envisaged by the Constitution and contribute to social justice.

At present reality it is generally assumed that South Africans cannot submit themselves to a customary law of their choice, because it is widely assumed that only blacks in South Africa are entitled to follow customary law, as defined by their ethnicity and therefore by blood descent. Thus, for black South Africans their birth defines their ethnicity or tribal affiliation and therefore their customary law, which follows them through life. Accordingly it would appear to be a difficult proposition that black South Africans could change their customary law. Thus a Zulu who desires expressly or by implication to be bound by Sotho customary law could be faced with considerable difficulties despite the promise of section 30 of the Constitution. It would appear to be even more difficult for "white" and "coloured" South Africans, who are not entitled to customary law, according to conventional wisdom, to choose a customary law. suggest that race is a legal and social construction rather than a matter of genetics.
Such a thought would seem to be supported by the definition of "Black" in section 1 of the EEA, which defines "black people" as meaning "Africans, Coloureds and Indians", suggesting that the definition is generic rather than genetic. 6  It is generally agreed that citizenship has three meanings -as a matter of legal status; as an entitlement to the participation in legal communities; and as membership in a political community. 8 The legal conception of citizenship as connecting an individual to a state and determining the rights and duties of that individual to the state encompasses these three meanings. 9 One of the challenges of citizenship is that it is egalitarian and imagines all citizens as equal before the law. 10 The notion of equality and non-discrimination is thought to strengthen the bonds of loyalty towards the state and the sense of belonging and identity of individuals.
Important as that is, the reality is that the citizens of a state are often diverse in a range of ways, such as in their religion, language geographical circumstances and the different communities that they belong to. 11 It is true that when individuals interact with their environment, they create and recreate social facts which reflect their resolutions of the different challenges they face. The notion of culture represents our understanding of the discernible and often concrete manifestations of how citizens interact with their environment. Thus, when individuals manifest their belief in a metaphysical being, we recognise that belief as a religion or a belief system or opinion. The same goes for how citizens are born, die, eat, live, marry, buy property, raise children, build their houses or conserve common resources. One medium through which citizens interact with their environment is through the different communities which they are born into, join and exit as they negotiate their life journey. It is mainly through their shared understandings of values, myths, processes and prescriptions that members of communities bring order to their lives.
The recognition of how citizens interact with their communities is therefore an 8 See for example Kymlicka and Norman 1994 Ethics 352-381;Cohen 1999 International Sociology 245-268. important means of recognising the cultural identities of citizens and reflects the personal choices they make. Cultural identities ensure that citizens are not homogenized, even if they are equal in the eyes of the law.
A number of important conclusions are evident in this short overview. The first is that culture is a social fact and changes to reflect how individuals interact with their environment. Immutability is therefore not a fundamental attribute of culture, in that the longevity of an understanding or a process is not a defining feature of culture.
Secondly, the sense of community implies that it can be organised around different social facts, and no social fact is inherently superior to any other. Allied to this point, therefore, is the need to understand that communities change and cannot, therefore, be considered to be static. Thirdly, the shared understandings of a community can become normative in the sense that its members may feel a sense of obligation towards the communal norms. The field of legal pluralism developed as a response to the recognition that the state is not the only community whose norms are obligatory. 12 Where the state uses force and other instrumentalities to ensure obedience to its to which they subscribe.

Communities and customary law in South Africa
This part of the article examines the application of customary law as the normative framework of communities. Since section 31 of the Constitution recognises cultural, religious and linguistic communities, 14 it is important to determine whether or not the normative systems of these communities are also recognised. Assuming for the sake of argument that they are so recognised, how do we describe these normative frameworks? Even though for the purposes of this article the term customary law is defined as the normative systems of communities, it is clear that the tem "customary  The clear recognition of religious communities appears far more settled than that of linguistic communities, even in the face of the constitutional recognition of eleven languages. 35 Currie and de Waal argue, for example, that speakers of the Afrikaans language: ... share an important characteristic, but whether the nature of their relationship with each other is sufficient to constitute a community is not clear. Afrikaans speakers do not know each other personally, do not systematically interact with each other and are divided in any number of significant ways such as race class and political affiliation. 36 It is to be remembered that many of the constitutionally recognised languages form an integral part of the black communities that are recognised as being entitled to customary law. It is not far-fetched to argue that the Afrikaans people are a community in terms of section 31 of the Constitution, and that their normative framework, irrespective of the difficulty in its ascertainment and proof, ought to be recognised within the framework of the South African legal system, even though it is of course plausible that this normative framework approximates to the South African common law. In the same vein the South African Chinese community represents a community whose normative system deserves recognition.
The term "cultural" appears to have been deliberately inserted as a substitute for the term "ethnic" in section 31 of the Constitution, 37 and could be the basis of the recognition of the normative systems of black communities. Since the definition of culture encompasses the totality of a group's experience, culture comprises more than religion and language and is therefore an appropriate description of black communities, especially where culture, religion and language are used conjunctively.
On the other hand it would seem that a broad and disjunctive interpretation of section 31 would focus on the varied meaning of culture and recognise that the An understanding of socialisation and common interest as the basis of a community enables us to appreciate individual choice as a possible basis of membership of a community. We are also enabled to rethink the term "cultural communities" as representing a group of persons with a common interest forged in their interaction with their physical and social environment. We would also understand that culture is constantly evolving as a result of this interaction and is not immutable or static.
Section 30 of the Constitution implicitly recognises that individual choice constitutes the common interest that is important in the sustenance of communities.

Acquisition and change of customary law in South Africa
The last section demonstrated the fact that the Constitution as interpreted by the courts recognises at the least cultural, religious and linguistic communities as well as their normative orders, whether described as customary law or otherwise. This Since section 30 of the Constitution provides a choice of normative orders it is important to ask if the use of the word "participate" connotes a legal consequence or a sense of non-obligatory and everyday engagement in popular culture, such as listening to music, reading a book or watching a film. The use of "participate" rather than "choose" seems to convey the latter meaning. Academic and judicial opinion urges the former meaning. For example, Bennett rightly argues that, to the extent that individuals are free to participate in the culture of their choice, they have a right to demand admission to the cultural group, so that they may engage in its In this regard it is to be remembered that section 1(3) of the Law of Evidence Amendment Act, when identifying the choice of laws between Blacks who are not of the same tribe, puts their agreement as the general rule. It is difficult to separate choice from agreement to be bound by a customary law, which as a product of deliberation indicates a choice made by one or both of the parties. Assuming two Zulu men agree to be bound by Sotho customary law in a transaction, would it be right to hold that Sotho law is inapplicable because the parties are Zulu, as in land, the place where that land is situated. Accordingly, an African can change his customary law to another customary law and potentially can also abandon a customary law. The question is what does he or she abandon customary law in favour of? In many respects it is the common law that will be a natural destination of a black person who seeks to change his customary law. A good example would be contracting a statutory marriage or making a will.
It would appear that choice in religion is more pronounced than for other cultural identities, because it appears easier to make such a choice. the court refused to sanction a settlement agreement between parties to a divorce that stipulated that the child would participate in all activities of the Apostolic Church on the grounds that a reading of section 15 and 18 of the Constitution requires the voluntary participation in religious activity, and therefore an agreement that compels a child to participate in a stated religion would infringe the child's right to freedom of religion. In effect, Kotze implies that a religious choice made by a child is in the best interest of the child irrespective of the maturity of the child. 46 Whatever misgivings exist with respect to Kotze, for our purposes it is necessary to note that it affirms section 30 of the Constitution. It is the possibility of change and the appropriation of a new religious identity that respects the dignity and autonomy of South Africans. It is also important to stress that the right to join one's culture of choice is dependent on the community rules about who may join, as we have seen in respect of religious association. Thus, a community may seek to restrict membership and/or ensure that its core beliefs are maintained. It is well to remember that the internal provisos in section 30 and 31 require the exercise of these rights to be consistent with other provisions of the Bill of Rights.
The next part of the article turns to a consideration of two issues that provide significant illustrations of the possibility of the acquisition of new customary law. 46 See Robinson 2004 TSAR 202-208. It is to be noted that article 14 of the United Nations Convention of the Rights of the Child (1989) provides that all children have the right to think and believe what they want and also to practise their religion, as long as they are not stopping other people from enjoying their rights. The section further provides that Governments must respect the rights of parents to give their children guidance about this right in a manner consistent with the evolving capacities of the child. It is argued by Prof Robinson that international law recognizes the maturity of a child as a key part of the exercise of the right to religion.

Customary m arriages
This section of the article explores the issue of customary marriages as an instance in which cultural identity in South Africa is immutable. It would appear that a significant challenge for customary marriages is the possibility of non-black South Africans contracting customary marriages, which arises from the definition of The estate or part of the estate of any person who is subject to customary law who dies after the commencement of this Act and whose estate does not devolve in terms of that person's will, must devolve in accordance with the law of intestate succession ….
A necessary and appropriate question is whether a non-Black South African would be without the capacity to bequeath his or her property in accordance with the rules of customary law. As Bennett 52 recognises, while clear testamentary dispositions would pose no problem, the same cannot be said of value laden dispositions that clearly import customary law rules or require an interpretation based on customary law. since it appears that only black South Africans can engage in a customary marriage.
In another perspective it is evident that section 30 of the Constitution would support the freedom of testamentary disposition and allow South Africans the freedom to choose constitutionally permissible rules of customary law.

Concluding remarks
It is the possibility of changing one's choice of a system of customary law that emancipates customary law from the significant challenge of racism so ably articulated by Pieterse, who argues that the Consitution's provisions for legal dualism and support for customary law could lead to a violation of the right to equality due to customary law's racialist foundations and its general consequences. 55 Even though his argument is directed at the inferior status of customary law, it has significance for the right of non-Black South Africans to become affiliated to a customary law. If one's racial status denies one the right to participate in a culture, that denial is certainly racist.
The consequences of making customary law immutable would include the reinforcement of fixed identities, exclusivities and discrimination. A customary law that is reserved for black people only would encourage a discrimination that identified different classes of South Africans, even if unwittingly. We are witnesses to the emergence of a "native" group which appears to be based on race and which is itself based on the differentiation offered by a number of devices, including customary law. 56 Of more significance is the fact that fixed cultural identities fostered by an immutable customary law lay waste to the concept of citizenship. A truly non- Realizing this constitutional provision would be to create a credible path to national integration and away from the Apartheid past. Individual choice would consign subnational identities to the private realm and significantly reduce or eliminate the involvement of the State in determining and using sub national identities.
The impact of the voluntary appropriation of sub national identities such as customary law would not have a significant impact on the public sector, so that there would be no need to determine that a Chinese person was actually black. Nkosi