Project Description

It is twenty-five years since the transition to democracy in South Africa.  One of the enduring challenges in that transition has been the question of the role of customary law and traditional leadership in the new democratic state.  Professor O’Regan has been interested in the issues of land rights and customary law since before her appointment to the South African Constitutional Court in 1994.  She was the co-editor of a book with Christina Murray, No Place to Rest; Forced Removals and the Law (1989: Oxford) that investigated the legal processes by which African people had been dispossessed of land in South Africa.

The relationship between between democratic constitutional structures and traditional leadership have been explored in a series of important decisions concerning customary law and the role of traditional leaders under South Africa’s democratic Constitution.  (See, for recent examples, Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another (25 October 2018); Rahube v Rahube and Others  (30 October 2018), Baleni and Others v Minister of Mineral Resources and Others (22 November 2018) and Gongqose and others v Minister of Agriculture, Forestry and Others  (1 June 2018).

This research project investigates the relationship between the democratic Constitution and customary law and traditional leadership and in particular, the manner in which these issues are being litigated in South African courts. In June 2019, the Bonavero Institute co-hosted a conference in Oxford with the Programme for the Foundations of Law and Governance and Constitutional Government in Oxford, and the Land and Accountability Research Centre (LARC) at the University of Cape Town.  The conference brought together  legal practitioners, established scholars from a range of disciplines as well as emerging scholars to explore these issues. 

The papers delivered at the conference were published in a special issue of the Journal of Southern African Studies (Volume 47 (2) (2021)) edited by Aninka Claassens and Catherine O’Regan. Their editorial to the edition is available online.

Further work in this project includes a chapter by Catherine O’Regan in the Oxford Handbook of Comparative Human Rights Law edited by Mila Versteeg and Neha Jain (2024, forthcoming), entitled “Gender Equality and Custom: Courts’ wavering navigation of legal pluralism in southern Africa” and examines the approach to women’s right to inherit property under customary law in Botswana, South Africa and Zimbabwe over the last few decades.

This research project is part of the The Intersection between Democracy and Human Rights research progamme.