Postcolonial Feminism in South Africa in Relation to the Case of Bhe V Magistrate Khayelitsha

This essay will look at the case of Bhe v Magistrate Khayelitsha , and analyse the decision in light of postcolonial feminism. It will examine whether the concept of equality can be reconciled with customary practices in South Africa, or whether these practices are outdated and have no place in a modern democratic society like South Africa, where equality and human dignity are fundamental concepts our society is built on. The assumption that the law in some way reflects unequal power relations between men and women is central to most feminist jurisprudence . All feminist thinking has a political aspect that engages ideas as to how things "ought to be" in an ideal world . It is therefore necessary to describe what exactly postcolonial feminism advocates, and how this can be applied to the Bhe case.

Postcolonial feminism is based on postmodern feminism, in the sense that it is also concerned with the construction of gender identity . Postmodern thought rejects the idea of a foundational truth, it states that any claim to truth or meaning is nether certain nor pre-existing . Identity is seen as a complex combination of different elements such as class, race, gender and sexuality .Thus postmodern feminism argues that the idea of woman is neither stable, nor fixed; they reject any conception of woman as a universal or homogenous category . The idea of "woman" cannot be described solely in relation to men or in terms of common experience, gender difference is not seen as a fundamental division in society but is dependent upon context and complex, ever-changing social practices . Postmodern feminists reject the very notion of difference of difference as inherently oppressive, due to the multi-faceted construction of the self . The ever-shifting nature of identity means that gender is merely one component of oppression, as is class, religion, culture, race, and various other social factors.

The difference between postcolonial and postmodern feminism centres around the postmodern idea of the rejection of categories such as race, gender, and class as forms of domination and subordination . Postcolonial writing instead focuses on understanding the above mentioned categories as specific process of supremacy and domination. Thus an understanding of the law will investigate how the law constructs and reinforces particular ideas of gender identity and how these ideas are linked to wider systems of political, economic and social domination in controlling and regulating women . Therefore in order to analyse the Bhe case one must examine if and how the customary law of succession subdues and controls women that live under such a seemingly patriarchal system.

The application in Bhe was made on behalf of the two minor daughters of Ms Nontupheko Bhe and her deceased partner, who were married under customary law. It was contended that the customary law rule of male primogeniture unfairly discriminated against the two children by preventing them from inheriting from the estate of their deceased father . In traditional families the eldest son or failing him, the eldest male descendent of the eldest son inherits from the family head . If the family head dies without producing a son, other male family members of the deceased will inherit. Wives and daughters of the deceased generally do not inherit . In this situation the heir to the deceased's property had indicated that he wished to sell the deceased's property in order to pay for funeral expenses.

The decision in Bhe abolished the customary law of succession codified in the Black Administration Act and its regulations, and replaced it with the common law of succession . What the court effectively did was directly declare the male primogeniture rule unconstitutional by declaring certain sections of the Black Administration Act and its regulations unconstitutional . It held that the applicable provisions of the Black Administration Act were discriminatory and contrary to S9(3) of the Constitution , and not "reasonable and justifiable in a democratic society based on dignity, quality and freedom." The court found that there was adequate evidence before it to demonstrate that African women and descendents who were not first born males were "placed in an extremely vulnerable situation " and their rights to dignity and equality were violated by the continued application of the rule of male primogeniture.

However, there has been dissonance around this decision. The Bill of Rights guarantees everyone the right to participate in the cultural life of their choice, provided that these rights are not exercised in a manner inconsistent with any provision of the Constitution . It therefore seems as if the Constitution enables competing rights such as equality and dignity to prevail over cultural rights . However, the whole purpose of the new constitutional