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

2151 Words Nov 13th, 2006 9 Pages
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the concept of equality can be reconciled with customary practices in South Africa, or whether these practices are outdated and have no place in a modern democratic society like South Africa, where equality and human dignity are fundamental concepts our society is built on.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 …show more content…
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 dispensation is to move South African society from the old social and legal orders in which the social institutions and legal systems of some communities were simply disregarded by the common law . Thus the customary law of succession cannot just simply be disregarded without careful examination.

One must firstly enquire whether the entire concept of primogeniture is not entirely against the concept of feminism. Feminism argues that the law constructs and reinforces particular ideas of gender identity . By only allowing male heirs to inherit property, the law as it stood was creating a conception of poor, black women married under customary law as weak and relatively unimportant, seemingly unable to

Related Documents