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Peer-Reviewed Article March 31, 2006

HUMAN RIGHTS, CULTURAL DIVERSITY AND CUSTOMARY LAW IN SOUTH AFRICA

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Published in: Journal of African Law
Publisher: Cambridge University Press • South Africa • 0021-8553 • 0221-8553
DOI: https://doi.org/10.1017/s0021855306000039

Abstract

In the joined cases of Bhe v. Magistrate Khayelitsha and Others; Shibi v. Sithole and Others; South African Human Rights Commission and Another v. President of the Republic of South Africa and Another (2005(1) B.C.L.R. 1 (CC)), the South African Constitutional Court held unanimously that the male primogeniture rule according men rights to inheritance not enjoyed by women enshrined in the South African Customary Law of Succession violated the right to equality guaranteed under section 9 of the South African Constitution. On one level, the decision can be seen as a triumph for the universality of human rights norms. On another level, however, the case raises difficult questions about the relationship between human rights and culture. The aim of this paper is to assess the judgment critically in the context of the ongoing debate about the application of international human rights standards in different cultural settings.

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