n Stellenbosch Law Review = Stellenbosch Regstydskrif - Tensions between vernacular values that prioritise basic needs and state versions of customary law that contradict them




This paper departs from a statement made by an elderly female traditional councillor in a Swati-speaking area when consideration was being given to reallocating some farming fields as residential stands for others. She communicated that she loved her field but that she would not choose to retain it if that meant that someone else would have no place to live. She expressed this as a fundamental value in her society.

Other studies have found similar values embraced by different vernacular groupings in South Africa. In these "communal" areas, rights in property are often overlapping and shared. Competing claims over shared property are prioritised on the basis of need, use, contribution made, and care given to others. This is so especially in land distribution and succession wherein security and survival are key motivating factors.
This paper reflects on these vernacular rural value systems in light of scholarship that challenges conceptions of rights as boundaries functioning exclusively - to protect autonomy by keeping others out. This literature rather conceives of rights in more inclusive terms, focusing on how they work in practice to structure the relationships on which people depend for basic survival. Moreover, this literature perceives the content of rights as contextually defined, through inclusive participatory processes. This body of theory is particularly useful when applied to the realm of socio-economic rights wherein a primary ethic in living customary law is that the basic needs of each member should be prioritised in balancing relative rights.
The paper goes on to show how official versions of customary law apply top-down conceptions of authority that privilege the powers of senior traditional leaders in ways that compromise the rights of ordinary people. Accordingly, the paper argues that the often more democratic and egalitarian rights existing in terms of living customary law provide a better departure point in attempts to give effect to socio-economic rights and alleviate poverty in rural areas.


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