Defining Boundaries: Gender and Property Rights in South Africa’s Traditional Courts Bill

In 2008, the Traditional Courts Bill (TCB) was introduced in South Africa’s Parliament to regulate customary courts in place of the apartheid-era Black Administration Act. The TCB has come under wide ranging attack from civil society across the country, including from people based in the former homelands where the Bill would have effect, for its perpetuation of colonial and apartheid distortions of customary law, and its continuation of the oppressions justified through these distortions. In this article, I examine some of the major epistemic developments in customary law in South Africa, from colonialism to the present, to highlight key logics and genealogies of power that form the foundation and framework for ‘official customary law’. This examination provides the context for analysing the epistemological de-linking from colonial frameworks represented in women’s claims to land, and reveals how changes in women’s access to land over the years allows for a reading of epistemological shifts and contestations in customary law. I read these developments alongside the content of the TCB to examine different references for custom represented in both colonially rooted knowledges and de-colonial knowledges that challenge the premises of the former.