The Natal and KwaZulu codes: The case for repeal

Bennett, T W; Pillay, A

The Natal and KwaZulu codes: The case for repeal

Journal Article

2003

Journal Title

South African Journal on Human Rights

Link to Journal

http://reference.sabinet.co.za/sa_epublication/ju_sajhr

Publisher

Juta Law

Publisher

University of Cape Town

Department

Department of Public Law

Faculty

Faculty of Law

Abstract

Since the new South African Constitution came into force, most of the discriminatory legislation of the colonial and apartheid eras has been repealed. The Natal Code of Zulu Law (Proc R151 of 1987) and the KwaZulu Act 16 of 1985 on the Code of Zulu Law are notable exceptions. Although particular sections of the Codes violate various provisions in the Bill of Rights, this article argues that the Codes should be repealed in their entirety on the ground that their very existence and their continuing application offend the right to equality in s 9 of the Constitution. The inquiry concentrates on the question whether the discriminatory nature of the Codes is nevertheless fair, and, if unfair, whether it may be justified under s 36 of the Constitution (the limitation clause). A factor considered in both the unfairness inquiry under s 9 and the justification inquiry under s 36 is the purpose of the Codes, both now and at the time of their inception. It is our view that possible arguments based on protection of the right to culture and legal certainty are unlikely to survive constitutional scrutiny, and, accordingly, the Codes should be repealed.

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