In a recent presentation at the University of the Western Cape’s annual Research Week legal scholar Sibusiso Mmeli Ngubane argued for the abolition of the ancient spousal mourning ritual custom of ukuzila, which prevails in African cultures. Adopting a feminist approach, she contends ukuzila clashes with the gender-equality standards outlined in the South African Constitution.
Ngubane specifically targets the ukuzila custom practised predominantly by women under customary law, which involves three phases: the immediate sitting after the husband’s passing until the burial, wearing a black garment for a specified period (often a year), to signify external mourning, and a cleansing ritual marking the end of the mourning process.
In his presentation Ngubane highlighted these phases as infringing on women’s rights enshrined in the Bill of Rights, including the right to equality, human dignity, freedom and security of a person, and freedom of religion, belief and opinion.
Emphasising the constitutional values of gender equality under Section 9, Ngubane argued that the Bill of Rights ensures equal treatment and protection before the law, without unfair discrimination based on gender.
He asserted that steps be taken to eradicate harmful cultural practices while implementing laws aimed at achieving equality.
As legal precedent he referred to the Constitutional Court case of Harksen v Lane, which assessed whether ukuzila aligned with the values of gender equality. Ngubane concluded the spousal mourning custom violated gender equality, pointing out that it constituted discriminatory rituals enforced only on widows, but not widowers.
According to Ngubane Ukuzila failed the equality test and cannot align with constitutional values. Considering historical unfair discrimination against women under customary law, he argued that sustaining ukuzila contradicted the gender transformation project aimed at advancing women’s rights.
Drawing on the United Nations’ Sustainable Development Goal number 5, calling for the elimination of discrimination against women, he suggested adopting strong policies and enforceable laws to promote gender equality.
Ngubane recommended that South Africa learn from traditional communities aligning their customary laws with international and national human-rights standards.
Ngubane’s study urged the Department of Social Development to establish help desks or forums across municipalities for widows and widowers, and provide legal education and support to raise awareness of women’s rights.
