Virginity testing and male circumcision: harmful practices of customary law?

Abstract

When dealing with an issue of customary law, one has to begin by giving a definition of customary law for the purposes of understanding. Customary law is defined in the Recognition of Customary Marriages Act1 as being customs and usages traditionally observed among the indigenous African peoples of South Africa and which forms part of the culture of those peoples. South Africa has many different customs that are practised but mainly two are to be dealt with in this paper, and they are male circumcision and virginity testing. These practices have raised some tension between traditionalists and the legislatures (which are backed by GO's who stand for human rights) on the constitutionality of the provisions of the Draft Children's Bill, which seeks to outlaw the harmful practises of customary law. This research paper aims to illustrate how harmful these practises are in society and even though the Constitution does not deny anyone the right to practise his or her culture, as long as it is consistent with the Bill of Rights, also taking into consideration international law.