Texas Journal of Women and the Law, Volume 22, Number 2, Spring 2013 Page: 178
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Texas Journal of Women and the Law
of discrimination, no matter how egregious, are protected once they are
branded customary law.
Although it seems unlikely that rules of customary law could be
invalidated for failing the "reasonable and justifiable in a democratic
society" test, this ground for finding discrimination has been acknowledged
by the courts in Lesotho. In Attorney General v. Mopa, the court had
occasion to consider a claim of discrimination emanating from a rule that
prevented lawyers from representing litigants in local (customary law)
courts.121 The suspect rule was 20 of the Central and Local Courts
Proclamation of 1938.122 According to this rule, parties in a civil
proceeding before Central or Local courts were not permitted to be
represented by a legal practitioner.123 But the same limitation did not apply
in criminal proceedings. The respondent had requested the trial court
postpone his case so that he could get legal representation. The trial court
declined his request on the grounds that he was not permitted to have
representation under the law.124 When the matter was postponed for further
hearing, the respondent sought a declaratory order in the High Court that
20 of the Proclamation was inconsistent with the Constitution because it
had the effect of impairing his right to a fair trial.125 The court agreed with
him and the government subsequently appealed. It is noteworthy that the
court came to the conclusion that 20 indeed infringed on the right to a fair
hearing. 12 The question, however, was whether the infringement was
justified. In determining whether the limitation placed on this right was
"justified in a free and democratic society," the court adopted the reasoning
of the Canadian Supreme Court in R v. Oakes.127 It set out two major
requirements: the objective or purpose of limitation and proportionality.
The objective of the law is "sufficiently substantial and important" as to
warrant the limitation of a constitutionally guaranteed right.128 The court
did not, however, explain indicators for "sufficiency" or what may be
considered substantial. The proportionality requirement assesses the
manner in which a right may be limited.129 Here, the court inquired
customary law of sharing in the deceased estate by all beneficiaries).
121. Attorney General of Lesotho v. Mopa 2002 1 (LSCA) at para. 6-7.
122. Id.
123. Id.
124. Id. at para. 5-6.
125. Id.
126. Id. at para. 3-4.
127. See id. at para. 8; R v. Oakes (1986) S.C.R. 103 (Can.), available at
http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/1 17/index.do.
128. Attorney-Gen. of Lesotho v. Mopa 2002 1 (LSCA) at para. 33.
129. See generally Dieter Grimm, Proportionality in Canadian Constitutional and
Jurisprudence, 57 U. TORONTO L.J. 383 (2007) (noting a court's holding that
"proportionality ... appears to be a genuine interpretation of the words 'reasonable limits . .178
Vol. 22:2
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University of Texas at Austin. School of Law. Texas Journal of Women and the Law, Volume 22, Number 2, Spring 2013, periodical, Spring 2013; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth638862/m1/56/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.