Customary Law and Constitutionalism in South Africa: Reconciling Tradition with Human Rights

Abstract 

Customary law has for many years been an integral part of the daily lives of millions of  South Africans, and has influenced familial relationships, succession, and cultural  identities. Customary law is recognized as a valid and independent source of law in the  South African Constitution1, provided it adheres with the principles and values set out in  the Constitution and the Bill of Rights. However, when customary practices and  constitutional values, such as gender equality and human dignity, do not align, it often  creates challenges in the legal landscape. Courts have been progressively trying to create  a balance between the two, which has been demonstrated by Landmark cases such as Bhe  v Magistrate, Khayelitsha2, Shilubana v Nwamitwa3, and Gumede v President of the  Republic of South Africa4. This article provides a critical analysis of the constitutional, statutory, and judicial interpretation of customary law, as well challenges, and recent  changes affecting customary law, in order to determine whether there can be a balanced  coexistence without undermining both cultural and constitutional values. 

Introduction 

The constitutional democracy of South Africa is based on the principle of diversity and a  commitment to human rights. The Constitution is the supreme law of the Republic and  any law inconsistent with the constitution is invalid in accordance with section 2.5 Yet, it  simultaneously recognises customary law as a valid source of law. It protects the rights of individuals to religious, cultural and languistic freedom, while ensuring that the rights are not exercised in a way that violates the Constitution.6 Sections 211 and 212 respectively highlight the constitutional protection and respect of the rich and diverse culture of  traditional leadership and customary law while ensuring that the customs do not violate  constitutional principles. This allows traditional leaders to continue to play important  roles in their communities, in terms of their own customs and laws, but also in  accordance to the Constitution7. The requirement that all laws adhere to Constitutional  principles has often been ignored in discussions on interpreting and applying customary  law and traditions, which has led to conflicts between current systems of law and  customary practices. The tension has especially been visible in areas like marriage,  children’s rights, and inheritance, where traditional practices may contravene with the  constitutional values of equality and non-discrimination8. These conflicts therefore,  create a need for a careful balancing act, as courts and legislators attempt to create a  balance between upholding Constitutional values and acknowledging the significance of  traditional practices. This therefore, creates a need for legal expertise together with an  extensive understanding of how these customary laws operate, ensuring that both  constitutional and traditional values are upheld in a manner that encourages social  cohesion and justice9. 

In Bhe v Magistrate, Khayelitsha,10 the Constitutional Court ruled against male  primogeniture in succession, Acknowledged the power of communities to develop their  customs to adhere to constitutional principles In Shilubana v Nwamitwa,11 and declared discriminatory provisions of the Recognition of Customary Marriages Act unconstitutional In Gumede v President of the Republic of South Africa,12supporting  women’s equal rights in customary marriages. These rulings, which are further discussed below, demonstrate a possible coexistence between constitutional supremacy cultural  respect. 

Legal Framework 

Both the recognition of customary law and the supremacy of constitutional values are  entrenched in the Constitution. Constitutional supremacy is established in section 2,  while section 211(3) requires courts to use applicable customary law, except where it  contravenes with the Constitution.13 The Constitution allows traditional leaders to  participate in customary matters through section 212(1) while sections 30 and 31 protect  cultural rights but remain subject to Bill of Rights provisions.14 The constitutional  provisions establish multiple legal systems while maintaining adherence with democratic  values through their application. 

The Recognition of Customary Marriages Act 120 of 1998 guarantees full recognition to customary marriages and that both spouses have equal status.15 After the judgment in the  Bhe case, The Reform of Customary Law of Succession and Regulation of Related  Matters Act 11 of 2009 was passed, and abolished the principle of male primogeniture for  succession purposes, bringing customary succession in with the Intestate Succession Act  81 of 1987.16 The Traditional and Khoi-San Leadership Act 3 of 2019 regulates  traditional authority, and requires adherence to constitutional values.17 These statutes  work together in creating a legal system that both acknowledges and regulates customary  law within the boundaries of the constitution. 

Judicial Interpretation 

The Courts play a significant role in the interpretation of customary law and ensuring its  adherence to constitutional principles. In terms of section 211(3) of the constitution, courts are obligated to apply customary, subject to constitutional values and other  applicable statutes18. Section 39 of the South African constitution states:  

“(1) When interpreting the Bill of Rights, a court, tribunal or forum – 

(a) must promote the values that underlie an open and democratic society based on  human dignity, equality and freedom; 

(b) must consider international law; and 

(c) may consider foreign law. 

(2) When interpreting any legislation, and when developing the common law or  customary law, every court, tribunal or forum must promote the spirit, purport and  objects of the Bill of Rights. 

(3) The Bill of Rights does not deny the existence of any other rights or freedoms that are  recognized or conferred by common law, customary law or legislation, to the extent that  they are consistent with the Bill.”19 

The Constitutional Court has been central in shaping the balance between culture and  constitutionalism. In Bhe v Magistrate, Khayelitsha, it invalidated male primogeniture,  holding it inconsistent with equality and dignity, and temporarily applied the Intestate  Succession Act until legislative reform. The court held that women being excluded from  inheritance on the basis of gender directly violated section 9(3) of the constitution, and  argued that it was a form of discrimination that entrenched upon past patterns of  inequality, reinforcing old patriarchal notions that infringe upon women’s constitutional  rights of dignity20. The court further held that the primogeniture principle was an  infringement of women’s right to human dignity, as entrenched in section 10 of the  Constitution. It gave the implication that women were unfit and incompetent to become property owners and administers. The court further held that the principle also subjected  women to a minority status, ultimately placing them under the control of male heirs,  simply due to their gender. Under these patriarchal conditions, women were stripped of  their rights to be owners and controllers of property21. 

In Shilubana v Nwamitwa, the court placed emphasis on the importance of respecting  communities’ rights that observed customary law systems for the development of their  law, which was held to be one of the factors courts had to consider. The court held that  section 211 of the constitution also gave traditional authorities the right to develop their  own laws, recognizing customary law as a system that is constantly evolving22. 

The court further stated that courts had to be cognizant of the fact like any other law, customary law regulated the lives of people, that there had be a balance between the need for  flexibility and supporting development, against the values of legal certainty, respect for vested  rights, and the protection of constitutional rights”.23 

“…where there is a dispute over the legal position under customary law, a court must consider  both the traditions and the present practice of the community. If development happens within the  community, the court must strive to recognize and give effect to that development, to the extent  consistent with adequately upholding the protection of rights”24. 

The case of Gumede v President of the Republic of South Africa dealt with an unfair  discrimination claim on the basis of gender and race with regards to women who had  been married in terms of customary law, with a main focus on women owning, accessing  and controlling family properties. The issue was whether certain provisions of the  Recognition of Customary Marriages Act25, which governed the proprietary consequences of customary marriages, were unconstitutional and discriminatory on  grounds of gender, particularly section 7(1) of the Act which provides that “the  proprietary consequences of a customary marriage entered into before the  commencement of the Recognition Act continue to be governed by customary law”. 

This particular clause had the effect of stripping women of the right to claim family  property upon the dissolution of a customary marriage, due to provincial legislation that  governed provincial customary laws in which the spouses in this case resided,  particularly the KwaZulu Act and Natal Code, which recognized husbands as the family  heads and owners to all family properties, with full discretion on the use of the property.  Which ultimately meant that wives in customary marriages would not have any claims to  the family property at the end of the marriage26. 

The court held that the relevant provisions of the RCMA were clearly discriminatory on  the ground of gender, stating that “Only women in a customary marriage are subject to  these unequal proprietary consequences”27. The discrimination was therefore held to be  unfair by the court. The court ultimately ruled sections 7(1) & (2) if the RCMA; section  20 of the KwaZulu Act and section 22 of the Natal Code invalid as they were unfairly  discriminatory on the basis of gender and inequality.28 

Other significant cases include Alexkor Ltd v Richtersveld Community29, which  recognized communal land rights,¹⁶ and Mayelane v Ngwenyama30, which held that the  first wife’s consent is necessary for a valid polygynous marriage under Xitsonga law.  These rulings demonstrate the judiciary’s effort to reconcile custom with constitutional  rights. 

Critical Analysis 

Despite progress, the question still remains whether equality and other human rights in  customary law have truly been advanced by transformative constitutionalism. One  notable example is the customary practice of “ukuthwala” or forced marriage, where girls  are forcibly taken to the young men’s homes, as a preliminary process of a customary  marriage.31 However, this practice has in later years taken other dimensions, which  included forcibly marrying girls as young as 12 years old to older men32, the girls being  kidnapped and taken forcibly as wives by their own relatives, and traditional authorities  not being made aware of the abductions.33 

Another example is the customary practice of virginity testing, where unmarried women and girls, often between the ages of 7-26, have their hymens examined in order to  determine whether they are intact. In some South African communities, these procedures  are often carried out by older community women, and mostly practiced in traditional  public ceremonies34. 

These customary practices highlight how gender equality and non-discrimination remain  a challenge, and how women and children continue to be disadvantaged by patriarchal  norms perpetuated by some customary laws. The fact that only women are subjected to  these practices clearly is clearly an infringement of their rights to equality and not to be  discriminated against on grounds of gender, as entrenched in the constitution.35 Furthermore, these diverse customary practices and laws make creating a balance  between acknowledging customary law and upholding constitutional values a necessary  yet difficult task. 

Recent Developments 

Legislative and judicial developments continue to evolve. The Traditional and Khoi-San  Leadership Act 3 of 2019 regulates traditional leadership and provides formal recognition of Khoi and San communities. The Alexkor case had communal land rights affirmed,  recommended legislation like Communal Land Bill has been subject to criticism for  centralizing authority in traditional leaders.36 

The courts’ role in the development of customary marriages has also been evident, in  Mayelane v Ngwenyama, the court upheld the rights of women to consent to polygynous  marriages in terms of customary law. The court was of the view that the rights of the first  wife to human dignity and equality were incompatible with letting her husband enter into  a marriage with another woman37. The South African Law Reform Commission has  emphasised participatory approaches to reform, warning that judicial intervention alone  cannot resolve tensions between culture and rights.²⁰ 

Suggestions / Way Forward 

To create a balance between customary law and the constitution, reforms have to  reinforce participation by communities and incorporate constitutional values in practice.  Priority should be given to Living customary law, while enabling communities to openly  modify and develop their own laws and aid in ensuring adherence to constitutional  principles38.  

Customary laws and practices should be developed to support the advancement of gender  equality and non-discrimination, especially on the part of women. The legislative and  judicial frameworks, as well as customary laws must can be developed in order to foster  peaceful coexistence in a manner that supports that fosters gender equality and equal access to justice for all, and overall, ensuring that customary laws adhere to constitutional  principles. 

A key principle that may aid in reconciling traditional African culture and human rights  values of constitution is that of ‘Ubuntu’. It is a concept “translates into ‘humanness’ or  ‘morality’ and emphasizes ‘respect for human dignity’ as well as social justice and  fairness”.39 

It has been suggested that courts could make provision for a “dynamic application and  development of customary law.” However, without the courts playing a significant role in  the development of customary law. Provincial and local governments could be  encouraged by the courts to work in reconciling conflicting cultural values with the  Constitution40. Traditional authorities, and not the courts, must therefore be responsible  for the development of customary law in adherence to the constitution.41 

However, traditional authorities should be subject to accountability. The actions and  decisions of traditional leaders, especially those assuming administrative roles on behalf  of local communities, should be subject to administrative review, which would ultimately  be consistent with the constitution and reinforce accountability42. 

Last but not least, another approach towards advancement would be training local/  traditional authorities and mediators in understanding customary and formal systems of  law can improve the judiciary’s capabilities in addressing human rights issues in  customary law43. 

Conclusion 

There can be a balance between Customary law and Constitutionalism. Cultural identity  and human rights are both supported by Constitution, and are required to be reconciled in  a democratic system. Court judgments such as Bhe, Shilubana, and Gumede highlight the  advancement of this balance by the judicial system, whereas legislation such the RCMA  and succession reforms offer statutory support. Nonetheless, discriminatory traditional  practices, difficulties with enforcement, as well as traditional authority that gives rise to  disputes highlight the weakness of this balance. The development of customary law is  dependent on it being recognized as a living, growing system that is community driven  and guided by the constitutional principles of equality, dignity, and accountability.  Through the integration of human rights into customary practices and the assurance of  participatory reform, South Africa’s constitutional vision of being united in diversity can  be achieved. where cultural and democratic values support one another.

Reference(S):

Constitution: 

1. Constitution of the Republic of South Africa, 1996. 

Case Law: 

1. Alexkor Ltd and Another v Richterveld Community and Others [2003] (5) SA  460 (CC). 
2. Mayelane v Ngwenyama 2013 (4) SA 415 (CC) . 
3. Bhe v Magistrate, Khayelitsha [2005] (1) SA 580 (CC). 
4. Gumede v President of the Republic of South Africa [2009] (3) SA 152 (CC). 5. Shilubana v Nwamitwa [2009] (2) SA 66 (CC). 
5. Mayelane v Ngwenyama [2013] (4) SA 415 (CC) para [71]. 

Legislation: 

1. Recognition of Customary Marriages Act 120 of 1998. 
2. Reform of Customary Law of Succession and Regulation of Related Matters Act  11 of 2009; Intestate Succession Act 81 of 1987. 
3. Traditional and Khoi-San Leadership Act 3 of 2019 

Journal articles and online journals: 

1. Annika Classens and Catherine O’regan, ‘Editorial Citizenship and  Accountability: Customary Law and Traditional Leadership Under South Africa’s  Democratic Constitution’ [2021] JSAS 47(2) 155-172. 
2. B Mmusinyane, ‘The Role of Traditional Authorities in Developing Customary  Laws in Accordance with the Constitution: Shilubana and Others v Namitwa 2008  (9) BCLR 914 CC’ [2009] PELJ 15 para available at  https://www.saflii.org/za/journals/PER/2009/15.html accessed 13 September  2025.
3. Ebenezer Durojaye, ‘The human rights implications of virgity testing in South  Africa’ [2016] 16(4) IJDL 228-246, [1]. 
4. Erin E. Goodsell, ‘Constitution, Custom, and Creed: Balancing Human Rights  Concerns with Cultural and Religious Freedoms in Today’s South Africa’ [2007]  21(1) BYUJPL 111, [145] available at  https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?params=/context/jpl/arti cle/1379/&path_info=21BYUJ.Pub.L.111_154.pdf accessed 13 September 2025. 5. Lizelle Ramaccio Calvino, ‘Balancing customary practices with constitutional  principles: The best interest of the child in South African law’ (2024) 23(03)  WJARR 1138-1147, [47]. 
5. Lea Mwambene and Julia Sloth-Nielsen, ‘Benign accommodation? Ukuthwala,  ‘forced marriage’ and the South African Children’s Act’ [2011] 11 AHRLJ [1]. 7. Noziwe Aletta Magagula, ‘Reform of customary law of succession with specific  reference to gender equality’ [2019] [34]  https://repository.up.ac.za/server/api/core/bitstreams/f95846cc-97c6-4409-a715- a3920e592500/content#page34 

Other sources: 

1. Michael Clark and Nolundi Luwaya, Land and Accoutability Research Centre (Commissioned  Report for High Level Panel on the Assessment of Key Legislation and the Acceleration of  Fundamental Change, an initiative of the Parliament of South Africa) [13].

1 The Constitution of the Republic of South Africa, 1996. 

2 Bhe v Magistrate, Khayelitsha [2005] (1) SA 580 (CC). 

3 Shilubana v Nwamitwa [2009] (2) SA 66 (CC). 

4 Gumede v President of the Republic of South Africa [2009] (3) SA 152 (CC). 

5 Constitution of the Republic of South Africa, 1996 s 2. 

6 Ibid ss 30 & 31.

7 Constitution of the Republic of South Africa, 1996, ss 211-212. 

8 Constitution of the Republic of South Africa, 1996 ss 1&9. 

9 Lizelle Ramaccio Calvino, ‘Balancing customary practices with constitutional principles: The best  interest of the child in South African law’ (2024) 23(03) WJARR 1138 available at  https://doi.org/10.30574/wjarr.2024.23.3.2737 accessed 11 September 2025.

10 Bhe v Magistrate, Khayelitsha [2005] (1) SA 580 (CC) paras [91–98]. 

11 Shilubana v Nwamitwa [2009] (2) SA 66 (CC) para [43]. 

12 Gumede v President of the Republic of South Africa [2009] (3) SA 152 (CC) paras [29–34].

13 Constitution of the Republic of South Africa, 1996, s 211(3). 

14 ibid ss 30–31, 212(1). 

15 Recognition of Customary Marriages Act 120 of 1998, s 6. 

16 Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of  2009; Intestate Succession Act 81 of 1987. 

17 Traditional and Khoi-San Leadership Act 3 of 2019, s 4.

18 Noziwe Aletta Magagula, ‘Reform of customary law of succession with specific reference to gender  equality’ [2019] [34] https://repository.up.ac.za/server/api/core/bitstreams/f95846cc-97c6-4409- a715-a3920e592500/content#page34.  

19 Constitution of the Republican of South Africa, 1996, s 39. 

20 Bhe v Magistrate, Khayelitsha [2005] (1) SA 580 (CC) para [91].

21 Bhe v Magistrate, Khayelitsha [2005] (1) SA 580 (CC) para [92]. 

22 Shilubana v Nwamitwa [2009] (2) SA 66 (CC) para [45]. 

23 Ibid para [47]. 

24 Ibid para [49]. 

25 Recognition of Customary Marriages Act 120 of 1998.

26 Gumede v President of the Republic of South Africa 2009 (3) SA 152 (CC) para [11].

27 Gumede v President of the Republic of South Africa [2009] (3) SA 152 (CC) para [34]. 

28 Ibid para [49]. 

29 Alexkor Ltd and Another v Richterveld Community and Others [2003] (5) SA 460 (CC).

30 Mayelane v Ngwenyama 2013 (4) SA 415 (CC) .

31 Lea Mwambene and Julia Sloth-Nielsen, ‘Benign accommodation? Ukuthwala, ‘forced marriage’ and  the South African Children’s Act’ [2011] 11 AHRLJ [1]. 

32 See s12 of the Children’s Act 38 of 2005 which prohibits child marriages. 

33 Ibid [2]. 

34 Ebenezer Durojaye, ‘The human rights implications of virgity testing in South Africa’ [2016] 16(4)  IJDL 228-246, [1]. 

35 Ibid [10]

36 Michael Clark and Nolundi Luwaya, Land and Accoutability Research Centre (Commissioned  Report for High Level Panel on the Assessment of Key Legislation and the Acceleration of  Fundamental Change, an initiative of the Parliament of South Africa) [13]. https://www.parliament.gov.za/storage/app/media/Pages/2017/october/High_Level_Panel/Comm issioned_Report_land/Commisioned_Report_on_Tenure_Reform_LARC.pdf accessed 12 September  2025. 

37 Mayelane v Ngwenyama [2013] (4) SA 415 (CC) para [71]. 

38 Erin E. Goodsell, ‘Constitution, Custom, and Creed: Balancing Human Rights Concerns with Cultural  and Religious Freedoms in Today’s South Africa’ [2007] 21(1) BYUJPL 111, [145] available at  https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?params=/context/jpl/article/1379/&path _info=21BYUJ.Pub.L.111_154.pdf accessed 13 September 2025.

39 Ibid [147]. 

40 Ibid [150]. 

41 B Mmusinyane, ‘The Role of Traditional Authorities in Developing Customary Laws in Accordance  with the Constitution: Shilubana and Others v Namitwa 2008 (9) BCLR 914 CC’ [2009] PELJ 15 para  [4.3.3] available at https://www.saflii.org/za/journals/PER/2009/15.html accessed 13 September  2025. 

42 Annika Classens and Catherine O’regan, ‘Editorial Citizenship and Accountability: Customary Law  and Traditional Leadership Under South Africa’s Democratic Constitution’ [2021] JSAS 47(2) 155- 172, [170]. 

43 Lizelle Ramaccio Calvino, ‘Balancing customary practices with constitutional principles: The best  interest of the child in South African law’ (2024) 23(03) WJARR 1138-1147, [47].