Authored By: Aphelele Vava
University of Fort Hare
Abstract
The preamble of the South African Constitution states that “South Africa belongs to all who live in it, and united in our diversity.” The inclusivity of customary law and its independence have been an ongoing process that has no precedent that provides the locus standi. Customary law is a vital component of our constitutional democracy, and it is now protected by the Constitution. South Africa has a part of a pre-colonial phase, where we find out that customary law had no status at all, and the powers were vested in the British Monarchy. Customary law was first recognised in 1994, and it was given a place in the Constitution, notwithstanding that the application of traditional justice has been an issue. The issue is rooted in the exclusive application that applies only to black people and those who stay in rural areas, still following the customs, not considering that South Africa is a diverse country.
This article seeks to address the difficulty of the bridge between the Constitution and African Customary Law. It highlights recommendations that may be implemented.
Thesis Statement
This article examines the difficulty that exists between African Customary Law and the Constitution. It further provides insights into how Customary Law must be interpreted together with the Constitution, and it also raises questions.
INTRODUCTION
Section 211(3) of the South African Constitution provides that “the courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.” Further, section 39(2) of the South African Constitution states that it is a must for the courts or tribunals to develop the common or customary law or legislation to the extent that it is consistent with the Bill of Rights.
Article 2 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) states that indigenous people and individuals are free and equal to all other peoples and have the right to be free from any discrimination in the exercise of their rights. This shows that the customary law is not only recognized by the South African Constitution, but it is also an instrument of international law. South Africa has adopted many legislations that address customary such as the Recognition of Customary Marriages Act 120 of 1998. This legislation seeks to specify the requirements that must be followed when customary law is concluded, and to provide equal status to the spouses in marriage.
Section 39 of the South African Constitution states that customary law runs concurrently with common law. This article begs to differ because the innovation of customary law has been delayed in terms of legislative and judicial reform. Instead, what we see is the courts that interpret customary law through the lens Bill of Rights, not considering enough the role of the traditional leaders when it comes to customary law disputes. What we observe is the judges who interpret customary law in a literal approach and with common law principles that don’t have relevance in African customary law.
Today, we have a version of codified customary law, and there are still ambiguities that exist even in that codified law. Considering that customary law in the first instance was never codified. Africans have a diversity of norms, customs, and languages. If you say that customary law must be written down, that is not possible because it is evolving daily, and each community is governed by its own laws, which are different from those of other one.
This article aims to prove that African customary law can co-exist with the Constitution, subject to the point that the judiciary and legislature give enough powers to traditional leaders to fully practice customary law. Customary law is the identity of people, self-determination, land, resources of rights, and cultural heritage.
PRE-COLONIAL PHASE AND THE MARGINALISATION OF CUSTOMARY LAW
Before the colonial arrival in South Africa, customary law was predominantly practiced within each community and passed by word of mouth from one generation to another. Many people conducted their activities according to their customs and norms. During this era, harmony and the law existed in the indigenous community. African customary law does not state that there is a single set of customs prevailing in each community.
However, the British occupation in the Cape Colony significantly altered the customary law, and the hierarchy of power in the indigenous communities was introduced. At this point, Roman Dutch law took precedence all over the country, and the position of customary law changed completely, taking into consideration that this law was civilized and even confusing to the indigenous people. By 1910, in South Africa, the customs differed from one part of the country to the other part.
The transition to apartheid took the matter a step further. During this phase, power was mainly based on hierarchical relationships within the households for the first time. The rule of the repugnancy clause was introduced; this rule meant that all the apartheid laws at that time were supreme, and there was a limitation on customary law; if its principles were against the colonial regime, then they were not applicable.
THE POSITION OF TRADITIONAL LEADERS DURING COLONIAL RULE
Traditional leaders’ status changed, and the relationship between the traditional rulers, together with their followers, was seriously undermined. Indirect rule was introduced; it was the policy whereby the colonizers decided to use the existing structures of traditional leaders to maintain their power. Traditional leaders at this time were based on the colonizers; they had no prerogative powers over how their communities were to be regulated by the laws implemented by their followers.
Indirect rule was accompanied by the Black Administration Act, also known as the “Bantu Act”, which transformed traditional authorities into government institutions. Traditional institutions were now subject to the statutory rules, which introduced upper structures. Males, specifically leaders of indigenous communities, began to follow the superstructure in their customary practices, and male primogeniture was born.
THE STATUS OF CUSTOMARY LAW AFTER 1994
The 1996 Constitution gave legal force to every angle in South Africa, including the customary law. Himonga states that South Africa became what is known as a legal pluralist state that acknowledges every culture, custom, and religion shifting from the oppression of colonial rule that caused so much damage that cannot be repaired. The Constitution included customary law; for example, section 39(3) states that customary law is applicable if it is in line with the Bill of Rights. However, questions that came to many traditional leaders were now concerned with whether customary law is founded on the Bill of Rights? Which must take precedence when it comes to customary disputes? These questions raised a lot of contemporary issues that are not resolved even today. Leaving these questions for thought, the court in the Bhe v Khayelitsha Magistrate Court case, specifically in paragraph 41, stated that customary law must not be merely tolerated, but it must be accommodated. This proved that South Africa is shifting to a new inclusivity society, but the role of the traditional leaders remains at stake because after they have lost their supremacy, things were not normal.
Section 211(2) of the South African Constitution refers to the system of customary law giving power to the traditional leaders to repeal and amend any custom that is not consistent with the Bill of Rights. Now, this presents the newborn of customary law that has been transformed by legislation and the court precedents. Now we have the Traditional Leadership and Governance Framework Act and the National House of Traditional Leaders Act. The recognition of the institutions of traditional leaders is also subject to the Constitution; every power they exercise must be in line with Chapter 2, which refers to the Bill of Rights.
Critics and Recommendations
Recently, in South Africa, there has been a new judgment of Jordaan v Minister of Home Affairs, whereby the Constitutional Court declared invalid section 26(1)(a) -(c) of the Births and Registration Act 51 of 1992 because it discriminates unfairly against women since they are the only ones who must assume their husband’s surname and the husbands cannot take the woman surname.
The court left the discretion of “may” so now men are allowed to take a woman’s surname in the marriage if they wish. Constitution of the Republic of South Africa, section 9(3), prohibits discrimination on the grounds of sex, gender, and pregnancy. So, the court drew the inferences from this clause to come to the judgment.
Many believed that this judgment would leave the gaps and potholes in customary law. According to customary law, the woman is the one who inherits the husband’s surname to protect the family lineage. Traditional leaders shared their views and stated that if the Constitutional Court decided to deliver this judgment, they should have first consulted with the indigenous people and tried to find a purposive reason why men cannot inherit a woman’s surname, noting that some discrimination in the eyes may be justified.
Leaving this judgment for critics, it is clear now that customary law is independent alone, and the Constitution exists alone in isolation. But the court noted that the surname thing comes from the colonial rule and entrenches the patriarchal rule. The question that is left now is whether this is true? Who can testify on this because in customary law, surname carries the identity of the family; it was the way our forefathers were distinguishing themselves among other families. Ntlama Makhanya is one of the scholars who is of the view that the constitution provides the framework upon which the values of the new dispensation may be developed. Secondly, the Constitutional Court is the final determinant in the interpretation and application of the values of the new democratic order.
It is lucid now that there must be co-existence between the Constitution and African Customary Law; customary law must not only be applied in villages, but its scope and framework must extend beyond to the work industries and universities’ learning curriculum. As stated in the preamble that South Africa is diverse everyone who lives in it must be recognized. And not all customary law practices that seem discriminatory in nature are invalid; some serve a legitimate purpose.
Section 30 of the Constitution states that everyone has the right to participate in the cultural choices of their life, but it must be consistent with the Bill of Rights. This section raises more questions than solutions for the Africans because every year, customary law practices are struck down, and some of them are not even recognized by the same Constitution that must protect them. It is evident now that common law principles are superior. Section 8(3) of the Constitution states that common law must be developed to give effect to the Bill of Rights. The question arises now: why is customary law excluded from this section? Is customary law merely tolerated for the sake of “democracy”?
In Shilubana v Nwamitwa, it was held that the judiciary and the other state organs must pay due regard to the values of the communities and make sure that the roles of the traditional leaders are not disturbed because they are the ones vested with the power to amend and repeal any practice in customary law. They must be the first to be consulted when the courts see that there is an inconsistency; they must not be the last line of defense in customary law. Customary law can never change, and it cannot be adjusted by legislation that is written down. South African courts must find a new way to interpret the Customary Law, and respect must be granted to the traditional leaders.
Conclusion
This article raised more questions that were not answered. It is clear now that the Customary law practices contradict the Constitution; there is a need for development, especially in the judiciary, to accommodate customs and approach traditional leaders before they take the steps that pertain to customary law. Customary Law is the land, history, and identity of Africans; it must be given the same respect that the Constitution gets from the courts. The Constitution drafters did a commendable job of including the provisions that acknowledge the customary law. There is a need for that committee to review these provisions again, if indeed they serve a purpose or if they are just included for the sake.
BIBLIOGRAPHY
Books
Rautenbach. C et al. Introduction to Legal Pluralism 148-149 (Badat, JCH et.al) (2010)
Mbuyiseli. Madlanga et al. Enforcing Accountability, Consolidating Democracy and Compelling Sustainable Development 12 (Mzukisi Ntonjini et.al) (2023)
Jeanmarie Fenrich et al. The Future of African Customary Law 110 (Paolo Gallizi et.al.) (2013)
Case Laws
Shilubana v. Nwamitwa, 2008 (9) BCLR 914 CC (S. Afr.).
Bhe v. Khayelitsha Magistrate 2005 (1) SA 580 CC (S. Afr.).
Jordaan v Minister of Home Affairs 2025 (CCT 296/24) (S.Afr.).
Legislation
Constitution of the Republic of South Africa, 1996.
Recognition of Customary Marriages, Act 120 of 1998.
International Instruments
United Nations Declaration on the Rights of Indigenous Peoples.
Journal Articles
Ntlama N, “The application of section 8(3) of the Constitution in the development of customary law values in the new South Africa constitutional dispensation” 1 2012 ISSN.
Ntebo Morudu L, et al., “The indigenisation of customary law: creating an indigenous legal pluralism within the South African dispensation” 5 2021 ISSN.
Ntlama N, “The role of the Royal Family in Transforming the institution of Traditional leadership in South Africa” 6 2024 ISSN.
