Authored By: Saranya Naicker
IIE Varsity College
The Constitution of the Republic of South Africa is the highest form of lawand supremeoverall other laws and persons in the country. This means that no other person is above it andeverything must be in accordance or consulted in respect of it. During the apartheidera, recognition towards religion and different cultures was not included, people were subject tothe main law of the land and could not exercise their rights to the fullest.1 After apartheid, thischanged drastically when the first democratic elections took place in 1994 and affordedprotection and rights to everyone working towards equality especially being allowedtochoose one’s own culture and being allowed to practise in accordance with it.2 This essayexplores the recognition and impact of customary law in South Africa, with specific referenceto section 211(3) of the Constitution, and examines how its constitutional inclusionhasreshaped the position of customary law within the broader legal system.
- Customary law before 1994
Prior to 1994, recognition to indigenous legal frameworks were excluded, while the Westernor Roman Dutch law were given precedence. The Western law was seen as the basic lawofthe land and everyone had to follow this.3 However, a small fragment of recognitionwasgiven to the indigenous people of the land as the Westerns understood that foreignpeopletaking over could cause disobedience. Despite the allowance of these laws, they camewithlimitations.4 The position and limitations of customary law could be seen in three aspectswhere, only certain rules of social fields were given recognition, the state decided whenthesecertain rules were to be applied, and national legislation had overriding authority. Customarylaw was seen as a subordinate form of law in the legal system.5
In the case of Motaung v Philemon Dube 6,the Black Administration Act made significant
stride in the recognition and application of customary law in South Africa. Althoughlimited, it gave African people a chance to practice ones own culture and have it be partially recognized provided the customs practiced are not contradicting public policy andnatural justice.7
- Customary law after 1994
After 1994, the Constitution embraced the principle of legal pluralismwhich refers tothemulticultural society that various legal systems are prevalent and observed.8 This concept hasbeen embedded in the Constitution which allows for the diversity of cultures tobeacknowledged and practised in South Africa today. Customary law, due to legal pluralism, benefits the most as it is seen to be recognized and afforded protection.9 Post 1994, theConstitution was seen to indirectly include customary law under Section 181 (InterimConstitution) which stated that indigenous law must be subject to regulation by the law. It also stated that before the commencement of the Constitution, any traditional authoritythat had been observing indigenous law and was recognized would be able to continue todoso.10They were allowed to continue exercising powers and authority vested with the applicablelaws. This provision formed the basis of Section 211(3) and Section 39(2) of the Constitutionwhich gives respect towards customary law.11 Upon this, the Constitutional PrincipleofSchedule 4 states that like the common law, indigenous law may be recognized andappliedprovided that it does not go against the Constitution and its fundamental rights.12
- Section 211(3) of the Constitution
Section 211(3) helped to elevate customary law onto the same scale as the common lawintheway it has been worded. It states that the courts can only apply customary lawif it is (a)compatible with the Constitution, (b) if it is not amended by legislation and (c) if it isapplicable in terms of choice of rules.13 Section 39(2) is an extension to Section 211(3) whichprovides that all courts must, when developing the common law or customary law, promotethe objects, spirit and purport of the Bill of Rights.14 Provision (a) is the most difficult asit means everything must be in accordance with the Bill of Rights including complex situationssuch as independent/ private relationships.15 Section 39(2) also ensures that the courts followthe hierarchy of law when interpreting the law which includes looking at customary law. It is seen as one of the authoritative sources of law post 1994.16 The challenge lies in balancingconstitutional supremacy with cultural autonomy.
The inclusion of Section 39(2) has been effective in many ways. Reforms occurredsuchasthe Recognition of Customary Marriages Act, which has given customary marriagesrecognition in the eyes of the law.17 As well as in the case Mabena v Letsoalo 18the issueat
hand was that women could not perform the act of lobolo exchanges. The court foundthat thegroom could exchange lobolo arrangements with the prospective wife’s mother changingthesocietal gender norm.19 In both these ways, the spirit and purport of the Bill of Rights wasupheld as it gave the respect and equality to customary marriages and towards womenwithregards to negotiating lobolo. It also demonstrated a balance between promotinggenderequality while preserving the essence of customary traditions.
- Journal articles
Osman F “The Consequences of the Statutory Regulation of Customary Law: AnExamination of the South African Customary Law of Succession and Marriage” 2019PER/PELJ describes the distortions of customary law to be problematic and detrimental
towards women and children especially regarding the African Customary concept of maleprimogeniture.20 Not only does it discriminate against them but violates their rights. Following this, another case that is highly sacramental is Bhe and Others v Khayelitsha21 (Bhe). The courts found that the practice of male primogeniturewas
Magistrate and Others
constitutionally invalid and it had unfairly discriminated against gender towards thedaughters involved as they could not inherit their father’s estate.22 However, in this instance, the courts chose to strike off the unconstitutional principle and included a newprovisiontogovern this area.23
Osman raises the question of whether legislative changes can be seen when implementingit into practices.24 Statutory enactments do pose as a critical function as they have a dutytonotify the state and hold them accountable to regulate and incorporate the practicesof customary law and ensure it complies with constitutional principles.25 Like theBhejudgement, the state cannot afford to wait for the cultural development of these communities, they have to take action in cases that are contrary to the Constitution and uphold the valuesand morals instilled.
Another question that was raised by Knoetz E “To develop or not to develop customarylaw”2005 Obiter stemming from the Bhe judgement was whether customary lawshouldbedeveloped or not. In this case the court chose to strike this law out but that can’t alwaysbethe answer as this undermines and invalidates customary law. Instead, the conclusionreachedwas that customary laws can be included and developed provided they are in accordancewiththe spirit, purports and objects of the Constitution especially the Bill of Rights.26 In this wayit does not take away the values and nature of customary law and helps to make the culturemore equality friendly.27 He argues that, like in the Bhe case, instead of striking downsuchnorms entirely, the courts should develop them in line with constitutional values, ensuringtransformation without erasing cultural authenticity.
- Other sections in the Constitution
Even though customary law was not clearly defined, Section 211(3) had come into placetomainly govern only this. Prior to 1994, customary law was defined in more of a racial termbut post 1994 it has been derived with a meaning to be part of the African cultural traditionsand practices.28 It followed the idea that recognizing customary lawderivedfromconstitutional rights to religion and culture.29 Section 30 of the Constitution states that everyone has the right to “participate in the cultural life of their choice” and Section 31statesthat people belonging to a community of religious or cultural belonging may not be deniedtheir right to enjoy such practices and traditions.30
Before the recognition of customary law came into being, the state had the power to dictateat what discretion and to what extent they would include customary law.31 NowwithSection211(3), they are obliged to allow and adhere to people wanting to participate intheirrespective cultures, and on this obligation the courts have a duty to acknowledge anduphold the institutions of these respective cultures.32 For example, the courts acknowledgethereligious systems of the different laws such as Muslim and Hindu lawtoday inSouthAfrica.33
To sum up, it is evident that Section 211(3) had a huge impact on customary lawinmodernday as it moves away from the exclusionary and hierarchical systemof the apartheideratowards one that values legal pluralism and cultural diversity. Not only has customarylawbeen recognized but it has been developed for the better to maintain everyone’s rights despiteall the past discrimination and inequality. Whilst there is still room for improvement, thedevelopments that have been made so far are promising and have had a significant shift inSouth Africa’s legal landscape.
BIBLIOGRAPHY/ REFERENCE LIST Case Law
- Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC17.
- Mabena v Letsaolo 1998 (2) SA 1068 (T).
- Motuang v Philemon Dube 1930 BAH (N&T).
Journal Articles
- Knoetz E “To develop or not to develop customary law” 2005 Obiter.
- Osman F “The Consequences of the Statutory Regulation of Customary Law: AnExamination of the South African Customary Law of Succession and Marriage” 2019PER/ PELJ (22).
Books
- Rautenbach, C Introduction to Legal Pluralism in South Africa 6th ed (2024).
1 Rautenbach, C Introduction to Legal Pluralism in South Africa 6th ed (2024) 39
2 Rautenbach, C Introduction to Legal Pluralism in South Africa 39
3 Rautenbach, C Introduction to Legal Pluralism in South Africa 39
4 Rautenbach, C Introduction to Legal Pluralism in South Africa 39
5 Rautenbach, C Introduction to Legal Pluralism in South Africa 39
6 1930 BAH (N&T).
7 Rautenbach, C Introduction to Legal Pluralism in South Africa 40
8 Rautenbach, C Introduction to Legal Pluralism in South Africa 5
9 Rautenbach, C Introduction to Legal Pluralism in South Africa 42
10 Rautenbach, C Introduction to Legal Pluralism in South Africa 42
11 Rautenbach, C Introduction to Legal Pluralism in South Africa 42
12 Rautenbach, C Introduction to Legal Pluralism in South Africa 42
13 Rautenbach, C Introduction to Legal Pluralism in South Africa 42
14 Rautenbach, C Introduction to Legal Pluralism in South Africa 43
15 Rautenbach, C Introduction to Legal Pluralism in South Africa 43
16 Rautenbach, C Introduction to Legal Pluralism in South Africa 43
17 Rautenbach, C Introduction to Legal Pluralism in South Africa 43
18 1998 2 SA 1068 (T)
19 Rautenbach, C Introduction to Legal Pluralism in South Africa 43
20 Osman 2019 PER/PELJ 4
21 (CCT 49/03) [2004] ZACC 17
22 Rautenbach, C Introduction to Legal Pluralism in South Africa 43
23 Rautenbach, C Introduction to Legal Pluralism in South Africa 43
24 Osman 2019 PER/PELJ 5
25 Osman 2019 PER/PELJ 5
26 Knoetz 2005 Obiter 132
27 Knoetz 2005 Obiter 132
28 Rautenbach, C Introduction to Legal Pluralism in South Africa 44
29 Rautenbach, C Introduction to Legal Pluralism in South Africa 44
30 Rautenbach, C Introduction to Legal Pluralism in South Africa 44
31 Rautenbach, C Introduction to Legal Pluralism in South Africa 45
32 Rautenbach, C Introduction to Legal Pluralism in South Africa 45
33 Rautenbach, C Introduction to Legal Pluralism in South Africa 45
