Customary Law
Introduction
Customary law is recognised as a distinct legal system within the South African constitutional order. Section 211 of the Constitution provides that the institution, status, and role of traditional leadership, according to customary law, are recognised, subject to the Constitution. Customary law is subject to the Bill of Rights and must be developed to align with constitutional values. The recognition of customary law reflects the Constitution’s commitment to legal pluralism and the protection of cultural diversity.
Constitutional Recognition
Section 211(3) provides that courts must apply customary law when it is applicable, subject to the Constitution and any legislation that specifically deals with customary law. This provision requires courts to recognise and apply customary law, but also subjects it to constitutional control. The Constitutional Court has held that customary law is an integral part of the South African legal system, not a separate system subordinate to the common law.
Living Customary Law
The courts have distinguished between “official customary law” (as codified in legislation and precedent) and “living customary law” (as actually practiced in communities). The Constitutional Court in Bhe v Magistrate Khayelitsha 2005 (1) SA 580 (CC) emphasised that courts should have regard to living customary law, which is dynamic and evolves with community practice.
Customary Law and the Bill of Rights
The relationship between customary law and the Bill of Rights has been addressed in several important cases. In Bhe, the Court struck down the rule of male primogeniture in customary succession as violating gender equality. In Shilubana v Nwamitwa 2009 (2) SA 66 (CC), the Court held that a traditional authority could develop customary law to permit female succession to traditional leadership.
Traditional Leadership
Traditional leadership is recognised under section 211 and is regulated by the Traditional Leadership and Governance Framework Act 41 of 2003. The Act provides for the recognition of traditional communities, the establishment of traditional councils, and the role of traditional leaders in local governance. Traditional courts, applying customary law, operate in rural areas and exercise jurisdiction over minor civil and criminal matters.
Conclusion
Customary law is a vital component of South Africa’s legal pluralism, recognised and protected by the Constitution. The courts have played a crucial role in developing customary law to align with constitutional values, particularly gender equality. The ongoing challenge is to balance respect for cultural diversity with the protection of fundamental rights, and to ensure that living customary law is accurately reflected in judicial decisions.