Areas of Law and Guides
African Customary Law refers to a usually uncodified legal system developed and practised by the indigenous communities of South Africa. Customary law, prior to colonialism, had its "sources in the practices, traditions and customs of the people." Customary law is fluid, and changes over time and among different groups of people. Recognition of customary law comes through the South African Constitution under section 211, although there is not a "textual connection in the definition of customary law to the communities recognised in section 31(1)."
African Customary Law
South African customary law refers to a usually uncodified legal system developed and practised by the indigenous communities of South Africa. Customary law has been defined as
an established system of immemorial rules [...] evolved from the way of life and natural wants of the people, the general context of which was a matter of common knowledge, coupled with precedents applying to special cases, which were retained in the memories of the chief and his councilors, their sons and their sons' sons until forgotten, or until they became part of the immemorial rules.
Most African states follow a pluralistic form of law that includes customary law, religious laws, received law (such as common law or civil law) and state legislation. The South African Constitution recognizes traditional authority and customary law under Section 211. A ruling under Bhe v. Magistrate, Khayelitsha specified that customary law was "protected by and subject to the Constitution in its own right." Customary law, prior to colonialism, had its "sources in the practices, traditions and customs of the people." Customary law is fluid, and changes over time and among different groups of people. In addition, ethnicity is often tied into customary law. Sally Falk Moore suggests that to have a more realistic idea of the manner in which people live according to 'the law' and 'social mores' it is necessary to study the law in the context of society, rather than attempting to separate the 'law' from 'society'.
Recognition of customary law comes through the South African Constitution under section 211, although there is not a "textual connection in the definition of customary law to the communities recognised in section 31(1)." The application of African Customary Law (ACL) is subject to the Constitution as well as to any legislation that specifically deals with it.
African Customary Law (ACL) is further protected within the Bill of Rights, most notably under the right to freedom, belief and opinion (s 15), the individual right to language and culture (s 30) as well as the collective right pertaining to cultural, religious and linguistic communities (s 31). The protection of ACL within the Bill of Rights is not subject to the same conditions as in s 211(3), namely that it must be used where applicable and subject to the relevant legislation. Accordingly, the rights in the Bill of Rights protecting ACL are subject only to the Constitution (and specifically, other rights in the Bill of Rights), and can only be limited in terms of s 36, being the general limitations clause.
Pursuant to the Constitutional Principles, the Constitution protects and recognises ACL in various ways. Chapter 12 (ss 211 and 212) affords official recognition to ACL as well as to the institution, status and role of traditional leadership. Specifically, s 211(3) mandates the application of ACL by the courts, where applicable.
Most recent Articles posted
ConCourt ruling settles amaMpondo kingship battle
The Constitutional Court has upheld President Cyril Ramaphosa’s 2018 recognition of Zanozuko Tyelovuyo Sigcau as the rightful successor to the throne of amaMpondo aseQaukeni.
Monarch unpacks importance of customary law
Zulu King Misuzulu kaZwelithini’s lawyer will argue the Gauteng High Court (Pretoria) erred in ruling that his recognition is unlawful and invalid when his application is heard by the SCA in November.
ConCourt resolves traditional leader battle
A lengthy legal battle concerning the traditional leadership of Tshibvumo village in Limpopo between the Rambuda and Tshibvumo royal families has ended after the Constitutional Court ruled that the authority to choose the head rests with the Rambuda family.
Zulu monarch fails to halt ‘urgent’ fees payment case
Lawyers representing AmaZulu King Misuzulu kaZwelithini said a court application brought by his uncle, Prince Mbonisi, was not urgent and should be struck off the roll, reports News24.
In what a Pretoria News report calls yet another battle between two women who both claim they are the customary wives of their now-dead husband, the Free State High Court (Bloemfontein) has declared the first wife – who was married to him for 26 years and bore him 13 children – is the lawful wife.
Zulu royal tussle heads to court
As the infighting within the Zulu royal family over King Misuzulu’s crowning continues, the appointment of the new traditional prime minister and his deputy will be challenged in court this week.
No strict rules for customary marriage
A woman, identified as ZK, asked the Eastern Cape High Court (Mthatha) to declare the customary marriage entered into between her deceased father and her stepmother invalid on the grounds of non-compliance with the Recognition of Customary Marriages Act.
Chief’s SCA application rejected
The SCA has dismissed an application by a Limpopo chief seeking to keep his position that Premier Stanley Mathabatha gave him under questionable circumstances in 2020.
The Ingonyama Trust has a new nine-member board, appointed by Agriculture, Land Reform & Rural Development Minister Thoko Didiza.
Court rejects invalid marriage claim
A Limpopo man who didn’t want his ex-wife to benefit from their joint estate during their divorce settlement, failed to convince the Limpopo High Court (Polokwane) that their marriage was invalid.
Legal challenges tarnishing image of Zulu monarchy
Zulu King Misuzulu kaZwelithini says resolving the royal family’s disputes through legal processes is tarnishing the throne’s image, reports TimesLIVE.
Watchdog dismisses bare-breasted Zulu maidens complaint
The Broadcasting Complaints Commission has rejected a complaint about television footage of Zulu maidens who showed their breasts at the coronation of King Misuzulu.
Ramaphosa sued over KZN royalty dispute
The lawyers representing Prince Simakade in his bid to dethrone his younger brother, Zulu King Misuzulu, have accused President Cyril Ramaphosa of failing to provide their client with his record of decision, reports The Sunday Independent.
Calls for TRC to address River Club feud
Khoi and San leaders at loggerheads over the multibillion-rand development to house Amazon’s headquarters in Cape Town have reiterated calls for a truth and reconciliation commission to help them resolve a toxic dispute over traditional leadership.
Union takes aim at ‘obsolete’ royal household
The General Industries Workers’ Union of SA (Giwusa) yesterday called for the abolition of all South African royalty. It follows September’s death of Queen Elizabeth II and Saturday’s coronation of King Misuzulu kaZwelithini – and makes a rare voice of dissent in a country where traditional monarchs are usually presented as untouchable, despite the cost to the taxpayer.
Bapedi royal family to appeal regent ruling
The Bapedi royal family is set to appeal a Limpopo High Court (Polokwane) judgment which declared the Queen Mother, Manyaku Thulare, had been illegally appointed as regent.
SCA dethrones late amaMpondo king
The SCA has set aside President Cyril Ramaphosa’s 2018 recognition of Zanozuko Tyelovuyo Sigcau as the rightful successor to the throne of amaMpondo aseQaukeni.
Legal bid to dethrone King Misuzulu
Prince Simakade has finally filed his legal bid to challenge the recognition of Misuzulu KaZwelithini as the king of the Zulu nation, starting his journey to dethrone his half-brother.
SCA allows queen to appeal Zulu king estate ruling
The SCA has granted the first wife of the late King Goodwill Zwelithini, Queen Sibongile Dlamini-Zulu, leave to appeal the KZN High Court (Pietermaritzburg) judgment, which dismissed her application to have 50% of the estate of the Zulu King set aside for her.
King MisuZulu rejected by uncles
The brothers of deceased Zulu King Goodwill Zwelithini have distanced themselves from the upcoming coronation of the current King MisuZulu kaZwelithini, saying that the royal house wants Prince Buzabazi kaZwelithini to ascend the throne.
