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
Zulu royal family returns to ConCourt to remove king
Disgruntled Zulu royal family members are heading back to the Constitutional Court in another attempt to remove King Misuzulu from the throne, reports The Mercury.
Surname ruling fuels customary law debate
A unanimous Constitutional Court ruling affirming SA men's right to adopt their wives’ surnames has ignited debate over customary law's place in a constitutional framework, argues Anthony Diala, director of the Centre for Legal Integration in Africa at the University of the Western Cape.
Khoi and San communities seek recognition
The Khoi and San communities are calling on government to recognise them as the aboriginal people of Southern Africa.
Woman accused of ‘marrying’ partner after his death
A Soshanguve family in northern Pretoria is fighting to restore their late relative’s dignity after uncovering staggering fraud.
'Family houses' should be separated from Act
Disputes over 'family houses' dominate queries at the Orange Farm Advice Centre, notes David Dickinson, attorney with Lawyers for Human Rights and Emeritus Professor of Sociology at Wits University.
Decades old customary marriage still valid
The authorities are clear that even desertion or adultery are not blameworthy conduct to render the dissolution of a customary marriage; they merely are a reason for marital breakdown, an acting judge said in finding that the customary marriage entered into by a couple in 1978 was still in force.
SCA reserves judgment in Zulu king recognition case
The SCA has reserved judgment in the appeal by President Cyril Ramaphosa against the High Court ruling that set aside the President's recognition of King Misuzulu kaZwelithini as king of the Zulu nation.
Royal battle underway in the SCA
President Cyril Ramaphosa’s legal team yesterday maintained that the identification of King Misuzulu as Zulu king was in line with Zulu customary law.
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.
