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.
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Agriculture, Land Reform & Rural Development Minister Thoko Didiza says she has ‘taken it to heart’ that she and others who have held the ministerial position ‘should have done more’ to exercise oversight of the Ingonyama Trust and its board.
The Modjadji Royal Nation and its regent Prince Mpapatla Modjadji have filed a notice to oppose the application by ANC MP Mathole Motshekga regarding Princess Masalanabo’s future.
The ground-breaking High Court ruling that headmanships, whether hereditary or not, have no royal family independence from their senior traditional leaders – meaning the incumbent cannot automatically be succeeded by their sons and that they have no right to decide on the successor – is being appealed.
The battle for the Modjadji royal throne will be heading to court following the decision of the royal council to nominate the heir apparent’s brother to rule over the Balobedu nation at Khetlhakone Village, outside Modjadjiskloof, in Limpopo.
Parliament is rushing to finalise a version of the Traditional Courts Bill that continues to entrench a top-down, undemocratic approach to customary law.
A pre-packed lobola agreement document has caused a row since making its way on to supermarket shelves, last week, according to a Sunday Tribune report.
Zulu King Goodwill Zwelithini’s Ingonyama Trust was on the receiving end of a decision by the Land Claims Court, when it ruled his ‘subjects’ were entitled to hold land in their names if they so wish. According to Rapport, the Ingonyama Trust intervened in a successful land claim by Zulu communities over 11 000ha of land adjacent to the trust land.
Nelson Mandela's family are embroiled in a fresh legal battle over his estate, says a Sunday Times report. Zenani and Zindzi Mandela are heading to the Constitutional Court to challenge their father's decision to leave the family home in Qunu under the custodianship of the Nelson Rolihlahla Mandela Family Trust.
Marriages performed under the Recognition of Customary Marriages Act are recognised as legal and may only be dissolved by a court through a divorce. The Star reports this was the opinion of attorney Selwyn Shapiro, who said since the Act came into force and these marriages were now recognised in law, it followed that the union had to be dissolved through divorce.
Deputy KZN Judge President Isaac Madondo believes it is time that customary law received appropriate treatment and recognition as a constitutionally recognised source of law.
The ongoing dispute over the rightful heir to the kingship of amaMpondo aseQaukeni in the Eastern Cape, was again before the Constitutional Court yesterday, says TimesLIVE. In 2013, the court set aside the notices that former President Jacob Zuma made in the Government Gazette recognising the kingship of Zanozuko Tyelovuyo Sigcau in 2010 and dismissing that of the incumbent Mpondombini Sigcau.
A battle over what constitutes a traditional African marriage is headed to the Constitutional Court. The break-up between former MTN CEO Sifiso Dabengwa and Joburg Theatre CEO Xoliswa Nduneni-Ngema led to a 10-year legal fight, with Nduneni-Ngema seeking half of the multimillionaire’s estate, says a Sunday Times report.
The SCA has granted special leave to appeal to Nelson Mandela's ex-wife Winnie Madikizela-Mandela on her claims to the late President's Qunu home on the basis of customary law. Madikizela-Mandela unsuccessfully challenged the decision of the executors to exclude her from the Qunu home's ownership in the Eastern Cape High Court (Mthatha). She also lost the appeal.
After 10 years of litigation, the lobola conundrum is set to head to the SCA. Joburg City Theatres CEO Xoliswa Nduneni-Ngema’s lengthy battle for half of wealthy businessman Sifiso Dabengwa’s estate was dealt yet another blow last week when the Gauteng High Court (Johannesburg) dismissed her application for leave to appeal, says a Sunday Times report. They would take the matter to the SCA, said Ike Motloung, Nduneni-Ngema’s lawyer.
The Mthatha High Court has dismissed the appeal of Winnie Madikizela-Mandela who had laid claim to the Qunu home of former President Nelson Mandela. The court also ordered Madikizela-Mandela to pay the cost of the application, according to a report on The Citizen site. She filed an appeal in April after losing an earlier bid to lay claim to Madiba’s Qunu home in the Eastern Cape. Madikizela-Mandela’s lawyer Mvuzo Notyesi reportedly said they would now petition the SCA.
Customary law had evolved over the years and lobola did not have to be paid in full before a valid customary marriage could be entered into. The Mercury reports this was according to a judge in the Gauteng High Court (Pretoria) when he declared an Mpumalanga man officially married to a woman who had since died. Ntombi Mbungela died in 2014 and now her daughter, Tubile Mkhonza " executor of her estate " is disputing that Madala Mkabe was her mother"s husband.