Courts apply and develop customary law

Customary law has always been part of our law, albeit in a less than acceptable form.

Prior to the advent of our constitutional democracy, customary law was mainly administered by traditional courts and commissioners’ courts. But even then, it was only considered applicable in so far as it was not in conflict with the English or Roman Dutch common law. Furthermore, when a principle of customary law or practice was not in conflict with the common law of the land, the chances of proper or correct understanding and application of it in a particular case were slim, because most of those adjudicating cases at the time were far removed from the context of those principles – the way of life and customs observed by the indigenous people of the country. There were instances of deliberate distortion of customary laws by colonial and apartheid authorities.

Section 211 (3) of the constitution instructs that the courts must apply customary law when that law is applicable, subject to the constitution and any other legislation that deals with customary law.

The constitution therefore firmly entrenches customary law, not for application only where it is not repugnant to common law, as it was before, but as an independent and original source of our law.

In line with various prescripts in our law, recent court judgments have affirmed:

● Customary law and practices that are in line with the bill of rights. Customs and customary practices that offend the bill of rights have been struck down as unconstitutional where pertinently challenged;

● The courts’ duty to develop and shape both common law and customary law;

● A community’s “customary law interest” in land that is the subject of its land claim, and that the nature and content of customary law ownership of the rights in the land have to be determined by reference to indigenous law;

● A community’s customary rights – through traditional practices – to access marine resources in a nature reserve;

● The rights of women in customary marriages, including women’s property rights in community of property, unless the parties to the customary marriage exclude community of property in an antenuptial contract. The obligation for maintenance on dissolution of a customary marriage has also been affirmed;

● The illegality of the distinction between customary marriages and civil marriages in relation to maintenance for a surviving spouse;

● The repugnance of patriarchy-rooted exclusion of women from heirship.

As far as I know, there is no documented instance of refusal by a South African court to apply customary law.

Instead, the courts have consistently validated customary law as no longer subordinate to common law.

Our courts often interpret and apply customary laws and relevant legislation in disputes relating to traditional leadership. In these cases the courts have said that deference should be given to communities to define the content of customs and consequent rights.

The Supreme Court of Appeal set aside the identification and recognition of Mr Toni Mphephu-Ramabulana as king of the Vhavenda Traditional Community on the basis of gender discrimination. The appellant, Ms Mphephu, had been overlooked for the throne because she is a woman.

Criticism has been expressed that courts refuse to recognise customary law or simply do not understand particular customary principles. In a formative Constitutional Court case in the matter of Bhe versus Magistrate Khayelitsha, an objection was raised that the majority judgment simply substituted the customary rule of primogeniture with the provisions of the Intestate Succession Act.

In relation to Shilubana & others v Nwamitwa, a groundbreaking judgment of the Constitutional Court, objections were raised that the court judgment confirming the ascendance of a woman to a throne did not reflect the sentiment of the entire community.

In the case of the widely publicised matter of King Dalindyebo, it has been argued the king was charged, tried and humiliated on Western-based laws and African custom and kingship were not respected.

Prof Richman Mqeke argues there is no stipulation in the constitution when, exactly, customary law norms are applicable to cases; especially in instances where customary norms may conflict with human rights principles (for example, in disputes relating to marriages and inheritance).

Seeking clear rules of application is not necessarily misplaced. Ordinarily, rules and guidelines engender certainty and predictability. However, customary practices vary across provinces, ethnic groups and subcultures. And in many instances the content of a custom changes over time – what is sometimes referred to as “living customary law”. It is “dynamic, context-specific and adapts and changes according to beliefs and circumstances of the people it applies to”.

Rules and guidelines, on the other hand, are restrictive and backward-looking.

The Constitutional Court has held that a community must be empowered to itself act so as to bring its customs into line with the norms and values of the constitution.

While the constitution obliges the courts to apply customary law when it is applicable, they must do so sensitively, conscious of the rights of communities to culture, development, self-determination and self-identification.

In any event, disputes come before courts at the instance of litigants. They exercise the choice of law. Where they choose customary law, they articulate the relevant culture and custom, the disputes, and the remedy they seek.

There can be no doubt that our courts, through transformative constitutionalism, have changed the lives of many South Africans for the better. Customary law is one of the areas where transformation has been evident.

The content of certain customary principles is not always readily ascertainable.

Many people practice a cross of African traditional and Western ways of life. And questions relating to the principles on choice of law remain unanswered. Does customary law only apply to Africans? Is it mainly applicable only to poor Africans? Or is it applicable to black people living in rural South Africa?

Despite the persisting challenges, there is steadfast commitment by the courts to their duty of applying and developing customary law.