Recognition
The Gate of Recognition
The Constitution commands courts to apply customary law.
Section 211
Section 211 of the Constitution:
(1) recognises the institution, status and role of traditional leadership according to customary law;
(3) obliges the courts to apply customary law when that law is applicable, subject to the Constitution and any relevant legislation.
An original source
Customary law is a constitutionally protected, original source of law (confirmed in the Certification judgment and Alexkor). Its validity flows from the Constitution itself — not from recognition by the common law or by a "repugnancy" test.
The old repugnancy clause is gone
Under colonial/apartheid law, customary law applied only so far as it was not "repugnant to public policy or natural justice". That test is abolished: the only yardstick now is the Constitution.
Key Rule
s 211(3): courts MUST apply customary law when applicable, subject to the Constitution and legislation. It is an original source; the old repugnancy clause is gone.
Common Mistake
Saying customary law applies only if it is "not repugnant to public policy". That colonial test is abolished — the measure is now the Constitution.
Leading Cases
Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution1996 (4) SA 744 (CC)Confirmed that customary law is recognised and protected by the Constitution alongside the common law.
Facts. The Constitutional Court had to certify that the new Constitution complied with the agreed Constitutional Principles, including objections about the recognition of customary law and traditional leadership.
Legal question. Does the Constitution adequately recognise and protect customary law and traditional leadership?
Judgment. The Constitutional Court certified the Constitution, confirming that customary law enjoys constitutional recognition on a par with the common law.
Significance. An early confirmation that customary law is a constitutionally recognised system, setting the stage for Alexkor and the later development of customary law.
Exam tip. Use the Certification judgment to show that customary law's recognition is constitutionally entrenched and equal in status to the common law.
Alexkor Ltd v Richtersveld Community2004 (5) SA 460 (CC)Customary law derives its force from the Constitution and is applied on its own terms.
Facts. The Richtersveld community claimed restitution of land (rich in diamonds) from which it had been dispossessed. The question was whether the community had held rights in the land under indigenous law before annexation, and the status of customary law.
Legal question. Is customary law an independent source of law, and did the community hold indigenous ownership of its land under it?
Judgment. The Constitutional Court upheld the community's indigenous land rights and confirmed the constitutional status of customary law as an independent legal system.
Significance. The leading authority that customary law is an original, self-standing source of law equal to the common law, and a landmark for indigenous land rights and restitution.
Exam tip. Cite Alexkor for two propositions: customary law is an independent source (not subordinate to common law), and it recognises indigenous/communal land ownership.
Culture rights
The Cultural Courtyard
The rights that protect customary and cultural life.
Sections 30 and 31
Section 30 gives everyone the right to participate in the culture of their choice; section 31 protects the rights of cultural, religious and linguistic communities to enjoy their culture and form associations. Both are exercised in a manner consistent with the Bill of Rights.
Religion
Section 15 protects freedom of religion, belief and opinion, and permits legislation recognising marriages and systems of personal and family law under any tradition or religion — the basis for recognising customary and religious marriages.
Key Rule
Culture rights: s 30 (individual) and s 31 (community) protect cultural life, and s 15 religion — all subject to the Bill of Rights.
The tension
Custom Meets the Bill of Rights
Customary law is subject to the Constitution — develop it, or strike it down.
Subject to the Constitution
Section 211(3) makes customary law subject to the Constitution. Where a customary rule conflicts with a right — especially equality (s 9) and dignity (s 10) — the rule cannot stand unchanged.
Two remedies
The court may
(1) develop the customary rule in line with the Bill of Rights under s 39(2), or
(2) declare it unconstitutional and strike it down where development cannot save it. In Bhe the primogeniture rule was struck down for unfair gender discrimination; in Gumede, discriminatory marriage-property rules fell.
Develop sensitively
Courts should be cautious and respectful when developing living customary law — they must not impose common-law values but should give effect to the community's own evolving norms (Shilubana). Section 39(2) requires promoting the spirit, purport and objects of the Bill of Rights.
Key Rule
Customary law is subject to the Constitution (s 211(3)). Conflicts are resolved by developing the rule (s 39(2)) or striking it down (Bhe, Gumede) — developing living law sensitively (Shilubana).
Common Mistake
Assuming courts must simply replace customary rules with common-law ones. They should develop the living customary law itself in line with the Constitution, not substitute common-law values.
Leading Cases
Bhe v Magistrate, Khayelitsha2005 (1) SA 580 (CC)The rule of male primogeniture in intestate succession is unconstitutional (unfair discrimination on gender and birth) and was struck down.
Facts. On the death of a father intestate, the customary rule of male primogeniture meant that a male relative, not the deceased's two young daughters, would inherit and become family head. The rule was challenged as unconstitutional.
Legal question. Is the customary-law rule of male primogeniture, applied to intestate succession, consistent with the Constitution?
Judgment. The Constitutional Court struck down the primogeniture rule and ordered that the Intestate Succession Act govern such estates in the interim.
Significance. The landmark transformation of customary succession; the direct impetus for the Reform of Customary Law of Succession Act 11 of 2009.
Exam tip. Bhe is the flagship case: male primogeniture in intestate succession is unconstitutional (gender + birth discrimination). Note the interim remedy (Intestate Succession Act) and the later Reform Act.
Gumede v President of the RSA2009 (3) SA 152 (CC)Discriminatory proprietary rules of old customary marriages are unconstitutional; struck down for gender inequality.
Facts. A wife in an old (pre-Act) monogamous customary marriage was denied equal rights over the marital property under the RCMA's transitional provisions and old KwaZulu/Natal codes.
Legal question. Do provisions denying wives in old monogamous customary marriages equal proprietary rights violate the Constitution?
Judgment. The Constitutional Court struck down the offending provisions, equalising the proprietary rights of wives in old monogamous customary marriages.
Significance. A landmark securing gender equality in the proprietary consequences of customary marriage.
Exam tip. Use Gumede for equality in customary-marriage property (monogamous marriages); pair with Ramuhovhi (polygynous marriages).
Shilubana v Nwamitwa2009 (2) SA 66 (CC)Courts must respect the power of traditional communities to develop their own living customary law in line with the Constitution.
Facts. The Valoyi traditional authority resolved to restore the chieftainship (hosi) to Ms Shilubana, who had earlier been passed over because she was a woman. A male relative challenged her appointment, relying on the traditional male-only rule.
Legal question. May a traditional community develop its own customary law to allow a woman to succeed to traditional leadership, and must courts respect that development?
Judgment. The Constitutional Court upheld Ms Shilubana's appointment, confirming the community's power to develop its own customary law consistently with the Constitution.
Significance. The leading authority on the living, evolving nature of customary law and on traditional communities' authority to develop it (in line with s 39(2)).
Exam tip. Use Shilubana for: living customary law, communities' power to develop their own law, and courts' duty to respect that development rather than impose common-law values.