African Customary Law · Lexicon

Lexicon

Key terms explained in plain language — filter by letter or search below.

Legal pluralism: The coexistence of two or more legal systems within the same social field or state. South Africa's plural order comprises the common law, African customary law, and religious personal laws (Muslim, Hindu), all under the supreme Constitution.
Weak (state-law) pluralism: A form of legal pluralism where the state recognises and incorporates other legal systems within its own framework. South Africa is chiefly of this kind — customary law operates because the Constitution (s 211) recognises it.
Deep (strong) pluralism: A form of legal pluralism where non-state legal systems exist and function independently of state recognition. Living customary law and religious systems often operate this way in practice, whether or not the state acknowledges them.
Official customary law: The version of customary law recorded and enforced by the state — in legislation, codes (e.g. the Natal Code), precedent and textbooks. It is often frozen, distorted and outdated, a product of colonial recording that hardened flexible custom into rigid rules.
Living customary law: The customary law actually observed and practised by a community — dynamic, adaptive and evolving. Courts must apply the living law where it can be ascertained, in preference to distorted official versions (Alexkor; Shilubana; Bhe).
Ubuntu: "Umuntu ngumuntu ngabantu" — a person is a person through other persons. A foundational value of customary law expressing humaneness, communal solidarity, dignity and reconciliation, recognised as a constitutional value (S v Makwanyane; Port Elizabeth Municipality).
Lobolo: The property (traditionally cattle, now often money) that the groom or his family undertakes to give the bride's family in a customary marriage. It is central to custom and evidences the negotiation of the marriage, but is not a statutory validity requirement under s 3 of the RCMA.
Handing over of the bride: The customary integration of the bride into the groom's family (go gorosa). Historically regarded as essential, but living customary law has relaxed this formality: a marriage may be valid despite an incomplete handing over where the parties clearly intended and celebrated a customary marriage (Mbungela v Mkabi; cf Motsoatsoa).
Customary marriage: A marriage recognised under the Recognition of Customary Marriages Act 120 of 1998 (RCMA). Section 3 requires both spouses to be 18 or older, both to consent, and the marriage to be negotiated and entered into or celebrated per customary law. It may be polygynous and is dissolved only by a court (s 8).
Male primogeniture: The traditional rule of customary intestate succession under which the eldest son (or nearest male relative) succeeded as heir and family head, with a duty to support dependants, excluding women and extra-marital children. Struck down as unconstitutional in Bhe v Magistrate, Khayelitsha.
Family head: The senior male who, under traditional customary law, held authority over the family, administered its property, and represented it — the position to which an heir succeeded. Living customary law and the Constitution have opened these roles to women (Mabena; Shilubana).
House (customary): In a polygynous family, a "house" is the estate and family unit associated with a particular wife and her children. The Reform of Customary Law of Succession Act 11 of 2009 adapts the intestate rules to accommodate multiple houses so that all widows and children share equitably.
Section 211: The Constitution's key customary-law provision: s 211(1) recognises the institution, status and role of traditional leadership; s 211(3) obliges courts to apply customary law when applicable, subject to the Constitution and legislation.
Repugnancy clause: The abolished colonial/apartheid rule that customary law applied only so far as it was "not repugnant to public policy or natural justice". The test is gone: the only yardstick for customary law is now the Constitution.
Judicial notice (of customary law): Under s 1(1) of the Law of Evidence Amendment Act 45 of 1988, a court may take judicial notice of customary law insofar as it can be ascertained readily and with sufficient certainty. Where it cannot, the content must be proved by evidence (expert, assessor and oral testimony).
Ascertainment: The process of establishing the content of the (living) customary law that applies to a dispute — through community and expert (assessor) evidence, oral testimony and, cautiously, textbooks and precedent. The difficulty is avoiding a frozen official version in place of actual living practice.
Internal conflict of laws: The question of which of South Africa's legal systems governs a matter (e.g. where parties belong to different systems). Courts weigh the connecting factors — the parties, the nature of the transaction, and the environment — subject to the Constitution.
Choice of law: The enquiry, flowing from s 211(3) ("when that law is applicable"), into whether customary law or the common law governs a particular matter — turning on the nature of the transaction, the parties' lifestyle, intention and agreement, and the environment.
Traditional leadership: Leadership recognised by s 211(1) and regulated by the Traditional and Khoi-San Leadership Act 3 of 2019 (replacing the TLGFA 41 of 2003) — kings and queens, senior traditional leaders (chiefs) and headmen/women, supported by traditional councils.
Traditional court (kgotla): A community forum (the kgotla, lekgotla or inkundla) that resolves disputes through discussion, consensus and reconciliation, aiming to restore harmony (an expression of ubuntu). Informal and oral, with limited jurisdiction and subject to the Constitution.
Communal land tenure: The customary system under which land is held communally — the community, through its traditional authority, holds and administers the land, and members enjoy allocated use rights (nested rights) rather than individual common-law ownership. Indigenous ownership was recognised in Alexkor v Richtersveld.
Assessor: An expert in customary law who may sit with or advise a court to help ascertain the content of the living customary law applicable to a dispute.
Religious personal law: Systems of religious family and personal law — chiefly Muslim and Hindu — that form part of South Africa's plural order. Religious marriages moved from non-recognition (Ismail v Ismail) to targeted recognition (Daniels, Hassam) to the declaration that non-recognition of Muslim marriages is unconstitutional (Women's Legal Centre Trust).
Section 39(2): The provision requiring courts, when interpreting legislation and developing the common law or customary law, to promote the spirit, purport and objects of the Bill of Rights. It is the vehicle for developing living customary law in line with the Constitution (Shilubana; Mayelane).
RCMA: The Recognition of Customary Marriages Act 120 of 1998 — gives full legal recognition to customary marriages (including polygynous ones), sets the requirements for validity (s 3), regulates registration (s 4), proprietary consequences and polygyny (s 7), and dissolution by a court (s 8).
IPILRA: The Interim Protection of Informal Land Rights Act 31 of 1996 — protects holders of informal and customary land rights against deprivation without consent. It remains an important (interim) protection because comprehensive communal-tenure legislation (the Communal Land Rights Act) was struck down.