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 AIDS Legal Quarterly
Customary Law

For many people, customary law is the most important law in their lives, controlling areas of their lives like their marriages, their property, and their right to inherit.

But some customary laws discriminate and make people vulnerable to HIV and AIDS. Customary law:

·         Gives women less power than men.

·         Has existed without being successfully challenged for a long time.

·         Continues to unfairly discriminate between family members on the basis of their status in the family and their gender.

Customary inheritance law

Under customary law rules of inheritance, the oldest son inherits the control of the family property, and makes the decisions about the property. The wife does not inherit the family property, although she may use it.

Rules of customary law allow for inequality among people to continue, especially for women and girls, who remain economically and socially inferior to men. This makes women dependent upon relationships that may, at the same time, put them at risk for HIV. It also may force them into situations of vulnerability like sex work.

This section examines:

·         Rules of customary law to show how they make people vulnerable.

·         Some of the important reforms of customary law that are taking place to bring customary law in line with the principles of the Constitution.

Some cultures still practise the custom of arranged marriages. This gives women less power than men and makes them vulnerable to HIV and AIDS.

What is customary law?


Customary law is the written and unwritten rules which have developed from the customs and traditions of communities. For customs and traditions to become law, they must be:

·         Known to the community,

·         Followed by the community, and

·         Enforceable (able to be carried out)



Where do we find rules of customary law?


Customary law is made up of uncodified (unwritten) and also codified (written) laws. Codified customary law is often criticised for not being accurate because it:

·         Confuses the real principles of unwritten customary law.

·         Leaves out some of the principles and areas of unwritten customary law.

·         Gives the impression that there is only one system of customary law.

Codified customary law

·         The Black Administration Act of 1927

·         The Natal Code of Zulu Law.



Who uses customary law?


Customary law is used by the ordinary courts. The Law of Evidence Amendment Act of 1988 says that our courts should use customary law if it is:

·         Easily ascertainable (easy to find), and

·         Reasonably certain – in other words, has established rules.

Customary law is used by magistrates and judges, who rely on written customary law and cannot find unwritten customary law unless they know it well. Also, the written customary law doesn’t always give a complete picture of the rules of customary law. This means that customary law is often not understood or used properly when it is needed in a situation.


When is customary law used?


The Law of Evidence Amendment Act says that the use of customary law will depend on where the dispute takes place.

Using customary law

People are free to choose which law to use if the dispute can be decided by both customary and common law. If people cannot agree on which law to use, the courts can choose the law for them. In doing this, the courts should consider:

·         The type of crime or dispute

·         Where it took place

·         The law used in that area.

Customary crimes in a Chief’s area

If the customary crime of elopement or seduction takes place in the area of a chief, you can use customary law even if one of the people involved does not usually fall under customary law.

Has the Constitution and Bill of Rights changed the way use customary law?


Yes. The Constitution has had a big effect on customary law. In this section, we look at three important ways that the Constitution and Bill of Rights have changed the way customary law is used.

Customary law must be in line with principles in the Bill of Rights

The Constitution says that customary law is protected, but the rules of customary law must be in line with the principles in the Bill of Rights.


The Bill of Rights protects the right to culture. But it also protects the right to equality and non-discrimination, and the right to dignity. This means that the courts will have to measure customary law rules which treat people unequally against the right of people to use their customary laws and cultures. Customary rules which limit other rights in a way which is unreasonable and go against the spirit of the Bill of Rights can be declared unconstitutional.

The right of culture and the right of equality

Customary law gives different treatment to family members depending on their status in the family and their gender. It also protects the social position of men. These rules of customary law will need to be measured against the rights of women to equality and dignity, to see if they are constitutional.

Identifying cultural practices

If we are all to enjoy the rights and freedoms promised by the Constitution, then our courts should try to develop a standard that identifies:

·         Cultural practices which deserve to be protected because they do not discriminate, and

·         Cultural practices which should be done away with because they discriminate unfairly.

In this way, we can protect group interests and at the same time ensure that customary laws are:

·         Measured against the rights of all people, and

·         Adapted to the changing conditions in South Africa.

Customary law must be in line with the Constitution

The South African Law Commission has begun to investigate customary laws to recommend changes to bring customary law in line with the Constitution. The South African Law Commission (SALC) is examining different parts of customary law with the aim of doing away with unfair discrimination – for example: in the customary laws on marriage and succession.

Customary law should not be used to discriminate

The Constitution says we must look at when customary law should be used to make sure that it is not used in a way that discriminates. After investigating the problem of when customary law should be used, the SALC published a draft Bill, called the Application of Customary Law Bill: Conflict of Personal Laws, for public comment.

Like the Law of Evidence Amendment Act, the Bill proposes to give courts the power to choose when to use customary and civil law, and recommends that the court consider things like:

·         The law chosen by the people involved in the case.

·         The kind of dispute or legal action which takes place.

·         The place where the dispute or legal action takes place.

·         The lifestyles of the people involved.

·         Their understanding of customary and common law.

·         If land is an issue, the place where the land is situated.

Choosing the law

The Application of Customary Law Bill is important because it creates more certainty about when customary law will be used in a situation. If you do not want customary law to be used, you can make this choice even before there is a dispute.

Deciding to use the common law

A girl may not get access to her parents’ property if customary law governs the parent’s property.

The parents can decide to draw up a will to make sure that she inherits under the common law.

This is very important for parents living with HIV or AIDS, who need to protect their children’s property rights against male family members.

For a long time, customary unions (marriages) did not have the same full legal status as civil marriages (eg magistrate’s court marriages) had in South African law. This was unfair discrimination. It also made women in customary marriages vulnerable:

·         Women married under customary law had limited legal status. They were either given the status of minors or, for married women in KwaZulu-Natal, they fell under their husband’s marital power. This limited women’s power.

·         Because customary unions were not given full legal status, this created uncertainty about the property and inheritance rights of the marriage.

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