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
some customary laws discriminate and make people vulnerable to HIV and AIDS.
women less power than men.
existed without being successfully challenged for a long time.
to unfairly discriminate between family members on the basis of their status in
the family and their gender.
Customary inheritance law
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.
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
of customary law to show how they make people vulnerable.
of the important reforms of customary law that are taking place to bring
customary law in line with the principles of the
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?
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
to the community,
by the community, and
(able to be carried out)
do we find rules of customary law?
law is made up of uncodified (unwritten) and also codified (written) laws.
Codified customary law is often criticised for not being accurate because
the real principles of unwritten customary law.
out some of the principles and areas of unwritten customary
the impression that there is only one system of customary law.
Black Administration Act of 1927
Natal Code of Zulu Law.
uses customary law?
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:
ascertainable (easy to find), and
certain – in other words, has established rules.
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.
is customary law used?
Law of Evidence Amendment Act says that the use of customary law will depend on
where the dispute takes place.
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
type of crime or dispute
it took place
law used in that area.
crimes in a Chief’s area
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
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
Constitution says that customary law is protected, but the rules of customary
law must be in line with the principles in the Bill of
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
The right of culture and the right of equality
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
we are all to enjoy the rights and freedoms promised by the Constitution, then
our courts should try to develop a standard that identifies:
practices which deserve to be protected because they do not discriminate, and
practices which should be done away with because they discriminate
In this way, we can protect group interests and at the same
time ensure that customary laws are:
against the rights of all people, and
to the changing conditions in South Africa.
Customary law must be in line with the Constitution
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
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
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:
law chosen by the people involved in the case.
kind of dispute or legal action which takes place.
place where the dispute or legal action takes place.
lifestyles of the people involved.
understanding of customary and common law.
land is an issue, the place where the land is situated.
Choosing the law
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
Deciding to use the common law
girl may not get access to her parents’ property if customary law governs the
parents can decide to draw up a will to make sure that she inherits under the
is very important for parents living with HIV or AIDS, who need to protect their
children’s property rights against male family members.
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
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.
customary unions were not given full legal status, this created uncertainty
about the property and inheritance rights of the marriage.