Okay, so this is a heavy topic and requires lots of engagement. Bear with me as this can get a little complicated. To make it a little easier, I have broken my thoughts down into sections. Let’s engage!
South Africa is a multicultural society in which various legal systems are observed. Customary law is the only law, however, other than the Western system (which includes the common law, legislation, and judicial precedent) which is officially recognised, albeit to a limited extent. “Customary law” is a generic term to describe the various laws of the indigenous people of South Africa. As such, it is not one set system of law as it varies from culture to culture. In our current society, the Western system, underpinned by individualistic Western values, is still regarded as the dominant system of law, despite the fact that customary law is now officially recognised and constitutionally entrenched.
Perhaps one of the reasons that customary law is neglected is that lawyers fails to understand that the premises on which customary law is based are different from the common law. For instance, common law rules are relatively specific and are relatively ascertainable from legislation, precedents, and textbooks. Although the common law is essentially an uncodified system, it is still regarded as a specialised system, unlike customary law which is for the most part unwritten and does not always have clear-cut, immutable rules. A further problem is that customary law is not a unified system of law as cultures differ and so various customary legal systems operate in our country. The state of customary law in South Africa thus remains problematic as courts often struggle with developing the customary law, ascertaining its sources (as it is predominantly oral), and establishing the difference between the living and official customary law (the living customary law being that which is actually practiced in customary communities as opposed to the official recorded customary law that may be outdated and no longer reflect what is actually practiced).
Recognition and the development of customary law
Prior to our constitutional democracy, customary law was merely viewed through a common-law lens and in many instances had to take a backseat if its rules were deemed contrary to public policy as shaped by the common law rules. This was known as the repugnancy clause and is still on the statute book in s 1(1) of the Law of Evidence Amendment Act 45 of 1988, although is heavily criticised. It does help however that the case of S v Makwanyane introduced the African customary concept of ubuntu into South African law. The case of Barkhuzien v Napier further confirmed that ubuntu now forms part of public policy, thus customary law values form part of public policy.
The Constitution of the Republic of South Africa also determines in s 211(3) that all courts in South Africa must apply customary law where appropriate, subject to the Constitution and legislation that deals particularly with customary law. The case of Gumede v President of the Republic of South Africa confirmed the “official” status of customary law, stating that it “lives side by side with common law and legislation”. Although on paper the common law and customary law are regarded as equal, the legal status of customary law is constantly evolving.
One such way customary law can evolve is through judicial development in terms of s 39(2) of the Constitution (read in conjunction with s 211(3)), which obliges courts when developing the common law or customary law to promote the spirit, object, and purport of the Bill of Rights. It has also been noted that while not expressly included as a value in the Constitution, the mandate of s 39(2) is to re-imagine all law in the spirit of ubuntu, a value central to customary law given customary law’s communal nature and focus on restoration rather than retribution. Moseneke DCJ commented in Gumede v President that the adaption of customary law serves a number of constitutional purposes, including bringing customary law in line with international human rights standards (as was done with the common law), salvaging and freeing customary law from its stunted past (the way it developed under colonialism and apartheid), and fulfilling and reaffirming the historically plural nature of our legal system.
While this s 39(2) development clause has often been utilised in respect of the common law, it has often been inadequately applied to customary law. A prime example is the case of Bhe v Khayelitsha Magistrate where the court found the rule of male primogeniture as it applied in customary law to the inheritance of property was inconsistent with the Constitution and invalid to the extent that it excluded or hindered women and extra-marital children from inheriting property. In this case, the court chose instead to apply a modified s 1 of the Intestate Succession Act, which forms part of Western law. As such, the majority judgment declined to develop the customary law of succession. Ngcobo J also stated in his dissenting (minority) judgment that no attempt was made in this case to ascertain the living customary law. In choosing to apply the Intestate Succession Act, the majority judgment recognised that this could lead to the obliteration of the customary law of succession – a dangerous road to take.
The majority and minority judgments are thus contrasting examples of what can befall customary law in our constitutional dispensation as the majority judgment concentrated on the individual (a Western focus) while the minority judgment sought to protect the individual but within norms developed by the community (an African focus). In this judgment, the Western, individual ethos of the Intestate Succession Act trumped the communal norms of customary law.
Furthermore, even though the court may have been correct in finding the Legislature to be best suited to deal with the issues of customary succession through national legislation, providing that the Legislature should regard any order made as an interim remedy, no deadline was ever given to the Legislature to enact such legislation. As such, we could have ended up with no statutory reform ever being promulgated as the case of Laubscher N.O. v Duplan establishes that an interim order has effect until it is explicitly amended by the Legislature, something the Legislature was not actually directed to do in Bhe v Khayelitsha Magistrate. This perhaps speaks to the ideological status of customary law – although we advocate change we do not actively enforce it, choosing instead to superimpose Western values onto customary law.
There have however been cases where the ideologies of customary law have been incorporated in tandem with the common law. An example is how the value of restorative justice is prevalent in the case of S v Maluleke, where a woman found guilty of murder (which is a common law crime) and sentenced to eight years imprisonment, had three of these years suspended on condition that she apologised according to custom to the mother of the deceased and her family within one month of the sentence having been imposed.
There have also been some cases where the development of customary law itself has been commendable. The case of Shilubana v Nwamitwa is a prime example as the court acknowledged the power of the traditional authorities to develop their own customary law and the importance of the living customary law as practiced and developed by the respective customary communities. In this case, customary law was differentiated from the common law concept of custom as custom is a long standing practice that has not changed over years whereas customary law is subject to development.
Customary law as equal to the common law?
Some scholars argue that customary law is equal to the common law. This has been seriously critiqued however as it is often the case that customary law is not recognised by legal officials due to the fact that customary communities often lack the resources and knowledge of the common law to make their arguments “palatable” to state officials. This is extremely disempowering to many customary communities as they are often forced to engage on terms which are incompatible with customary practices.
Both the common law and customary law cannot be examined in isolation, however, but rather in respect to both the Constitution and statute. Interestingly enough, it was Bhe v Khayelitsha Magistrate that made it clear that customary law must be considered of equal weight to statutory law as customary law should be “accommodated and not merely tolerated”.
Statutory recognition of customary law
The new constitutional dispensation provided for a series of major reforms in customary law. Similar to the common law, which can be adapted by means of legislation, customary law can also be subject to legislation that deals specifically with customary law. The two prime examples are the Recognition of Customary Marriages Act which ensured that the consequences of all marriages whether civil or customary were the same, and the Customary Law of Succession and Regulation of Related Matters Act (Customary Succession Act). The latter Act essentially imposed a common law regime on all those living in accordance with customary law but with considerations to cultural sensibilities such as polygamy through elaborate modifications to the common law. The Customary Succession Act appears to serve as an adaption of the common law however, not an outright recognition of customary law.
Despite commendable developments and reformative legislation, the water is murky when it comes to determining whether the customary law is equal to the common law as stated in Alexkor Ltd v Richtersveld Community as customary law is still bedevilled by problems. In terms of the common law, although we may have a development clause, s 39(2) does not banish pre-transition values from common law development as individualist values still endure in the new constitutional dispensation. With this in mind, a common law systematically re-imagined in the spirit of ubuntu and egalitarianism should look different from the existing regime.
Perhaps the solution is to rather reconcile the values of customary and the common law through a deconstruction of the common law. The common law remains intellectually colonised as it still functions within the domain of Western legal values and is applied predominantly within a positivist paradigm. In order for customary law and the common law to truly be on equal footing, we need to critically interrogate existing knowledge and develop jurisprudence that addresses South African values in an African context. This would simultaneously require the removal of procedural technicalities that obstruct the integration of new knowledge into the common law.
Ultimately, the application and recognition of customary law is still an uphill-battle, whereas the same cannot be said for the common law. As such, as the law currently stands, to say that African customary law and the common law are equal brings to mind the Orwellian saying that “all animals are equal, but some animals are more equal than others”.