South African customary law refers to a usually uncodified legal system developed and practised by the indigenous communities of South Africa. Customary law has been defined as

an established system of immemorial rules evolved from the way of life and natural wants of the people, the general context of which was a matter of common knowledge, coupled with precedents applying to special cases, which were retained in the memories of the chief and his councilors, their sons and their sons' sons until forgotten, or until they became part of the immemorial rules as well as gender Most African states follow a pluralistic form of law that includes customary law, religious laws, received law (such as common law or civil law) and state legislation. The South African Constitution recognizes traditional authority and customary law under Section 211. A ruling under Bhe v. Magistrate, Khayelitsha specified that customary law was "protected by and subject to the Constitution in its own right." Customary law, prior to colonialism, had its "sources in the practices, traditions and customs of the people." Customary law is fluid, and changes over time and among different groups of people. In addition, ethnicity is often tied into customary law. Sally Falk Moore suggests that to have a more realistic idea of the manner in which people live according to 'the law' and 'social mores' it is necessary to study the law in the context of society, rather than attempting to separate the 'law' from 'society'.

History

Colonial era Developments in customary law took place primarily after 1652, when colonial settlers arrived in South Africa. It didn't take long for the coloniser to realise that colonial law was not always appropriate or convenient for the colonised in dealing with instances of everyday life (such as family law). Accordingly, the colonial state began to define the parameters that marked the jurisdictions of legal systems within its control and, in so doing, divided colonial and customary law into "separate and [allegedly] autonomous spheres." In addition, there were many different types of customary law, each based on the indigenous group practicing the law.

Mahmood Mamdani has emphasised Theophilus Shepstone's role in creating the system known today as indirect rule and, with it, a system of official customary law.Mamdani, 1996 As the highest colonial official in Natal, Shepstone was responsible for all native affairs from the creation of the colony until his transfer to the Transvaal in 1877. He combined indigenous customs with British legal procedures to create what was called "native customary law." Combining these two types of law into one allowed the colonizers to "use" traditional leaders and traditional ceremonies to support their own legal legitimacy in South Africa. The "Shepstone system" enforced a "patriarchal arrangement" of hierarchy and became the foundation of policy for dealing with indigenous peoples in South Africa for many decades afterwards.

In 1847, the Natal Commission found that any "African law which was not incompatible with Roman-Dutch law would have to be used for the time being." In Natal, customary law was further recognized through the Natal Code of 1878. The code defined "native law" and "included the subjugation of women to men, the subjugation of children their father or to the head of the family, and the rule of primogeniture." The Northern Republics of South Africa (Transvaal and the Free State) were less inclined to allow or accommodate a system of African customary law that was separate to the Republican law.

The British defeat by the Zulu in 1879 and the Zulu rebellion of 1906 had profound effects on South African law and customary law in Natal. Likewise, the Cape Colony met customary law with a policy of assimilation. The assimilation was started by the abolition of slavery and lip service was given to the notion of 'rights to all', regardless of race. In 1880, the government looked into native laws and customs in order to codify criminal and civil law. Natives were never used as a source of information for their own culture. However, many objections stifled assimilation, including the colonial objection to customary practices pertaining to inheritance and marriage, especially in regard to polygamy and bride prices.

After the Union of South Africa was created in 1910, customary law was handled by each separate territory as needed. Because of the confusion created by this system, the union government created the Native Administration Act of 1927. This law, in Section 11, recognised customary law, so that it would be "granted full recognition in both chiefly and Commissioner courts," with the commissioner deciding where and when customary law may be applied.

Apartheid era After the National Party gained power in 1948, it introduced apartheid, under which the Bantu Authorities Act of 1951 was used to create "an administrative hierarchy of tribal, regional, and territorial authorities in traditional communities."

Constitutional transition

The status of African customary law was a hotly contested issue during the negotiations to end apartheid and concomitant constitutional negotiations. A supreme constitution would allow for judicial review of the actions of traditional leaders as well as for scrutiny and amendment of customary law more generally. Constituencies of traditional leaders, who were represented at the Multi-Party Negotiating Forum, argued that customary law should be exempted from the application of the future Bill of Rights. They based their arguments partly on the Zimbabwean Constitution.The Zimbabwean constitution shields customary law from the provision forbidding discrimination at s 23(1) and (3)(b) Much of the debate centred on the issue of gender equality, because certain tenets of customary law accord more rights and authority to men than they do women . Moreover, critics pointed out that customary law had been perverted by colonial and apartheid rule. At times, the bargaining process was used as a means to secure the role of the traditional leaders in the new constitutional era.

The Interim Constitution of South Africa came into effect on 27 April 1994, the date of South Africa's first democratic elections. After an intensive negotiation process in the Constitutional Assembly and certification by the newly established Constitutional Court, the final Constitution of South Africa was passed in 1996 and came into force in early 1997.

In terms of the eventually rejected Traditional Courts Bill introduced in 2008, power would have been consolidated with traditional leaders.

Constitutional recognition of customary law

Section 211 of the Constitution of 1996 recognises customary law and requires South African courts to "apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law". The status of customary law is also protected indirectly by various provisions of the Bill of Rights, mostly notably the right to freedom of belief and opinion and the rights to culture and cultural community. The application of customary law is subject to the Constitution as well as to any legislation that specifically deals with it.The applicability of customary law rules is governed by the common law choice of law rules.

Constitutional Court case law There have been a number of cases that have come before the Constitutional Court requiring it to interpret and apply the rights and principles in the Constitution pertaining to African customary law (ACL). In doing so, the CC has not only been faced with the challenge of elucidating the extent to which ACL is now recognised, but it has also had to address the issue of how to go about ascertaining what that law in fact is. The first such substantive case is Alexkor v Richtersveld Community, which involved the appeal of a claim for restitution of land by the Richtersveld Community ('the Community'), an indigenous South African community, in terms of the Restitution of Land Rights Act. The Constitutional Court therefore had to examine whether or not the Community had rights in land in 1913 and, if so, whether or not it was subsequently dispossessed 'as a result of past racially discriminatory laws or practices.' It was in answering the first of these questions that the Court made various authoritative comments regarding the extent to which ACL is now recognised.

The Court essentially stated two broad principles. Firstly, ACL is an independent source of law, not to be interpreted 'through the common-law lens.'Alexkor, para 51 Instead, it is to be seen as parallel to the common law. Secondly, the recognition of ACL is circumscribed by its consistency with the Constitution and any legislation concerning ACL. The CC drew specifically on s 211(3) of the Constitution. Applying these principles, the Court found that the Community did indeed have (indigenous) rights in land in 1913, which were left unaltered by British annexation. It then added an important third principle – that customary law in the Constitution really referred to the living form of that law:

…It is important to note that indigenous law is not a fixed body of formally classified and easily ascertainable rules. By its very nature it evolves as the people who live by its norms change their patterns of life…In applying indigenous law, it is important to bear in mind that, unlike common law, indigenous law is not written. It is a system of law that was known to the community, practised and passed on from generation to generation. It is a system of law that has its own values and norms. Throughout its history it has evolved and developed to meet the changing needs of the community. And it will continue to evolve within the context of its values and norms consistently with the Constitution.Alexkor, 52–54

The court specifically acknowledged the difficulty of establishing customary law, given the relative unreliability of written sources on customary law, and the fact that there may be competing versions of customary law presented in evidence, when such is appealed to.