Paper short abstract:

The constitutional obligation to apply customary law in the formal courts of South Africa is challenging and has consequences for the oral status of customary law. The aim of this paper is to explain the different ways the formal courts are dealing with some of the issues.

Paper long abstract:

In 1994, the transitional Constitution of South Africa recognised customary law, and ensured a prominent place for it in future by promising that "[i]ndigenous law, like common law, shall be recognised and applied by the courts". The intention could not have been clearer: the common law and indigenous law were from now on to be treated alike. Although the final Constitution (1996) does not refer to common law and customary law in the same breath, as did the transitional Constitution, it also recognises the institution of traditional leadership that observes a "system of customary law", and it compels the courts to apply customary law when applicable, though subject to the Constitution and any other legislation. It is generally accepted that the mandatory wording of the final Constitution elevated customary law to the same position as the common law and, although it is not always easy to treat them alike, that is exactly what the courts have been trying to do. So far three approaches can be identified. The first one entails an infusion of common and customary law norms to provide protection for vulnerable members of society (Bhe v Magistrate, Khayelitsha 2005 1 SA 580 (CC)). The second approach confirms the prerogative of a community to develop its own customary law rules (Shilubana v Nwamitwa 2009 2 SA 66 (CC), and the third one is an example where the court used its lawmaking powers to develop a customary law rule to provide protection to a customary law wife (MM v MN 2013 4 SA 415 (CC). The three approaches are totally different, and they illustrate how the courts are trying to navigating situations of legal pluralism that involves customary and common law norms in a legal order where the law of general application is based on different norms and values. The aim of this paper is to explore the different ways the formal courts in South Africa have been dealing with customary law issues.

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