C Himonga and C Bosch The Application of African Customary Law Under The Constitution of South Africa

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THE APPLICATION OF AFRICAN
CUSTOMARY LAW UNDER THE
CONSTITUTION OF SOUTH AFRICA:
PROBLEMS SOLVED OR JUST
BEGINNING?
CHUMA HIMONGA*
Associate Professor of Private Law, University of Cape Town
CRAIG BOSCH**
Lecturer, Institute of Development and Labour Law, University of Cape Town
INTRODUCTION
This paper attempts to address the challenges that face South African
courts in their application of indigenous customary law in a constitutional
framework. The recognition of customary law by the Constitution,1 and
in particular the entrenchment of the right to culture, 2 has created a new
dimension to the whole question of the application of customary law and
the related issues of its conceptualization, ascertainment and proof in the
courts. The paper seeks to encourage continued and intensified debate on
the actual operation of the legal system in relation to the application of
customary law, an issue which has been recognized as potentially affecting
the human rights of a large part of the population of South Africa. 3 The
paper shows the difficulty of finding easy solutions to problems associated
with the application of customary law and this, together with the ques-
tions which the paper leaves open, implicitly suggests the need not only
for continued debate, but for further study before a solution is adopted.
The discussion is divided into several sections. The next section
discusses the recognition of customary law in the legal system of South
Africa. This is followed by a consideration of the relevant factors deter-
mining the application of customary law. The remaining sections of the
paper discuss the conceptualization of customary law and how the courts
* LLB (Zambia) LLM PhD (London).
** BA LLB (Stellenbosch).
1 Constitution of the Republic of South Africa Act 108 of 1996.
2 Section 30 of the Constitution.
3 T W Bennett Human Rights and African Customary Law with 1999 Addendum (1999) 28ff.
See also on this debate Wayne van der Meide 'Gender Equality v Right to Culture: Debunking
the Perceived Conflicts Preventing the Reform of the Marital Property Regime of the
"Official Version" of Customary Law' (1999) 116 SALJ 100.
306
APPLICATION OF AFRICAN CUSTOMARY LAW UNDER CONSTITUTION 307
4
have dealt with this issue since 1993, when the Interim Constitution
came into operation, and the ascertainment and proof of customary law.
RECOGNITION OF CUSTOMARY LAW

The pre-constitutionalera
During the colonial era and after union in 1910, there was much
confusion and inconsistency regarding the position of customary law in
the legal system.5 This was resolved to a large extent by the introduction
of the Native Administration Act 38 of 1927 (later renamed the Black
Administration Act). In terms of the Act, the application of customary
law was limited to disputes where both the litigants were black. Those
disputes were also reserved for resolution by special tribunals, namely, the
Chiefs' and Headmen's Courts and Native Commissioners' Courts,
which were vested with a discretion to apply customary law. And, in
keeping with a long tradition, that discretion was limited in that the
relevant courts were not allowed to apply customary law that could be
considered 'opposed to the principles of public policy or natural justice'.6
The Native Commissioners' Courts and their appeal courts were abol-
ished in 19867 and magistrates' courts assumed their role in applying
customary law in the manner already referred to.
The Law of Evidence Amendment Act was introduced in 1988.8 The
first two subsections of section 1 of the Act are important for present
purposes and read as follows:
'1(1) Any court may take judicial notice of the law of a foreign state and of
indigenous law in so far as such law can be ascertained readily and with sufficient
certainty: Provided that indigenous law shall not be opposed to the principles of public
policy or natural justice: Provided further that it shall not be lawful for any court to
declare that the custom of lobola or bogadi or other similar custom is repugnant to such
principles.
1(2) The provisions of subsection (1) shall not preclude any party from adducing
evidence of the substance of a legal rule contemplated in that subsection which is in
issue at the proceedings concerned.'
This legislation made it possible for customary law to be applied in any
court in the land and did not limit its application to disputes where both
parties were black. Customary law rules were no longer to be treated as
facts that needed to be proved before the courts, rather courts were
4 Constitution of the Republic of South Africa Act 200 of 1993.
5 Different rules applied in the various provinces. See generally T W Bennett Application of
Customary Law in Southern Africa: The Conflict of PersonalLaws (1985) 40-5.
6 Section 11 of the Black Administration Act 38 of 1927. Since the period of British rule the
courts established at the Cape in South Africa would not apply customary law that they did not
consider 'compatible with the general principles of humanity observed throughout the civilized
world'. This approach was also adopted in the Transvaal Republic (s 2 of Law 4 of 1885). See
generally in regard to the history of the application of customary law in South Africa Bennett
op cit note 5 at 42-5;J C Bekker Seymour's Customary Law 5 ed (1989) 1-8.
7 By means of the Special Courts for Blacks Abolition Act 34 of 1986.
8 Act 45 of 1988.
308 THE SOUTH AFRICAN LAW JOURNAL
9
obhged to take judicial notice of those rules where customary law was
the applicable system, subject to the requirements of subsection 1(1)
being met. Where a court could not take judicial notice of a rule of
customary law, it remained possible for the parties to prove the existence
of a customary law rule in terms of s 1(2) of the Act. The courts retained
their discretionary power to apply customary law where they were of the
opinion that it was the applicable system' 0 and the principles governing
the choice of law under previous legislation remained relevant to the
exercise of the courts' discretion. 1' The fact that customary law was
lumped together with foreign law in s 1 above is indicative of a view of its
being something outside of the 'dominant' common-law system.
The so-called 'repugnancy proviso' (in s 1(1) above) ensured that
customary law could not be applied if it was considered contrary to public
policy or natural justice. The 'public policy' to which the courts would
refer was an embodiment of the sentiments of the small, dominant, white
population in South Africa. That much is apparent from cases which dealt
with the public policy concept in other contexts. For example, polyga-
mous and potentially polygamous marriages were refused recognition by
the common law on the ground that these marriages were contrary to
public policy. Public policy was in this context defined in terms of the
civil law, which was the predominant system of marriage of the white
population. Accordingly, in Ismail v Ismail12 the Appellate Division could
not find 'any indication.., that the Legislature either expressly or
impliedly [approved] of polygamy' or of 'the tolerance of polygamy as
part of the South African legal system'. 13 In the court's view '[t]he
concept of marriage as a monogamous union is firmly entrenched in our
society and the recognition of polygamy would, undoubtedly, tend to
prejudice or undermine the status of marriage as we know it'. 14 That the
principles and institutions, and therefore the public policy referred to in
these cases, were those of civil law is also apparent from decisions such as
9 AJ Kerr 'Judicial Notice of Foreign Law and of Customary Law' (1994) 111 SALJ 577 at
580 argues, correctly, it is submitted, that the word 'may' in subsec 1(1) should be read as 'must'
provided that the relevant law is readily ascertainable and sufficiently certainly established. The
subsection did not require the courts to apply customary law in every case where questions of
customary law might arise. The decision in Thibela v Minister van Wet en Orde en Andere 1995 (3)
SA 147 (T) to the contrary would thus seem to be incorrect. See also AJ Kerr 'The Choice of,
and the Application of, Customary Law' (1996) 113 SALJ 408.
10Although this discretion was not expressly conferred by statute after 1988, it was generally
accepted that it remained vested in the courts. See T W Bennett A Sourebook of African
Customary Lawfor Southern Afica (1991) 120.
11See Bekker op cit note 6 at 41-2. 12 1983 (1) SA 1006 (A).
13 At 1024C.
14 At 1024F, emphasis added. The court held further that polygamous or potentially
polygamous marriages were contra bonos mores i.e. 'contrary to the accepted customs and
usages which are regarded as morally binding upon all members of society' (at 1026B). In the
earlier Appellate Division decision of Seedat'sExecutors v The Master (Natal)1917 AD 302, Innes
CJ said that contra bonos mores was anything fundamentally opposed to 'our principles and
institutions' at 309.
15
Santam v Fondo. In that case Botha AJA held that the common law is 'the
only legal system ... that can be applied in an action instituted in the
Supreme Court' and that customary law marriages could not be recog-
nized as lawful in a legal system where pol U amous marriages were
regarded as being contrary to public policy. This approach to the
definition of public policy served to ensure the subjection of customary
law to the principles embodied in the common law.
The position of customary law had thus long been a subordinate one. 17
Its recognition, application and development have been largely subject to
the whim of courts, which were not always comfortable with, or well
versed in, customary law,18 and the (often-prejudiced) legislature. 1 9 The
Interim Constitution, Act 200 of 1993, seemed to provide the ideal
instrument to restore customary law to its proper place in the South
African legal system as an equal of the common law.
20
The Interim Constitution
In 1994 the Interim Constitution became the supreme law of the
Republic. 2 1 It gave relatively wide recognition to customary law and its
institutions, thus ensuring a distinct elevation in its status in the national
legal system. Customary law was expressly mentioned in Chapter 3 of the
Interim Constitution (the Bill of Rights) in the following two sections:
'33(2) Save as provided for in subsection (1) [regulating the extent to which
fundamental rights may be limited] or any other provisions of this Constitution, no law,
whether a rule of the common law, customary law or legislation, shall limit any right
entrenched in this Chapter.
(3) The entrenchment of the rights in terms of this Chapter shall not be construed as
denying the existence of any other rights and freedoms recognized or conferred by
common law, customary law or legislation to the extent that they are not inconsistent
with this Chapter.
35(3) In the interpretation of any law and the application and development of the
common law and customary law, a court shall have due regard to the spirit, purport and
objects of this Chapter.'
15 1960 (2) SA 467 (A).

16 At 473: 'die enigste regstelsel... wat by 'n in die Hooggeregshof... ingestelde geding
toegepas kan word' (author's translation from the original Afrikaans).
17 See alsoJ Church & AB Edwards 'Introduction to Indigenous Law and the Comparative
Method' in WJ Hosten et al Introduction to South African Law and Legal Theory 2 ed (1995) 1249.
18 See Bennett op cit note 7 at 24; South African Law Commission 'The Harmonisation of
the Common Law and the Indigenous Law: Conflicts of Law' Project 90, Discussion Paper 76
(1998) 35, hereafter referred to as the SALC Paper (This is now a Report but there is no change
in the content that affects this paper); N J J Olivier 'The Judicial Application of African
Customary Law' in AJ G M Sanders (ed) The Internal Conflict of Laws in South Africa (1990) 47
and2051. 19 SALC Paper (ibid) at 21.
Constitution of the Republic of South Africa Act 200 of 1993. For discussion of the
debates surrounding customary law leading up to the adoption of the Interim Constitution see
Thandabantu Nhapo 'Cultural Diversity, Human Rights and the Family in Contemporary
Africa: Lessons from the South African Constitutional Debate' (1995) 9 InternationalJournalof
Law and the Family 208; Alfred Cockrell 'The South African Bill of Rights and the "Duck/
Rabbit" ' (1997) 60 Modem Law Review 513 especially 527-8; F Kaganas & C Murray 'The
Contest Between Culture and Gender Equality Under South Africa's Interim Constitution'
(1994) 21 Journalof Law and Society 409.
21 Section 4(1) of the Interim Constitution.
JI1 THE SOUTH AFRICAN LAW JOURNAL
Section 31 (which dealt with language and culture) was especially

notable for the protection and recognition it accorded customary law. It
proclaimed that:
'Every person shall have the right to use the language and to participate in the cultural
life of his or her choice.'
Culture includes 'a people's entire store of knowledge and artefacts,
especially the languages, systems of beliefs, and laws, that give social
groups their unique characters'. 2 2 The Interim Constitution thus guaran-
teed people the right to live according to the legal system applicable to
their particular cultural group and placed a concomitant duty on the State
23
to ensure that this was possible in the case of customary law.
The Bill of Rights was also indirectly important to the status of
customary law, due to its impact on the manner in which the courts would
determine 'public policy'. 2 4 As mentioned above, the courts previously
had regard to the views of only a very small percentage of South Africans,
in order to determine what was consistent with, or opposed to, public
policy. However, the Interim Constitution's promotion of equality be-
tween the people of South Africa, and its express provision for the
protection and promotion of the diverse cultures in our country, seemed
to leave the courts with little choice but to extend their focus to draw on
the values of the broader South African society when determining the
content of public policy. This was evident in the High Court decision in
Ryland v Edros.2 5 In that case, the court was asked to give effect to the
contract arising from a Muslim marriage. As already stated, previous
decisions had ruled that this was impermissible since such marriages, being
potentially polygamous, were contrary to public policy. 26 Farlam J
pointed to the 'fundamental alteration in regard to the basic values on
which our civil policy is based which has been brought about by the
enactment and coming into operation of the [Interim] Constitution'. 2 7 In
the court's view, it was unthinkable in the new dispensation, that public
policy be determined by reference to the views of only one section of the
population, as opposed to those of 'all right-thinking people'. Farlam J
stressed the constitutional 'values of equality and tolerance of diversity
and the recognition of the plural nature of our society' that now inform
22 T W Bennett Human Rights and African Customary Law under the South African Constitution
(1995) 23-4; Kaganas & Murray op cit note 20. On the concept of 'culture' see also Chuma N
Himonga 'A Legal System in Transition: Cultural diversity and National Identity in Post
Apartheid South Africa' (1998) 1 Recht in Afrika (Law in Africa) 1 at 3-6.
23 Bennett op cit note 22 at 24-5.
24 This is of importance to the application of customary law given the s 1(1) repugnancy
proviso's prohibition on the application of customary law that might be considered contrary to
'public policy'. It should be noted that the Law Commission has argued cogently in favour of
the abolition of the repugnancy proviso and the application of customary law will likely not be
subject to 'public policy' for much longer, as opposed to being tested against the Bill of Rights
(SALC Paper op cit note 18 at 38-42). 25 1997 (2) SA 690 (C).
26 Seedat's Executors v The Master (Natal)op cit note 16 and Ismail v Ismail op cit note 14.
27 At 704D.
our notion of public policy, s to conclude that it was not contrary to
public policy to give effect to the contract arising out of a marriage that
was actually monogamous, but potentially polygamous. This judgment is
important for its recognition of the application of previously marginal- 29
ized systems of personal and family law, including customary law,
within the framework of the Bill of Rights.
Outside of the Bill of Rights, s 181(1) entrenched the position of
traditional authorities 'which observe[d] a system of indigenous law and
[were] recognized by law immediately before the commencement of
[the] Constitution'. Subsection (2), however, added an immediate quali-
fication stating that '[i]ndigenous law shall be subject to regulation by
law'. In terms of s 182, traditional leaders were, ex officio, entitled to be
members of local government and were eligible to be elected to an office
in that local government. Section 183 provided for the establishment of
Provincial Houses of Traditional Leaders whose functions were to advise
and make proposals to the provincial legislatures or the central govern-
ment 'in respect of matters relating to traditional authorities, indigenous
law, or the traditions and customs of traditional communities within the
particular province'. Legislation regulating matters related to traditional
authorities was to be referred to the House, which could veto the
legislation for up to 30 days. Section 184 dealt with the establishment, at
national level, of a Council of Traditional Leaders whose functions were
similar to those of the provincial Houses, with a corresponding 30-day
3
power. 0
veto
The epilogue to the Interim Constitution under the heading 'National
Unity and Reconciliation' 31 contained reference to the concept of
'ubuntu', which derives from traditional Africanjurisprudence. 'Ubuntu'
was not defined in the Interim Constitution, but was identified as a
constitutional value by a majority (6 out of 11) of the judges of the 32
Constitutional Court in the landmark decision of S v Makwanyane.
From their judgments it appears that 'ubuntu' encapsulates communality
and the interdependence of the members of a community, a respect for
life and human dignity, humanness, social justice and fairness, and an
28 At 708J-709A. See also similar sentiments expressed in the decision of the Supreme Court
of Appeal in Amod v MultilateralMotor Vehicle Accidents Fund 1999 (4) All SA 421 (SCA) where
the court spoke of the 'new ethos of tolerance, pluralism and religious freedom' which informs
the determination of the boni mores of the community (at para 20).
29 Customary marriage law is furthermore now fily recognized as evident from
the
Recognition of Customary Marriages Act 120 of 1998. This Act has not come into operation
as yet.
30 See in this regard the Council of Traditional Leaders Act 31 of 1994 (now repealed).
31This was part of the Interim Constitution according to s 232(4) of the Interim Constitution.
32 1995 (3) SA391 (CC).
emphasis on reconciliation rather than confrontation. 33 Sachs J utilized

the opportunity to advocate a more inclusive approach to the national
legal system. He was of the opinion that:
'[t]he secure and progressive development of our legal system demands that it draw the
best from all the streams of justice in our country... it means giving long overdue
recognition to African law and legal thinking as a source of legal ideas, values and
practice' .34
He added the caveat, however, that:
'[w]e do not automatically invoke each and every aspect of traditional law as a source of
values, just as we do not rely on all features of the common law. Thus we reject the...
common-law traditions.., which are inconsistent with freedom and equality, and we
uphold and develop many aspects of the common law, which feed into and enrich the
fundamental rights enshrined in the Constitution. [Similarly] there are many aspects and
values of traditional African law which will also have to be discarded or developed3 5in
order to ensure compatibility with the principles of the new constitutional order.'
Despite the fact that the epilogue, with its reference to 'ubuntu', has
not been included in the Final Constitution (a move which might be
viewed as a 'de-Africanization' of the Constitution),3 6 the sentiments
expressed by the Constitutional Court in Makwanyane, and subsequently
in AZAPO v The President of the Republic of South Africa,3 7 ensure that
traditional African jurisprudence remains an38
important consideration in
the determination of constitutional values.
Moreover, the strengthened position of customary law seemed guar-
anteed under the Final Constitution. Before that document could come
into force, the Constitutional Court had to certify that it complied with
the Constitutional Principles laid out in Schedule 4 of the Interim
Constitution. In that schedule Constitutional Principle XI provided that
'[t]he diversity of language and culture shall be acknowledged and protected, and
conditions for their promotion shall be encouraged'.
More importantly, Constitutional Principle XIII stated that:
'The institution, status and role of traditional leadership, according to indigenous
law, shall be recognized and protected in the Constitution. Indigenous law, like
common law, shall be recognized and applied by the courts, subject to the fundamental
rights contained in the Constitution and to legislation dealing specifically therewith.'
39
The Final Constitution
In line with the Constitutional Principles, the constitutional recognition
of customary law was continued and, to a certain extent, expanded on in
33
See the judgments of judges Langa J (at paras 223-5); Madala J (at paras 237 and 250);
MohamedJ (at para 263); and Mokgoro J (at paras 300, 308 and 309). For a discussion of the
content of the concept of 'ubuntu' see Chuma N Himonga 'The Legal Culture of a Society in
Transition: The Case of South Africa' in Roger Blainpain (ed) InternationalEncyclopaediaof Laws
World Law Conference: Law in Motion (1997) 75 at 91-6 and Judge Y Mokgoro 'Ubuntu and the
Law in South Africa' Paper presented at the first Colloquium Constitution and Law at Potchef-
stroom 31 October 1997 (available at http://www.puk.ac.za/lawper/1998-1/mokgoro-
ubuntu.html). 34 At 514F (para 364). 35 At 518F (para 383).
36 See Himonga op cit note 22 at 17. 37 1996 (8) BCLR 1015 (CC).
38 See Himonga op cit note 22
at 17.
39 The Constitution of the Republic of South Africa, Act 108 of 1996.
the Final Constitution. Section 30 reiterates the individual's right to par-
ticipate in the culture of his or her choice, while s 31 introduces a group
right to participate in cultural activities. Neither of these rights may be
exercised 'in a manner inconsistent with any provision of the Bill of
Rights'. Section 15 of the Final Constitution builds on the recognition
accorded marriages promulgated under various religious systems by s 14 of
the Interim Constitution, in that s 15(3) provides that nothing in s 15
prevents the legislative recognition of marriages concluded under any
'tradition', or of 'systems of personal and family law under any tradition'. 40
Customary law enjoys equal mention with the common law in s 39(2)
and (3).41 Moreover, s 181(1)(c) provides for the establishment of a
Commission for the Promotion and Protection of the Rights of Cultural,
Religious and Linguistic Communities, 4 2 while s 211(1) recognizes the
'institution, status and role of traditional leadership, according to custom-
ary law'. Section 211(2) provides that traditional authorities, observing a
system of customary law, may function subject to any applicable legisla-
tion and customs, while s 212(1) and (2) foresee national legislation
providing for a role for traditional leaders at local level, the establishment
of provincial houses of traditional leaders and a national council of
traditional leaders to deal with matters affecting traditional leadership, the
role of traditional leaders, customary law 43
and the customs of communities
observing a system of customary law.
An important change from the Interim Constitution to the Final
Constitution relates to the extent of the horizontal application of the Bill
of Rights. This is of importance to customary law given the fear ex-
pressed in some circles that the equality clause might result in the
eradication of large tracts of customary law.4 4 It is beyond the purview of
this article to enter in any great detail into the debate around the extent of
the application of the Bill of Rights to45the private sphere. This issue will,
however, be dealt with briefly below.
40 See in this regard the Recognition of Customary Marriages Act op cit note 29.
41 In terms of s 39(2): 'When interpreting any legislation, and when developing the common
law or customary law, every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights.' Whereas in terms of s 39(3): 'The Bill of Rights does not deny
the existence of any other rights or freedoms that are recognized or conferred by common law,
customary law or legislation, to the extent that they are consistent with the Bill.'
42 The functions of this Commission are set out in s 185 of the Final Constitution.
43 See the Council of Traditional Leaders Act 10 of 1997, which came into operation on 11
April 1997. This Act replaced the Council of Traditional Leaders Act 31 of 1994. See also the
Council of Traditional Leaders Amendment Act 85 of 1998, which came into operation on 30
October 1998. The amendment changes the name of the Council of Traditional Leaders to the
'National House of Traditional Leaders'.
44 See, for example, AJ Kerr 'Inheritance in Customary Law Under the Interim Constitution
and Under the Present Constitution' (1998) 115 SALJ 262 at 266.
45 Under the heading 'Compatibility with the Constitution; the impact of the Bill of Rights
on the application of Customary law'.
FACTORS DETERMINING THE APPLICATION OF

CUSTOMARY LAW
Section 211(3) of the Final Constitution places a duty on the courts to
apply customary law. It provides that '[t]he courts must apply customary
law when that law is applicable, subject to the Constitution and any
legislation that specifically deals with customary law'. The elements of
s 211 (3) relating to the applicability of customary law and its subjection to
the Constitution will be discussed in more detail below.
When is customary law applicable?

In most cases the applicable legal system is not prescribed 46 and it is not
always easy to decide which one it is most appropriate to apply. Despite
the lack of explicit, clear guidelines the courts have, in the past, had regard
to various 'indicators' in order to determine whether customary law or
the common law should be applied in a particular case. The Law Com-
mission, in a recent Discussion Paper entitled 'The Harmonisation of the
Common Law and the Indigenous Law: Conflicts of Law', 47 has made
certain recommendations regarding the relevant considerations in rela-
tion to conflict of laws, which are in turn reflected in the Commission's
Draft Bill on the application of customary law. 4 8 These recommendations
are based largely on the choice of law principles that have emerged in the
courts over the years. Firstly, the parties may select the law to be applied
to their relationship, provided that they may not do so to the prejudice of
the rights of a third party or the interests of justice (the subjective
component of the test) .49 This is in keeping with the right of individuals
to live according to the culture of their choice.50 Secondly, should the
parties not have selected the applicable law themselves, a more objective
approach is required. The court will have regard to various elements in
the parties' relationship to determine the applicable system. These would
include the nature and form of a prior transaction,5 1 the subject matter
46 For instances where the applicable legal system is determined by the legislature see, for
example, s 23 of the Black Administration Act 38 of 1927 and ss 3(6) and 7(1) of the
Recognition of Customary Marriages Act 120 of 1998.
47 See SALC Paper op cit note 18.
48 Annexure A of the SALC Paper op cit note 18 at 108.
49 Clause 3 of the Draft Bill. See also SALC Paper op cit note 18 at 27-9. The selection of
a legal system need not be in writing, but may in certain cases be implicit, for example, where
on an examination of the plaintiff's summons, the nature of the remedy sought indicates that a
particular system was contemplated and this choice of law is not contested by the defendant. See
Bennett op cit note 22 at 54.
50 SALC Paper op cit note 18 at 32; lain Currie 'Indigenous Law' in Matthew Chaskalson et
al Constitutional Law in South Africa (Revision Service 3, 1998) at 36-18.
51 Certain types of transaction would only be associated with one system, for example,
lobolo. If a transaction is common to both systems the form of the transaction will be relevant.
For example, marriage in a church will indicate the application of the common law. See SALC
Paper op cit note 18 at 30.
and the environment of a transaction and the litigants' cultural orienta-
tion.5 2 This is not a closed list and no one factor is determinative.
Compatibility with the Constitution: the impact of the Bill of Rights on the
application of customary law
The Law Commission's Discussion Paper raises important issues relat-
ing to the application of customary law in a constitutional dispensation. In
the Commission's view, the conflict of laws can no longer remain 'value
neutral'. Rather the:
'court's final decision [as to the applicable legal system] must obviously be in harmony
with the supervening value system of the country, the Bill of Rights. Indeed, it can be
argued that constitutional norms should now directly enter the choice of law process to
determine the selection of an applicable law. For instance, where a plaintiff and
defendant's interests diverge on account of an underlying conflict of laws, the court's
choice of one or other legal system could53 be determined by selecting the law that gave
best expression to the Bill of Rights.'
In order to give effect to this approach, the Commission suggests that
customary law should not be applied if such application would result in,
for example, unfair discrimination, but rather that common law (provided
that it is consistent with the Bill) should be applied as a temporary measure
until the court or the legislature has had an opportunity to bring custom-
ary law into line with the Bill of Rights.5 4
While this approach would ensure that the law ultimately applied to the
parties is consistent with, for example, s 9, it would seem contrary to s 30,
s 31 and s 211(3). It is the right of an individual to have the customary law
to which he or she subscribes applied to the dispute. The applicability of
customary law should be decided according to objective and uniform
choice of law rules and not, it is respectfully submitted, on an approach
that resembles a paternalistic desire to preserve a seemingly threatened
traditional legal system by 'staying' the impact of the Bill of Rights. 55 In
this regard, it is ironic to note that the Law Commission is eager to ensure
that 'the common law does not again become a dominant regime'. 5 6 Yet
it is difficult to imagine how this objective will be furthered when the
courts are encouraged to apply common law over customary law where
the latter is seemingly contrary to the Bill of Rights. The Commission
does not suggest that customary law should be applied in place of the
common law where the application of common law would result in
unfair discrimination.
52 The SALC Paper op cit note 18 at 31 suggests that factors such as the parties' place of
residence, occupation, religion, education, style of dress, preparation of wills and consultation
with attorneys might be relevant here. 53 SALC Paper op cit note 18 at 25.
s4 (Ibid). See also Currie op cit note 50 at 36-18 and Bennett op cit note 3 at 56-7.
-9 See in this regard the remarks in the SALC Paper op cit note 18 at 23. It should be noted
that the provisions of s 1(1) of the Law of Evidence Amendment Act are problematic in that
they arguably already indirectly predicate the application of customary law on its compatibility
with the Bill of Rights. In terms of that section customary law may not be applied where it is
found to be contrary to 'public policy', which, as we have pointed out above, must now be
interpreted in light of the Bill of Rights. 56 SALC Paper op cit note 18 at 23.
A second issue that arises relates to the vexed question of the manner in
which the Bill of Rights applies to customary law. Section 211(3) in the
Final Constitution provides that customary law is to be applied 'subject to
the Constitution'. This indicates that customary law, like common law, is
to be subjected to the Bill of Rights. 57 Furthermore, s 8(1) of the Final
Constitution provides unequivocally that the Bill of Rights 'applies to all
law'. That must, apart from common law, statute and court decisions
include customary law.58 There is, however, arguably a difference in the
manner in which the Bill will apply. Thus there has been much academic
debate concerning whether the Bill of Rights should apply directly or
indirectly to common law and to customary law.5 9 The importance of the
distinction is seen to lie in the outcome of the application of the Bill to a
particular rule. It has been argued that if the Bill of Rights is found to be
directly applicable a rule that is found to be inconsistent with its provisions
will be declared invalid to the extent of that inconsistency.60 Should the
Bill be indirectly applicable, the court will 'develop' the relevant rule in
terms of the 'spirit, purport and objects of the Bill'. 6 1 It has been further
argued that the Bill of Rights is in every case direct in its application to
customary law, with the result that it is not subject to 'development' like
the common law. 62 This view is justified, for instance, by the reference to
the fact that the rule in s 8(1), namely that the Bill of Rights applies to all
law, is followed by s 8(3) which provides that:
'in order to give effect to a right in the Bill, [a court] must apply, or if necessary develop,
the common law to the extent that legislation does not give effect to that right'.
There is no corresponding provision regarding customary law. But if a
distinction is to be drawn between the direct and indirect application of
the Bill of Rights to various types of law, it is submitted that it would
undermine the much-vaunted elevated status of customary law to hold
that only customary law must be directly tested against the Bill of Rights
in all cases. Such an approach is arguably unfairly discriminatory against
those who live under customary law. On what basis can customary law,
and not the common law, justifiably be directly tested against the Bill in
57 Constitutional Principle XIII provided that '[i]ndigenous law, like common law, shall be
recognised and applied by the courts, subject to the fundamental rights contained in the
Constitution'. It would appear from this that customary law was intended to be treated on a
similar footing to the common law in relation to its subjection to the Bill of Rights.
58 See Belinda van Heerden et al Boberg's Law of Persons and the Family 2 ed (1999) 11. It is
notable also that in terms of s 8(1) the Bill is made expressly applicable to the judiciary.
59 See the sources referred to by Christa Rautenbach 'A Commentary on the Application of
the Bill of Rights to Customary Law' (1999) 20 Obiter 113 at 118n30.
60 The court could act in terms of the powers set out in s 172 of the Final Constitution.
61Section 39(2) of the Final Constitution. This subsection has a similar operation to that of
s 35(3) of the Interim Constitution. See the remarks of Meskin J in Amod v MultilateralMotor
VehicleAccident Fund [1997] 12 BCLR 1716 (D) that 'the intention of the legislature is that the
operation of section 39(2) is to be no different from that of section 35(3) of the interim
Constitution as elucidated in [Du Plessis v De Klerk [1996] 5 BCLR 658 (CC)], that is as
enabling the Court indirectly to apply the Bill of Rights, as contained in Chapter 2, in all
litigation involving an organ of State... and all litigation involving private individuals.'
62 See the discussion by Rautenbach op cit note 59 at 127.
every case? It is further submitted that, if customary law is to be treated on
an equal footing with the common law, the courts, 'in order to give effect
to a right in the Bill', should 'apply, or if necessary develop [customary]
63
law to the extent that legislation does not give effect to that right'.
The meaning to be attached to 'develop', in the context of the indirect
application of the Bill of Rights is important. One interpretation is that
since the courts are obliged 'to declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its inconsis-
tency', they are bound, when developing the law in accordance with the
constitution, to strike down, or strike down and refer, an offending rule in
terms of s 172.64 A second interpretation might be that when 'develop-
ing' law a court should not strike down a customary or common law rule,
but rather must 'adapt' that rule to bring it into accord with the 'spirit,
purport and objects of the Bill'. Arguably, 'developing' a rule of law may
contain elements of both of these approaches, but adopting a 'strong'
interpretation of 'develop' i.e. the first one above might effectively
remove any real distinction between the direct and indirect application of
the Bill of Rights to customary law.
Exactly what will occur where the court finds that it is required to strike
down or refer an offending customary law rule is not clear. If a rule of
living customary law is struck down will the court apply a rule from
official customary law (if there is such a rule) in its stead?65 If the court
suspends the invalidity of a rule that it has elected to strike down to refer
the matter to a competent
66
authority to correct the defect, who would that
authority comprise?
There are, thus, many unsolved theoretical and practical problems
63 On the analogy of subsec 8(3) of the Final Constitution. This subsection applies once the
Bill of Rights has been found to be horizontally applicable in terms of subsec 8(2). That
subsection provides that: 'A provision of the Bill of Rights binds a natural orjuristic person if,
and to the extent that, it is applicable taking into account the nature of the right and the nature
of any duty imposed by the right.'
64 See in this regard the discussion relating to the constitutional 'development' of the law in
Van Heerden et al op cit note 58 13-15 and in S Jagwanth & PJ Schwikkard 'An Unconsti-
tutional Cautionary Rule' (1998) 11 SACJ 87. In the customary law context the courts have
thus far demonstrated a marked reluctance to encroach on the perceived domain of the
legislature when invited to develop customary law in terms of the constitution. See Mthembu v
Letsela andAnother 1998 (2) SA 675 (T). The Constitutional Court in Amod v MultilateralMotor
Vehicle Accidents Fund 1998 (4) SA 753 (CC) has opined at para 31 that 'The development of a
system of law may call for the development under... s 39(2) of the 1996 Constitution to be
done in a manner consistent with the way or manner in which the law will be developed under
s 8(2) and (3) of the 1996 Constitution.'
65 The distinction between official and living customary law is discussed in detail below. It is
a central argument of this paper that it is living customary law that should be the customary law
applied in the courts of this country.
66 It is submitted that the 'competent authority' need not be the legislature, as it is
conventionally constituted. Rather, such authority could comprise the legislature assisted by a
representative body of the members of the community to whom the particular rule applies.
The legislation that is promulgated via this body should attempt to capture the values
underlying the rule rather than attempt to lay down a new 'ossifiable' rule. This obviously
arising from the application of customary law within the constitutional

framework.67
Closely related to the question of the application of customary law in
the new constitutional dispensation are the issues of the conceptualization
of that law and its ascertainment and proof, to which we now turn.
CONCEPTUALIZING CUSTOMARY LAW WITHIN A

THEORETICAL AND CONSTITUTIONAL FRAMEWORK
The debate on whether customary law is law has abated,6 8 overtaken
by apparently more important issues arising from the co-existence of
customary law and state laws and the general pluralistic nature of African
legal systems. Moreover, the bold and relatively extensive recognition of
customary law in constitutions such as those of South Africa, make the old
legal theoretical debates concerning the Western concept of law as it
applies to customary law, not only appear purely academic but irrelevant.
However, we suggest that precisely because of the nature of recognition
accorded to customary law by the South African Constitution, there may
be a need to return to legal theoretical discourses concerning customary
law. In particular, the recognition of the right to culture by the Consti-
tution adds an important dimension to the general question whether
customary law is law, namely, what customary law or version of custom-
ary law is envisaged by the Constitution? The answer to this question
necessarily requires an engagement with certain issues of legal theory.
This engagement is, furthermore, necessitated by the fact that to date
there is no comprehensive African legal theory in the sense of a 'coherent
analysis of the principal features of law or legal systems'.69
Conceptualizing customary law and the right to culture

In this section we consider the question of the conceptualization of
customary law as living customary law and official customary law and
how the courts have dealt with this issue since the coming into operation
of the Constitution. The division of customary law into the categories of
living and official customary law is in no way intended to suggest that a
clear-cut distinction exists between these two versions of customary
suggests a radically different way of looking at the legislative process, but it appears it is an
alternative that warrants serious consideration if the recognition of customary law as anticipated
by the constitution is to take on a real meaning.
67 In this regard it may well be that in practice, given our adversarial system of adjudication,
where customary law is found to be the applicable system and the Bill of Rights is not invoked
to contest the constitutionality of a customary law rule, the courts will apply customary law
without testing it against the Bill of Rights. We submit that this has the potential to undermine
the enforcement of the Bill of Rights in relation to most South Africans who may not be
adequately legally represented before the courts. In this regard note should be taken of the
subjection in s 8(1) of the judiciary to the Bill of Rights. They are thereby obliged to have
regard to its provisions when applying any law.
68 See Bennett op cit note 10 at 5.
69 See Gordon R Woodman & A G Obilade (eds) Afiican Law and Legal Theory (1995) xxiv.
70
law. Rather, the terms are used relatively to indicate the commonly
accepted dominant forms of customary law.
(a) Living Customary Law

Living customary law is used to denote the practices and customs of the
people in their day-to-day lives. This, in our view, is the type of law that
Hanmett refers to as the
,customary law [which] emerges from what people do, or-more accurately-from
what people believe they ought to do, rather than from what a class of legal specialists
consider they should do or believe.... [Tihe ultimate test is not, "what does this judge
say?" but rather "what do the participantsin the law regard as the rights and duties that
apply to them?" 71
The living customary law is dynamic and constantly adapting to
changing social and economic conditions. It has been observed in this
regard that '[I] t is increasingly evident that what might be observed by or
recited to researchers as being new customary norms, are the product of
the melding of local customs and practices, religious norms and social and
economic imperatives' 7 2 (and one may add constitutional imperatives), 7 3
with the result that living customary law is formed out of interactive
social, economic and legal forces which give it its flexibility in content.
An understanding of the concept of living customary law requires a
discussion of some theoretical issues. Primarily, the fact that living cus-
tomary law is non-state law raises the question whether it is law at all. This
question arises in the context, as already stated, of a total lack of a
comprehensive theory of African laws, 7 4 as well as against the background
of a legal positivist outlook which characterizes the outlook ofjudges, the
legal profession and legal scholarship in most modem legal systems, 75
including South Africa.
Living customary law may find a home in a number of legal theoretical
frameworks, especially the sociology of law and legal anthropological
perspectives propounded notably by Eugen Ehrlich 7 6 and Sally Falk
Moore. 77 The points that unite these theoretical frameworks, for our
purposes, are their de-emphasis of the idea of law as state-generated and
the importance to the concept of law of the observed reality in the
day-to-day lives of human beings.
Although Ehrlich does not offer a comprehensive sociological theory
70 See Chuma N Himonga Family and Succession Laws in Zambia: Developments since
Independence (1995) 16-32.
71 Ian Hamnett Chieftainshipand Legitimacy: An anthropologicalstudy of executive law in Lesotho
(1975) 10 (emphasis in the original).
72 Agnete Weis Bentzon et al Pursuing Grounded Theory in Law: South-North Experiences in
Developing
73
Women's Law (1998) 45.
As the Constitution rubs into the lives of individuals it is bound to filter into the
experiences of communities that contribute to the norm-shaping melding process.
74 That is, the laws of societies indigenous to Africa. See Woodman and Obilade op cit note
69 at xi. 75 Roger Cotterrell The Sociology of Law: An Introduction (1984) 10.
76 See Eugen Ehrlich FundamentalPrinciples of the Sociology of Law (1936).
77 See Sally Falk Moore Law as Process: An AnthropologicalApproach (1978).
of law,78 several aspects of his conception of law are useful to our

understanding of living customary law. The most important is his idea of
living law ('lebendes Recht'), which he considers to be the rules which
govern the conduct of people. These rules derive their force not from an
external authority, but from the social associations within which people
live their lives. He defines a social association as 'a plurality of human
beings who, in their relations with one another, recognise certain rules of
conduct as binding, and, generally at least, actually regulate their conduct
according to them'. 79 The social associations include the state, ethnic
groups, religious affiliations, and the family. It is the inner orderings of
these associations, which constitute law in so far as they define the rights
and duties of members of the association and generate the 'sanctions' for
non-compliance. Ehrlich also draws a distinction between living law and
norms for decision. Norms for decision, unlike living law, are made by
judges on the basis of living law and they are made for judges for deciding
disputes, but they are not part of living law; they are mere dogma or
theory. 80 Occasionally norms for decision may become a part of living
law, when they actually reflect the reality of the norms that govern the
conduct of the members of a society. 8 ' Thus according to Ehrlich, the
reality of law is not to be found in state-made orjudge-made norms only,
but largely in the orderings of social associations which also supply the
sanctions for the effectiveness of the norms.
An aspect of the concept of living customary law to which the
sociology of law,8 2 legal anthropology and even certain forms of legal
positivism have contributed, is the question of how to distinguish the
legal from the non-legal. The question, in other words, is how living
customary law may be distinguished from customs and practices that do
not constitute legal norms. Can an outsider to the customary law com-
munity, like a judge, capture what in the social ordering of a community
constitutes legal norms for purposes of applying such norms to a case
before him or her? For, as Cotterrell points out, ultimately 'the lawyer
needs a test to tell him what materials he can rely upon in legal argument
before a court or in devising legal strategies which may one day be tested
in litigation. 83 Obviously, these questions are part of the whole question
of whether living customary law is law or not. But here we focus more
specifically on the characteristics of living customary law that mark it out
from mere customs and practices to make its ascertainment and applica-
tion by the courts possible. In Mlophe v Mahlalela,84 Judge van den Heever
recently voiced the quest for the distinguishing marks of living customary
78 For discussion and critique of Ehrlich's idea of law see Tetsumi Kato 'Mores as Living
Law: Sociology of Law and Economic Anthropology' based on the first chapter of his book
Hoshakaigaku Shukyoteki Shinsei ... Sociology of Law: Religious Mentality and the World of Law
(1994) 3-27. 79 See Ehrlich op cit note 76 at 39.
80 Ehrlich op cit note 76 at 41. 81 Ehrlich op cit note 76 at 3-21, 61-82.
82 Ehrlich (ibid); Kato op cit note 78. 83Cotterrell op cit note 75 at 41.
84 1998 (1) SA 449 (T).
law when he said that 'it cannot8 be accepted that all cultural practices are
indigenous law and vice versa'. 5
Applying Hart's analysis of social rules, Hund identifies a number of 86
characteristics of customs which qualify as (living) customary law.
There is certainly one point of similarity between customary law rules and
mere customs. In both cases the behaviour or conduct under assessment is
general in the sense that it is regular and repeated by most of the group
when the occasion arises, but the similarity ends there. In the case of a
rule, more than mere convergence of behaviour is required. Deviation
will be met with pressure for conformity, which is not the same with
deviation from a mere custom or usage. But, more importantly, a rule has
an internal aspect that a mere usage does not have. The internal aspect is
that some members of the community must at least look upon the
behaviour in question as a general standard to be followed by the group as
a whole. In other words, some members of the group must actually
consider the conduct in question as dictated by an objective rule that they
consider to be binding on the group as a whole. Thus, according to Hund,
customary rules are created by the actual, visible critical behaviour of the
group,8 7 and, most importantly, by the internal aspect by which people
consider the conduct or particular behaviour to be dictated by an existin8 8
rule-by notions of 'right' and 'wrong', 'ought', 'must' and 'should'.
This view approximates Hamnett's idea that a practice which is regarded
as a rule must be regarded by the community as creating rights and duties
binding on them. 8 9 The number of people who must be of this view is,
in Hund's opinion, not definite. It is sufficient that the majority of the
group are. The fact that there is a 'minority [in the group] who not only
break the rule but refuse to look upon it as a standard for themselves '90 is
irrelevant.
Thus, living customary law can be isolated from behaviour or customs
that are not norm setting, 91 and the group's view of its own behaviour is
central to the process of norm isolation.
85 At 457H-I.
86
John Hund' "Customary Law is What People Say it Is"-H L A Hart's Contribution to
Legal Anthropology' (1998) 84 (3) ARSP (A~rhivfrRechts-und Sozialphilosophie) 420.
87 Ibid at 423. 88 Ibid at 429.
89 Hanmett op cit note 71 at 10. Hannett also argues (at 13) that the fact that there may in a
given society be 'intermediate social groups whose corporate and semi-independent character
validates their own local law' does not detract from the fact that (living) customary law consists
of norms of a social nature (of a society as a whole).
90 Hund op cit note 86 at 427.
91 See also Kato op cit note 78 who writes about mores or customs as living law and records
identifying marks of mores which constitute norms. These are somewhat similar to those
identified by Hund and Hamnett. There are three characteristics of such norms. Firstly, a more
is a social fact in the sense that it is repeated in dealings by the people concerned. Second, it has
a prescriptive character in that it regulates the conduct of the individual member from outside
of himself, not through an external enforcement machinery, but through shared beliefs. Third,
it has the character of a common will in that it restrains individual will. This common will
occurs not in order to maintain the order of a group or to offer the means to solve a dispute, but
.522 THE SOUTH AFRICAN LAW JOURNAL
The perspective of legal pluralism, which is rooted in Sally Falk

Moore's legal anthropological idea of law as process, 92 has equally con-
tributed to our understanding of living customary law. Griffiths93 asserts
that legal pluralism perceives the presence in a social field of more than
one legal order. Thus:
'[L]aw and legal institutions are not all subsumable within one "system" but have
their sources in the self-regulatory activities of all the multifarious social fields present,
activities which may support, complement, ignore or frustrate one another, so that the
"law" which is actually effective on the "ground floor" of society is the result of
enormously complex and usually in practice unpredictable 94 patterns of competition,
interaction, negotiations, isolationism, and the like.'
Sally Falk Moore's idea of law as process advances this conception of law
by clarifying the nature of the social fields and outlining their relationship
with each other. Briefly, formal legal institutions (of the state) may enjoy a
near monopoly on the legitimate use of force. However, they do not have
monopoly with regard to effective coercion or inducement. This is because
'between the body politic and the individual, there are interposed various
smaller organized social fields to which the individual "belongs" [which]
have their own customs and rules and the means of coercing or inducing
compliance'. 95 The rule-generating and rule-upholding social fields are
semi-autonomous in nature, which means that they are not fully autono-
mous. They are not autonomous from the wider state polity within which
they are located. But, equally, they are not totally under the domination of
the state. The rules of the state may invade, or even seek to legislate out of
existence, the rules of the semi-autonomous social field. But this does not
guarantee that the rules of the96semi-autonomous social field will, in reality,
be replaced by the state rules.
The idea of the semi-autonomous social field is also particularly
important to our conceptualization of living customary law in so far as it
holds that the various social fields are not independent; they intersect and
are capable of influencing each other. This suggests that state courts,
operating as they do within the web of intersections of semi-autonomous
social fields, some of which generate rules of living customary law, may
actually apply living customary law. In other words, state courts, or at least
some of them, may apply norms that correspond to living customary
law.9 7 While the decisions of courts which apply living customary law
may not be used as precedent in the resolution of disputes in the same way
to form a deep and profound collective mentality, especially collective unconsciousness.

Cotterrell has, on the other hand, criticized Ehrlich's distinction between the legal and
non-legal as being too vague and general. See Cotterrell op cit note 75 at 41.
92 Moore op cit note 77.
93
John Grifliths 'What is Legal Pluralism?' (1986) 24Journalof Legal Pluralismand Unofficial
Law 1. 94 Ibid at 39. 95 Moore op cit note 77 at 56-7.
96 See B Rwezaura 'Indigenous Responses to the Imposition of Colonial Law: the
Case of
the Kuria People of Tanzania' in P Sack and E Minchin (eds) Legal Pluralism: Proceedingsof the
Canberra Law Workshop I/I (1986) 125.
97 Apparently, Ehrlich does not completely dismiss the idea of state courts applying rules of
living law in so far as he suggests in various places that norms for decision represent living law
(see for example Ehrlich op cit note 76 at 82 and 135).
as western courts use precedent, they may provide a useful indication of
what living customary law might be at a given point in time. However, a
word of caution is necessary. Although a court may be capable of
applying living customary law, the exact extent to which the decision
reflects living customary law is not easy to ascertain. This is because of the
difficulty of measuring the degree to which the justice, magistrate or
judge is influenced in his or her decision by factors outside the living
customary law, in the context of the operation of other semi-
autonomous social fields. It would therefore be necessary, whenever
ascertaining living customary law from the decisions of these courts, to
compare the norms of living law generated by them with norms gener-
ated in other spheres such as the family or other semi-autonomous social
fields belonging to systems of living law.
In advancing the argument that the decisions of state courts may reflect
living customary law, reference may also be made to Himonga's sugges-
tion elsewhere that whether or not a state court's decisions are completely
divorced from living customary law may depend more on the structure of
the court than on the inherent incapacity of all state courts to apply living
customary law. 98 Structure, in this context, means the organization of a
court or tribunal, in terms of the following: its constitution (ie personnel);
its litigation procedures; its relationship to the professionalized courts in
the judicial system; the relationship of its personnel to the grass-root
communities, including their membership in semi-autonomous social
fields; the input made by various actors in the interpretation of norms by
the court during the proceedings; and the degree of influence of western-
based components of the legal system on the court's judges. All these
factors have a bearing on the extent to which the court's decisions may
contain living customary law.
The example supporting this argument is drawn from the Local Courts
of Zambia, which are the lowest courts in the judicial system. The
decisions of these courts are more likely to reflect norms of living
customary law than those of the magistrates' courts and superior courts for
three main reasons. First, the judges are lay people who are in some cases
also members of the local customary community and heads of their
families. They therefore often belong to the semi-autonomous social
fields of systems of living customary law. It would be difficult to imagine
that these adjudicators completely abandon their living customary law the
moment they don the state hat to hear disputes arising within their
community in state courts. Secondly, because lawyers do not appear in
these courts there is little or no influence of professionals, trained in
western jurisprudence, on the interpretation of customary rules by the
justices. This minimizes the distortion of customary law through western
legal concepts and perceptions of law. Finally, because the judges are all
members of African communities, there is little chance of their being
misinformed about the customary law practised by the people, even
98 Himonga op cit note 70 at 13-33.

3Z4 THE SOUTH AFRICAN LAW JOURNAL
though this does not exclude the possibilities of mistaken understanding

of the rules by the judges. But the latter problem is common to all systems
of law. In any case, the informal and flexible nature of procedures of
hearing cases by these courts greatly minimize the incidence of such
mistakes.
Bentzon's book, which is partly based on the findings of empirical
research conducted by the Zimbabwe-based non-governmental organi-
zation, Women and Law in Southern Africa Research Project (V-LSA),
seems to confirm the argument advanced here. The findings of the
research show, firstly, that the superior courts' version of customary law is
far removed from the customs and practices of the people (living custom-
ary law) 9 9 and, secondly, that the lower courts, among other tribunals,
which are placed relatively close to the community in terms of their
structures as defined above, are receptive to the law practised by the
people on the ground. The superior courts do not, in contrast to the lower
courts, 'readily recognise the interactive forces that affect and effect the
evolution of custom, rather they demand that strict recognition criteria
are met ... and are very reluctant to reinterpret customary law, even in
the face of what... seems to be clear empirical evidence of change in the
customary norms'. 100
Bentzon's book and the studies generated by WLSA in Southern Africa
clearly raise another important point concerning the theoretical perspec-
tives for understanding and defining living customary law. These studies
show that a correct identification of living customary law and the
methods of its evolution are closely connected with not only the use of a
combination of theoretical and methodological perspectives, but also the
use of grounded theoretical perspectives and empirical research method-
ologies.10 1 These studies have made further contributions to our under-
standing of the concept of living customary law. First, they have high-
lighted the problems relating to the interpretation (and sometimes the
construction) of customary law in contemporary postcolonial African
states. Secondly, they have contributed to concept building by showing
empirically the gap that exists between living customary law and official
customary law and, thirdly, they have raised issues of the conceptualiza-
tion of customary law from a gender relational perspective. This last
contribution is worth emphasizing as a rare undertaking in contemporary
studies of African customary law. The gender relational approach is
'premised on the view that law is a process which both influences and is
99 Bentzon et al op cit note 72 at 241-2.

100 Bentzon et al op cit note 72 at 45. This is also true of the Zambian magistrates' and
superior courts although there seems to be a change taking place in the approach of the
magistrates too. See Himonga op cit note 70 at 189.
'01 For detailed exposition of these perspectives and methodologies see Bentzon et al op cit
note 72;Julie Stewart 'Why I Can't Teach Customary Law' inJohn Eekelaar and Thandabantu
Nhlapo (eds) The Changing Family: InternationalPerspectiveson the Family and Family Law (1998)
217.
influenced by the interaction between gendered human actors'. 02 The
co-existence in African societies of individual and communal rights and
obligations are considered important in taking into account the 'relation-
ships based on marriage and kinship and how these influence the position
1 3
of women and men and shape gender relations'. 0
Two last issues concerning the character of living customary law must
be dealt with. These are, first, the flexibility of customary law and the
potential this creates for manipulation of the rules and, secondly, the
changing nature of living customary law and the internal instability this is
likely to create within the body of living customary law. The two issues
are dealt with below in turn.
The fact that the norms of living customary law are loose and flexible
has, according to Hund, led to another kind of rule scepticism in legal
anthropology. It is argued that because of the loose nature of customary
rules, they 'are not normally used deductively. Instead they are twisted
and manipulated for personal (and political) gain .... [T]here is nothing
to circumscribe group members' use of discretion in their use of custom-
ary rules'.' 04 Consequently, 'there is nothing that people treat as standards
of customary law, and so nothing in their behaviour which manifests the
internal point of view characteristic." 0 5 Again, following Hart, Hund
convincingly disposes of this argument by stating that deception and rule
manipulations may, indeed, exist under certain conditions and even in
perfectly good rule-bound systems. Furthermore, such manipulations
may for a while even be regarded as the norm. However, it is not logically
possible that rule-following should always be like this.'0 6 And to argue
that the existence of rule manipulation in these situations nullifies the
existence of iules in the system, 'impales us on the horns of a false
dilemma, namely that rules are always what they might be in some
Platonic heaven-always known, always recognized, always fol-
lowed- 7or there are no rules at all-everything is pretence and manipu-
10
lation'.
Furthermore, Hund argues that the manipulation of rules, or 'rule-
twisting', and power politics may indicate the impossibility, though this is
often denied, of separating law from politics. 10 8 This is particularly true,
in our view, in customary systems of law in which gender and age have
long played an important role in the interpretation and definition of
norms. Faced with the challenges of change threatening the status quo,
recourse to manipulations by the powerful may not be uncommon or
unexpected. The answer to the problem, in our view, is not to deny the
existence of the rules per se, but to devise ways of guarding against these
102 Bentzon et al op cit note 72 at 27.
103 Bentzon et al op cit note 72 at 26. 104 Hund op cit note 86 at 429.
105 Hund op cit note 86 at 430 (emphasis in the original). 106 Ibid.
107 Ibid. 108 Hund op cit note 86 at 431.
:526 THE SOUTH AFRICAN LAW JOURNAL
manipulations and to use methodologies 10 9

of investigating living customary
law that expose such manipulations.
One way of guarding against such manipulations is, according to
Hund, the intervention of independent legal institutions that impose
'standards of restraint on the exercise of rule manipulations and power
politics'.1 1 0 Checks and balances against manipulation of customary rules
may also be enhanced by methods of investigating customary law that do
not only catalogue the rules but also seek to understand the values or
underlying principles of such rules. Stewart observes that there is often a
general agreement within relatively diverse African communities in Zim-
babwe on the general principles and values underlying rules in a given
field, such as inheritance. The differences only relate to the way the
general principle is implemented or accomplished in a given community
or family. 111 Therefore, by looking at the underlying principle rather than
just at the alleged rule, a court or any interested person would be able to
identify instances of manipulation or even of distortion of the customary
rule. A further value of the general underlying principles of customary
law is that they aid in the actual process of identifying the rules them-
selves. According to Stewart, if institutions that administer customary law
such as families, chiefs or courts (not necessarily superior courts), as a
matter of practice consistently take actions that correspond with the
underlying principles or values of customary law in the field concerned,
then the 'value is translated into action as a custom or a norm'. 112
With regard to the second issue, the theoretical perspectives discussed
above largely view law as a process and, inevitably, living customary law as
a system that is constantly undergoing change. This creates an element of
internal instability within the system of living law that is admittedly very
difficult for a legal system, structured to deal with systematized and
written rules of law, to manage. However, Stewart's idea of 'values' or
'underlying principles of customary law' may be helpful in resolving this
problem. Because values are often more durable, even where the rules
seeking to translate and implement such values change, focusing on them
rather than on the rules themselves may provide the needed internal
stability to living customary law. Furthermore, the fact that every custom-
ary rule has to be interpreted in such a way that it 'promote[s] the spirit,
purport and objects of the Bill of Rights' creates the framework for the
courts to accommodate the changes that occur in any system of law as
society marches on. Within this framework, there is a possibility for courts
not only to adopt the changes that take place in living customary
114
law, but
also to filter that law through the constitutional sieve.
109 The grounded empirical methodologies being developed by WVLSA are pertinent to this
goal. For discussion of these methodological approaches see Bentzon op cit note 72.
110 Hund op cit note 86 at 433. 111Stewart op cit note 101 at 222-4.
112 Stewart op cit note 101 at 226.
113Section 39(2) of the Final Constitution.
114See Himonga op cit note 22 at 11-17.
APPLICATION OF AFRICAN CUSTOMARY LAW UNDER, CONSTITUTION 327
*What we argue here is that living customary law is law, provided that
law is defined within theoretical perspectives other than those belonging
to the centralist, rule-based positivist approaches to law. It is therefore
necessary, in concluding this section, to discuss briefly the theoretical
perspective of legal positivism.
One version of positivism asserts that only observed facts or phenom-
ena constitute scientific knowledge and 'not speculation which seeks to
"look behind" observed facts for ultimate causes, meanings or es-
sences'. 115 Within this world of meaning, law is made of rules 'which can
be recognized as such by relatively simple tests', the most common of
which are when the facts in question constitute legislation or ratio
decidendi. Things such as the values or policies that give meaning to the
rules are6 not observable facts and do not, therefore, form part of the
rules. 11
Cotterrell makes a useful distinction between positivism in a strong
sense and positivism in a weak sense. Positivism in a strong sense encom-
passes the legal positivism referred to above and it implies that what is not
measurable is not knowledge at all. Positivism in a weak sense, on the
other hand, simply refers to 'scientific method in its most general and
uncontroversial form; that is, reliance on observed data as the basis for
considered judgments and a refusal to speculate beyond what observed
experience will justify as plausible'. 1 17 According to him, the positivist
method only becomes a barrier to the recognition of the complexity of
law as a sociological phenomenon when it 'restricts the subject matter of
inquiry to a form in which broader understanding is likely to be curtailed
by the erection of rigid boundaries between compartments of knowl-
edge'. 1 8 In our view, Cotterrell rightly considers positivism in the strong
sense as 'an act of escape from commitments, an escape masked as
definition of knowledge'.' 19
Legal positivism is also closely associated with legal centralism in the
sense that the state is seen as the only source of law and law enforcement.
After all, state formalism (ie legislation and judicial decisions) contributes
to the major tests of law. According to Grifliths, this jurisprudence views
law as the product of state monopoly on law making, and this state-
generated law is not only administered by and enforced by a single set of
institutions, but is also applicable uniformly to all persons in a given polity.
To the extent that other normative orderings exist in the state polity, they
are 'hierarchically subordinate to the law and institutions of the state' .12
Legal positivism as defined here, however, raises problems for the
conceptualization of living customary law. For, as already mentioned
above, this is a system of law, the tests of which not only defy state
115 Cotterrell op cit note 75 at 10. 116 Ibid.
117 Cotterrell op cit note 75 at 15. 118 Ibid.
119 Ibid. Cotterrell quoting Kolakowski with approval.
120 Griffliths op cit note 93 at 3. See also Cotterrell op cit note 75 at 27ff, referring to the
Austinian theory of legal positivism.
formalism but include the values or principles that inform the norms.
And, as Cotterrell points out, while legal positivism is a:
'useful way by which the lawyer or legal analyst identifies the subject matter of his
inquiries, it necessarily directs attention away from the idea that law consists of human
processes. To treat the data of law merely as legal rules may be a static (and therefore
inadequate) representation of a dynamic phenomenon: the reality of regulation as the
continually changing outcome of a complex interaction of individuals and groups in
society.
We submit, therefore, that a useful theoretical framework for the
conceptualization of living customary law in the South African context is
that which recognizes the weaknesses of positivism in a strong sense, on
the one hand, and combines positivism in a weak sense with the sociology
of law and legal anthropological perspectives, on the other hand. In other
words, we suggest the need for a theoretical framework which rejects a
strict separation between science and values, 122 or law and values, or
principles and, furthermore, which acknowledges the existence of law
outside of state formalism. The element of positivism in the weak sense in
this theoretical framework provides a methodological approach that
enables the lawyer to distinguish law from non-law. This may be used in
combination with the tests applied to distinguish the norms of living
customary law from other aspects of social life discussed above. The
sociology of law elements of this framework ensure that the enquiry into
what is law is not closed 'before it begins, by conclusively specifying the
nature of the object of study in a definition'. 123
We submit further that in the South African situation, the recognition
of a right to culture also implies the recognition of theoretical frame-
works of law that he outside the legal positivist approaches to law.
Denying that law can exist outside the state-generated law is tantamount
to denying that there is a right to culture.
(b) Official Customary Law

'Official customary law' 124 is of course a contradiction in terms, but it
is used for the version of customary law as described by observers outside
the communities in which the customary law in question is practised.
Some have graphically described this version of customary law as the
'captured and formalized versions that are recorded in the law reports,
built upon and interpreted through an An o-Saxon or Roman-Dutch
Law procedural and substantive law filter'. 25 The distinctive character-
istic of this version of customary law is, therefore, its detachment from the
customary law practised by the people. The clearest examples of this
version in South African law are the codified forms of customary law such
121 Cotterrell op cit note 75 at 10-11. 122 Cotterrell op cit note 75 at 15.
123 Cotterrell op cit note 75 at 41.
124 This is also referred to in some literature as created or invented customary law and as
lawyer's customary law. See, for example, G R Woodman 'How state courts create customary
law in Ghana and Nigeria' in B W Morse and G R Woodman (eds) IndigenousLaw and the State
(1988) 181. 129 Stewart op cit note 101 at 217.
126
as the Natal Code of Zulu Law and the Kwazulu Act on the Code of
Zulu Law, 27 court precedents and rules of customary law derived from
academic literature on customary law. 128 Also falling in this category are
descriptions of African customs in anthropological literature.' 29 The
problem with all these sources is that they may present customary rules,
which are out of date and no longer represent what people do in practice.
The emergence and continued existence of official customary law has also
been explained in terms of the difficulties of applying customary law in
the courts by court officials who are ignorant of the customary rules and
their cultural contexts. In this connection, Van Niekerk has observed that
the '[I]gnorance on the part of the courts and a lack of accurate sources on
which to rely have led to an adulterated indigenous law neither in line
with social reality, nor the underlying values of indigenous African
0
13
law.'
If one were to find a home for official customary law in legal theory, it
would be some form of legal positivism. Because official customary law is
to be found mainly in statutes and decisions of the courts, and because it
can be enforced by state law enforcement machinery, it is more likely to
continue to be accepted by the courts. There are two main reasons why
the concept of official customary law is particularly problematic in South
Africa today.
The first reason is that the application of official customary law by the
courts may result in the development of ajurisprudence that entrenches a
system of customary law that is oppressive to certain groups of the African
population, especially women and children, contrary to the Constitu-
tion. 13 While living customary law is considered to be more flexible and
accommodative of women's rights, 13 2 official customary law is perceived,
in historical and contemporary terms, as the embodiment of institution-
alized gender inequality. 1 33 An illustration of the latter may be drawn
from the law of marriage.
One of the prominent rules of a customary marriage requires that
'lobolo' be paid back to the husband as a condition for the dissolution of a
customary law marriage, a rule that may, indeed, deny women their
126 R151 of 1987. 127 16 of 1985.
128 Some of the most commonly cited by the courts are T W Bennett op cit note 10 and
Bekker op cit note 6.
129 For example I Schapera A Handbook of Tswana Law and Custom (1955).
130 G van Niekerk 'Indigenous Law and Narrative: rethinking methodology' (1999) 32
CILSA 208 at 212. 131 See especially ss 9 and 12 of the Constitution.
132 Himonga 'Law and Gender in Southern Africa: The Impact of Human Rights with
reference to Family Law' in York Bradshaw and Stephen Ndegawa The Uncertain Promise of
Southern Afica (2000) forthcoming.
133 W Ncube 'Muddling in the Quicksands of Tradition and Custom and Staking Down the
Slippery Slopes of Modernity: The Reform of Marriage and Inheritance Law in Zimbabwe'
(1996) 13 Zimbabwe LR 1 at 13. See also van der Meide op cit note 3 at 105; Alice Armstrong
et al 'Uncovering Reality: Excavating Women's Rights in African Family Law' (1993) 7
InternationalJournalof Law and the Family 314 at 327.
freedom to dissolve unhappy marriages. 134 That this rule may have official
origins seems evident from the Native Appeal Court's decision in Bobotyane
vJack 1 35 The plaintiff in that case paid 'lobolo' for his wife. He left his wife
after the birth of their second child and was away for 25 years. In the
meantime, his wife lived with another man and had children with him.
When the husband returned he made a claim to the children of his wife and
her lover. He sued the wife's lover, claiming that the children were his and
that he had the right of guardianship over them. The Commissioner's
Court upheld his claims. The defendant appealed, but the Commissioner's
decision was upheld. In the appeal court, it was not alleged that the
plaintiff's 'lobolo' had been returned, but it was contended that the plain-
tiff's long neglect of his wife and his failure to 'recover' her amounted to a
rejection of his wife and the dissolution of the marriage.
In its judgment the Native Appeal Court stated, inter alia, that accord-
ing to customary law the wife could repudiate her husband and dissolve
the marriage thereby, but in addition she was required to restore the
'lobolo' or part thereof. After observing that it may happen that the wife's
father or his representative may decline to restore the 'lobolo' and
frustrate the woman's desire to terminate a customary union, the Court
stated, and this is the critical point for our present purposes:
'Custom apparently pictured her [the wife] driving back her dowry herself, but our
Courts have come to vest a fuller ownership in those cattle in the dowry holder than did
Native Law. Hence she is today compelled to seek the1 36aid of the Court for an order
compelling the dowry holder to make proper refund."
This statement represents a clear admission by the courts of their role in
the creation of certain rules of official customary law. According to the
Court's statement, under traditional law as practised by the people,
'lobolo' did not fully belong to its male holder (usually the male family
head); the woman in respect of whom it had been paid had the right to get
hold of it and to return it to her husband if she was unhappy with the
marriage or aggrieved by her husband. If this representation of the
traditional law by the judge was correct, then the intervention of
the courts in the application of customary law was to some extent
responsible for the emergence and existence of a body of customary law
which was both different from the living customary laws and oppressive
to certain sections of the African communities.
The second reason why the concept of official customary law is
problematic in South Africa concerns the recognition by the Constitution
of African customary law as part of the South African legal system,
especially the guarantee of individual and group rights to culture. This
raises the question, as already stated, as to which customary law is
recognized and entrenched as a right. Is it the official customary law or the
living customary law? If the customary law entrenched by the Constitu-
34 Bennett op cit note 22 at 118; Himonga op cit note 70 at 278.
135 1944 NAC (C&O) 9. Another insight into how the Native Appeal Court, in our view,
entertained distorted views of customary law may be seen in Mfazwe v Modikayi 1939 NAC
(C&O) 18. 136 Bobotyane case op cit note 135 at 11.
tion is official customary law, the entrenchment of the right to culture by
the Constitution may be considered to be a mere sham, a guarantee of a
right based on state 'culture' (or law) rather than on the people's culture
(or law). We would argue that, at the very least, since the right to culture
is conferred on individuals and on cultural groups, it is the law generated
by the cultural communities, that is recognized by the Constitution. It is
not the law created by the state and its institutions, or stated by academics
whose writings are based on official records (rather than on, for example,
recent empirical research on the customary law of the communities
concerned). The right to culture implies the entrenchment of the living
customary law as opposed to official customary law. In other words, if the
right to culture is the right of the people, it seems to follow that what is
entrenched is the right of the people to have the courts apply the law
practised by them. Indeed, we cannot agree more with Bennett, who says
that:
'[u]less a customary rule is grounded on contemporary social practice, it must in
principle be deemed invalid. A critical issue in any constitutional litigation about
customary law will therefore be the question whether a particular rule is a mythical
37 would add, ossified
stereotype, which has become ossified in the official code [and, we
in case law], or whether it continues to enjoy social currency."
This challenges the courts to apply living customary law, whenever
customary law is applicable within the constitutional framework for the
recognition of customary law. On the other hand, the application of
official customary law may result not only in the infringement of the
rights of certain groups in the African communities, such as women and
children but also in the infringement of the general right to culture by
state institutions. In the next section we examine three recent cases to
show how the courts have, in their application of customary law, regarded
the important issue of the conceptualization of customary law. It is
submitted that the way the courts have responded to this issue also
provides a significant measure of the extent to which they have imple-
mented the constitutional right of the people to culture, as opposed to
implementing the sham 'state's right to culture'.
Conceptualizing customary law in the courts since 1993

The three cases which have a bearing on the conceptualization of
customary law under the constitutional dispensation1 4 0are Mthembu v
13 9
Letsela,1 3 8 -lophe v Mahlalela and Mabena v Letsoalo.
In Mthembu the Transvaal Division of the High Court considered the
principle of primogeniture in customary succession law. The applicant, a
Zulu woman, alleged that she had married the deceased according to
customary law in 1992. He died intestate in 1993. At the time of his death
the deceased owned a house in which he and his wife and child had lived.
Their seven-year old daughter was the only child of the deceased. The
137 Bennett op cit note 5 at 64. 138 1997 (2) SA 936 (T).
139 Op cit note 84. 140 1998 (2) SA 1068 (T).
applicant alleged that since the death of her husband, the relationship
between her and the parents of the deceased had become strained and that
they demanded that she and her daughter vacate the house and hand over
the deceased's movable assets to the first respondent, the father of the
deceased. The first respondent, furthermore, refused to contribute to the
maintenance of the applicant and/or her daughter and did not regard
himself bound to assume any responsibility for their support. He denied
that his son was ever married to the applicant and that neither the
applicant nor her daughter was part of their family. The applicant pro-
duced evidence to try and prove that there was a valid marriage between
her and the deceased, which the first respondent and his family knew
about. She therefore approached the court for relief on the premise that
she was married to the deceased under customary law and that the
customary rules of succession applied to the estate of the deceased and its
devolution. However, her claim was not based on the customary law
supporting her right to stay in the house or to be maintained by the first
respondent. Instead she sought, inter alia, a declaration that the rule of
customary law (ie the rule of primogeniture), which generally excluded
African women from intestate succession, was discriminatory against
women, contrary to s 8 of the Interim Constitution (now s 9 of the Final
Constitution), and that her daughter was the deceased's only heir. The first
respondent opposed the application on the ground that according to the
customary law governing the estate he, and not the child, was the heir. He
claimed that the house devolved on him after the death intestate of his son,
by virtue of the operation of the customary law rule of primogeniture.
The court made extensive, obiter remarks regarding the constitutional
issue raised above. Le RouxJ was of the view that the customary rule of
primogeniture was not discriminatory and not in conflict with s 8. In
reaching this decision he apparently relied on official versions of custom-
ary law recorded in academic literature1 4 1 and the opinion of two
academics, one of whom 'quotes numerous decisions of the Native
Appeal Court in support of the legal proposition under consideration',
according to Le RouxJ. 142 Referring further to the textbook view of the
rule of primogeniture, Le Roux J stated:
'This view of the rule relating to succession has much to commend itself. If one
accepts the duty to provide sustenance, maintenance and shelter as a necessary corollary
of the system of primogeniture (a feature which has been called "one of the most
hallowed principles of customary law") [it is] difficult to equate this form of differen-
tiation between men and 'women
143
with the concept of "unfair discrimination" as used
in s 8 of the constitution.
However, it is interesting that Le RouxJ failed to attach significance to
a statement in the textbook, on the very page he cited, to the effect that
'this great verity [concerning the duty of support accompanying the
principle of primogeniture] has recently been challenged by a study of the
inheritance patterns in a Lebowa village. Several practices came to light,
141 Referring to Bennett op cit note 10. 142 At 945G. 143 [bid,
which did not conform to the orthodoxy of customary law. ... '144
Surely, this statement should have motivated the court to investigate the
possibility of the existence of a difference between the official customary
rule it relied upon and the law actually practised by the people (the living
customary law). The fact that the judge missed the implication of this
statement may reflect a methodological orientation of the courts in their
application of customary law. In this connection Van Niekerk has noted
that in their application of customary law, the courts employ the rule-
centred paradigm. This paradigm leads them to search for rules in 'rule-
centred literature studies, based on restatements of indigenous law'. 145 As
a result, the courts are not motivated to look outside these resources to
other sources, such as the 'stories of women and children who have been
marginalized in indigenous law [as well as] the stories of all people who
live by indigenous law',146 to discover the content of the rules they seek
to apply. In our view, Van Niekerk correctly observes that the true living
law (whether this be indigenous or other law) does not consist 'simply and
entirely of rules .... The law also encompasses the narratives about those
rules -narratives which give meaning to the legal rules.' 147 There is a
need for the courts to go beyond the narratives embodied in the rule-
centred paradigm-the 'western, male-biased and often simply incorrect'
narratives' 4 8 in order for them to capture the relevant narratives as far as
indigenous law is concerned.
This methodological problem seems to surface also in the second
decision of the High Court in Mthembu a year later. 149 An important part
of that decision was to determine whether the daughter of the applicant
and the deceased, Tembi, was the only heir. The applicant's counsel
submitted, inter alia, that the customary rule of succession which pre-
cluded Tembi from being the heir 'ought to be developed in terms of
s 35(3) of the interim constitution, with due regard to the fundamental
value of equality, to avoid discrimination between men and women'. 150
Thus, counsel urged the court to develop the customary rule in question
in terms of the Bill of Rights. The respondent's counsel objected to this
on the ground, inter alia, that 'the task of developing the customary law
ought not to be undertaken by the court without the benefit of the views
of the community which is directly concerned with such develop-
ment'. 15 1 Our interest in this paper focuses on this submission and its
rejection by the court.
The court rejected the submission by the respondent's counsel outright
as lacking any merit. MynhardtJ relied for his decision on this point on the
Constitutional Court decision in Makwanyane152 to the effect that, even
though public opinion might sometimes be relevant in an enquiry before
the court, it is 'not a prerequisite for, or decisive factor in, the discharge of
144 Bennett op cit note 10 at 400. 145 Van Niekerk op cit note 130 at 209.
146 Ibid at 209-10. 147 Ibid at 209. 148 Ibid.
149 OP cit note 67. '50 At 681. 15' At 685.
152 OP cit note 35.
a court's function to interpret and apply the Interim Constitution'.153

With all due respect, it may be argued that the true meaning of the right
to culture and the effect of the recognition of customary law by the
constitution generally, obligates the courts in South Africa to consider the
views of the community concerned about its customary law, whether
the court is developing or merely applying customary law.' 54 It may be
submitted, moreover, that counsel's reference to the need to consult the
views of the community in Mthembu should not have been understood by
the court to be a reference to consult public opinion, but as a reference to
the need to hear the customary community's own views on the law
concerned. Thus, by dismissing counsel's submission, the court again
missed an important opportunity to engage the people whose right to
culture is protected by the Constitution and to look outside of the official
customary law rules in making its decision.
As stated before, the differences between official customary law and
living customary law challenge the courts to grapple with the issues of the
sources of the customary law they apply. To ignore this challenge is to risk
the courts not only 'immortalizing' as constitutional outdated versions of
customary law, which serve to perpetuate gender and other inequali-
ties,155 but also to deny the people subject to customary law the right to
their culture, as already stated. 1 6 It is perhaps worth noting that even in
countries in which the constitution does not entrench the right to culture
or accord customary law the kind of recognition it is accorded by the
South African Constitution, the courts have begun to recognize the
significance of the distinction between living customary law and official
customary law. In this regard, Rwezaura states that in Tanzania some
judges have begun to take a 'critical look at the nature of customary law,
arguing that such law ought not to be treated in the same way as statutory
law which is fixed and unchanging'. 57 Thus Judge Mwalusanya states
'our customary law (particularly the uncodified customary law) is a lving
5
law, capable of adaptation and development. It is not immutable.'
Also, the studies by the WLSA already referred to in this paper have
153 At 685.
154 See also van Niekerk op cit note 130 at 222 who observes that '[alithough it is not
compulsory for a court to take note of the views of the community, these very views may put
the rule-centred literature on indigenous law and the stock stories [from which the courts
ascertain the rules they apply] in proper perspective'.
155 Himonga op cit note 70.
156 See also Van der Meide op cit note 3 at 106. While we agree with the author that official
customary law does not warrant constitutional protection due to its lack of social basis we
cannot agree with his argument that the analysis and development of the right to culture and
equality should begin with the rules and values reflected in the so-called 'original uncorrupted
pre-colonial indigenous law and tradition'. The author fails to take account of the existence of
present-day living customary law which, we argue, is the customary law that the Constitution
demands be applied.
157 See B A Rwezaura 'Gender Justice and Children's Rights: A Banner for Family Law
Reform in Tanzania' in Andrew Bainham (ed) The InternationalSurvey of Family Law (1997) 413
at 443.
158 Maagwi Kimito v Gibeno Werema (unreported) cited by Rwezaura (ibid).
shown that lower courts in some Southern African countries researched
apply norms of living customary law. It is against this background and,
more importantly, against the background of the right to culture in South
Africa's Constitution that the attempt of the Transvaal Provincial Divi-
sion of the High Court to address the issue of the conceptualization of
customary law is to be appraised.160 The cases in point are -flophe v
Mahlalela159 and Mabena v Letsoalo.
Although it still referred to the official customary law in both instances
(ie textbooks), in HIophe, the court, at least, recognized the danger of
'trying to establish what indigenous law is by adopting a too positivistic
approach'. 161 This positivistic approach is closely associated with the rule-
centred paradigm, as stated earlier. The court had an opportunity to
ascertain living customary law via two witnesses who claimed to be closely
associated with the communities: the daughter of a Swazi chief who
claimed personal knowledge of, and expertise in, Swazi culture and who
was appointed by King Sobuza of Swaziland to assist in the revival of Swazi
traditions; and an official of the government of Swaziland, who was not
only responsible for information on Swazi law and custom, but was himself
the son of a chief, claiming personal knowledge of Swazi law and custom.
This case was finally decided on the basis of the constitutional principle of
the best interests of the child (it involved the custody of a child). Never-
theless, it has drawn our attention to a legal theoretical issue that is relevant
to the application of customary law in a constitutional framework.
Mabena v Letsoalo was a more important decision in this area. The case
involved the existence or otherwise of a customary marriage between a
woman and her deceased husband. The mother of the woman, rather
than her father, negotiated the marriage with regard to 'lobolo' and
consented to the marriage. The deceased husband's father denied the
existence of the marriage between his late son and the woman. He argued
that, according to customary law, a female (in this case the woman's
mother) could not be a guardian of her child for the purposes of
negotiating the child's marriage. Only a male person, in the ordinary
course, the father, could play this role.
While acknowledging the academic authors supporting this legal po-
sition, the court found that there were instances in practice where
mothers negotiated for and received lobolo, and consented to the mar-
riage of their daughters. Most importantly, in reaching this decision, the
Court relied on the evidence given by the woman in the proceedings.
The Court also noted that 'customary law exists not only in the official
version as documented by writers; there is also living law, denoting the
law actually observed by African communities'. 16 2 The court went on to
say that there might be a rule of the living customary law actually
observed by the community and testified to by the woman in her
159 Op cit note 84.
160 Op cit note 140. 161 I-Rope case at 457.
162 Mabena case at 1074.
evidence. It is also interesting that the court considered the recognition of

the rule of living customary law concerned to 'constitute a development
in accordance with the spirit, purport and objects' of the Bill of Rights (in
1 63
accordance with s 35(3)) of the interim Constitution.
Thus the court went beyond, if not outside, official customary law to
look for the applicable customary rule in the practices of the people as
attested by them, while at the same time implicitly confirming the
constitutionaity of such an approach. Clearly the court's approach is also
gender sensitive, resulting in the court's hearing of women's voices or
164
'stories of the marginalized', in Van Niekerk's words.
These cases will be considered further in the next section in so far as
they relate to the ascertainment and proof of customary law.
ASCERTAINING AND PROVING CUSTOMARY LAW

Meeting the challenge of the conceptualization of customary law and
the application of living customary law by the courts raises the practical
problem of how a court, which has to apply this law to a case before it,
should ascertain it. Section 1(1) of the Law of Evidence Amendment
Act 165 facilitates the proof of customary law by providing that the court
may take judicial notice of a rule of customary law 'in so far as such law
can be ascertained readily and with sufficient certainty'. Taking judicial
notice of a rule of customary law allows the court to apply the rule in
question without having to establish it by means of evidence. However,
this section only helps with the proof of official customary law, which is
in written form of one kind or another. Because it is in this form it is
relatively readily ascertained andjudicially noticed. As already stated, the
proof of official customary law by the courts is readily accomplished by
reference to 'rule-centred literature studies, based on restatements of
indigenous law' 16 6 as well as reference to precedents and the codes or
legislation embodying rules of customary law where these exist. The
section does not, on the other hand, help with the proof of living
customary law, which is in the breasts, as it were, of those who live by it
and is passed on orally, and its source is therefore purely oral information.
Of course, the courts may presumably take judicial notice of living
customary law as stated in recent empirical studies of customary practices
of the community whose customary law is under consideration, or by
examining the decisions of fora which apply systems of living customary
law, as the case may be. But even these may sooner or later become
doubtful sources as the customary law concerned continually changes.
The South African Law Commission recommends, inter alia, that: 'in
order to prove the existence or content of a rule of customary law, a court
163 At 1075. 164 Van Niekerk op cit note 130 at 210.

165 Op cit note 8. 166 Van Niekerk op cit note 130 at 209.
may... consult cases, textbooks and other written sources. .... 167 It is
respectfully submitted, however, that the ascertainment of customary law
from these written sources would only reinforce the undesirable applica-
tion by the courts of official customary law unless, of course, the sources
concerned constitute or represent recent empirical studies of the custom-
ary law concerned, as already stated.
The problems associated with the sources of this version of customary
law and its ascertainment and proof are undoubtedly daunting. One
hopes, however, that they will not lead to a retreat of the kind that denies
the existence of a divergence between official customary law and living
customary law.1 68 It may take as long as it took to raise the status of
customary law to the position it now enjoys in the legal system, to find
lasting solutions to problems of its application. We submit that this should
be seen as the real challenge to which the zeal that saw customary law to
the position where it is now in the legal system, should be directed in the
future. In the rest of this section we attempt to contribute to this goal by
suggesting three ways of tackling the problem of ascertaining and proving
living customary law. Some of these involve building on what already
exists for immediate purposes while others involve long-term measures.
First, living customary law may be ascertained and proved in terms of
s 1(2) of the Law of Evidence Amendment Act, by adducing evidence of
the substance of the rule in question in the proceedings. 1 69 Thus, use may
be made of appropriate documentary evidence or witnesses, including
'expert' witnesses. 17 The latter was the method used in both -lophe and
Mabena above. The South African Law Commission has also recom-
mended the use of assessors 'who may be selected from the community in
which the rule of customary law applies'. 171 Using the s 1(2) method to
prove customary law will, however, require a conscious decision on the
part of the courts to broaden the witness base, in order to include women
and children as members of the community whose customary law is being
interpreted. Much of the ascertainment of customary law presently is
made by reference, as Van Niekerk has aptly pointed out, to the narratives
of men. 1 7 2 This has also been shown to be true by studies of customary
law in colonial contexts. Furthermore, differentiating between men and
women and adults and children (with sufficient maturity and understand-
167 See Clause 7 of the Law Commission's Application of Customary Law Bill (Annexure A)
in the SALC Paper op cit note 18 at 108.
168 See AJ Kerr 'The role of Courts in Developing Customary Law' (1998) Obiter 41.
169 The SALC recommends the retention of this method. See the SALC Bill op cit note 167.
170 Clause 7(b) of the SALC Bill (ibid).
171 Clause 7(c) of the SALC Bill (ibid). It is noteworthy that the Commission, overall,
recommends a more active role for the court in ascertaining customary rules in allowing it to call
for various types of evidence as to the content of a particular rule. See also s 34 of the
Magistrates' Courts Act 32 of 1944, which provides that the court may call assessors to its
assistance when hearing cases. Thus a magistrate may call an assessor in matters of customary law
before it.
172 See generally Van Niekerk op cit note 130 as well as Martin Chanock Law, Custom and
Social Order: The Colonial Experience in Malawi and Zambia (1985).

ing) with regard to participation in the definition of their system of

customary law would, presumably, be considered to infringe the principle
of equality.
Broadening the witness base to include women and children will
furthermore require the courts to adopt procedures of taking evidence
that are gender and age-sensitive. The culture of many African societies
inhibits free communication in some cases by men or women in the
presence of people of the opposite sex and by children in the presence of
adults.17 3 A South African trial process seeking to determine the content
of living customary law from witnesses may, therefore, have to take this
into account, depending on what the custom or subject matter under
consideration is. The aim would be to adapt the trial procedures to enable
the witnesses to give their evidence freely without these cultural inhibi-
tions. A valuable lesson on gender sensitivity in the collection of evidence
may be drawn from the approach taken by the Federal Court of Australia
on appeal from a single judge's interlocutory orders in State of Western
174
Australia v Ben Ward Ors on behalfof the Miriuwung and GajerrongPeoples.
The principal application was for a determination of native title to land in
a certain part of Western Australia. A dispute arose between the parties as
to the taking in the court of gender-based evidence that was subject to
cultural or customary concerns ('gender restricted evidence'). The state
sought orders allowing, among others, its lawyers to attend any hearing in
which gender restricted evidence was to be led and access to, and
discussion of, the transcript of the gender restricted evidence. Judge Lee
made orders, inter alia, requiring the taking of men's and women's
restricted evidence in the absence of male and female counsel respec-
tively'. He also imposed restrictions on the dissemination of the transcript
of gender-restricted evidence. On appeal to the full court, Judges Hill and
Sundberg affirmed the order of Lee J (with minor amendments). The
court accordingly held:
'Occasions may arise when it will be in the interests of the administration of justice
that the taking of evidence should occur in restricted circumstances. These occasions
may arise where traditional laws and customs prevent women and men respectively
speaking about certain matters, for example, matters going to Law, ceremony and ritual,
in the presence of persons of the opposite gender and175the communication of the details
of such matters to persons of the opposite gender.'
The major problem with the oral method of proving customary law
under s 1(2) is that of conflicting evidence, which is inherent in oral sources
of information. The Court grappled with this problem in HIlophe, but it was
unable to determine the content of the customary law in question from the
witnesses. The witnesses on either side gave conflicting evidence about the
effect of the non-payment of the full 'lobolo' required for the marriage on
the affiliation of children. Yet, it will be recalled, both witnesses claimed
173 In relation to children see Chuma Himonga 'The Right of the Child to Participate in
Decision Making: A Perspective from Zambia' in W Ncube (ed) Law, Culture, Tradition and
Children's Rights in Eastern and Southern Afi'ca (1998) 95.
174 [1997] 585 FCA (8 July 1997) No. WAG 57 of 1997.
175 At 21, unreported. Available at: http://www.austii.edu.au/cgi-bin/disp.pl/au/ca../585
special knowledge of, and expertise in, customary law as members of the
community observing Swazi customary law. Sorting out the conflicting
versions of customary law may involve the calling of further witnesses.
This will necessarily result in delays in the hearing of the cases, which in
turn creates the need for the state to institute measures to avoid unnecessary
delays in the hearing of cases, due to the various problems with the use of
the method in question. For justice delayed is truly justice denied. The
point is that the constitutional recognition of customary law and the right
to culture are implicitly predicated on the commitment of resources by the
state to facilitate their proper application.
The second suggestion for the ascertainment and proof of living
customary law also seeks to take advantage of the existing legal frame-
work. The magistrates and judges of superior courts are trained in
common law to deal with the management of oral evidence in the normal
course of their duties, with regard to the application of the common law.
This basic legal skill equips them to handle the technical aspects of
assessing evidence concerning rules of customary law, such as the deter-
mination of the veracity of a witness. The magistrates and judges will,
however, additionally require to be equipped with appropriate skills to
deal with less technical ways of dealing with evidence, taking into
account the flexibility and informal nature of procedures of 'adjudication'
under customary law. Western procedural rules relating, for example, to
hearsay evidence, interjections and cross-examination, have to be recon-
sidered. For instance, cross-examination in a western-style court is aimed
at proving inconsistencies in a witness's evidence in order to discredit the
witness's story. But as Reilly rightly observes, 'culture is a process, not a
state of being. It is not limited by its enunciation, and thus, it cannot be
discredited by any such inconsistencies. ' 176 In other words, the trial
process in which evidence is heard to determine the content of living
customary law must accommodate the way Africans tell their stories in
adjudication processes. Again, Reilly's observation about trial processes
concerning the aborigines of Australia is instructive. He says that in giving
evidence about law the Aborigine witnesses are not just relaying events
that they have observed from a distance. They relate stories of who they
are. Stories are not just a description of evidence, they are the evidence
itself. 177 In order to enablejudges and magistrates to adopt these new ways
of conducting trials, a complete change has to be made to the western trial
process and procedural rules currently operating in the common law
courts.
Furthermore, magistrates and judges will be required to have a knowl-
edge of the nature of customary law and the methodologies of investi-
gating this law that transcend the rule-bounds and seek to capture the law
on the ground in ways that are also gender and age sensitive, as pointed
176 Andrew Reilly 'Entering a Dream: Two Days of a Native Title Trial in the North
Kimberley' (unpublished) at 14. 177 Ibid at 12.
out above.'7 8 In this regard, it is significant that some Law Faculties, for
example the Faculty at the University of Cape Town, have introduced
African Customary Law as a compulsory course in their curricula, to be
taught at the final level of the law degree.17 9 This facilitates the teaching
of the course at levels at which more complex issues of the conceptual-
ization of customary law and methodologies can be explored. Such an
approach to the study of customary law will, one hopes, also equip the
future researchers, practitioners, magistrates and judges at different levels
of the court system to deal with living customary law.1 80 On the other
hand, the education of serving magistrates and judges in matters of living
customary law under consideration may be accomplished through insti-
tutions such as the Law Race and Gender Unit of the University of Cape
Town, which already runs programmes of judicial education and are
therefore in possession of experience that would be useful to this enter-
prise.
Finally, a long-term method of trying to tackle problems of ascertain-
ing living customary law concerns an investigation into the nature of
court decisions. There may be a need to investigate whether there are
decisions of courts in South Africa which represent, more or less, living
customary laws. The decisions of these courts may be a valuable source of
living customary law, not as precedents to be applied by the courts, but as
sources that may be tapped into through empirical studies.
CONCLUSION
Our discussion has attempted to show that there is a constitutional
imperative for the South African legal system to move beyond the bounds
of legal positivism and centralism in relation to the conceptualization of
customary law. This, in a sense, is also an academic imperative for legal
scholars to begin to cross discipline boundaries. Methodological and
analytical tools of other social sciences will have to be employed in
combination with traditional legal methodological and analytical tools to
assist the lawyer to capture the customary law he or she is required to
apply or work with within the constitutional framework.
The paper has also shown that there are tremendous challenges facing
the courts in the application of customary law in accordance with the
constitutional imperatives within which this law has been recognized.
Because these imperatives require that customary law be treated as an
equal with the other systems of law making up the country's legal system,
choice of law rules which uniformly affect the relevant legal systems are
required to determine the applicability of customary law. Furthermore,
while the right to culture demands the application of the living customary
law rather than official customary law, the right to equality requires an
inclusive approach to the ascertainment of this customary law to accom-
178 See Stewart op cit note 101 at 217-29; Van Niekerk op cit note 130.
179 African Customary Law will be taught as a compulsory senior course at the University of
Cape Town from 2001. 180 See also Stewart op cit note 101.
modate previously marginalized groups within the African communities.
Although this approach itself creates a tremendous challenge to the courts
in their application of customary law, a search for solutions may begin
with the adaptation of existing laws and structures to accommodate the
new circumstances in the short-term, while pursuing investigations into
long-term solutions.
We wish to thank Professor B A Rwezaura for his insightful comments
on the draft of this paper.

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RECOGNITION OF CUSTOMARY LAW

15 1960 (2) SA 467 (A).

Section 31 (which dealt with language and culture) was especially

emphasis on reconciliation rather than confrontation. 33 Sachs J utilized

FACTORS DETERMINING THE APPLICATION OF

When is customary law applicable?

arising from the application of customary law within the constitutional

CONCEPTUALIZING CUSTOMARY LAW WITHIN A

Conceptualizing customary law and the right to culture

(a) Living Customary Law

of law,78 several aspects of his conception of law are useful to our

The perspective of legal pluralism, which is rooted in Sally Falk

to form a deep and profound collective mentality, especially collective unconsciousness.

98 Himonga op cit note 70 at 13-33.

though this does not exclude the possibilities of mistaken understanding

99 Bentzon et al op cit note 72 at 241-2.

manipulations and to use methodologies 10 9

(b) Official Customary Law

Conceptualizing customary law in the courts since 1993

a court's function to interpret and apply the Interim Constitution'.153

evidence. It is also interesting that the court considered the recognition of

ASCERTAINING AND PROVING CUSTOMARY LAW

163 At 1075. 164 Van Niekerk op cit note 130 at 210.

Social Order: The Colonial Experience in Malawi and Zambia (1985).

ing) with regard to participation in the definition of their system of

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