A critical analysis of the role of the Judiciary in the development of Customary Law in South Africa

Abstract

Customary law refers to both, written and unwritten laws, traditionally observed amongst the indigenous African people of South Africa. These laws ought to be in line with the constitution and the law of general application. Section 39 (2) of the Constitution (that is, the Constitution of the Republic of South Africa Act 108 of 1996) states that “when interpreting any legislation and when developing the Common law or Customary law, courts, tribunal or forum must promote the spirit, purport and object of the Bill of Rights.” In other words, the judiciary is duty-bound to develop and promote customary law by interpreting it in conjunction with the Constitution and the Bill of Rights. In developing customary law, however, an issue that remains unresolved is whether, in interpreting the law, the courts are positively developing customary law. Against this backdrop, this research seeks to assess different principles of customary law by critically analysing the manner in which courts are engaging with them, in particular, the implication that their approach has on the status of customary law in South Africa’ legal system.