Tell me more about Customary Law

Many cultures and customs exist under our gorgeous South African sky. Long before the British and Roman Dutch colonized the Cape, many unwritten laws governed the lands and its people.

It is, however, important to note that it is not always an easy task to apply customary law in court. Customary law is a living and (mostly) unwritten law passed on from generation to generation.

Tell me more about customary law?

· ‘Customary law’ is defined as ‘the customs and usages traditionally observed among indigenous African peoples of South Africa and which form part of the culture of those peoples’ (The Recognition of Customary Marriages Act 120 of 1998).

· Customary law is binding in South Africa provided it is not ‘exercised in a manner inconsistent with any provision of the Bill of Rights’ (Section 31 of the Constitution of the Republic of South Africa, 1996).

· African customary law is not a singular code, but encompasses many different communities and cultures such as Xitsonga customary law, Zulu customary law, Xhosa customary law, etc.

· Most disputes are settled in family or clan meetings and do not reach the western courts. Our Constitution furthermore provides for customary courts and traditional leadership in section 211. Customary courts are mainly found within the rural areas and are headed by Chiefs and Headmen. Customary law, Ubuntu and the rules of the community, subject to our Constitution, applies in customary courts.

· Western courts are extremely cautious when applying and ruling customary law. This is mostly due to a lack of information/ understanding, their common law training and the binding impact the judgment may have. As pointed out by many judges, customary law should be allowed enough space to develop at its own pace. This is why most judges treat customary law cases before them on a piecemeal basis – in other words, their judgement only affects a certain issue, current parties or only a specific community.

· Many argue that the polygamous nature of customary law is unconstitutional in that customary law allows for a man to have more than one wife but a women may not marry more than one man. The Recognition of Customary Marriages Act tries to offer relief via section 6, noting a wife’s equal status and capacity ‘to acquire assets and to dispose of them, to enter into contracts and to litigate, in addition to any rights and powers she may have in customary law.’

· Furthermore, a husband needs to apply to court for approval before he can marry a second wife in terms of customary law. The previous wife/ wives need to be added to the court proceedings. In a sense the previous wives therefore need to give their permission. Also, this court order will determine the consequences of the marriage concerning the matrimonial property regime (assets and liabilities between the parties).

· Customary marriages need to be registered at the Department Of Home Affairs within three months. However, not registering the customary marriage does not make it invalid. Unless the husband marries a second wife in terms of customary law. If there is only one man and one woman, the parties may get married in terms of civil and customary law. Once married in terms of civil law, the man may not marry more than one wife (unless the parties divorce in terms of civil law).

· The requirements for a valid customary marriage include: consent, majority age and the rituals in terms of customary law (note that the paying of lobola is not a requirement for a valid customary marriage). The default matrimonial property regime for the first customary marriage is in community of property.

We wish you and your family a celebratory Heritage Day tomorrow. May we all learn to properly ‘unite in our diversity.’

Today is also a Jewish holiday, Yom Kippur. Yom Kippur is a day of fasting and repentance to renew the relationship with God. 

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