Critically discuss the development of customary law since it has been recognised in
section 211 of the Constitution of the Republic of South Africa, 1996. Include in your
discussion important case law that developed customary law to be in line with the Bill
of Rights, especially case law pertaining to section 9 and women’s right to property
and their position in a customary marriage and in succession.
Students must utilize the prescribed reading for semester 1 throughout the discussion.
Students may also refer to the opinions and interpretations of the legal scholars. New
sources must also be utilized and students must do their own independent research.
Tutorial activities and discussions can also be consulted by students to guide their
understanding of the sources. Students are not bound only by the LAFR2604 reading
material and may consult and use other, applicable sources.
Since its recognition in section 211 of the Constitution of the Republic of South Africa, 1996, customary law has been undergoing development to ensure that it is in line with the Bill of Rights. Customary law refers to the practices, customs, and traditions followed by particular ethnic groups in South Africa. The Constitution recognizes customary law as a source of law that must be respected, subject to the Bill of Rights.
One of the most important developments in customary law is the recognition of women's rights to property and their position in a customary marriage and in succession. This is a significant development because customary law has traditionally been patriarchal and has often discriminated against women. In accordance with section 9 of the Constitution, which prohibits unfair discrimination, the courts have been instrumental in ensuring that customary law is consistent with the Constitution and the Bill of Rights.
One of the landmark cases in this regard is the case of Bhe v Magistrate, Khayelitsha, and Others. In this case, the Constitutional Court considered the question of whether the provisions of the Black Administration Act, which discriminated against women in terms of inheritance, were consistent with the Constitution. The Court held that the discriminatory provisions were unconstitutional and that customary law should be developed to ensure that it is consistent with the Constitution. The Court further held that women should be entitled to inherit from their husbands' estates in the same way as men.
The Bhe case was followed by the case of Shilubana and Others v Nwamitwa. In this case, the issue was whether a woman who was married under customary law was entitled to inherit her husband's estate in the absence of a will. The Court held that she was entitled to inherit and that the customary law rule that prevented her from inheriting was unconstitutional and discriminatory.
Another important case that developed customary law in line with the Bill of Rights is the case of Gumede v President of the Republic of South Africa and Others. In this case, the issue was whether a woman who was married under customary law was entitled to be a member of a municipal council. The Court held that she was entitled to be a member and that the customary law rule that prevented her from being a member was unconstitutional and discriminatory.
In conclusion, the development of customary law since its recognition in section 211 of the Constitution of the Republic of South Africa, 1996, has been significant in ensuring that it is consistent with the Constitution and the Bill of Rights. The courts have played a crucial role in developing customary law to ensure that it is not discriminatory. Cases like Bhe v Magistrate, Khayelitsha, and Others, Shilubana and Others v Nwamitwa, and Gumede v President of the Republic of South Africa and Others have been instrumental in developing customary law to ensure that it is in line with the Bill of Rights, especially as it pertains to the rights of women to property and their position in a customary marriage and in succession.