Customary law in South Africa

South African customary law refers to a usually uncodified legal system developed and practised by the indigenous communities of South Africa. Customary law has been defined as

an established system of immemorial rules [...] evolved from the way of life and natural wants of the people, the general context of which was a matter of common knowledge, coupled with precedents applying to special cases, which were retained in the memories of the chief and his councilors, their sons and their sons' sons until forgotten, or until they became part of the immemorial rules.

Most African states follow a pluralistic form of law that includes customary law, religious laws, received law (such as common law or civil law) and state legislation. The South African Constitution recognizes traditional authority and customary law under Section 211. A ruling under Bhe v. Magistrate, Khayelitsha specified that customary law was "protected by and subject to the Constitution in its own right." Customary law, prior to colonialism, had its "sources in the practices, traditions and customs of the people." Customary law is fluid, and changes over time and among different groups of people. In addition, ethnicity is often tied into customary law.Sally Falk Moore suggests that to have a more realistic idea of the manner in which people live according to 'the law' and 'social mores' it is necessary to study the law in the context of society, rather than attempting to separate the 'law' from 'society'.

Recognition of customary law comes through the South African Constitution under section 211, although there is not a "textual connection in the definition of customary law to the communities recognised in section 31(1)." In applying African Customary Law (ACL), one must remember that it is still subject to the Constitution as well as to any legislation that specifically deals with it.

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