Chapter 4 - Recognition of customary law in the Constitution

Question 1

What are the implications of Section 1 of the Law of Evidence Act Amendment Act 45 of 1988 on customary law?

Answer 1

1. All courts may take judicial notice of indigenous law, although they are not obliged to.
2. Judicial notice is limited in so far as indigenous law may be ascertained readily and with sufficient certainty. The courts are thus not obliged to apply indigenous law in cases where it does obviously apply but cannot be readily ascertained.
3. There is no duty on the courts to take judicial notice of indigenous law law by , for instance, calling expert witnesses.
4. It is not necessary for the judges or magistrates to have formal or practical knowledge of, or training in, indigenous law.
5. In terms of subsection 2, evidence about indigenous law may be submitted to the court by the party himself or herself.
6. A further condition is that indigenous law must not be opposed to the principles of public policy or natural justice.

Question 2

Explain in summary what the indigenous law enjoyed before the adaptation of the Constitution.

Answer 2

1. Enjoyed only limited recognition
2. Could be applied by all courts
3. Could be amended or repealed by legislation
4. Could not be opposed to the principles of public policy and natural justice

Question 3

Which section of the Constitution gives unambiguous recognition to customary law?

Answer 3

Section 211

Question 4

State section 211 of the Constitution

Answer 4

1. The institution, status, and role of traditional leadership, according to customary law, are recognised, subject to the Constitution.
2. A traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendments to, or repeal of, that legislation or those customs.
3. The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.

Question 5

What are the implications of Section 211(3) on customary law?

Answer 5

1. All courts must apply and therefore recognise customary law
2. The recognition and application of customary law are subject to the Bill of Rights.
3. The recognition and application of customary law are subject to legislation that specifically deals with the matter.
4. The courts determine when customary law is applicable. Courts, therefore, have the discretion to decide whether customary law is applicable in a particular case. This discretion must be exercised in agreement with the general principles of choice of law.

Question 6

Which section of the Constitution applies to Language and culture?

Answer 6

Section 30

Question 7

Which section of the Constitution applies to cultural, religious and linguistic communities?

Answer 7

Section 31

Question 8

Which section applies particularly to Hindu and Islamic Law regarding the polygynous nature of marriage under these laws?

Answer 8

Section15(3)(a)

Question 9

State section 39 (1) of the Constitution

Answer 9

1. When interpreting the Bill of Rights, a court, tribunal or forum -
   (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom
   (b) must consider international law
   (c) may consider foreign law

Question 10

What are the implications of Section 30 and 31

Answer 10

The state must :

1. allow diversity in South Africa
2. preserve the existence and identity of cultural groups
3. not discriminate against any particular cultural group
4. allow each cultural group to foster its own separate identity.

Question 11

Which sections of the Constitution conflict between the Bill of Rights and customary law?

Answer 11

Section 2
Section 8(1)
Section 36(1), 36(2)
Section 39(1), 39(2)

Question 12

Who may query the constitutional validity of any rule of customary law on the grounds of its harmful effect on that particular party?

Answer 12

1. Anyone acting in their own interests
2. Anyone acting on behalf of another person who cannot act in their own name
3. Anyone acting as member of, or in the interest of, group class or persons
4. Anyone acting in public interest
5. An association acting on behalf of its members

Question 13

How can the courts develop the customary law?

Answer 13

When interpreting any legislation and when developing the common law and customary law, every court, tribunal must promote the spirit, purports and object of the Bill of Rights.

Question 14

In which case did the court direct the courts on how to apply their powers of interpretation and development?

Answer 14

Du Plessis and other v De Klerk