What Is Customary Law In South Africa?
Customary law was incorporated into the South African legal system by the 1996 Constitution. Concerns about the defense of women’s rights arose as a result of the resulting legislative conflicts between traditional law, the Constitution, and the Bill of Rights. Cases involving succession and inheritance serve as examples of this legislative conflict. The final section of the essay will assess how customary law is applied in court, its effect on judgments and outcomes, and how much South African women are harmed by it.
What Is Customary Law?
Indigenous peoples and local communities accept a set of customs, practices, and beliefs as binding rules of conduct, which is known as customary law. A fundamental component of their social, economic, and way of life is customary law.
History behind South Africa’s Customary Law
The idea that customary law has always existed and manifests itself in a people’s everyday cultural traditions lends it legitimacy as a legal system. But colonialism had a big impact on how South African law was developed. The Dutch East India Company (VOC) established a rest stop at the Cape in 1652. The VOC made the decision to settle permanently in Cape Town by the 1670s. Customary law started to gain some traction after the English settled Cape Town.
In the Natal Code of 1891, the British attempted to codify accepted customary law. The acceptance of customary law was constrained by the repugnancy clause that applied to certain practices. Following the Union of South Africa, each of the territories had their own laws that governed customary law. A dual legal system was also established by the Black Administration Act. For all other South Africans, this left the common law system of justice in place.
The Act forbade women from inheriting estates, regardless of their marital status or their relationship to the deceased’s family. In addition, Black women were treated like minors regardless of their age or marital status.
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What Is The Current Status Of Customary Law In South Africa?
The new South African Constitution has been hailed as “a historic bridge between the past and the future.” When the inherent legislative conflict between the Constitution and the Bill of Rights is taken into account, this question becomes more difficult to answer. This ambiguity raises questions about how customary law is actually applied.
Any fundamental human right outlined in this Bill cannot be compromised by cultural practices. The rights to equality and dignity must be upheld in all aspects of culture. It is not a question of whether there is a conflict between gender equality under customary law and constitutional law, and rather how that conflict continues to affect the rights of women.
The article examined the status of customary law in South Africa and how the legal community, specifically the legislature and the judiciary, handle, interpret, and comprehend it. The legislative strategy should be adaptable and inclusive of the indigenous people’s legal systems. For the sake of maintaining the indigenous people’s legal systems and promoting cultural development and reform, this is necessary. Instead of approaching customary law with a restrictive mindset, analyze it holistically for the benefit of the current society and communities. Indigenous communities that still prefer to follow and be bound by customary law instead of positive/common law are where the importance of customary law lies. The advancements made in South Africa
