Customary law in post-apartheid South Africa: constitutional confrontations in culture, gender and ‘living law’

Abstract

This article reviews 20 years of the operation of customary law in South Africa since this legal system was recognised in the Constitution as an equal component of the legal order together with the common law. The objective of the review is to discover whether customary law has been integrated into the mainstream of the legal system and, if so, in what form. The paper undertakes this task by analysing key judicial decisions and law reform initiatives that have had an impact on women’s rights, against the background of the protections that the Constitution gives to cultural rights. Using the notion of ‘living law’ as the point of departure, the paper concludes that the cause of integration has not been well-served by either the judiciary or the legislature, both of which have shied away from protecting the deep values embedded in customary law by deferring too readily to western notions that have found their way into the Constitution. The paper concludes by calling for a different approach that is more sympathetic to the values underpinning customary law even where, as sometimes happens, these have been obscured by practices that appear inimical to the Bill of Rights.