Re-introducing African Customary Law to the South African Legal System

Abstract

A fully justiciable Bill of Rights in South Africa's new constitu tion heralded fundamental change for all the inherited from the previous regime. African customary law was a particular target, since many of its rules are imbued with a patriarchal tradition, which is in direct conflict with the principle of gender equality. In a series of re markable cases that ensued in the South African High Court and appeal courts, the question whether customary law in fact violated the Bill of Rights came to depend on the version of the law in issue: the law that had been captured in codes, textbooks, and prece dents was regarded as inauthentic and tainted by the apartheid regime, whereas the law currently being lived by its subjects was re garded as the true customary law and thus more likely to be in line with fundamental human rights. Acceptance of the latter involved complex issues of proof, compliance with the Constitution, and the en dorsement of culture and tradition. This Article is concerned with the manner in which the courts transformed the living laws into a new brand of official law. I. THE POSITION OF CUSTOMARY LAW UNDER SOUTH AFRICA'S NEW CONSTITUTION When democratic elections brought an end to South Africa's fifty odd years of apartheid rule, not only did the country's political system undergo fundamental change, but also its law. Both the Interim and Final Constitutions (of 1993 and 1996, respectively) featured fully justiciable Bills of Rights and thus threatened a wholesale review of the public and private inherited from the old regime. Traditional leaders sought to have African customary law exempted from this process but they were unsuccessful' and a series of remarkable cases then ensued. It is many years since customary law in South Africa has been exposed to the full glare of public scrutiny, but now, through the courts, the public had occasion to reflect on the extent to which cus