The role and effect of the Constitution in customary law of succession

Abstract

Customary law is the original law of the inhabitants of South Africa; however, it has always been treated as the stepchild of the legal system. The new constitutional dispensation requires that all laws be measured against the Constitution of the Republic of South Africa, 1996. This means that any law that is inconsistent with the Constitution is regarded as being invalid. Over the last few years, courts have had several cases, which have required them to test the constitutionality of some customary law principles and develop customary law in a manner that aligns it with the Constitution. However, we have witnessed a reluctance to develop customary law from the courts, instead, the laws which could have been developed were declared invalid. The focus of this paper will be to interrogate the role and effect of the Constitution in the administration and application of customary law of succession. Furthermore, to justify why we hold the view that customary law is a stepchild of the South African legal system post the democratic dispensation, this is attributed to the fact that most cases that involve the customary law of succession still leave many women in dire social and financial situations where the head of the family dies due to the distorted prevailing principle of male primogeniture.