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CHAPTER 2

THE NEED FOR NEW RULES GOVERNING APPLICATION OF CUSTOMARY LAW

Customary law now has explicit recognition on a par with common law as part of South Africa's legal system. Previously, s 1(1) of the Law of Evidence Amendment Act^[1] provided that courts may take judicial notice of customary law if it is readily ascertainable. By implication this section suggested only that customary law need not be proved as a fact. Section 211(3) of the 1996 Constitution, however, now obliges courts to apply customary law ‘when that law is applicable’ (subject to the Constitution and ‘any legislation that specifically deals with customary law’).

It is unfortunately far from clear when customary law is applicable, for the rules on application are fragmentary, vague, badly drafted and out of date. At present, the principal rule is one of recognition and it is contained in the Law of Evidence Amendment Act (which is concerned with the evidence necessary to prove both customary and foreign systems of law). This rule gives no guidance to courts wishing to discover when customary law is applicable.

More specific rules regarding application of customary law in cases of succession and civil or Christian marriages are contained in the Black Administration Act and in obscure and confusingly worded regulations passed under it.^[2] These provisions (most dating from 1927) did little more than repeat nineteenth and early twentieth-century enactments from Transkei and Natal, and nearly all are now obsolete. What is more, because the only criterion for applying customary law is race, they are unacceptably discriminatory.

Since these various enactments were promulgated, society has fundamentally changed and with it South Africa's legal system. Clear choice of law rules are now needed, ones that will direct courts to apply either customary or common law, depending on the parties' social circumstances and provisions in the Constitution. Modern family law legislation, emanating from both the South African Parliament and former independent or semi-autonomous homelands, is also relevant to choice of law, since much of it amends or repeals customary law.

Choice of law rules in the existing legislation often do not make it clear whether customary and common law is attributable to persons or territories. None the less, choice of law should reflect the fact that litigants are subject to particular legal regimes because of personal qualities, ie their cultural orientation (and that under ss 30 and 31 of the Constitution they are entitled to demand that courts apply the law associated with their culture). For this reason potential conflicts between common and customary law are properly considered to be conflicts of ‘personal’ laws.

[1] 45 of 1988.

[2] 38 of 1927. Certain provisions, such as the choice of law rules for applying different systems of customary law, were lifted from this Act and inserted in the Law of Evidence Amendment Act.