Customary Law in South Africa

Customary Law in South Africa was in existence prior to colonization in 1652. It was an authoritative form of justice with legitimacy from the notion that it had been around since anyone could remember and it was evident in the day-to-day practices and traditions of a given community.

With the arrival of the Dutch colonist, Roman-Dutch laws prevailed, with no recognition of Customary Law. It wasn’t until the British took control and established the Natal Code of 1878 that customary law was recognized. The Code made an attempt to codify Customary Law around three principles from which all the other laws were derived—the subjugation of women to men, subjugation of children to their father or head of the family, and the rule of inheritance based on birth order and gender. As a result, Customary Law lost its dynamic nature and was recognized in a rigid way based on the colonists understanding and views.46

Customary Law is recognized, not because it is backed by the power of some strong individual or institution, but because each individual recognizes the benefits of behaving in accordance with other individuals’ expectations, given that others also behave as expected. Typically, if a law is imposed from above (government), then that law will require much more force to maintain social order. In contrast, reciprocities are the basic source both of the recognition of duty to obey law and of law enforcement in a customary law system. That is, individuals must “exchange” recognition of certain behavioral rules for their mutual benefit. 47 Customary Law in South Africa also significantly limited women’s property rights.

The end of apartheid brought formal recognition, through the constitution, of Customary Law within the country’s legal system.

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