I remember sitting in a class on African Customs and Customary Law and wondering what on earth I was being taught. This misfortune came about, due mainly to my random choosing of Legal Pluralism as an elective subject during my undergraduate studies in visual arts at Tukkies. Apart from expecting the subject to be a breeze, I was earnestly curious about the manner in which it would be presented and will admit that I harboured the misplaced hope that I would actually walk away having learnt something new. Long story short, I learnt nothing expect for hearing more misguided views about customary law, its meaning and relevance.
With that little bit of context let me begin by saying that this article is about the need for African Customary Law to be understood, developed, taken seriously and eventually, appropriately used as a source of law within the greater South African legally pluralistic system. Given that customary law is associated with and practiced by the majority of the populace in South Africa, it goes without saying that it carries with it great insight into this large and diverse group of people. Of course one must make the clear emphasis that when speaking of customary law I am in fact referring to both ‘official’ and ‘living’ customary law which I am sure every UCT law student gets introduced to in first year, even if in a manner most dodgy.
The undeniable factors that cannot however be ignored when customary law is invoked are, as the title of this article suggests, its considerations. These can be said to be related to culture and cultural differences along with the further considerations born out of this such as views on morality, justice, etc. Our Constitution recognises customary law, albeit in a manner less direct than the recognition of the common law, through sections 30, 31, 39(2) and 211. A superficial interpretation of this constitutional layout would lead to the inference that it is through culture that the invocation of customary law comes to the fore thus the above mentioned considerations. We know or should know, that customary law can be said to be those customs or practices within specific communities that owing to the belief in the obligatory nature of those customs by such communities, have a legally binding effect on those who practice them. In the matter of Van Breda v Jacobs 1921 the Appellate Division, in determining whether a custom can be regarded as obligatory and therefore a legally binding rule, set out the following criteria: (1) the custom must have exited for a long time, (2) it must be reasonable or have a reasonable purpose, (3) it must be uniformly observed and (4) it must be definite, certain and clearly regulate the rights and duties of people concerned.
It is undisputable that customary law, like any other law in South Africa, is subject to the Constitution and Bill of Rights contained therein. This means that the customs of the different cultural communities must adhere to the values of the Constitution so as not to risk invalidity via their being found to be unconstitutional. But case precedence in matters involving customary law has illustrated the confusion with which the courts often approach these matters, not knowing whether official or living customary law is what should be applied. For this confusion we can largely thank the now repealed Native Administration Act 38 of 1927 which, although introducing a uniform approach to customary law and its practicing communities, gave the mistaken impression that all the customs of the various indigenous cultural groupings were and are the same. This impression still persists to this day and is perhaps more audible in the ‘liberal’ arguments that are bandied about under the guise of Constitutionalism. I use ‘guise’ in this context to refer to those positions that are most often relied upon when the lack of knowledge and interest is exposed.
To give a tangible example of the above let us consider the custom of the Lobedu people to have as their chieftain, a woman, as has been the case for the past five hundred years. It is arguable that a liberal or constitutional view of this custom would be that it amounts to a breach in terms of the equality clause in our modern day Constitution. This view would, however through a strictly legal perspective, make the mistake of overlooking the practice as socially agreed upon by the Lobedu people. That a man can never be a ‘Rain-King’ has not been considered as an anomaly by this group and this, it can be agreed, is their Constitutional right to the enjoyment of their culture as encapsulated under section 31. This is not to say that this practice cannot or should never be challenged but rather that it is important to consider how the community involved views it. What is obvious to one person or group will not be obvious to another and vice versa.
Within the ambit of our Constitutional jurisprudence, one of the criteria in determining the constitutionality of a legal provision or practice is the consideration of how it impacts upon a social group and whether this impact is justified not only from a legal perspective but a socially cohesive one as well. Liberal notions on the other hand, very often look only at the impact on the individual as a starting place and assume it to be an absolute point of departure. At this point we should be able to agree that African Indigenous Knowledge systems are not the same as those of a Western perspective which is what Liberalism is essentially a by product of. We should also agree that a balanced understanding and application of these views is what we ought to be striving towards instead of overriding the one with the other. It is trite that much of the legal and economic transactions and practices in South Africa have behind them the common law as the dominant system, but we should remember that this is not the only legal system.
That the Constitution implies the need to understand customary law should not be seen as enough but rather an open engagement on the relevance of this legal system to those who live by it, under our modern Constitution, should be encouraged. In the popular Bhe v Magistrate of Khayelitsha 2005 (1) SA 580 (CC) judgment, the court although invalidating the principle of male primogeniture under official customary law rules, failed to develop it to coincide with living customary law rules owing to an admitted lack of knowledge. Despite the shortcomings, the overall judgment nevertheless had a very positive impact on gender equality and the protection of women under customary law in our country. However, where the court can be said to have shied away or lacked the energy to investigate, is the fact that in some of the South African Indigenous cultural groups this kind of primogeniture ceased to exist ages ago. This again, only serves as proof that there can be no shortcuts in getting a holistic understanding of the cultural groups in this country.
Admittedly, the effects of pre-apartheid and apartheid legal approaches to customary law have served a rather detrimental blow to the necessary understanding required as well as the accompanying considerations of culture born out of them. It should come as no surprise that the aforementioned Native Administration Act included within it, the so called ‘repugnancy clause’ which stated that, ‘rules of customary law are only valid if they are compatible with the white authorities’ ideas about morality, justice, good order and public policy.’ As far as I am concerned this view has not changed much and the need for more effort to be placed in understanding and coming to grips with all the various elements that make up our society looms large in determining just how culturally representative a nation we become.
 University of Pretoria