The 1996 Constitution of South Africa established customary law, which had historically been uncodified, as an integral and core element of the country’s legal system. Efforts aimed at structuring and codifying these rules have led to the enactment of multiple pieces of legislation on matters related to marriage, succession, traditional justice, and political representation within traditional bodies of government. These texts have introduced critical legal provisions guaranteeing gender equality and protecting women’s rights and status under customary law.
The codification of customary laws in South Africa
Abstract
South Africa’s legal system is a complex product of history characterised by the – sometimes conflicting – cohabitation of pre-colonisation customary law with imported Roman-Dutch law and British Common law (Wall, 2014[1]). Initial attempts to reconcile customary law with European laws led to the creation of a patchwork of customary law systems across the territory, often overlapping with British Common law – resulting in certain rights and legal provisions that may apply to certain groups of individuals only.
The enactment of the Black Administration Act in 1927, followed by the introduction of the apartheid policy in 1948, structured South Africa’s legal system into a dual system whereby customary law was an integral part of the laws regulating the lives of Black people, whereas Common law regulated the lives of other South Africans.
In 1996, the new Constitution of South Africa put an end to the apartheid regime and sought to create a unified, democratic and fair legal system that would apply to all individuals. In this context, the place of customary law in the legal system presented some unique challenges:
Uncodified customary law is dynamic in nature, evolving across time and places. Its codification renders it static. The absence of traditional institutions with the legal power to amend the codified texts risked upholding discriminatory provisions across time, notably in terms of gender equality.
The application of customary law, which is based on customs and traditional practices, could potentially contradict the civil rights guaranteed by the Bill of Rights of the Constitution and restrict women’s and girls’ rights, notably in terms of marriage and inheritance.
The 1996 Constitution of South Africa (Republic of South Africa, 1996[2]) established customary law as an integral and core element of South Africa’s legal system. It recognises traditional leaders as custodians of these traditions and clearly specifies that customary law must be consistent with the principles of the Constitution and cannot violate fundamental human rights. Since then, South African legislators have sought to progressively codify different aspects regulated by customary law while establishing the necessary institutions and rules to ensure the legislation can be enacted and amended. During this process, emphasis was put on eliminating customary provisions and rules that restricted women’s and girls’ rights.
Marriage rights: In 1998, the Recognition of Customary Marriages Act (Republic of South Africa, 1998[3]) guaranteed equality between spouses and offered women married under customary or civil law the same degree of protection. The Act notably establishes equal ownership and use of property rights between spouses (Mubangizi and Tlale, 2023[4]), and raises the legal age of marriage at 18 years for both women and men – although legal exceptions still exist.
Inheritance rights: In 2009, the Reform of Customary Law of Succession and Regulation of Related Matters Act (Republic of South Africa, 2009[5]) clarified the rules of succession under customary law. The Act notably grants women full capacity to dispose by will of their property governed by customary law, grants equal inheritance rights for all surviving children and spouses, and abolishes the male primogeniture rule, whereby only men could inherit a property governed by customary law.
Political representation: In 2019, the Traditional and Khoi-San1 Leadership Act (Republic of South Africa, 2019[6]) structured and organised the national and local traditional councils and sub-councils that govern and have the power to amend customary law. The Act provides that women must account for at least one third of the different local and national traditional legislative bodies, including the supreme National House, and establishes a framework for the advancement of equal gender representation in traditional leadership positions. However, this Act was later ruled unconstitutional in 2023 (see Results section).
Justice system: In 2020, the government presented the Traditional Courts Bill (Republic of South Africa, 2020[7]). The Bill seeks to uniformise the structure and functioning of traditional courts and to grant them power to hear and determine civil disputes arising out of customary law and custom, as well as certain criminal matters. The Bill contains specific provisions protecting the representation and participation of women, both as parties and members of the courts.
The codification of customary law between 1996 and 2023 provided an opportunity to introduce critical legal provisions guaranteeing gender equality and protecting women’s rights and status in the context of marriage, inheritance and political representation. Legislative efforts have notably focused on two fundamental types of discrimination that women and girls used to face under South African customary law: the abolition of the rule of succession that granted only men the right to inherit a property governed by customary law; and the establishment of women’s and men’s equal status and capacity in customary marriages.
The reforms revealed the challenges of codifying and harmonising informal laws rooted in traditions and customs that vary across different territories, communities or ethnic groups. It also highlighted the difficulty of aligning customary laws’ provisions with individuals’ fundamental rights guaranteed by the Constitution. For instance, in 2023, the Traditional and Khoi-San Leadership Act was ruled unconstitutional and sent back to the parliament to be amended in a manner consistent with the Constitution (Broughton, 2023[8]). The Constitutional Court stressed that some participants to the public consultation process were silenced in favour of traditional leaders, at the risk of perpetuating existing inequalities by law, including gender-based ones (Constitutional Court of South Africa, 2023[9]).
South Africa’s experience highlights that customary law can be codified and reformed to eliminate legal provisions restricting women’s rights. Reforms are particularly important in matters related to personal status, such as marriage, inheritance or divorce, where discriminatory traditional practices and customs often undermine women’s status and rights.
Public participation and consensus are key. Codifying South Africa’s customary laws entailed formalising practices, traditions and customs that have varied across the country’s history and that can differ from one place to another. It is therefore critical to guarantee a wide and open consultation process to ensure the codified legislation integrates all the potential forms of customary law and respects the specificities of the various groups and communities.
The main challenge is likely to be the enforcement of equality provisions and whether women can make recourse to them to uphold their rights. Even when codified with provisions guaranteeing gender equality, customary law remains intrinsically linked to traditional practices and likely enforced by traditional authorities dominated by men. The risk is therefore high that discriminatory practices, notably in terms of succession and transmission of assets, continue to negate women’s rights. In South Africa, the debates surrounding the planned Traditional Courts Bill revealed the need for specific legal provisions and policies that ensure women’s adequate representation within the bodies in charge of rendering traditional justice. Policies must also help women uphold their rights under customary law, for instance through programmes of free legal aid.
Overall, South Africa’s codification of customary laws may serve as a blueprint to other African countries with similar dual legal systems, characterised by cohabitating – and sometimes conflicting – customary and civil laws.
References
[8] Broughton, T. (2023), Not enough public participation: Constitutional Court scraps Traditional and Khoi-San Leadership Act, Ground Up, South Africa, https://www.groundup.org.za/article/not-enough-public-participation-constitutional-court-scraps-traditional-and-khoi-san-leadership-act.
[9] Constitutional Court of South Africa (2023), “Mogale and Others v Speaker of the National Assembly and Others”, Case CCT 73/22, https://collections.concourt.org.za/handle/20.500.12144/38246.
[4] Mubangizi, J. and M. Tlale (2023), “How gender-based cultural practices violate women’s property rights and inhibit property ownership: A South African perspective”, Women’s Studies International Forum, Vol. 96, https://doi.org/10.1016/j.wsif.2023.102678.
[7] Republic of South Africa (2020), “Traditional Courts Bill”, https://www.parliament.gov.za/storage/app/media/Bills/2017/B1_2017_Traditional_Courts_Bill/B1D_2017_Traditional_Courts_Bill.pdf.
[6] Republic of South Africa (2019), “Traditional and Khoi-San Leadership Act (Act 3 of 2019)”, Government Gazette, Vol. 42865 of 28 November 2019, https://www.gov.za/sites/default/files/gcis_document/201911/4286528-11act3of2019tradkhoisanleadership.pdf.
[5] Republic of South Africa (2009), “Reform of Customary Law of Succession and Regulation of Related Matters Act (Act 11 of 2009)”, Government Gazette, Vol. 32147 of 21 April 2009, https://www.gov.za/sites/default/files/gcis_document/201409/32147433.pdf.
[3] Republic of South Africa (1998), “Recognition of Customary Marriages Act (Act 120 of 1998)”, Government Gazette, No. 19539 of 2 December 1998, https://www.justice.gov.za/legislation/acts/2009-011.pdf.
[2] Republic of South Africa (1996), “Constitution of the Republic of South Africa, 1996, and its amendments”, https://www.gov.za/documents/constitution-republic-south-africa-1996.
[1] Wall, D. (2014), “Customary law in South Africa: Historical development as a legal system and its relation to women’s rights”, Southern African Methodist University Project, https://www.sahistory.org.za/article/customary-law-south-africa-historical-development-legal-system-and-its-relation-womens.
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← 1. Khoi-San refers to any person who lives in accordance with the customs and customary law of the Cape-Khoi, Griqua, Koranna, Nama or San people, or any subgrouping thereof, and is a member of a particular Khoi-San community as contemplated in Section 5 of the Traditional and Khoi-San Leadership Act. It usually refers to the peoples of South Africa who do not speak one of the Banthu languages. Khoi-San councils administer Khoi-San communities whereas houses are mostly tasked with advising the government and handling legislative matters.
