The ascertainment of living customary law: an analysis of the South African Constitutional Court’s jurisprudence

Abstract

After decades of non-recognition, customary law is today recognised as a valid system of law in South Africa treated as equal to the common law. The article examines how the question of the ascertainment of living customary law has been addressed by the South African Constitutional Court, the highest court in South Africa. It argues that the court has developed the existing guidelines of calling witnesses and consulting with written sources of the law in light of the newly elevated status of customary law. The cases of Shilubana v Nwamitwa (2009) and MM v MN (2013) are critical cases in which the court articulated further guidance on the ascertainment of customary law and demonstrated a commitment to the notion that the court is the final arbiter of the law. The result is that the court has developed, in a relatively short period of time, a rich jurisprudence on the ascertainment of customary law. The article examines the jurisprudence in light of the historical approach to the ascertainment of customary law and the current legal framework.

Keywords:

• Ascertainment
• customary indigenous law
• South Africa
• Constitutional Court
• MM v MN

Legal documents

South Africa

Black Administration Act 38 of 1927.

Constitution of the Republic of South Africa, 1996.

Law of Evidence Amendment Act 45 of 1988.

Recognition of Customary Marriages Act 120 of 1998.

Alexkor Ltd v Richtersveld Community and Others 2003 (12) BCLR 1301 (CC).

Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 CC.

Ex Parte Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC).

Gecelo v Gecelo 1957 NAC 161 (S).

Hlophe v Mahlalela 1998 (1) SA 449 (T).

Mabena v Letsoalo 1998 (2) SA 1068 (T).

Mabuza v Mbatha 2003 (4) SA 218 (C).

MM v MN 2013 (4) SA 415 (CC).

Ramuhovhi v President of the Republic of South Africa 2016 (6) SA 210 (LT).

Ramuhovhi and Others v President of the Republic of South Africa and Others 2018 (2) SA 1 (CC).

Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC).

Sigcau v Sigcau 1944 AD 67.