The short answer
The Constitution provides that all courts must apply and therefore also recognise customary law, but that the recognition and application of customary law are subject to the Bill of Rights.
The long answer
It’s been a long and complex process, so perhaps we should start by looking at how the Constitution came into being:
Wikipedia explains that the negotiation process between the various political parties about the drafting of the Interim Constitution in 1993, included traditional leaders in the Multi-Party Negotiating Process (MPNP).
These traditional leaders were concerned about issues relating to the status of African Customary Law (ACL) and that the right to culture be recognised in the Constitution. The debate centered mainly on gender equality because some of the cultural beliefs held by ACL gave men more rights than women, and at first, the traditional leaders tried to get ACL exempted from the Bill of Rights in the Constitution.
After an intensive Constitutional Assembly process, the final Constitution was passed in 1996 and came into force in 1997.
The Constitutional Court stated two broad principles: Firstly, ACL was an independent source of law, parallel to the common law. Secondly that the recognition of ACL was limited in that ACL had to be consistent with the Constitution, but that customary law in the Constitution was really referring to the living form of that law. The court said:
“…It is important to note that indigenous law is not a fixed body of formally classified and easily ascertainable rules. By its very nature, it evolves as the people who live by its norms change their patterns of life…In applying indigenous law, it is important to bear in mind that, unlike common law, indigenous law is not written. It is a system of law that was known to the community, practiced, and passed on from generation to generation. It is a system of law that has its own values and norms. Throughout its history, it has evolved and developed to meet the changing needs of the community. And it will continue to evolve within the context of its values and norms consistent with the Constitution.”
In other words, in recognising and applying customary law, the courts had to develop ACL to ensure that it was consistent with the Constitution.
Wikipedia notes that in the case of Shilubana and Others v Nwamitwa, the Constitutional Court spelled out the principles that should govern how living customary law rules are identified by courts and when courts should develop the customary law:
Ms. Shilubana, of the Valoyi traditional community, which is located in the Limpopo Province of South Africa, was appointed as hosi (chief) of her people contrary to the past practice of the eldest son of the previous hosi succeeding his father as the new hosi. The resolution adopted in appointing her specifically referred to the constitutional provision for gender equality as part of the community's motivation in adapting its rules. Mr. Nwamitwa sought to dispute Ms. Shilubana's appointment based on his purported right as the eldest son of the previous hosi. The matter was decided in favour of Mr. Nwamitwa in both the High Court and the SCA, and the case was eventually taken on appeal to the Constitutional Court. In a unanimous judgment, the Court decided that Ms. Shilubana was legitimately appointed as hosi of the Valoyi people. The Court emphasised the fact that ACL is a living system of law not bound by historical precedent. Because of this, it set aside a series of prior decisions that had set a test for determining the content of customary law by referencing long-standing and historical practices. The Court found that ACL is meant to reflect the current practices of a particular community and hence is developed with reference to the constantly evolving practices that indicate the current system of norms by which that community has chosen to live. The Court, therefore, held that the ACL regarding the hosi had legitimately developed to allow for a woman to be appointed and that this development was consistent with the Constitution. Therefore, the appeal was upheld, the Court finding that Ms. Shilubana had been validly appointed.”
Section 7(2) of the Constitution mandates Parliament to respect, protect, promote, and fulfill the rights in the Bill of Rights of people under traditional leadership and governed in accordance with African customary law.
On 31 October 2022 Dr. Nkosazana Dlamini-Zuma, who was the then Minister of Cooperative Governance and Traditional Affairs (COGTA, held a meeting to congratulate the newly reconstituted National House of Traditional and Khoi-San leaders. This reconstitution was in terms of the Traditional and Khoi-San Leadership Act, 3 of 2019, which came into effect on 1 April 2021. This Act made a ‘provision for the statutory recognition of Khoi-San leaders and communities, as well as the establishment of Khoi-San leadership structures’ according to the Government Gazette of 11 December 2020. The Provincial Houses of Traditional and Khoi-San leaders had already been set up in the Eastern Cape, Free State, KwaZulu-Natal, Limpopo, Mpumalanga, and North West.
The idea was
to monitor partnerships and agreements between government and traditional leaders;
conduct investigations and research on applications for the recognition of Khoi‐San leaders and communities;
support royal families in documenting customary laws and genealogies to mitigate against persistent traditional leadership claims and disputes; and
ensure that customary initiation is practiced safely by regulating the environment for initiates.
COGTA planned to produce the Traditional Leadership Handbook by 2024 to establish norms and standards for traditional affairs across all eight provinces, and to document the customary laws of succession for kingships and queenships to mitigate the endless disputes about who should succeed whom. (Parliament extended the term of the Commission of Traditional Leadership Disputes and Claims from 2016 to 2020 – to allow the commission time to finalise outstanding disputes and claims, and deal with the 320 traditional leadership disputes and claims per year that were envisaged.)
The government is also establishing a Commission on Khoi-San Matters to receive and investigate applications for recognition of Khoi-San communities and leaders. It explains as follows:
The Commission will consist of persons who jointly have qualifications or experience in, or knowledge appropriate to, anthropology, history relating to the Khoi-San, customary law, and customs of the Khoi-San, and law.
The Commission will make recommendations to the Minister in respect of the recognition of Khoi-San communities and leaders.
The names of the members of the Commission and the date from which their appointment takes effect will be published in the Government Gazette.
Any Khoi-San community and leader who meet the criteria as stipulated in the Act may apply. This applies to the Cape Khoi, Griqua, Koranna, Nama, and San people or any subgrouping thereof. The application for recognition of a community must be accompanied by an application for the recognition of a leader of such a community. From the date published in the Government Gazette, Khoi-San communities and leaders will have two years to submit their applications for recognition.
All applications for the recognition of Khoi-San communities and leaders must be submitted to the Commission on Khoi-San Matters and not to any other person, body, or department.
For each recognised Khoi-San community, a Khoi-San council must be established (similar to the existing traditional councils for recognised traditional communities).
Recognised Khoi-San leaders will also have the opportunity to become members of the houses of traditional and Khoi-San leaders, subject to the composition of such houses as provided for in the Act and relevant provincial legislation.
The Act does not make provision for a national Khoi-San structure. However, the current National House of Traditional Leaders will in the near future include a number of recognised Khoi-San leaders and the House will be known as the National House of Traditional and Khoi-San leaders.
In terms of the Act, all community authorities that were established in terms of previous laws must be disestablished within three years from the commencement of the Act.
Nominations for the Commission on Khoi-San matter were invited and had to be in by 17 March 2023, but if submissions had been made in 2022, they would still be valid. The commission would sit for five years from 2021 and would consist of a chairperson, a deputy chair, and 2 others. Members would be appointed in their own right and not as representatives of communities.
The current Minister of Cooperative Governance and Traditional Affairs (COGTA) is Ms. Thembi Nkadimeng, who took over from Dr. Nkosazana Dlamini-Zuma in March 2023.
The Chairperson of the National House of Traditional and Khoi-San Leaders is Nkosikazi Mhlauli, Ah! NoSandi! The Chairperson of the Provincial House of Traditional and Khoi-San Leaders is Nkosi Gwadiso.
This has been a long explanation, as it is a long and complicated process, but I hope it answers your questions.
To repeat: section 211(3) of the Constitution provides that all courts must apply and therefore also recognise customary law, but that the recognition and application of customary law are subject to the Bill of Rights
Wishing you the best,
Answered on Sept. 5, 2023, 1:10 p.m.
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