, PLEASE USE THIS DOCUMENT AS A GUIDE ONLY
1. Discuss the implications of section 211(3) of the constitutional Act of 1996 for the recognition
of customary law in South Africa.
Section 211(3) of the Constitution of the Republic of South Africa, 1996, has profound implications
for the recognition of customary law. It fundamentally alters its status from a tolerated or subordinate
system to one that is fully recognized and must be applied by the courts.
The implications are as follows:
Mandatory Application: The section states that "[t]he courts must apply customary law when
that law is applicable..."¹. This imposes a duty on all courts, not just traditional courts, to apply
customary law. This shifts the previous position where courts had a discretion, making the
application of customary law a constitutional obligation.
Elevation to Equal Status: This mandatory application clause serves to elevate customary law
to the same constitutional level as the common law. The courts are no longer able to view
customary law through a common-law lens but must recognize it as an integral part of South
African law². This is a clear move away from the legal centralism of the past.
Subject to the Constitution: The recognition and application of customary law are
unequivocally "subject to the Constitution"³. This is the most crucial implication. It means that
any rule of customary law, regardless of how long-standing or culturally significant, must be
consistent with the Bill of Rights, particularly the values of human dignity, equality, and
freedom⁴. The Constitution is the supreme law, and customary law derives its validity from it.
Subject to Legislation: The section further makes the application of customary law "subject to...
any legislation that specifically deals with customary law"⁵. This indicates that the legislature
can enact laws to amend, develop, or even replace aspects of customary law, provided such
legislation is itself consistent with the Constitution. This is how the Recognition of Customary
Marriages Act, for example, was able to significantly reform the customary law of marriage.
Development of Customary Law: While section 211(3) mandates the application of customary
law, section 39(2) of the Constitution provides the mechanism for its transformation. It requires
courts, "when developing the common law or customary law, to promote the spirit, purport and
objects of the Bill of Rights"⁶. This provides a powerful tool for courts to adapt customary law
to align with constitutional values, as seen in cases like Bhe v Magistrate, Khayelitsha and
Shilubana v Nwamitwa.
In summary, section 211(3) ensures that customary law is a recognized and applicable legal system
but emphasizes that its validity and application are contingent on its compliance with the
Constitution and national legislation.
¹ IND2601, Study Guide, page 40.
² C Rautenbach, 2018, page 39.
³ C Rautenbach, 2018, page 32.
⁴ IND2601, Study Guide, page 40.
⁵ IND2601, Study Guide, page 40.
⁶ C Rautenbach, 2018, page 33.
1. Discuss the implications of section 211(3) of the constitutional Act of 1996 for the recognition
of customary law in South Africa.
Section 211(3) of the Constitution of the Republic of South Africa, 1996, has profound implications
for the recognition of customary law. It fundamentally alters its status from a tolerated or subordinate
system to one that is fully recognized and must be applied by the courts.
The implications are as follows:
Mandatory Application: The section states that "[t]he courts must apply customary law when
that law is applicable..."¹. This imposes a duty on all courts, not just traditional courts, to apply
customary law. This shifts the previous position where courts had a discretion, making the
application of customary law a constitutional obligation.
Elevation to Equal Status: This mandatory application clause serves to elevate customary law
to the same constitutional level as the common law. The courts are no longer able to view
customary law through a common-law lens but must recognize it as an integral part of South
African law². This is a clear move away from the legal centralism of the past.
Subject to the Constitution: The recognition and application of customary law are
unequivocally "subject to the Constitution"³. This is the most crucial implication. It means that
any rule of customary law, regardless of how long-standing or culturally significant, must be
consistent with the Bill of Rights, particularly the values of human dignity, equality, and
freedom⁴. The Constitution is the supreme law, and customary law derives its validity from it.
Subject to Legislation: The section further makes the application of customary law "subject to...
any legislation that specifically deals with customary law"⁵. This indicates that the legislature
can enact laws to amend, develop, or even replace aspects of customary law, provided such
legislation is itself consistent with the Constitution. This is how the Recognition of Customary
Marriages Act, for example, was able to significantly reform the customary law of marriage.
Development of Customary Law: While section 211(3) mandates the application of customary
law, section 39(2) of the Constitution provides the mechanism for its transformation. It requires
courts, "when developing the common law or customary law, to promote the spirit, purport and
objects of the Bill of Rights"⁶. This provides a powerful tool for courts to adapt customary law
to align with constitutional values, as seen in cases like Bhe v Magistrate, Khayelitsha and
Shilubana v Nwamitwa.
In summary, section 211(3) ensures that customary law is a recognized and applicable legal system
but emphasizes that its validity and application are contingent on its compliance with the
Constitution and national legislation.
¹ IND2601, Study Guide, page 40.
² C Rautenbach, 2018, page 39.
³ C Rautenbach, 2018, page 32.
⁴ IND2601, Study Guide, page 40.
⁵ IND2601, Study Guide, page 40.
⁶ C Rautenbach, 2018, page 33.
