, IND2601 ASSIGNMENT 1 SEMESTER 2
DUE DATE: 17 AUGUST 2026
1. Implications of section 211(3) of the Constitution for the recognition of
customary law
Section 211(3) of the Constitution of the Republic of South Africa, 1996 requires courts
to apply customary law when it is applicable, subject to the Constitution and any
legislation that specifically deals with customary law.1 This provision gives customary
law formal recognition within the South African legal system and confirms that
customary law is not merely a historical or informal system of rules.
The section places customary law on an important constitutional footing by requiring
courts to recognise and apply it where appropriate. However, customary law does not
operate independently of the Constitution. Its rules must comply with constitutional
rights and values, particularly equality, dignity and freedom.2 In Bhe v Magistrate,
Khayelitsha, the Constitutional Court confirmed that customary law must be
developed and interpreted consistently with the Constitution, and invalidated the
discriminatory customary rule of male primogeniture in succession.3
Section 211(3) therefore promotes legal pluralism by allowing customary law to
operate alongside common law and legislation, while ensuring that it remains subject to
constitutional supremacy. Courts must also consider living customary law, namely the
customary practices actually observed by communities, rather than relying exclusively
on outdated written versions of customary rules.4
1
Constitution of the Republic of South Africa, 1996 s 211(3).
2
Constitution of the Republic of South Africa, 1996 ss 2, 9, 10 and 39(2).
3
Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC) paras 41–43, 53–54.
4
Shilubana v Nwamitwa 2009 (2) SA 66 (CC) paras 44–49.
DUE DATE: 17 AUGUST 2026
1. Implications of section 211(3) of the Constitution for the recognition of
customary law
Section 211(3) of the Constitution of the Republic of South Africa, 1996 requires courts
to apply customary law when it is applicable, subject to the Constitution and any
legislation that specifically deals with customary law.1 This provision gives customary
law formal recognition within the South African legal system and confirms that
customary law is not merely a historical or informal system of rules.
The section places customary law on an important constitutional footing by requiring
courts to recognise and apply it where appropriate. However, customary law does not
operate independently of the Constitution. Its rules must comply with constitutional
rights and values, particularly equality, dignity and freedom.2 In Bhe v Magistrate,
Khayelitsha, the Constitutional Court confirmed that customary law must be
developed and interpreted consistently with the Constitution, and invalidated the
discriminatory customary rule of male primogeniture in succession.3
Section 211(3) therefore promotes legal pluralism by allowing customary law to
operate alongside common law and legislation, while ensuring that it remains subject to
constitutional supremacy. Courts must also consider living customary law, namely the
customary practices actually observed by communities, rather than relying exclusively
on outdated written versions of customary rules.4
1
Constitution of the Republic of South Africa, 1996 s 211(3).
2
Constitution of the Republic of South Africa, 1996 ss 2, 9, 10 and 39(2).
3
Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC) paras 41–43, 53–54.
4
Shilubana v Nwamitwa 2009 (2) SA 66 (CC) paras 44–49.
