IND2601 ASSIGNMENT 1 2026
DUE 17 AUGUST 2026
QUESTION 1
Discuss the implications of section 211(3) of the Constitution 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 represents a
transformative departure from the colonial and apartheid-era approach to customary
law.¹ Prior to the democratic dispensation, customary law was treated as a subordinate
legal system, subject to the common law and confined by the repugnancy clause.² The
constitutional recognition of customary law fundamentally altered its status within the
South African legal order.
1.2 Constitutional Recognition and Status
In terms of section 211(3), customary law is recognised as an integral part of South
African law. The provision states that "[t]he courts must apply customary law when that
law is applicable, subject to the Constitution and any legislation that specifically deals
with customary law."³ This provision has several significant implications.
¹ Rautenbach C (ed) Introduction to Legal Pluralism in South Africa 6th edn (2021) 37-38.
² Law of Evidence Amendment Act 45 of 1988, s 1(1).
³ Constitution of the Republic of South Africa, 1996, s 211(3)
,customary law is placed on an equal footing with the common law. In Alexkor Ltd v
Richtersveld Community, the Constitutional Court emphasised that customary law
"must be seen as an integral part of our law" and that its validity must be determined by
reference to the Constitution, not the common law.⁴ This means that courts can no
longer view customary law through a "common law lens" but must respect it as an
independent source of legal norms.
Section 211(3) imposes a mandatory duty on courts to apply customary law where
applicable. Previously, under the Black Administration Act and the Law of Evidence
Amendment Act, courts had a discretion whether to apply customary law.⁵ Now, subject
to the Constitution and legislation, courts are obliged to give effect to customary law.
1.3 Limitations and Balance
The recognition of customary law is not absolute. Section 211(3) makes customary law
subject to two limitations: the Constitution and legislation dealing specifically with
customary law.⁶ This means that customary law rules that conflict with constitutional
rights, such as the right to equality, must be developed or declared invalid. In Bhe v
Magistrate, Khayelitsha, the Constitutional Court declared the rule of male
primogeniture unconstitutional precisely because it violated women's rights to equality
and dignity.⁷
⁴ Alexkor Ltd v Richtersveld Community 2004 (5) SA 460 (CC) para 51.
⁵ Black Administration Act 38 of 1927, s 11(1) (repealed).
⁶ Constitution, s 211(3).
⁷ Bhe v Magistrate, Khayelitsha 2005 (1) BCLR 1 (CC) para 92.
, 1.4 Conclusion
The implications of section 211(3) are profound. It elevates customary law from a
tolerated subordinate system to a constitutionally protected legal system. At the same
time, it subjects customary law to constitutional scrutiny, requiring the development of
customary law in line with the Bill of Rights. This balance ensures that customary law is
respected while also protecting fundamental human rights.
DUE 17 AUGUST 2026
QUESTION 1
Discuss the implications of section 211(3) of the Constitution 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 represents a
transformative departure from the colonial and apartheid-era approach to customary
law.¹ Prior to the democratic dispensation, customary law was treated as a subordinate
legal system, subject to the common law and confined by the repugnancy clause.² The
constitutional recognition of customary law fundamentally altered its status within the
South African legal order.
1.2 Constitutional Recognition and Status
In terms of section 211(3), customary law is recognised as an integral part of South
African law. The provision states that "[t]he courts must apply customary law when that
law is applicable, subject to the Constitution and any legislation that specifically deals
with customary law."³ This provision has several significant implications.
¹ Rautenbach C (ed) Introduction to Legal Pluralism in South Africa 6th edn (2021) 37-38.
² Law of Evidence Amendment Act 45 of 1988, s 1(1).
³ Constitution of the Republic of South Africa, 1996, s 211(3)
,customary law is placed on an equal footing with the common law. In Alexkor Ltd v
Richtersveld Community, the Constitutional Court emphasised that customary law
"must be seen as an integral part of our law" and that its validity must be determined by
reference to the Constitution, not the common law.⁴ This means that courts can no
longer view customary law through a "common law lens" but must respect it as an
independent source of legal norms.
Section 211(3) imposes a mandatory duty on courts to apply customary law where
applicable. Previously, under the Black Administration Act and the Law of Evidence
Amendment Act, courts had a discretion whether to apply customary law.⁵ Now, subject
to the Constitution and legislation, courts are obliged to give effect to customary law.
1.3 Limitations and Balance
The recognition of customary law is not absolute. Section 211(3) makes customary law
subject to two limitations: the Constitution and legislation dealing specifically with
customary law.⁶ This means that customary law rules that conflict with constitutional
rights, such as the right to equality, must be developed or declared invalid. In Bhe v
Magistrate, Khayelitsha, the Constitutional Court declared the rule of male
primogeniture unconstitutional precisely because it violated women's rights to equality
and dignity.⁷
⁴ Alexkor Ltd v Richtersveld Community 2004 (5) SA 460 (CC) para 51.
⁵ Black Administration Act 38 of 1927, s 11(1) (repealed).
⁶ Constitution, s 211(3).
⁷ Bhe v Magistrate, Khayelitsha 2005 (1) BCLR 1 (CC) para 92.
, 1.4 Conclusion
The implications of section 211(3) are profound. It elevates customary law from a
tolerated subordinate system to a constitutionally protected legal system. At the same
time, it subjects customary law to constitutional scrutiny, requiring the development of
customary law in line with the Bill of Rights. This balance ensures that customary law is
respected while also protecting fundamental human rights.
