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117 S. African L.J. 306 (2000)
The Application of African Customary Law under the Constitution of South Africa: Problems Solved or Just Beginning

handle is hein.journals/soaf117 and id is 316 raw text is: THE APPLICATION OF AFRICAN CUSTOMARY LAW UNDER THE CONSTITUTION OF SOUTH AFRICA: PROBLEMS SOLVED OR JUST BEGINNING? CHUMA HIMONGA* Associate Professor of Private Law, University of Cape Town CRAIG BOSCH** Lecturer, Institute of Development and Labour Law, University of Cape Town INTRODUCTION This paper attempts to address the challenges that face South African courts in their application of indigenous customary law in a constitutional framework. The recognition of customary law by the Constitution,1 and in particular the entrenchment of the right to culture,2 has created a new dimension to the whole question of the application of customary law and the related issues of its conceptualization, ascertainment and proof in the courts. The paper seeks to encourage continued and intensified debate on the actual operation of the legal system in relation to the application of customary law, an issue which has been recognized as potentially affecting the human rights of a large part of the population of South Africa.3 The paper shows the difficulty of finding easy solutions to problems associated with the application of customary law and this, together with the ques- tions which the paper leaves open, implicitly suggests the need not only for continued debate, but for further study before a solution is adopted. The discussion is divided into several sections. The next section discusses the recognition of customary law in the legal system of South Africa. This is followed by a consideration of the relevant factors deter- mining the application of customary law. The remaining sections of the paper discuss the conceptualization of customary law and how the courts * LLB (Zambia) LLM PhD (London). ** BA LLB (Stellenbosch). 1 Constitution of the Republic of South Africa Act 108 of 1996. 2 Section 30 of the Constitution. 3 T W Bennett Human Rights and African Customary Law with 1999 Addendum (1999) 28ff. See also on this debate Wayne van der Meide 'Gender Equality v Right to Culture: Debunking the Perceived Conflicts Preventing the Reform of the Marital Property Regime of the Official Version of Customary Law' (1999) 116 SALJ 100. 306

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