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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