IND2601 - African Customary Law Exam_notes

Discuss Implications of sec 211(3) of the Constitution for recognition of customary law (15) Section 211 the Constitution of the Republic of South Africa, 1996 gives clear and unambiguous recognition to customary law. This section reads as follows: 1. The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution. 2. A traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendments to, or repeal of, that legislation or those customs. 3. The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. The implications of section 211(3) can be summarised as follows: • All courts must apply and therefore also recognise customary law. • recognition and application of customary law are subject to the Bill of Rights. • recognition and application of customary law are subject to legislation that specifically deals with this matter. ( only legislation aimed at amending customary law is relevant and not legislation in general) • courts determine when customary law is applicable. Constitutional Recognition of Customary Law ito SECTION 30 AND 31 OF THE CONSTITUTION Sections 30 and 31 form the basis of a new approach to customary law Sec 30 :  Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.”  ‘right to participate in the culture of a person’s own choice’  the concept of “culture” mentioned in section 30 may well be interpreted as including customary law  Sec 30 read with sect 15 in the Constitution, paved the way for the recognition of customary marriages  Hindu and Islamic law, specifically the polygynous nature of marriage under these laws  section 39 together section 30 - can argued that the state is obliged to apply and recognise customary law  confers no express right to insist that customary law be applied -simply provides that individuals have the right to take part in the culture of their own choice. Sec 31 : Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community – (a) to enjoy their culture, practise their religion and use their language; and (b) to form, join and maintain cultural, religious and linguistic association and other organs of civil society. state has two duties:  not to interfere with the rights of the individual  to allow the existence of institutions that would be necessary to maintain the culture concerned Group and individual rights depend on each other What seems to emerge from these Section 30 and 31, the state must • allow diversity in South Africa • preserve the existence and identity of cultural groups • not discriminate against any particular cultural group • allow each cultural group to foster its separate identity, for example to – speak its own language – to practise its distinctive religious beliefs – to have its personal laws applied to i