African customary law

PASS 2022

Critical reading and thinking

Assoc / Prof Fatima Osman

Department of Private Law, University of Cape Town
How to read critically
How do you answer questions that expect you to
‘critically discuss’

The Constitutional Court in Shilubana articulated guidelines for

the ascertainment of customary law. Critically discuss these
guidelines. [10 marks]
- Read para 42-57 of the judgment and answer the question.
How do you answer questions that expect you to
‘critically discuss’
1) What are the three factors articulated by the court for the determination of customary law? (para 44-49) [you need to explain the
factors, merely recounting the judgment is not sufficient]

a) What does it mean to consider the traditions of the community concerned?

b) Who has to present the evidence?

c) What happens if parties do not present evidence?

d) What does it mean that the court has a duty to examine the law in the context of the community concerned and
acknowledge developments if they have occurred?

e) What does the need for balancing countervailing interests entail? Can you explain how the court applied this factor?

2) What is the common law test for custom? (para 52)

3) What does the court say about the appropriateness of the Van Breda to determine the existence of customary law? (para 54-56)
How do you answer questions that expect you to
‘critically discuss’

The Constitutional Court in Shilubana articulated guidelines for

the ascertainment of customary law. Critically discuss these
guidelines. [10 marks]
 VAN DER WESTHUIZEN J

JUDGMENT

VAN DER WESTHUIZEN J:

Introduction

[1] This is an application for leave to appeal against a decision of the Supreme

Court of Appeal,1 substantially confirming a decision of the Pretoria High Court.2 It

raises issues about a traditional community’s authority to develop their customs and

traditions so as to promote gender equality in the succession of traditional

leadership,

in accordance with the Constitution. A woman was appointed to a chieftainship

position for which she was previously disqualified by virtue of her gender. This Court

is called on to decide whether the community has the authority to restore the

position of traditional leadership to the house from which it was removed by reason of

gender discrimination, even if this discrimination occurred prior to the coming into

operation of the Constitution.

[2] The matter also raises issues regarding the relationship between
traditional

community structures and courts of law envisaged by our constitutional

democracy. This Court has to consider how courts of law are to apply customary

law
1 as required
Shilubana and Others v Nwamitwa (Commission for Gender Equality as Amicus Curiae) 2007 (2) SA 432
(SCA).
2
Nwamitwa v Phillia and Others 2005 (3) SA 536 (T).

2
 VAN DER WESTHUIZEN J

relevant rules do not only discriminate against women, but also deny younger

sons and sons born out of wedlock the right to succeed. Some communities are

matrilineal and, there too, younger daughters and daughters born out of wedlock are

usually barred.

The Issues

[41] The starting point has to be the proceedings before the High Court, where Mr

Nwamitwa sought a declaration of his right to succeed his father as Chief of the

Valoyi. In order to evaluate this claim, a preliminary question not considered by the

High Court or the Supreme Court of Appeal has to be addressed: what is the proper

approach to adopt when seeking to determine a rule of customary law? Thereafter I

examine, in light of the past and present practice of the Valoyi community, the

arguments relating to the existence of the right Mr Nwamitwa claims to have.

Determining customary law

[42] The status of customary law in South Africa is constitutionally entrenched.

Section 211 of the Constitution provides that the institution, status and role of

traditional leadership are recognised subject to the Constitution.44 It further states that

a traditional authority that observes a system of customary law may function

subject to applicable legislation and customs, including amendments to or repeal of

that legislation and those customs, and that courts must apply customary law where it

is applicable, subject to the Constitution and relevant legislation.

44
See above n 3.

20
 VAN DER WESTHUIZEN J

[43] The import of this section, in the words of Langa DCJ in Bhe, is that customary

law “is protected by and subject to the Constitution in its own right.”45 Customary

law, like any other law, must accord with the Constitution. Like any other law,

customary law has a status that requires respect. As this Court held in Alexkor v

Richtersveld Community, customary law must be recognised as “an integral part of our

law” and “an independent source of norms within the legal system.”46 It is a body of

law by which millions of South Africans regulate their lives and must be treated

accordingly.

[44] As a result, the process of determining the content of a particular customary law

norm must be one informed by several factors. First, it will be necessary to consider

the traditions of the community concerned. Customary law is a body of rules and

norms that has developed over the centuries.47 An enquiry into the position under

customary law will therefore invariably involve a consideration of the past practice of

the community. Such a consideration also focuses the enquiry on customary law in its

own setting rather than in terms of the common law paradigm, in line with the

approach set out in Bhe.48 Equally, as this Court noted in Richtersveld, courts

embarking on this leg of the enquiry must be cautious of historical records, because

of

45
Above n 35 at para 41.
46
Alexkor Ltd and Another v Richtersveld Community and Others [2003] ZACC 18; 2004 (5) SA 460 (CC);
2003 (12) BCLR 1301 (CC) (Richtersveld) at para 51.
47
Id at para 53.
48
Above n 35 at para 43.
 VAN DER WESTHUIZEN J

the distorting tendency of older authorities to view customary law through legal

conceptions foreign to it.49

[45] It is important to respect the right of communities that observe systems of

customary law to develop their law. This is the second factor that courts must

consider. The right of communities under section 211(2) includes the right of

traditional authorities to amend and repeal their own customs. As has been repeatedly

emphasised by this and other courts, customary law is by its nature a constantly

evolving system. Under pre-democratic colonial and apartheid regimes, this

development was frustrated and customary law stagnated. This stagnation should not

continue, and the free development by communities of their own laws to meet the

needs of a rapidly changing society must be respected and facilitated.50

[46] It follows that the practice of a particular community is relevant when

determining the content of a customary law norm. As this court held in

Richtersveld,51 the content of customary law must be determined with reference to

both the history and the usage of the community concerned. “Living” customary law

is not always easy to establish and it may sometimes not be possible to determine

a new position with clarity. However, where there is a dispute over the law of a

community, parties should strive to place evidence of the present practice of

that
49
Above n 46 at para 54.
50
See Bhe above n 35 at 82-7, 90 (Langa DCJ) and 152-3 (Ngcobo J, dissenting); Richtersveld above n 46 at
paras 52-3; Du Plessis and Others v De Klerk and Another [1996] ZACC 10; 1996 (3) SA 850 (CC); 1996 (5)
BCLR 658 (CC) (Du Plessis) at para 172 (Mokgoro J, concurring); Mabuza v Mbatha 2003 (4) SA 218 (C);
2003 (7) BCLR 743 (C) (Mabuza) at paras 26, 28; Mabena v Letsoalo 1998 (2) SA 1068 (T) at 1075B-C.
51
Above n 46 at paras 56-7, referring to Amodu Tijani v The Secretary, Southern Nigeria [1921] 2 AC 399 (PC)
at 404.
 VAN DER WESTHUIZEN J

community before the courts, and courts have a duty to examine the law in the

context of a community and to acknowledge developments if they have occurred.52

[47] Thirdly, courts must be cognisant of the fact that customary law, like any other

law, regulates the lives of people. The need for flexibility and the imperative to

facilitate development must be balanced against the value of legal certainty, respect

for vested rights, and the protection of constitutional rights. In Bhe the majority of

this Court held that it could not leave the customary law of succession to develop in a

piecemeal and sometimes slow fashion, since this would provide inadequate

protection to women and children.53 The possibility for parties to reach agreement on

the devolution of an estate was explicitly left open in order to facilitate the

development of customary law so far as possible, consistent with protecting rights.54

The outcome of this balancing act will depend on the facts of each case. Relevant

factors in this enquiry will include, but are not limited to, the nature of the law in

question, in particular the implications of change for constitutional and other legal

rights; the process by which the alleged change has occurred or is occurring; and the

vulnerability of parties affected by the law.

[48] Furthermore, while development of customary law by the courts is distinct

from

its development by a customary community, a court engaged in the adjudication of

a customary law matter must remain mindful of its obligations under section 39(2)

of

52
Bhe above note 35 at paras 86, 107 (Langa DCJ) and paras 152-4 (Ngcobo J, dissenting).
53
Id at paras 110-3.
54
Id at para 130.
 VAN DER WESTHUIZEN J

the Constitution to promote the spirit, purport and objects of the Bill of Rights.55 This

Court held in Carmichele v Minister of Safety and Security that the section imposes an

obligation on courts to consider whether there is a need to develop the common law to

bring it into line with the Constitution, and to develop it if so.56 The same is true of

customary law.57

[49] To sum up: where there is a dispute over the legal position under
customary

law, a court must consider both the traditions and the present practice of the

community. If development happens within the community, the court must strive to

recognise and give effect to that development, to the extent consistent with adequately

upholding the protection of rights. In addition, the imperative of section 39(2)

must

be acted on when necessary, and deference should be paid to the development by a

customary community of its own laws and customs where this is possible, consistent

with the continuing effective operation of the law. With that, I turn to the enquiry into

the legal position in the present case.

Does Mr Nwamitwa have a right to succeed under customary law?

[50] In essence, Mr Nwamitwa makes two arguments in support of his claim

that

customary law entitles him to succeed his father as of right. First, he is the eldest son

of the previous Hosi, and according to the laws of the Valoyi, the eldest son of

the

55
Section 39(2) states: “When interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”
56
Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies
Intervening)
[2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC) (Carmichele) at paras 34-6.
See the dissenting judgment of Ngcobo J in Bhe above n 35 at para 215 and also the majority judgment of
57

Langa DCJ at para 44.

 VAN DER WESTHUIZEN J

previous Hosi is Chief. That, on his argument, is the end of the question.

Confirmation of his status by the traditional authorities is simply a formality.

Secondly, the actions taken by the traditional authorities in purporting to install Ms

Shilubana were grossly irregular and of no legal force and effect. The traditional

authorities had no legal power to appoint someone other than the heir, and their

actions did not amount to a change of the law entitling them to do so.

[51] I begin with the first argument, namely that there is a customary law rule in the

Valoyi community that chieftainship is passed down to the eldest son of the previous

Hosi, unless the Chief has no sons. The High Court found that this has been the

practice of the community for at least five generations.58 The issue of whether the

practice does indeed reflect the rule Mr Nwamitwa contends it does was disputed

before this Court, particularly by the Rural Women. This issue is considered below.

First, I am concerned with the prior question of whether, as this argument assumes,

reliance on past practice can establish a customary rule with certainty.

[52] The classical test for the existence of custom as a source of law is that set out
in

Van Breda v Jacobs, in which it was held that to be recognised as law, a practice must

be certain, uniformly observed for a long period of time and reasonable.59 The

requirement of reasonableness would now, of course, be applied in a way compliant

with the Constitution. The appropriateness of this test to determine the existence of

a
58
Above n 2 at 540F.
59
Van Breda and Others v Jacobs and Others 1921 AD 330 (Van Breda) at 334.
 VAN DER WESTHUIZEN J

norm of indigenous customary law must be examined. (The appropriateness of the

test in other kinds of cases is not here at issue and no opinion is expressed on it.)

[53] The Van Breda test was applied by the Supreme Court of Appeal in the

Richtersveld case.60 In its decision in that case, this Court noted that the Van Breda

test might not be appropriate to indigenous customary law, but did not decide the

point.61 The argument raised in this case that five generations of practice in the

Valoyi community establish Mr Nwamitwa’s right to succeed requires decision on this

point.

[54] Van Breda dealt with proving custom as a source of law. It envisaged custom

as an immemorial practice that could be regarded as filling in normative gaps in the

common law. In that sense, custom no longer serves as an original source of law

capable of independent development, but survives merely as a useful accessory. Its

continued validity is rooted in and depends on its unbroken antiquity. By contrast,

customary law is an independent and original source of law. Like the common law it

is adaptive by its very nature. By definition, then, while change annihilates custom

as a source of law, change is intrinsic to and can be invigorating of customary law.

[55] Customary law must be permitted to develop, and the enquiry must be rooted
in

the contemporary practice of the community in question. Section 211(2) of the

60
Richtersveld Community and Others v Alexkor Ltd and Another 2003 (6) SA 104 (SCA); 2003 (6) BCLR 583
(SCA) at para 27.
61
Above n 46 at fn 56 and fn 65.
 VAN DER WESTHUIZEN J

Constitution requires this. The legal status of customary law norms cannot depend

simply on their having been consistently applied in the past, because that is a test

which any new development must necessarily fail. Development implies some

departure from past practice. A rule that requires absolute consistency with past

practice before a court will recognise the existence of a customary norm would

therefore prevent the recognition of new developments as customary law. This would

result in the courts applying laws which communities themselves no longer

follow, and would stifle the recognition of the new rules adopted by the communities

in response to the changing face of South African society. This result would be

contrary to the Constitution and cannot be accepted.

[56] It follows that the Van Breda test cannot be applied to customary law, where

the development of living law is at issue. This is not to say that past practice is not

relevant. Past practice and tradition may well be of considerable importance in

customary law, but as one important factor to be considered with other important

factors. It is also not to say that customary law must in the ordinary course be proven

before a court before it can be relied upon. The time when customary law had to be

proved as foreign law in its own land is behind us.62 Where a norm appears

from

tradition, and there is no indication that a contemporary development had occurred or

is occurring, past practice will be sufficient to establish a rule. But where the

contemporary practice of the community suggests that change has occurred, past

practice alone is not enough and does not on its own establish a right with certainty,
62
See Mabuza above n 50 at para 30.
as
 VAN DER WESTHUIZEN J

the three-factor test set out above makes clear.63 Past practice will also not be decisive

where the Constitution requires the development of the customary law in line with

constitutional values.

[57] The past practice of the Valoyi is accordingly important but not decisive in

determining whether Mr Nwamitwa has the right he claims. The question of

development, by the community or as mandated by the Constitution, must also be

addressed. I therefore turn to consider the past and present practice of the community.

The actions of the Valoyi in this case

[58] It is alleged in the founding affidavit of the applicants that the Royal Family,

Royal Council and Tribal Council acted to install Ms Shilubana as Chief of the Valoyi

and resolved that henceforth the matter of chieftainship and regency would be

conducted in accordance with the Constitution. Mr Nwamitwa argues that these

bodies had no power to act in this way and that the meetings were accordingly

irregular and the resolutions void.

[59] The High Court and the Supreme Court of Appeal found that the traditional

authorities had acted unlawfully. The question of whether these findings were correct

takes one to the first and second of the four questions on which this Court directed that

further argument be presented.64 The first issue concerned the authority of the Royal

Family to develop the laws of the Valoyi community to outlaw gender discrimination

63
See above [44]-[49].
64
See above n 10.