The 1994 Constitution recognized customary law as being of equal status with common law. … 39 (2) 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.
Is customary law part of South African law?
Most African states follow a pluralistic form of law that includes customary law, religious laws, received law (such as common law or civil law) and state legislation. … The South African Constitution recognizes traditional authority and customary law under Section 211.
How is customary law applied in South African courts?
Section 211(3) of the Final Constitution places a duty on the courts to apply customary law. It provides 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’.
What does the Constitution say about African customary law?
The Constitution says that customary law is protected, but the rules of customary law must be in line with the principles in the Bill of Rights. The Bill of Rights protects the right to culture. But it also protects the right to equality and non-discrimination, and the right to dignity.
What are examples of customary law?
- Grant of land rights and native title;
- Protection of sites and sacred sites;
- Hunting and fishing rights;
- Aboriginal traditional marriages;
- Aboriginal child care practices;
- Traditional distribution on death; and.
- Aboriginal courts.
How do you prove customary law?
The proof of customary law in court is governed by the copious provision of Section 16 of the Evidence Act 2011. The summary of the Act therefore is a customary law can either be proved by direct evidence to establish its existence or by established judicial notice.
What is the most important source of law in South Africa?
The Constitution of 1996 is the most important source of law in South Africa. The Constitution is the supreme law of South Africa and law, passed by Parliament, which offends the Constitution, is invalid. Secondly, custom is also recognised as a primary source of law.
What are the two sources of law in South Africa?
South African law has more than one source: Legislation. Case Law (court decisions) Common Law.
What are the 5 sources of South African law?
The sources of South African law are:
- the Constitution – the supreme law of the country (s 2 of the Constitution)
- legislation (acts of the national and provincial legislatures, and governmental regulations)
- common law.
- judicial precedent.
- customary / indigenous law. …
- Religious personal laws.
- international law.
Why does South Africa not have a codification of law?
South African law is not codified, which means it is not recorded into one comprehensive piece of legislation. Our law has been influenced by Roman; Roman-Dutch; and English law given the history of our country. … This history brings us to the main sources of the law today in South Africa.
Is customary law legally binding?
Customary law is an important source of international law because it binds all nations, and so is not limited in its application, as a treaty is, by reference to who has ratified it or acceded to it.
What is meant by customary law?
Keeton: – According to him, “customary law may be defined as those rules of human action established by usage and regarded as legally binding by those to whom the rules are applicable, which are adopted by the courts and applied as source of law, because they are generally followed by the political society as a whole, …