Customary law comes from indigenous cultures in South Africa and is also often referred to as indigenous law. When the settlers arrived in the Cape in 1652 there was already an established legal system being practiced by the people who lived there. This indigenous legal system was:

• Unwritten
• Passed on orally from generation to generation
• Strongly tied to culture, tradition and the tribe

But customary/indigenous law was not recognised as part of the South African legal system by the colonial powers. Roman-Dutch law was seen as the common law of the land after settlement of the Dutch-East India Company in 1652.

At that stage all the customary laws were passed on by word of mouth and were unwritten.

When Britain took over the Cape in 1814, the colonial policy was to keep on the local laws of the new colonies as long as they were “civilized”. Roman-Dutch law was seen as civilized and all other systems of law were ignored. The customary laws were codified but the sources were men and the recorders were men with a Western perspective and interpretation. The codification of customary law failed to take into account its dynamic nature.

It was only when South Africa became a democracy in 1994 and adopted its Constitution that indigenous law was recognised as having the same standing as Roman-Dutch law.

Under the Constitution, Roman-Dutch and customary/indigenous law are now treated as equal. However if the customary law is in conflict with the Constitution, then the court has to apply the Constitution and the Bill of Rights. The courts

are required to apply customary law, but where it may be in conflict with the Constitution, they should first develop it in line with the Bill of Rights before finding it unconstitutional. For example in the Shilubane case, where a community wanted a woman to be Chief, the Constitutional Court acknowledged the development of custom of that community and developed the customary law in line with the practices of the community and the requirements of the Constitution.

Customary law is used in chief’s or headman’s courts, but these can only deal with certain cases between people who are part of the culture. Also, there may be cases that are excluded, for example, where they affect the status of women and the return of lobola. The representation of women as litigants and as “judges” in these courts is also an issue that the state is considering.