The Constitution is a law passed by parliament and it is the highest law in the land. All other laws must follow it. Other laws are divided into statutes (laws or acts), common law and customary law:

Statutes are laws or acts which are made by government. Laws made by the national parliament are called acts of parliament, laws made by provincial legislatures are called ordinances, and laws made by municipal councils are called by-laws.

Common law means laws that have not been made by parliament or any other government. They are unwritten laws. Common law is based on Roman Dutch law (laws that were brought by the Dutch when they arrived in South Africa). The courts used these laws and developed them when they made decisions (or set precedents).

Customary laws are also unwritten laws. They are laws that apply to certain cultures or ethnic groups.

All these laws have to follow the Constitution. In other words, they cannot go against what the Constitution says. So, new laws must follow the Constitution and the government must change old laws or parts of old laws if they don’t follow the Constitution. If a customary law or common law goes against the Constitution then a court will say it is invalid. In other words, it can’t apply in the situation. (See example below)

Example:

Mary Sibiya’s husband dies. There is a customary law that says women can’t inherit land from their husbands who have died.

Mary is told by her husband’s eldest son that he owns the land now that his father is dead. Mary wants to take her case to court because she thinks it is unfair. In this situation the court would look at the customary law and at what the Constitution says. If it thinks the customary law goes against Mary’s right to equality and non-discrimination then it will say the customary law is invalid.