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.

EXAMPLE

In customary law, a biological father does not have automatic rights and responsibilities to his children. Rather, a father’s right to his biological children is linked to marriage and the question of lobola. If lobola was agreed then the child belongs to the father’s family. If it was not agreed, then the child belongs to the mother’s family. But in the case of Hlope v Mahlalela, the court did not approve of the role of lobola in deciding the responsibilities of parents and their rights, and instead focused on the best interests of the child which is a principle enshrined in the Constitution.