Abstract:
Customary law is the original law of the inhabitants of South Africa;
however, it has always been treated as the stepchild of the legal system.
The new constitutional dispensation requires that all laws be measured
against the Constitution of the Republic of South Africa, 1996. This means
that any law that is inconsistent with the Constitution is regarded as being
invalid. Over the last few years, courts have had several cases, which have
required them to test the constitutionality of some customary law
principles and develop customary law in a manner that aligns it with the
Constitution. However, we have witnessed a reluctance to develop
customary law from the courts, instead, the laws which could have been
developed were declared invalid. The focus of this paper will be to
interrogate the role and effect of the Constitution in the administration and
application of customary law of succession. Furthermore, to justify why we
hold the view that customary law is a stepchild of the South African legal
system post the democratic dispensation, this is attributed to the fact that
most cases that involve the customary law of succession still leave many
women in dire social and financial situations where the head of the family
dies due to the distorted prevailing principle of male primogeniture.
