The effect of the constitution on customary law in South Africa : for better or for worse?

Abstract

Pre-colonial Africa had a system of human rights that were in line with the social and political situation of the time, the law was integral to communities and everyone knew the law and the way in which it had to be handled.

When the colonisers came to Africa, there was a clash of cultures, as a result, the administration at the time was tasked with trying to make sense of social and legal norms which they could not understand or accept. Therefore, they tried to regulate the African population by importing their legal system and disregarding customary law.

When the process of colonising South Africa began, customary law in the country was unwritten, this was adverse to the colonial justice which required that there should be uniformity, it is because of this that the process of capturing oral custom into written texts began with the aim that courts would have a single code of rules which would be authoritative.

The new Constitutional dispensation requires that all laws in South Africa be consistent with the provisions of the Constitution lest they are regarded as being inconsistent. These provisions in the Constitution have had an impact not only on the enforcement of certain customary law rules but on the law in general. This dissertation seeks to inquire on the impact that the Constitution has had on various aspects of customary law and whether such impact is for better or worse with specific consideration of the people who practice customary law.