Living customary law in South Africa and the struggle over who gets to say what it is
Introduction
Nobody seriously disputes any more that customary law is law. The Constitutional Court said so plainly in Alexkor, where indigenous law was described as an independent source of norms that works inside the legal system but answers to the Constitution (De Souza Louw and Luwaya, 2025). It said so again when it struck down the male primogeniture rule in Bhe in October 2004 (Bhe, 2004), and again in Shilubana, which treated customary law as living law that moves with the community (Shilubana, 2008; Oninku, 2024). So far, so settled. The trouble starts one step later, with the question of who gets to say what the living law currently is, and that question sits behind a good share of the litigation of the last few years.
This paper argues that three institutions compete to answer it, and that each keeps drifting towards a fixed version of custom. Courts, when a case is hard, lean on technicality and precedent (Mailula, 2023). Parliament writes recognition into statutes that put councils, royal families and officials at the centre, not the people whose practice the law is meant to reflect (De Souza Louw and Luwaya, 2025; Osman, 2024a). And communities, who are supposed to be the source, often speak only through a leader. My position is that living customary law is best protected when it is treated as a matter of evidence about practice, with statutes confined to framing and safeguarding rather than defining it. The sections that follow look at what the Constitution settled, the courts, the statutes and finally the question of community voice.
What the Constitution settled
The foundations are worth stating briefly because the later disputes build on them. Section 211(3) tells courts to apply customary law when it is applicable, subject to the Constitution and to any legislation that specifically deals with customary law (Republic of South Africa, 1996). That last clause matters more than it first looks, because it hands Parliament a real hand in shaping what courts end up applying, a point De Souza Louw and Luwaya (2025) press when they say both institutions help define the content of customary law. In Bhe the Court declared section 23 of the Black Administration Act and the primogeniture rule invalid, and put the Intestate Succession Act in their place as an interim regime until Parliament acted (Bhe, 2004). Striking a rule out and substituting a statute is a different move from developing the living law from inside, and that difference comes back later.
Shilubana arrived in 2008 and is usually read as the counterweight. The Court there accepted that customary law is by its nature an evolving system, that a community may develop its own law in line with constitutional values, and that past practice does not freeze the present (Shilubana, 2008). In the result the royal family’s decision to install a woman as chief was upheld. Oninku (2024) treats the case as a source of criteria for developing living customary law and uses it to argue that Ghana’s measures fall short. There is a catch, though. De Souza Louw and Luwaya (2025) observe that the resolution allowing a female chief was in fact taken by the royal family, even though the Court spoke of the customary community. So the leading authority on community-led development was, on its facts, development led from the palace.
Courts between development and avoidance
Mailula (2023) reads the Court’s record less kindly. His review suggests that the Court made real progress in a few early cases and then lost momentum, and that in hard cases it has tended towards literal, formalistic readings and technical grounds that let it avoid developing customary law at all. That is a heavy charge against a court meant to be the main guardian of the Constitution’s promise of change. Mayelane, decided in May 2013, is the obvious counter-example, since the Court developed Xitsonga customary law to require a first wife’s consent before a later customary marriage, though only prospectively, and the bench split over whether development was needed in that case (De Souza Louw and Luwaya, 2025; Mayelane, 2013). Even the best example comes with hedges built in.
The handing-over saga shows the pattern in miniature. Section 3(1)(b) of the Recognition of Customary Marriages Act 120 of 1998 requires a customary marriage to be negotiated and entered into or celebrated in accordance with customary law (Republic of South Africa, 1998), and courts have spent years arguing over whether that means the bride must be handed over to the groom’s family (Osman et al., 2025). The Supreme Court of Appeal said in Mbungela v Mkabi in September 2019 that the ceremony is not a key determinant of validity and can be waived, and it repeated the point in Tsambo v Sengadi in April 2020, where a symbolic handing over was enough (Mbungela, 2019; Tsambo, 2020). Bakker (2022) thinks Mbungela was wrongly decided. For him the ritual can be shortened or waived but integration of the bride into the groom’s family remains a requirement. Maimela and Morudu (2024) come at it from the other side, accusing the High Court of reading the marriage requirements narrowly and positivistically and urging purposive interpretation of living practice.
Meanwhile the High Court in Sengadi v Tsambo had gone further in November 2018 and declared the handing-over requirement unconstitutional to the extent it was imposed on an otherwise valid marriage, and the Supreme Court of Appeal called that declaration unwarranted because the point was never pleaded or fully argued (Tsambo, 2020). Osman et al. (2025) argue that the High Court’s declaration was peculiar but within its powers, and that the Supreme Court of Appeal, instead of clearing the air, may have tacitly set it aside without saying so. Their title says the matter has been left in limbo, which feels about right. A couple marrying today would struggle to read a clear answer off these decisions, and the commentators themselves do not agree on what the answer should be (Bakker, 2022; Osman et al., 2025).
A more promising thread is the insistence that living customary law be proved as fact. Radebe (2025) points to Mgenge v Mokoena, where the court looked past a marriage certificate and heard oral evidence of community practice to decide whether a customary marriage existed, and she argues that legal education, still dominated by black-letter habits, has not caught up. Kruuse (2023) adds that this depends on lawyers as much as on judges, since the way practitioners plead and argue customary marriage disputes, and whether they treat ubuntu as a working legal principle, affects whether a court can see the living law at all. Easy it is not. Proof by evidence is slow and costs money, and a rural widow without an attorney is hardly placed to bring in expert witnesses. Even so, it is the only method in these sources that keeps custom tied to what people actually do.
Parliament and the problem of top-down recognition
Parliament’s record is harder to defend. The Traditional and Khoi-San Leadership Act 3 of 2019 was declared invalid in Mogale on 30 May 2023 because Parliament had failed to provide for public involvement before passing it, and the order was suspended for 24 months (Mogale, 2023). In 2025 the Court extended the suspension to 29 May 2027, in reasons handed down on 10 October 2025, and it said the delay was largely down to the Minister and Parliament (Minister of Cooperative Governance and Traditional Affairs, 2025). A replacement Bill, B11-2026, was introduced on 21 April 2026 and by late August had been referred to the National Assembly’s Portfolio Committee on Cooperative Governance and Traditional Affairs (Parliament of South Africa, 2026b, 2026c). I found no record of it passing. The 2019 Act, De Souza Louw and Luwaya (2025) argue, gives the community 40 per cent of the seats on a traditional council and not much more, and by the Minister’s own answer in Parliament no traditional council was validly constituted at 31 March 2024.
The same top-down habit shows in how the Act treats communities. Osman (2024a) notes that Khoi-San councils exercise authority over people who affiliate voluntarily, while other traditional councils are tied to land and to whoever lives on it, and she argues that the Act leaves concentrated power in councils alone while enlarging their ability to bind communities through partnership agreements. De Souza Louw and Luwaya (2025) link that power to land, saying it cuts across the consent procedures that the Interim Protection of Informal Land Rights Act 31 of 1996 gives holders of informal rights. This whole thing is not really about the content of customary law. It is about the machinery of recognition, which decides who speaks for a community and so, in practice, whose version of custom reaches a mining contract or a courtroom (Osman, 2024a).
The Traditional Courts Act 9 of 2022 is the clearest case of a statute that was passed and then left waiting. The President assented on 16 September 2023 and the Act was published in Government Gazette 49373 on 27 September 2023, but section 19 says it starts on a date fixed by presidential proclamation (Republic of South Africa, 2023). The consolidated text on SAFLII, updated to 19 December 2025, still lists it as to be proclaimed. In December 2025 the Department of Justice invited comment on draft regulations and a code of conduct, with submissions due by 13 February 2026, and described the Act as not yet operational (Department of Justice and Constitutional Development, 2025). The department ties commencement to the regulations while section 19 speaks of a proclamation, so both steps seem to be needed, and I found no proclamation. De Souza Louw and Luwaya (2025) add that the Act’s accountability provisions, its codes of conduct and good-faith protections, are untested.
Marriage is where statute and living practice rub against each other most visibly. Osman (2024b) finds that the piecemeal case law on the property consequences of customary marriages has never been properly reconciled, that the Marriage Bill [B43-2023] disregards customary ideas about property and could leave customary marriages without a property regime, and that the Law Reform Commission’s discussion paper is the more promising route. That Bill lapsed on 21 May 2024 (Parliamentary Monitoring Group, 2024). Even so, Parliament’s Home Affairs committee was running the final round of provincial public hearings on a Marriage Bill [B43-2023] in early February 2026, and I found no record of its passage (Parliament of South Africa, 2026a). Maimela and Morudu (2024) put the disparity between legislative and judicial interpretation in their title, and the Bill’s history suggests the gap has not closed.
In the meantime the courts fill the gap. In VVC v JRM, decided on 21 January 2026, the question was whether section 10(2) of the Recognition Act let spouses in a customary marriage sign an antenuptial contract before a later civil marriage. The majority read the provision as not permitting that, said that converting to a civil marriage replaces the legal system but does not end the marriage, and held that the parties’ agreement was really a postnuptial contract needing a court order under section 21 of the Matrimonial Property Act. It declined to confirm the High Court’s declaration of invalidity, and Rogers J, dissenting, would have allowed such a contract to regulate the civil marriage (VVC v JRM, 2026). The majority’s route ran through two statutes and a judicial oversight safeguard. Whether the reform Osman (2024b) wants, one grounded in how customary property is actually practised, can be built on that footing is an open question.
Whose voice counts as the community’s
None of this answers what happens when the community itself is heard. Shilubana pointed that way and the Court has gone there elsewhere. De Souza Louw and Luwaya (2025) list cases in which it sided with ordinary members against traditional authorities, among them Pilane, which protected the right of groups to call meetings without the leader’s permission, and Sigcau in 2024, where it accepted that popular opinion and fitness to govern play a part in succession under AmaMpondo customary law next to genealogy. They are candid about limits too. In Pilane a minority warned of disorder, and some community decisions arrive through collective meetings that look more like consultation than decision. A High Court in the Wild Coast matter, which they also cite, said consulting a king as though he spoke for every subject has no place in a constitutional democracy. Radebe (2025) proposes that students sit in customary courts and talk to community experts, which at least signals that the field is looking for ways to hear communities first-hand.
There is a fair objection to all this. Evidence-based living law is less predictable than a written rule, and predictability matters when a Home Affairs official has to register a marriage or a Master has to wind up an estate. The call for a firm test is not silly, and Bakker (2022) in effect makes it when he keeps integration as a requirement. But the sources suggest that the supposedly certain route has not delivered it. The handing-over rule has been waived in some cases, declared unconstitutional by one court and called unwarranted by the next, and defended by commentators on opposite grounds (Osman et al., 2025; Bakker, 2022), while the statutory route has produced a suspended invalidity order, an Act waiting for proclamation and a Bill that lapsed once. Certainty bought by freezing custom seems to be neither certain nor faithful to custom.
What would an evidence-first approach ask of each institution? Of courts, it would ask for fewer shortcuts when the facts about practice are contested, which is exactly where Mailula (2023) sees avoidance. Of Parliament, it would ask for statutes that set procedure, participation, women’s representation and accountability, and then stop short of naming who speaks for whom, a lesson that Mogale arguably teaches (De Souza Louw and Luwaya, 2025; Osman, 2024a). Of the legal profession, it would ask for the pleading and teaching habits that let living practice get into the record (Kruuse, 2023; Radebe, 2025). None of that is cheap. But the alternative is a cycle in which each branch corrects the other and ordinary people keep waiting.
Conclusion
Customary law’s standing is no longer in doubt. Its content is. The decisions and statutes reviewed here suggest that courts and Parliament both tend to harden custom into something easier to apply, and that the cost of hardening falls on the people with the least say. The Constitutional Court’s recent record shows that it can and sometimes does protect a people-centred version, as De Souza Louw and Luwaya (2025) argue, though Mailula (2023) is right that it does not always manage it in hard cases. As things stand, the Traditional Courts Act has not commenced, the Traditional and Khoi-San Leadership Act survives only on a suspended order, and the marriage reforms remain unfinished. The sensible course is to treat living customary law as something proved, not declared, and to let legislation build the safeguards around it (Osman et al., 2025; Radebe, 2025).
Reference list
Bakker, P. (2022) Integration of the bride and the courts: is integration as living customary law requirement still required? Potchefstroom Electronic Law Journal, 25, pp. 1-21. doi:https://doi.org/10.17159/1727-3781/2022/v25i0a14012
De Souza Louw, M. and Luwaya, N. (2025) The legacy and future of customary law in South Africa’s Constitutional Court jurisprudence. Constitutional Court Review, 15(1), pp. 539-586. doi:https://doi.org/10.2989/CCR.2025.0019
Kruuse, H. (2023) Transforming litigation in customary marriage disputes: ubuntu and the responsibility of legal practitioners. Acta Juridica, 2023, pp. 19-45. doi:https://doi.org/10.47348/ACTA/2023/a2
Mailula, D. (2023) Hard cases make bad law: reflections on the South African Constitutional Court’s jurisprudence on the development of African customary law in South Africa. Southern African Public Law, 38(1). doi:https://doi.org/10.25159/2522-6800/13717
Maimela, C. and Morudu, N.L. (2024) Cherishing customary law: the disparity between legislative and judicial interpretation of customary marriages in South Africa. Obiter, 45(2), pp. 400-417. doi:https://doi.org/10.17159/obiter.v45i2.19045
Oninku, E.A. (2024) A review of the decision of the Constitutional Court of South Africa in the Shilubana case: lessons for the development of customary law in Ghana. Comparative and International Law Journal of Southern Africa, 57(1). doi:https://doi.org/10.25159/2522-3062/14331
Osman, F. (2024a) An examination of the recognition of communities and partnership agreements under South Africa’s Traditional and Khoi-San Leadership Act. African Human Rights Law Journal, 24(2), pp. 609-631. doi:https://doi.org/10.17159/1996-2096/2024/v24n2a9
Osman, F. (2024b) The proprietary consequences of customary marriages: challenges in the new regime(s)? Potchefstroom Electronic Law Journal, 27, pp. 1-29. doi:https://doi.org/10.17159/1727-3781/2024/v27i0a17238
Osman, F., Kruger, S., Bebington, M. and Uranovsky, J. (2025) Left in limbo: the status of the handing over of the bride in customary marriages post Sengadi v Tsambo. Potchefstroom Electronic Law Journal, 28, pp. 1-31. Available at: https://perjournal.co.za/article/view/18472 (Accessed: 18 October 2026).
Radebe, M.K. (2025) Embracing living customary law: rethinking the teaching of African customary law: the case of Mgenge v Mokoena. Speculum Juris, 39(1), pp. 227-240. Available at: https://specjuris.ufh.ac.za/sites/default/files/2026-01/SJ2025%20-%20ISSUE%20NO1%20Martha%20Keneilwe%20Radebe.pdf (Accessed: 18 October 2026).
Legislation and case law
Bhe and Others v Khayelitsha Magistrate and Others (2004) [2004] ZACC 17; 2005 (1) SA 580 (CC). Available at: https://www.saflii.org/za/cases/ZACC/2004/17.html (Accessed: 18 October 2026).
Department of Justice and Constitutional Development (2025) Ministry of Justice and Constitutional Development calls for public comment on draft Traditional Courts Regulations, 10 December 2025. Available at: https://www.justice.gov.za/m_statements/2025/20251210-Draft-Traditional-Courts-Regulations.html (Accessed: 18 October 2026).
Mayelane v Ngwenyama and Another (2013) [2013] ZACC 14; 2013 (4) SA 415 (CC). Available at: https://www.saflii.org/za/cases/ZACC/2013/14.html (Accessed: 18 October 2026).
Mbungela and Another v Mkabi and Others (2019) [2019] ZASCA 134; 2020 (1) SA 41 (SCA). Available at: https://www.saflii.org/za/cases/ZASCA/2019/134.html (Accessed: 18 October 2026).
Minister of Cooperative Governance and Traditional Affairs v Speaker of the National Assembly and Others (2025) [2025] ZACC 22; 2026 (1) BCLR 1 (CC). Available at: https://www.saflii.org/za/cases/ZACC/2025/22.html (Accessed: 18 October 2026).
Mogale and Others v Speaker of the National Assembly and Others (2023) [2023] ZACC 14; 2023 (6) SA 58 (CC). Available at: https://www.saflii.org/za/cases/ZACC/2023/14.html (Accessed: 18 October 2026).
Parliament of South Africa (2026a) Media alert: Limpopo province will close out provincial Marriage Bill public hearings. Available at: https://www.parliament.gov.za/press-releases/media-alert-limpopo-province-will-close-out-provincial-marriage-bill-public-hearings_01_02_2026 (Accessed: 18 October 2026).
Parliament of South Africa (2026b) Order paper, Wednesday, 26 August 2026. Available at: https://www.parliament.gov.za/storage/app/media/Docs/order_pap/01vchl7hevv2yepfegubfi3cio64j2mdhf.pdf (Accessed: 18 October 2026).
Parliament of South Africa (2026c) Traditional and Khoi-San Leadership Bill [B11-2026]. Available at: https://www.parliament.gov.za/bill/2328393 (Accessed: 18 October 2026).
Parliamentary Monitoring Group (2024) Marriage Bill [B43-2023]. Available at: https://pmg.org.za/bill/1204/ (Accessed: 18 October 2026).
Republic of South Africa (1996) Constitution of the Republic of South Africa, 1996, Chapter 12. Available at: https://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-12.pdf (Accessed: 18 October 2026).
Republic of South Africa (1998) Recognition of Customary Marriages Act 120 of 1998. Available at: https://www.gov.za/sites/default/files/gcis_document/201409/a120-980.pdf (Accessed: 18 October 2026).
Republic of South Africa (2023) Traditional Courts Act 9 of 2022. Government Gazette 49373, 27 September 2023. Available at: https://www.saflii.org/za/legis/consol_act/tca9o2022242/ (Accessed: 18 October 2026).
Shilubana and Others v Nwamitwa (2008) [2008] ZACC 9; 2009 (2) SA 66 (CC). Available at: https://www.saflii.org/za/cases/ZACC/2008/9.html (Accessed: 18 October 2026).
Tsambo v Sengadi (2020) [2020] ZASCA 46. Available at: https://www.saflii.org/za/cases/ZASCA/2020/46.html (Accessed: 18 October 2026).
VVC v JRM and Others (2026) [2026] ZACC 2; 2026 (3) SA 1 (CC). Available at: https://www.saflii.org/za/cases/ZACC/2026/2.html (Accessed: 18 October 2026).