CUSTOMARY LAW AND THE CONSTITUTION: NAVIGATING FAMILY, CULTURE AND JUSTICE IN SOUTH AFRICA

Disclaimer: This article is for general information purposes only and does not constitute legal advice. Customs and religious practices differ across communities and families. Individuals are encouraged to seek professional legal advice to understand how their specific cultural and religious traditions fit within South African law and to ensure their rights and associated obligations are properly protected.

Recent litigation, involving the “who’s who” of South Africa, dominating news headlines, has generated public interest on a much-needed conversation relating to the role and status of customary law in a constitutional democracy. From matrimonial disputes that involve the king of the Zulu nation, a divorce of a prominent celebrity DJ and actress, to acquiring of parental rights for unmarried fathers, customary law has taken centre stage.

Customary law is law

Before engaging with these cases at length it is important to first highlight that customary law is a recognised source of law under the Constitution of the Republic of South Africa (“the Constitution”). In fact, the Constitution, in section 211(3), implores Courts to apply customary law where it is applicable.

The Courts have consistently emphasised that customary law is not static and must adapt to reflect and be consistent with the Bill of Rights. This was affirmed in the case of Mabena v Letsoalo 1998 (2) SA 1068 (T), where the Court recognised the flexibility and evolving nature of customary practices, describing them as “living law” capable of adaption within the constitutional framework. Today, those principles guide how customs are interpreted, not as rigid traditions, but as dynamic expressions of cultural identity that must coexist with constitutional values and principles. It is important to note that the right for everyone to participate in the cultural life of their choice and enjoy their culture as guaranteed in the Bill of Rights and it is this right which underpins the recognition of customary law.

Jurisprudence from our apex Court has affirmed that customary law is an integral part of our law. Amongst the first statutes to give effect to the right to culture and which affirms customary law was The Recognition of Customary Marriages Act 120 of 1998 (“RCMA”). The RCMA was a landmark in the transformation of South African family law. It marked the formal and equal recognition of marriages concluded under customary law, ensuring that such unions are legally valid and afforded the same protection as civil marriages.

Before 1998, many African women were left without enforceable marital or proprietary rights because their unions were not recognised by the state. The RCMA corrected this injustice by affirming that customary marriages are just as lawful as civil ones, provided they meet certain requirements:

1. The parties must be above 18 years old and consent to the marriage;

2. The marriage must be negotiated and entered into in accordance with customary law; and

3. It must be registered for official recognition, although failure to register does not technically invalidate the marriage itself.

Crucially, the RCMA acknowledges the reality that customary law accommodates polygamous marriages provided certain procedures are followed. In such cases, a husband seeking to enter into a further customary marriage must apply to Court for approval of a written consent contract regulating the matrimonial property system of his marriage in terms of section 7(6) of the Act.

With this recognition, it is therefore, not surprising that the Courts are from time to time called upon to interpret and apply customary law in resolving disputes.

Royal matrimonial battle

One such matter involves, Isilo King Misuzulu kaZwelithini Zulu. In 2025, Queen Ntokozo KaMayisela, the first wife of King Misuzulu kaZwelithini, approached the Pietermaritzburg High Court seeking an urgent interdict to prevent the King from marrying Nomzamo Myeni in a customary ceremony.

Her contention was that she and the King were married under civil law and that entering into a further marriage would amount to bigamy under the Marriage Act 25 of 1961 (“the Marriage Act”). The King’s counsel, however, argued that the union between the King and Queen Notokozo was concluded and conducted under Zulu custom, allowing for subsequent marriage in accordance with customary law.

Justice Mngadi struck the matter from the roll for lack of urgency. In doing so, he noted that Queen Ntokozo had previously consented to a polygamous arrangement, and that her claim could not exclusively rely on the civil marriage regime. The Court also emphasised that for any customary marriage to enjoy full statutory recognition, it must comply with the registration requirements of the RCMA.

This case illustrates the complex coexistence of two lawful systems within South Africa’s constitutional democracy. South Africa operates a dual system of marriage law. Civil marriages are governed by the Marriage Act and customary marriages on the other hand are governed by the RCMA. The two systems may coexist, but they are not interchangeable.

An individual who is married under civil law in community of property cannot validly enter into another marriage, civil or customary, without first dissolving their existing marriage. Doing so would amount to bigamy, which is a criminal offence.

However, within customary law, polygamy is lawful when practiced according to custom and the RCMA’s procedural safeguards. The challenge arises when individuals utilise and overlap both systems, often due to a lack of awareness or failure to register their customary unions. The Courts are then asked to determine which system applies, not as a question of which is superior, but which governs the legal relationship in that particular context.

The King’s situation reveals how individuals, even those with traditional authority, are required to navigate both customary obligations and statutory requirements. Again this demonstrates the need to seek legal advise on matters of marriage be it customary or civil.

Case study: Famous DJ & actress

The ‘Black Coffee’ case represents more than a celebrity dispute. It demonstrates the complexities of how African people’s lives are impacted by both civil law and customary law. Without entirely rehashing the facts here, the dispute centred around the question of whether or not the parties entered a valid customary marriage. The Defendant, Black Coffee, insisted that he performed customary rites to appease the family of his then wife, therefore a valid customary marriage did not exist. The Plaintiff on the other hand, insisted that a valid customary marriage was entered into.

Finding in favour of the Plaintiff, the Court held that, “the parties may have discussed to be married in terms of civil union and enter into an Antenuptial Contract to regulate their patrimonial regime. This was however overtaken by events; the moment they decided to practice and observe customary rights relating to entering and celebration of a customary marriage in terms of a Zulu tradition, a customary marriage regime was set in motion. In my view both parties contented to be married to each other under customary union.” The Court found that lobolo was fully paid, gifts exchanged and both families were involved, the hallmarks of a legitimate customary union. The judgment confirmed that the pair entered into a valid Zulu customary marriage in May 2011, long before their 2017 civil ceremony. This meant that the Plaintiff is now legally entitled to half of the couple’s multimillion-rand estate.

What this tells us, is that it is important for people intending to marry to understand the nature of the marital regime they choose and the legal consequences that flow from that choice.

Acquiring parental rights: Inhlawulo

Another important statute that recognises customary law as a source of law is the Children’s Act 38 of 2005 (“the Children’s Act”). The Children’s Act was designed to give effect to constitutional rights, including the rights of children, while also accommodating the realities of diverse family structures. Under section 18 both parents, whether married or unmarried, may hold parental responsibilities and rights.

Section 21 of the Children’s Act introduces a nuanced recognition of customary law by specifying that an unmarried father automatically acquires parental rights if he complies with certain conditions, including the payment of damages in terms of customary law.

In other words, the Children’s Act implicitly recognises inhlawulo (“damages”), as a legitimate pathway through which an unmarried father may acquire parental rights. This is a significant statutory development, which places inhlawulo within the legal framework rather than outside it, affirming that custom continues to shape modern family law.

The Constitution remains the ultimate adjudicator of how custom is applied. While inhlawulo may be part of the process of acquiring parental rights, its enforcement or application cannot violate a child’s right to care, contact or maintenance, nor can it be used as a means to punish and/or exclude a parent. The best interests of the child will always be at the centre of matters that concern a child.

Conclusion

The above cases collectively demonstrate that customary law continues to occupy an essential place within South Africa’s constitutional democracy. Our Courts have consistently affirmed that customary law, as a system of living norms, must evolve in harmony with constitutional values while remaining true to its cultural foundations. This coexistence between civil and customary law not only enriches our legal landscape but also reinforces the constitutional recognition of diversity as a cornerstone of our society.

However, as these matters illustrate, the application of customary law varies from family to family and community to community. Customary practices are deeply personal and shaped by tradition, lineage and local norms. What may constitute a valid marriage or recognised custom in one setting, may differ significantly in another. There is therefore no uniform approach that applies to all situations. It is for this reason that individuals are encouraged to seek legal advice when dealing with matters involving marital regimes, parental rights and family disputes. Our legal team specialises in navigating these intersections with sensitivity, cultural awareness and a firm grounding in constitutional and family law. Contact our offices at info@rouxlegal.com to schedule a consultation.

By Duduzile Zulu

(Candidate Attorney)

06 November 2025

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