Thus, throughout its historical development in South Africa, customary law has been imbued with an underlying element of discrimination, and this characteristic has survived its contemporary status as a legal system. In practice, customary law often violates the fundamental right to equality enshrined in the Constitution and the Bill of Rights. The common law also tends to reject women as marginalized rather than equal participants in this society. Whether customary law can bring its standards into line with the standards codified in the Constitution and the Bill of Rights, or whether its practice is compatible with human rights, is not a question of widespread discriminatory legislation in customary courts and the persistence of judgements based on unfavourable gender-specific customary laws in current South African courts. Therefore, the practice of culture cannot infringe on any of the fundamental human rights set out in this bill. Culture must be practiced in a manner that remains consistent with the sections on the right to equality and dignity. If the right to culture, with respect to the above-mentioned common law principles, is subject to the Bill of Rights, it seems that the cultural practice of customary law should be reassessed. Further doubts arise when one considers that the Constitution, while recognizing the application of customary law, does so “without resolving the conflict between customary norms and human rights provisions”. (Ndulo, 2011) The question, therefore, is not whether there is a conflict between customary law and constitutional law on gender equality, but rather whether this conflict continues to have an impact on women`s rights in South Africa. South Africa has a “hybrid” or “mixed” legal system[1] formed by the interweaving of a number of different legal traditions: a civil law system inherited from the Dutch, a customary law system inherited from the British, and a customary law system inherited from indigenous Africans (often called African customary law, of which there are many variations depending on tribal origin).

These traditions had a complex relationship, with English influence most clearly expressed in procedural aspects of the legal system and jurisprudential methods, and Romano-Dutch influence most clearly expressed in its substantive private law. [2] As a general rule, South Africa follows English law in matters of criminal and civil procedure, company law, constitutional law and the law of evidence; while Roman-Dutch common law is followed in South African contract law, tort law, personal law, substantive law, family law, etc. With the entry into force of the interim constitution in 1994 and its replacement in 1997, the final constitution, another component was added to this fabric. In 1948, the ruling National Party introduced the policy of apartheid. The regime implemented a doctrine of segregated development through laws that imposed systems of racial segregation. Under the Bantu Authorities Act of 1951, the Government established an administrative hierarchy of tribal, regional and territorial authorities in traditional communities. Tribal authorities were established as formal government structures on reserves and headed by chiefs, chiefs and councillors (Black Authorities Act 68, 1951). The Act laid the foundation for subsequent apartheid laws, including the 1959 Law on the Promotion of Bantu Self-Government, which provided for the establishment of homelands and the development of autonomous territories and independent States. The South African judicial system is organized according to a clear hierarchy by Chapter 8 of the Constitution of the Republic of South Africa, in particular Article 166, and consists (from the lowest to the highest judicial authority): South Africa`s new constitution was conceived as a “historical bridge between the past of a deeply divided society marked by conflict, conflict, untold suffering and injustice, and a future that is based on the recognition of human rights, democracy and peaceful coexistence and development opportunities for all South Africans, regardless of colour, race, class, creed or sex.” (Ebrahim, 1998) In fact, Chapter I of the Constitution states that South Africa is founded on values, including but not limited to human dignity, the achievement of equality, the promotion of human rights and freedoms, non-racism and non-sexism (Constitution of the Republic of South Africa, 1996). From 6 April 1652, the Dutch landed at the Cape of Good Hope, the Romano-Dutch legal system and its legislation and laws increasingly prevailed, until 31 May 1910, the Union of South Africa was formed as a dominion of the British Empire.

Even then, and to this day, wherever English law does not exist, Roman-Dutch law forms the foundation to which South Africa looks in its quest for clarity in its law. [ref. needed] At the end of the African continent is an Eldorado in the form of South Africa. Located at the southern tip of the continent, it`s no wonder that South Africa is often considered another African country. In fact, South Africa is outside of Africa (if you`ll pardon the pun) and is considered the Golden Dreamland, not only because of its supposed natural gold deposits, but also because of its history and liberation struggles, first led by Gandhi and later by Nelson Mandela. As a highly modernized and developed state, with a high quality of life, a rule of law based on the supremacy of a constitution and a bill of rights, natural beauty, endless coastline and Louis Vuitton or Christan Lacroix. It`s easy to believe why you might leave Africa! Since the unification of the Cape, Natal, Transvaal and Orange River Colony in 1910 as a dominion within the British Empire, known as the Union of South Africa, and prior to the creation of the Republic of South Africa in 1961, much of English law has been incorporated or formed the basis of South African law. The jury system was abolished in 1969 and cases are decided by a single judge, sometimes assisted by two assessors. English law and Roman-Dutch law, which prevailed before that time, constitute the foundation to which South Africa still looks today in its search for clarity in its law and where there is a vacuum in its law. Built in 1927 and the 1950s, the structures lasted until the 1980s.

Faced with the imminent collapse of apartheid, the government introduced a series of reforms. These reforms include the Law of Evidence (Amendment) Act No. 45 of 1988, which revised the requirements for common law recognition (Rumbles, 2001). According to the bill, “any court may take cognizance of customary law ex officio if it is readily ascertainable and does not violate the principles of public order and natural justice.” (Rautenbach, 2008) Although the conditions for recognition have been reformed, the horror clause introduced by the previous legislation has remained in the Law of Evidence Amendment Act (Harris, 1998). And finally, the Constitutional Court, which is the highest authority on constitutional matters and, since the Sixth Amendment to the Constitution of South Africa, the highest court in the country, both for constitutional matters and for all other matters. This position is legally confirmed and enshrined in the Constitution by section 167 (3) (b) (ii) of the South African Constitution, which provides that the Constitutional Court “may decide any other matter if the Constitutional Court allows the appeal on the ground that the question raises a contentious question of law of general public interest which should be considered by that Court”. [8] [9] The Constitutional Court has the final authority to decide whether a question is constitutional or not; s167(3)(c)[8] of the Constitution of South Africa. The British established an amendment to the first code in 1891 with the Natal Code of Native Law, in which they again attempted to codify the well-known customary law. In doing so, they made customary law static in the sense that it was codified, thus creating a code that did not take into account the dynamics of customary law. The enactment of the Natal Code led to a rigid colonial version of customary law (McClendon, 1995).

However, recognition of customary law is conditional, as practices are subject to a deterrent clause. The application of customary law has been recognized, provided that the customs and customs do not violate morality or justice and do not implicitly or explicitly conflict with public order or written law (Ndulo, 2011).