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n South African Law Journal - Guidelines for determining the constitutional injunction to apply customary law in the new South Africa : notes
The purpose of this note is to consider the judicial comments regarding s 211(3) of the Constitution of the Republic of South Africa, 1996 (the Constitution) made in two recent, unrelated judgments of the superior courts. These cases are Fosi v Road Accident Fund & another 2008 (3) SA 560 (C) and Gumede v President of the Republic of South Africa & others 2009 (3) SA 152 (CC). Section 211(3) of the Constitution reads :
'The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.'
My intention is to comment on the meaning of the words 'must apply customary law when that law is applicable' as they appear in s 211(3). The facts of each case, and an analysis thereof, will be undertaken in turn. I do not wish to comment on the role of the courts in developing customary law in a more general sense, as this aspect has been sufficiently dealt in recent publications. (See, inter alia, the following : G J van Niekerk 'Succession, living indigenous law and ubuntu in the Constitutional Court' (2005) 26 Obiter 474; A J Kerr 'The Constitution, the Bill of Rights and the law of succession (2)' (2006) 20 Speculum Juris 20; Elmarie Knoetze and Morné Olivier 'To develop or not to develop the customary law : that is the question in Bhe' (2005) 26 Obiter 126; and Chuma Himonga 'Taking stock of customary law in a new South Africa' in Graham Glover (ed) Essays in Honour of AJ Kerr (2006) 215 at 232.)
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