South African lawmakers and courts have been wrestling for almost 20 years now with the task of treating customary law as fully a part of South African law. Basically, that task has two different elements, which are in some tension with each other: one is to respect African customary law as law, entitled to the same recognition and enforcement as European-based law, and the other is to subject African customary law to the constitution, again just as European-based law is.
Accomplishing both of these at once is not a simple matter, any more than striking the proper balance between judicial enforcement of constitutional rights and the people’s right to govern themselves ever is. If anything, the problems in squaring customary law with the constitution are somewhat harder.
One reason is the sheer difficulty of ascertaining what customary law is. Judicial opinions and academic commentary of course make it very clear that the meaning of many familiar phrases of Western law is at least ambiguous – take the freedom of speech, for example, or the right to the equal protection of the laws, or the definition of negligence as a failure to take “reasonable” care. But these are (mostly) debates over the meaning of legal rules, not over what the rules actually are.
With customary law, however, the question of what the rules actually are seems to be very much on the table. Customary law isn’t laid down in statutes or in court decisions; those are the instruments of formal lawmaking rather than of law that is the expression of a community’s congealed rules of life.
Apartheid-era efforts to formalize customary law didn’t go well. The whites who controlled the processes of formalization – court decisions or statutory codifications – probably neither knew well nor much respected the customs they purported to codify. Moreover, as whites formalized customary law they interacted with the Africans they governed, so that the customary law that came to be recognized was not a mirror of ancient custom. Rather it was the result of an interaction between whites and blacks in which people maneuvered for advantage: as the historian Martin Chanock has written, “customary law was not the dead hand of tradition, but represented the responses of living interests, though channeled in special ways, to new developments.” (Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia 237 (republished 1998)).
Even when all these problems are pulled away, finally, there is a fundamental conundrum: in principle law that consists of custom cannot be fully codified, since the moment the custom departs from the codification the “customary law” should depart from the codification too.
Now the fact that customary law fundamentally rests in custom wouldn’t be a problem if everyone knew the customs in question. But there are two difficulties with this idea. First, who is “everyone”? That is, what group is it whose customs are to be recognized? South Africa has a number of large African ethnic groups, but these groups have subgroups. Those subgroups in turn could have subsubgroups; how small can a social unit be and still have customs that should be recognized as law?
Second, within the relevant community, will everyone agree on what the customary law rule is? It's safe to predict that the answer will often, perhaps usually, be "no." Customs seem bound to resemble other social norms - most people will agree on some core propositions, but the further we move from that core the greater the disagreement. Inevitably, people read their social environment in somewhat different ways, for a myriad of reasons including experience and perception and calculation.
Both of these difficulties – the definition of the relevant community and the potential for disagreement among community members – were illustrated in the recent Constitutional Court decision of Mayelane v. Ngwenyama and Another (CCT 57/12, decided May 30, 2013). There the Court sought to determine whether customary law of the Vatsonga, the Tsonga people, required a husband in a customary law marriage to obtain his first wife's consent before marrying a second wife, in order to determine whether Mr. Hlengani Dyson Moyana, who died in 2009, had been married to Ms. Ngwenyama, the first respondent in the case. The majority (after calling for new evidence to be submitted directly to the Constitutional Court) concluded that the evidence - from the views of community members to those of experts – did not provide an answer, though the majority maintained that “[t]he perspective we gain from the evidence is not one of contradiction, but of nuance and accommodation.” (¶ 60) In the end the majority decided that it was clear that under the Vatsonga’s customary law the husband at least had to inform his first wife, and invalidated the supposed second marriage to Ms. Ngwenyama because there was no evidence the husband had done so. (¶ 87)
Meanwhile, three other members of the Court, in a judgment written by Jafta J, would have found that the customary law of the particular community in question required the first wife’s consent, and would have invalidated Ms. Ngwenyama’s marriage on that ground. (A fourth justice, Zondo J, also took issue with the majority’s use of the evidence; he too, however, would have invalidated Ms. Ngwenyama’s marriage.) Justice Jafta and his colleagues argued that those witnesses who maintained that the first wife’s consent was not required did not say “that the custom, as known to them, is practiced and followed by the applicant’s community which is relevant to these proceedings.” (Opinion of Jafta J, joined by Mogoeng CJ and Nkabinde J, ¶ 139) They continued: “It is not unheard of that within the same broader group of African people we find customary law rules which differ. This may occur as a result of development that takes place in various communities within a group.” (¶ 140)
Once the relevant law is discerned, as clearly as possible, the remaining question is whether it needs to be changed. In this case, the majority went on to try to clarify matters for the future by “developing” the customary law. (It’s striking that the majority ruled only prospectively in this regard, in order to avoid disestablishing marriages from years past. (¶ 86)) The majority ruled that henceforth customary law must require the first wife's consent as a prerequisite to additional marriages by her husband – “to the extent that it does not yet do so.” (¶ 75)
But the majority left for another day the question of whether a husband seeking to marry a third or additional spouse had to obtain the consent of all the current wives (¶ 84) – though Justice Jafta argued that “[t]o require the consent of the first wife only is not consistent with the equality clause.” (¶ 144) The majority also steered clear of any ruling on the constitutional problems involved in the obvious gender inequality of permitting husbands to have multiple wives while limiting wives to a single husband. (¶ 70) Figuring out what customary law is is hard; figuring out whether and how to change it to conform to constitutional rights is at least as difficult.