IND2601 Assignment 1 Due 25 March 2024

Question 1

Discuss the Implications of section 211(3) of the Constitution Act 108 of 1996 for
the recognition of customary law

Section 211(3) of the Constitution Act 108 of 1996 has significant implications for the recognitionof customary law in South Africa. Let’s break down these implications:

Application of Customary Law: The provision mandates that courts must apply customary law
when it is applicable. This means that customary law, which encompasses the customs and
usages traditionally observed among the indigenous African peoples of South Africa, should be
considered and applied by the courts in relevant cases.

Subject to the Constitution and Legislation: While customary law is recognized, its application is
subject to the overarching principles and provisions of the Constitution. This ensures that
customary law does not contravene fundamental rights and principles enshrined in the
Constitution, such as equality, dignity, and non-discrimination. Additionally, customary law is also
subject to any legislation specifically dealing with customary law, ensuring that it operates within
the legal framework established by the state.

Judicial Discretion: Although customary law must be applied when applicable, courts still have thediscretion to determine its applicability and to interpret it in line with constitutional principles and
legislative provisions. This allows for flexibility in applying customary law while ensuring that it