Customary law research on group and individual rights to common property

Customary Law has been a subordinate element in the South African legal order in that it was subject to state legislation, certain Courts could not take judicial notice of it, and it could be applied only if compatible with principles of public policy and natural justice. These were the requirements of the so-called “Repugnancy Proviso”. In addition customary law was subordinate to Roman-Dutch common law and the common law provided the model to which customary law was expected to conform. In fact all legal analysis or comments on customary law are mediated by western legal categories.

The new Constitution placed the common and customary law on a footing of equality. Section 211 (3) of the Constitution of the Republic of South Africa Act 108 of 1996 provides that; “The Courts must apply Customary Law when that Law is applicable, subject to the Constitution and any legislation that specifically deals with customary law”.

Customary law recognises the right of ownership and other limited real rights to property. The nature and content of these rights must, however, be understood within the framework of family relationships that is in the context of marriage, family and succession. Consequently, customary law recognises the following categories of property; family property, house property and personal property.