The ascertainment of living customary law: an analysis of the South African Constitutional Court’s jurisprudence

Abstract After decades of non-recognition, customary law is today recognised as a valid system of law in South Africa treated as equal to the common law. The article examines how the question of the ascertainment of living customary law has been addressed by the South African Constitutional Court, the highest court in South Africa. It argues that the court has developed the existing guidelines of calling witnesses and consulting with written sources of the law in light of the newly elevated status of customary law. The cases of Shilubana v Nwamitwa (2009) and MM v MN (2013) are critical cases in which the court articulated further guidance on the ascertainment of customary law and demonstrated a commitment to the notion that the court is the final arbiter of the law. The result is that the court has developed, in a relatively short period of time, a rich jurisprudence on the ascertainment of customary law. The article examines the jurisprudence in light of the historical approach to the ascertainment of customary law and the current legal framework.