courts, parliament and the executive would do well to treat african customary law, traditions and institutions not as an inconvenience to be tolerated but as a heritage to be nurtured and preserved for posterity, particularly in view of the many years of distortion and abuse under the apartheid regime...but courts ought not to be dismissive of these institutions when they insist on the observance of traditional governance protocols and conventions on the basis of whatever limitations they might impose on constitutional rights.

Courts, Parliament, and the executive in South Africa are urged to treat African customary law, traditions, and institutions not as mere inconveniences but as valuable heritage that must be nurtured and preserved, especially considering the distortions and abuses these systems suffered under apartheid. This approach recognizes customary law as an important part of the country’s cultural and legal fabric that deserves respect and protection

. At the same time, courts should not dismiss traditional institutions when they require adherence to traditional governance protocols and conventions, even if these impose certain limitations on constitutional rights. Instead, there needs to be a careful balance where customary law is respected but also aligned with constitutional principles such as gender equality and human rights. South African courts have played a critical role in this balancing act by reviewing customary practices and ensuring they conform to constitutional mandates, sometimes invalidating discriminatory customs while encouraging the evolution of customary law in line with constitutional values

. The South African Constitution explicitly recognizes customary law (Section 211) and requires courts to apply it when applicable, subject to the Constitution and relevant legislation. The Traditional Leadership and Governance Framework Act (2003) further establishes a statutory framework for traditional leadership and councils, acknowledging traditional communities and their governance structures, though it also incorporates transitional arrangements that reflect apartheid-era boundaries and authorities

. In summary:

• African customary law and institutions should be nurtured and preserved as heritage, not tolerated as inconvenience.
• Courts must respect traditional governance protocols while ensuring compatibility with constitutional rights.
• Judicial review and legislative reform are key mechanisms to harmonize customary law with constitutional principles.
• The Constitution and laws like the Traditional Leadership and Governance Framework Act provide the legal basis for recognizing and integrating customary law within South Africa’s legal system

This balanced approach aims to preserve the cultural significance of customary law while upholding the supremacy of constitutional rights.