ABSTRACT
In the context of legal plurality and the courts, this chapter deals with three issues: the challenge of proving the content of living customary law in a court designed to administer justice under the new constitution in accordance with procedural rules designed for western laws; the power of the judiciary to develop customary law which consists of essentially oral, living rules and customs; and the role of cultural experts in determining the content of customary law in a court of law. By illustrating some of the intricacies the judiciary faces when navigating between common law and customary law to protect women, this chapter examines a judgment of the Constitutional Court judgment, the apex Court for constitutional issues, and thus the maker of laws.
