Balancing customary practices with constitutional principles: The best interest of the child in south African law

Abstract

This paper examines the tension between customary practices and constitutional principles in applying the best interest of the child within South Africa's legal framework. The Constitution of South Africa, 1996, recognizes customary law as valid, alongside common law, while also mandating that children's rights and their best interests be paramount in all matters. This dual recognition creates a unique conflict, particularly in marriage and family law, where customary practices may diverge from constitutional mandates. The study critically analyses how the South African legal system reconciles these tensions, focusing on key legislation such as the Recognition of Customary Marriages Act 120 of 1998 and the Children’s Act 38 of 2005, alongside constitutional provisions like section 28(2), which emphasizes the paramountcy of children's best interests. Employing a qualitative methodology, including doctrinal analysis of legislation, case law, and academic literature, the research is grounded in legal pluralism and child rights theories. Preliminary findings reveal that while constitutional protections aim to uphold children's best interests, certain customary practices, such as child marriages, initiation rites, polygamy, and lobolo (bride price), may conflict with these mandates. Consequently, customary law may require modification to align with constitutional principles. The study highlights the challenge of consistently applying the best interest of the child principle across diverse cultural contexts, advocating for ongoing legal reform to ensure that customary practices evolve per constitutional values, thereby safeguarding children's rights within South Africa's pluralistic legal system.