Democratic South Africa inherited a system of courts that reflected an apartheid dispensation which provided for the Republic of South Africa and the four "independent" states or homelands (Transkei, Bophuthatswana, Venda and Ciskei) and six "self-governing territories". The new constitutional democracy now makes provision for 9 provinces. The court system is currently being rationalised so that it reflects the new order.

The South African Constitution depicts South Africa's judicial system as follows:

1. the Constitutional Court

2. the Supreme Court of Appeal

3. the High Courts, including any high court of appeal that may be established by an Act of Parliament to hear appeals from High Courts

4. the Magistrate's Courts

5. any other court established or recognised in terms of an Act of Parliament, including any court of a status similar to either the High Courts or the Magistrate's Courts.

When a specific matter is not governed by legislation, common law usually applies. South African common law is mainly the 17th and 18th century Roman-Dutch law that was transplanted to the Cape. This forms the basis of modern South African law and has binding authority. Examples of common law crimes include murder, robbery and rape, etc. Whilst South African common law is mainly Roman-Dutch law, not all the principles of Roman-Dutch law were transplanted to South Africa. Sometimes English law had, by means of precedent, influenced South African common law. Some common law principles are, for this reason, no longer pure Roman-Dutch law. The sources of Roman-Dutch law are the old sources which are the following:

• Legislation (placaaten) - few of these still apply in South Africa
• Judgements of the old Dutch courts
• Writings of learned authors (the so-called old authorities) such as Hugo de Groot, Voet, van Leeuwarm and van der Linden.

Many black communities live according to indigenous law, which also takes on the form of written or unwritten customary law. Indigenous law is applied in the ordinary courts. The Evidence Amendment Act, (Act 45 of 1988) stipulates that a court can take judicial notice of indigenous law, provided that it is not in conflict with the principles of public policy or natural justice. In some instances an expert will have to give testimony on the content of these rules. The Black Administration Act, 1927 constitutes a partial codification of the principles of indigenous law albeit in a distorted form. The Code of Zulu Law is an example of codified African Customary Law. Case law on African Customary law is also applied.

The big challenge facing democratic South Africa is to free indigenous law from the effects of colonial and apartheid domination and to develop a legal system that reflects the true values of a new democratic South Africa. The entire South African legal system and its sources must be re-examined critically. All law is being subjected to critical scrutiny to reflect the new constitutional order. The central values of the South African Constitution mainly democracy, equality, dignity and freedom require a fresh look at South African common law, indigenous law, and religious personal law so that the new South African legal system will reflect the plural nature of the South African society and put and end to South Africa's colonial and apartheid past in its legal system. The process of law reform has begun but is bound to be a long process.

Customary law is generally unwritten law. It is fixed practices in accordance with which people live because they regard it as the law. Customary law therefore does not concern all customs or practices, such as practices of polite behaviour. Old Germanic law also consisted of customs. The same can be said of indigenous law. In modern law custom does not play such an important role as a formative source of law. Any assertion of a custom as law has to be proved. The court in the well-known case of van Breda v Jacobs 1921 AD 330, required that the following be proved before a custom could qualify as law⁽²⁾:

• It must be immemorial;
• It must be reasonable;
• It must have continued without exception since its immemorial origin; and
• Its content and meaning must be certain and clear