The Faculty of Law at the North-West University (NWU) continues to make a significant contribution to the development of South African jurisprudence, with Prof. Boitumelo “Tumi” Mmusinyane playing a pivotal role in a landmark High Court judgment that considered whether a surrogacy agreement is compatible with customary law.
Prof. Mmusinyane, deputy dean for teaching and learning at the Faculty of Law, submitted an expert report to the Mpumalanga Division of the High Court in a matter exploring the relationship between surrogacy and African customary law. His scholarly contribution was formally acknowledged by Acting Judge HF Fourie in Ex Parte P.W.M and Others, where the court considered whether a proposed surrogate motherhood agreement would offend customary law before confirming the agreement.
The judgment, delivered on 21 July 2026, is regarded as significant because it addresses an area of law that has received limited judicial attention. While the application was brought in terms of Chapter 19 of the Children's Act, the court recognised the need to determine how modern reproductive technologies such as surrogacy intersect with living customary law and the constitutional imperative of protecting the best interests of the child.
In his expert submission, Prof. Mmusinyane explained that, in African customary law, the best interests of a child are understood in a broader social and cultural framework in which the child is intrinsically connected to family, lineage, clan and community. He argued that a child's welfare cannot be separated from the well-being and continuity of the family structure, an approach that reflects the collective nature of customary law.
The court endorsed Prof. Mmusinyane's analysis, recognising that customary law is a living legal system that continues to evolve alongside societal and technological developments. The judgment observed that while surrogacy was historically unknown because the necessary medical technologies did not exist, customary law has long developed mechanisms to address infertility within families. The court agreed with Prof. Mmusinyane that modern surrogacy can be understood as a contemporary development of these customary practices, particularly where it occurs within a close-knit family structure and promotes the continuity of the family line.
Ultimately, the court found that the proposed surrogacy agreement did not offend customary law and that, in the circumstances of the case, the arrangement was consistent with the best interests of the child. The surrogate motherhood agreement was therefore confirmed.
Prof. Mmusinyane's contribution demonstrates the growing influence of NWU scholars in shaping legal discourse and informing judicial decision-making on complex constitutional and customary law questions. His expertise not only assisted the court in resolving a novel legal issue but also contributes to the continued development of South African jurisprudence in a manner that recognises both constitutional values and the dynamic nature of customary law.
The Faculty of Law congratulates Prof. Mmusinyane on this outstanding achievement. His contribution reflects the commitment of the faculty to academic excellence, impactful research and public scholarship that advances the development of South African law while addressing contemporary societal challenges.
Prof. Boitumelo “Tumi” Mmusinyane
