The reputed reference to constitutions as “living trees”suggests that constitutional provisions grow and evolve in accordance withchanging social, political, and legal contexts. As a living tree, aconstitution is rooted in a nation's history and culture; it shapes thenation's future and influences the interaction of its citizens in thepresent. As the tree blossoms, it provides shade for those who seek refugeunder the umbrella of constitutional protection. Constitutionaljurisprudence is the fruit of careful judicial pruning and fertilizing ofconstitutional rights.

South Africa's 1996 Constitution is heralded as one of the world's mostprogressive, and it is no exception to the living tree metaphor. Judicialinterpretation and application of the Bill of Rights in South Africa'sConstitution involves drawing from the deep roots of culture to harvest thefruit of a new country nourished by hope and sustained by the promise ofequality. The living tree metaphor can be expanded to apply to Africancustomary law as it also grows and develops with changing socialcontext.

This chapter considers the living trees of the South African Constitution andcustomary law, as they exist in what is constructed herein as the Garden ofEquality. The quest for equality is at the heart of the Constitution, andspecific provision is made in Section 9 of the Constitution’s Bill ofRights. The metaphor of living trees in the Garden of Equality includes yeta third three. This third tree represents the common law: the legislationand case law that govern the lives and interactions of South Africancitizens who are not otherwise governed by customary law. The Constitutionprovides that any discord between customary law and common law notions ofequality be resolved by deference to the provisions and principles containedin the Constitution.