Abstract
This article examines the possibility that in the post-apartheid South African legal system South African citizens can voluntarily change their customary law and affiliate to a new one in the true spirit of citizenship. The article argues that such a change would affirm the dignity of all South Africans and would significantly enhance the vision of a truly non-racial society envisaged by the Constitution and contribute to social justice.
Highlights
This article examines the possibility of the acquisition of customary law in postapartheid South Africa
Assuming for the sake of argument that they are so recognised, how do we describe these normative frameworks? Even though for the purposes of this article the term customary law is defined as the normative systems of communities, it is clear that the tem "customary
It is the possibility of changing one's choice of a system of customary law that emancipates customary law from the significant challenge of racism so ably articulated by Pieterse, who argues that the Consitution's provisions for legal dualism and support for customary law could lead to a violation of the right to equality due to customary law's racialist foundations and its general consequences.[55]
Summary
This article examines the possibility of the acquisition of customary law in postapartheid South Africa. This meant the success of their long struggle to be recognised by the South African legal and political establishment as entitled to the benefits of the black empowerment scheme.[4] On the other hand, sections of the black community severely criticised this decision and declared that a Chinese person cannot conceivably be a black person.[5] While a Chinese person has significantly different physical characteristics from a black person, to regard them as the same would suggest that race is a legal and social construction rather than a matter of genetics Such a thought would seem to be supported by the definition of "Black" in section 1 of the EEA, which defines "black people" as meaning "Africans, Coloureds and Indians", suggesting that the definition is generic rather than genetic.[6] Important as the administrative classifications of racial categories remain for South Africa,[7] this article is not directly concerned with these issues but follows another tack, to determine whether a South African Chinese person and any other non-black person could choose to subscribe to Zulu, Xhosa or Sotho customary law in the light of the judicial recognition of their "blackness". Customary succession to illustrate the implications of the acquisition and change of customary law
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