Creating and Sustaining a ‘Tunnel Vision’ Argument for the Application of Customary Law—A Language Conundrum

Abstract

Legal practitioners and scholars have argued that customary law in the South African legal context has historically been underpinned by various issues which include, but are not limited to, epistemological misunderstanding, problems of ill-will in the application of this law and intentional underdevelopment. While there is contestation to a degree, the common ground among legal scholars is that the praxis of law in the country is disconnected from indigenous people’s customary beliefs, cultural practices and legal experiences. This has culminated in the training and practice of law in South Africa that lacks inclusion and or a reflection of indigenous people’s worldviews and understandings of law. Naturally, this means that it overlooks the importance of indigenous languages in the understanding and application of the law. Regrettably, the continued intentional or unintentional consumption of law founded predominately on a Euro-American worldview and cultural practices, renders South African law problematic as far as its conceptualisation and application of customary law is concerned. It is at this juncture that the present article argues that language as a cultural artefact is a critical tool in the formulation, teaching, training and praxis of law. For the South African context, indigenous languages, therefore, become a critical tool for this purpose as opposed to the prevailing use of the English language. To this end, this contribution debates African epistemological and indigenous language questions intended to demonstrate their relevance in the formulation, training and application of law in South Africa. Specifically, the article is intended to contribute to the decolonial discourse in the legal fraternity with emphasis on the importance of correct conceptualisation and application of the indigenous people’s customary beliefs, cultural practices and legal experiences.