Critical Investigation of Challenges in the Recognition of Customary Law in the Democratic South Africa

Sihawukele Ngubane

doi:10.11648/j.ijls.20190203.11

Abstract

This paper identifies indirect colonial rule as an impediment towards recognition of indigenous authority in South Africa. Indigenous Africans have observed customary law from time immemorial in the pre-colonial era to govern its own people with success before the establishment of British colonial policies. Indirect rule treated indigenous tribal chiefs as political intermediaries, which has caused imbalance of the application of law. This policy was used as a mechanism from which apartheid emerged during the twentieth Century and changed African political identity landscape to favour imperialistic ideology. We explore potential alignment in the application of customary law with common law in our courts to mark the democratic dispensation in the post-colonial era. This paper aims to explore the implications of different legal systems used in democratic post-apartheid South Africa and which are influenced by the apartheid legacy and the failure to recognise African values and principles. The influence of western values resulted in the omission of Ubuntu humanist philosophy from the Constitution of the Republic of South Africa, 1966 (Act 108 of 1996) (hereinafter referred to as “the Constitution”).

Highlights

Various attempts were made from time immemorial to discard and discourage indigenous Africans to observe and obey customary law
While the provision of Black Administration Act was with exception of section 12 and 20, replaced the application of customary law is still compromised by our legal system
The paper has attempted to pave a way for a possible infusion and application of customary law into common law; reviving and restoring of African values in our judicial system that will embrace everyone irrespective of colour or creed

Summary

Introduction

Various attempts were made from time immemorial to discard and discourage indigenous Africans to observe and obey customary law. That resistance necessitated the partial recognition of customary law and customs. Scholars such as Barrie (2000), Bennet and Pillay (2003) De Kock (1999), Himonga (2000), Kerr (2009), Ntlama (2012) and Praeg (2008) applied customary law in numerous cases as part of implementation of this law in spite of views against it [2, 3, 11, 14, 26]. Van Niekerk (2005) declares that abolition of a rule that goes to the core of indigenous law will be a theoretical exercise and will deepen the divide between living and official indigenous law [27] He further states that indigenous law and western law should be brought together in a relationship of equality through a process of harmonisation. The main argument of the paper is based on this premise and intend to demonstrate the fact that given a time in our democracy the two may be applied in our South African courts

Objectives

Discussion

Conclusion