(Post)Colonial Culture and the South African Legal System: Understanding the Relationship between Living Customary Law and State Law

Abstract

Abstract This paper traces the relationship between state law and indigenous systems in South Africa from its incipience, and argues that living customary law has been systematically ignored or inaccurately applied. In it, I advocate a paradigm shift as being fundamental to developing the theories, methods and standards adopted in consideration of customary law. I use the law of succession as a vehicle for displaying the clash of state and customary law and, herewith, expound the process by which this tension came about. In conclusion, I argue that a paradigm shift allowing for customary law to be understood within its own functioning and value system, rather than in a manner imposing western notions of society, culture and progress is necessary. This will enable the reunion of the South African legal order and reincorporation of customary communities into the national project.