The Constitutional right to culture and the judicial development of Indigenous Law: a comparative analysis of cases

Abstract

Although integral to the culture of indigenous peoples in South Africa, indigenous law was historically only recognised as a personal law subservient to the general law. This is no longer so. In the Constitution of the Republic of South Africa, 1996, its recognition is entrenched, explicitly as well as implicitly, as an aspect of culture. Where there is conflict between the indigenous norm and the relevant human rights provision, courts have an obligation to develop the indigenous law, an obligation that should be exercised intelligently.Comparative analysis of recent judgments suggests that the courts1 approach has generally been conservative. Merely striking down indigenous law as unconstitutional rather than developing it in terms of the constitutional imperative will lead to its eventual demise. A more progressive alternative would be to take cognisance of indigenous law as living law in order to determine the potential for judicial development.