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

Sihawukele Ngubane

doi:doi:10.11648/j.ijls.20190203.11

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

Sihawukele Ngubane

Published in International Journal of Law and Society (Volume 2, Issue 3)

Received: 16 August 2018 Accepted: 22 March 2019 Published: 10 August 2019

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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”).

Published in	International Journal of Law and Society (Volume 2, Issue 3)
DOI	10.11648/j.ijls.20190203.11
Page(s)	26-32
Creative Commons	This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution and reproduction in any medium or format, provided the original work is properly cited.
Copyright	Copyright © The Author(s), 2024. Published by Science Publishing Group

Keywords

Customs, Customary Law, Indigenous Law, Tradition, Culture

References

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[2]	Barrie, GN 2000. Ubuntu ungamtu ngabaye abantu: The Recognition of Minority Rights in the South African Constitution. SALJ 271.
[3]	Bennet, TW and Pillay A 2003. The Natal and KwaZulu-Codes: The Case for Repeal. SAJHR 217 Volume 19.
[4]	Bennet, TW, 2011. Ubuntu: An African Equity South African Journal on Human Rights Volume 14 (4).
[5]	Bennett T. W. 1985. Contemporary African Customary Law in Southern Africa 26.
[6]	Bekker J. C. 1989. Seymour’s Customary Law in Southern Africa: https://www.amazon.com.
[7]	The Black Administration Act, 1927. http://www.justice.gov.za.
[8]	The Cape Articles of Capitulation, 1806. http://www.nelsonmandela.org.
[9]	Currie I. and De Waal J. 2013. The Bill of Rights handbook. 6th edition. Juta. Cape Town.
[10]	Constitution of the Republic of South Africa 1996.
[11]	De Kock, PD & Labuschagne, LMT 1999. Ubuntu as a Conceptual Directive in Realising a Culture of Effective Human Rights. 62 THRHR 114.
[12]	Himonga C, Taylor M and Pope A 2013 Reflections on judicial views of Ubuntu. Potchefstroom Electronic Law Journal. Volume 16 No. (5). http://dx.doi.org/10.4314/pelj.v16i5.8
[13]	Kerr, AJ. 1994. Customary Law, Fundamental Rights, and the Constitution 111 SALJ (720-735).
[14]	Kerr, AJ. 2009. The Constitution and Customary Law, SALJ 126 (39-50).
[15]	Koers. 1999. Traditional Authorities Research Group (297-298).
[16]	Konrad Adenauer-Stiftung 1997. Traditional leadership in Southern Africa (80-81).
[17]	Kunene M. 1996, The Essence of being Human: An African Perspective” Inaugural lecture 16 August, Durban.
[18]	Krige E J. 1936. The Social System of the Zulus. Shuter & Shooter. Pietermaritzburg.
[19]	Makeri, SH. 2007. Jurisdictional issues in the application of customary law in Nigeria. (Unpublished paper presented at the Conference The Judiciary and the Challenges of Nation Building 5-9 September. Kaduna State.
[20]	Makgoro JY. 1996/97 The Customary Law question in the South African Constitution.
[21]	Makgoro JY. 1998 Ubuntu and the law in South Africa https://www.ajol.info.
[22]	McClendon, T. 1995. “Tradition and Domestic Struggle in the Courtroom: Customary Law and the Control of Women in Segregation-Era Natal,” The International Journal of African Historical Studies. Vol. 28, No. 3 pp. 527-561.
[23]	Mohomed I. 1999. Project 90: The harmonisation of the common law and the indigenous law report on conflicts of law. South African Law Commission. http://www. Law.wits.ac.za/salc/salc.html.
[24]	Ndulo M. 2011. “African Customary Law, Customs, and Women’s Rights”. Indiana Journal of Global Legal Studies. 18 (1).
[25]	Nhlapho, T. 2005. “The Judicial Function of Traditional Leaders: A Contribution to Restorartive Justice?” Unpublished paper presented at the Conference of the Association of Law Reform Agencies of Eastern and Southern Africa. Vineyard Hotel. Cape Town.
[26]	Ntlama, N. 2012. The Application of Section 8 (3) of the Constitution in the Development of Customary Law Values in South Africa’s New Constittutional Dispensation. SALJ Vol 15 (1) PER 24.
[27]	Rautenbach C. 2008: South African Common and Customary law of Intestate Succession: A question of Harmonisation, Integration or Abolition. Electronic Journal of Comparative Law Vol. 12.1 (May 2008), http://www.ejcl.org.
[28]	Sibanda, S. 2010. “When is the Past not the Past? Reflections on Customary Law under south Africa’s Constitutional Dispensation” Unpublished paper presented at the Conference Custom, Law and Tradition: Alternative Legal systems and Their Impact on Human Rights American University Washington school of Law.
[29]	Unpublished speech delivered at Workshop Customary Courts SA Law Commission 9 September 1999. South African Law Commission The harmonisation of the common law and indigenous law: Traditional courts and the judicial function of Traditional leaders Project 90 Discussion Paper 82. (Pretoria 1999).
[30]	Van Niekerk GJ, 2005. Succession, living indigenous law and Ubuntu in the Constitutional Court. Volume 26 (3) p. 474 -487.

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APA Style

Sihawukele Ngubane. (2019). Critical Investigation of Challenges in the Recognition of Customary Law in the Democratic South Africa. International Journal of Law and Society, 2(3), 26-32. https://doi.org/10.11648/j.ijls.20190203.11

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ACS Style

Sihawukele Ngubane. Critical Investigation of Challenges in the Recognition of Customary Law in the Democratic South Africa. Int. J. Law Soc. 2019, 2(3), 26-32. doi: 10.11648/j.ijls.20190203.11

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AMA Style

Sihawukele Ngubane. Critical Investigation of Challenges in the Recognition of Customary Law in the Democratic South Africa. Int J Law Soc. 2019;2(3):26-32. doi: 10.11648/j.ijls.20190203.11

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@article{10.11648/j.ijls.20190203.11,
  author = {Sihawukele Ngubane},
  title = {Critical Investigation of Challenges in the Recognition of Customary Law in the Democratic South Africa},
  journal = {International Journal of Law and Society},
  volume = {2},
  number = {3},
  pages = {26-32},
  doi = {10.11648/j.ijls.20190203.11},
  url = {https://doi.org/10.11648/j.ijls.20190203.11},
  eprint = {https://article.sciencepublishinggroup.com/pdf/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”).},
 year = {2019}
}

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Author Information

Sihawukele Ngubane

African Languages, Linguistics and Development Modules, School of Arts, University of KwaZulu-Natal, Durban, South Africa

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APA Style

Sihawukele Ngubane. (2019). Critical Investigation of Challenges in the Recognition of Customary Law in the Democratic South Africa. International Journal of Law and Society, 2(3), 26-32. https://doi.org/10.11648/j.ijls.20190203.11

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ACS Style

Sihawukele Ngubane. Critical Investigation of Challenges in the Recognition of Customary Law in the Democratic South Africa. Int. J. Law Soc. 2019, 2(3), 26-32. doi: 10.11648/j.ijls.20190203.11

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AMA Style

Sihawukele Ngubane. Critical Investigation of Challenges in the Recognition of Customary Law in the Democratic South Africa. Int J Law Soc. 2019;2(3):26-32. doi: 10.11648/j.ijls.20190203.11

Copy | Download

@article{10.11648/j.ijls.20190203.11,
  author = {Sihawukele Ngubane},
  title = {Critical Investigation of Challenges in the Recognition of Customary Law in the Democratic South Africa},
  journal = {International Journal of Law and Society},
  volume = {2},
  number = {3},
  pages = {26-32},
  doi = {10.11648/j.ijls.20190203.11},
  url = {https://doi.org/10.11648/j.ijls.20190203.11},
  eprint = {https://article.sciencepublishinggroup.com/pdf/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”).},
 year = {2019}
}

Copy | Download

TY  - JOUR
T1  - Critical Investigation of Challenges in the Recognition of Customary Law in the Democratic South Africa
AU  - Sihawukele Ngubane
Y1  - 2019/08/10
PY  - 2019
N1  - https://doi.org/10.11648/j.ijls.20190203.11
DO  - 10.11648/j.ijls.20190203.11
T2  - International Journal of Law and Society
JF  - International Journal of Law and Society
JO  - International Journal of Law and Society
SP  - 26
EP  - 32
PB  - Science Publishing Group
SN  - 2640-1908
UR  - https://doi.org/10.11648/j.ijls.20190203.11
AB  - 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”).
VL  - 2
IS  - 3
ER  -

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