Reflections on the interplay of African Customary Law and State Law in South Africa

Abstract

South Africa has a multicultural society in which legal pluralism prevails. Within the dual-systems state-law paradigm, the Western common law is the principal legal system that directs legal development and reform. The common law is hybrid in nature: predominantly founded on the civilian tradition (Roman-Dutch law) but substantially influenced by the common-law tradition (English law). African customary law is recognised as state law but assumes a secondary position. The dominance of the common law is revealed in the interplay of the two state-law systems, but it is evident in judicial decisions that a measure of convergence of the systems has taken place. Attempts at the harmonisation of the two systems of law are one-sided and directed only at the adaptation of the African customary law. This has resulted in the expansion of the existing multiplicity of legal sources by the creation of a new official legal system that has features of the Western common law and vaguely resembles African customary law. Further, the adaptation of the African customary law to bring it in line with the predominantly Western constitutional values has enhanced the divide between the official customary law and the unofficial living African customary law that has developed in accordance with fundamental African jural postulates.