The Role and Importance of African Customary Law in the 21st Century South Africa

Abstract

South Africa is a democratic country, 24 years after it has emerged from the destructive and painful era of apartheid for many years. As commonly known, the apartheid period in the history of South Africa is considered as the dark one, due to the discrimination of one class of people at the advantage of another minority class of people. Furthermore, there was an imposition of laws which were foreign at the exclusion of the laws of the indigenous people; this meant, in particular, that the local common law - which is the law that emanates from Roman-Dutch law and English law - was used at the expense and exclusion of African Customary law, which is the law that forms part and parcel of the indigenous people of South Africa. This means that currently in the democratic dispensation a form of re-dress is key in ensuring that African Customary law is developed and placed on the same position as the common law which was favoured by the colonisers. The aim of this contribution is to outline the historical perspective of African Customary law in South Africa and to provide solutions as to how it can be developed in line with the Constitution as the supreme law in the land. This contribution will take into account how legal pluralism through the application of both African Customary law and common law can co-exist in building social cohesion and not have one legal system that was used to affirm or validate the other which was the case during the colonial period. This is because in the new democratic South Africa the Constitution is the supreme law and this means that both African Customary law and common law are on equal footing and thus it can be deduced that African Customary law has a role to play in the 21st century in South Africa and beyond.