The constitutional imperative and harmonisation in a multicultural society : a South African perspective on the development of indigenous law

Abstract

It is trite that the South African legal system is classified as "mixed". However, until recently, the notion of this "mix" has been Eurocentric, writers comparing the system to a "three-tiered cake" with Roman, Dutch and English law being its layers. This has been so despite the fact that indigenous or African customary law has played and still plays an intrinsic role in the lives of most South Africans and that, for more than two centuries and, for whatever reason, its application was sanctioned by colonial and national governments. The main reason for its non-recognition as part of the South African mixed legal system is that in the colonial and apartheid climate, although indigenous law was recognised, it was recognised only as a special and personal law that operated outside of, but only as determined by, the general law. In the past its legal history, both external and internal, was dealt with in a cursory fashion in South African legal literature. This has changed and it has been acknowledged as part of the South African legal system and referred to as the third of "three graces of South African law".