The significant issue in customary or indigenous law is that in its original form, it is unwritten. Application and interpretation of rules is done by the tribal authorities at a time when the matter is being tried; and precedents are kept in memory of attendants and those who had orally heard the application of rules.1
In terms of common and/or foreign law the legislators or the parliamentarians, politicians, lawyers, counsel and moreso presiding officers have throughout been responsible for the judicial interpretation of law on socio-economic rights.2 Apparently the legislators, politicians, lawyers, litigants, presiding officers’ interpretation and application of common law during apartheid South Africa had influenced the way indigenous law is interpreted. The interpretation of judicial officers in the post- apartheid cultural jurisprudence is conservative or narrow in approach.3 This did not allow the indigenous law, though influenced, to be applied and interpreted within its own ambit, but through common law’s ambit.4
There is responsibility on the post-apartheid South African government to ensure that the cultural jurisprudence of previously marginalized citizens is not organized.5 There must be development equality of indigenous legal system during judicial interpretation.6 The indigenous law which governed the lives of African people in pre-apartheid era is still in existence and all the rights emanating from it, to an extent that it is consistent with the Constitution.7 The judicial interpretation of indigenous law on cultural jurisprudence should be developed on the same par with other legal system like common law development as evident on right regarding allocation of fishing quotas.8 The presiding officer’s failure to interpret indigenous law on equal level with other legal systems may constitute unconstitutionality. Furthermore it may amount to lack of equality in protection and benefit of law to indigenous people from their legitimate expectation of enjoyment of cultural jurisprudence in post-apartheid South Africa.
Provision is made for recognition of indigenous law by sections 39,9 21110 and 21211 of the Constitution wherein among others judicial officers when interpreting that legal system they must consider that fact. However there seems to be no actual consideration of Constitutional recognition of indigenous law on cultural jurisprudence through judicial interpretation on equal par with other legal systems.12 In some instances the judicial officers quote section 39 of the Constitution in alleging recognition of indigenous law without practically implementing that recognition.13 There is hurry to allege indigenous law’s contradiction with the Constitution without proper judicial interpretation been done, especially on gender issues.14 The Department of Justice and Constitutional Development (DOJ & CD) in February 2012 released a discussion document. The document is entitled ‘Transformation of the judicial system and the role of the judiciary’.15 The purpose of the document was among others to develop judicial interpretation of indigenous on cultural jurisprudence; probably to be on an equal standing with other legal systems.
The government‘s eagerness to enact a Traditional Court Bill16 is another indications of a need for development f indigenous laws. The judicial interpretation of indigenous law on cultural jurisprudence will minimize inferiority or what may be seen as lesser recognition if empowering legislations are enacted. Inferior judicial interpretation may be inexistence due to ignorance of indigenous legal systems or its misunderstanding of it, but not necessarily mala fides.17 The document released by the DOJ & CD incorporates a section within it which is entitled ‘Plural legal system and the problem of legal impression’.18 The document is an initiative that shows awareness by the government that judicial interpretation of indigenous law on cultural jurisprudence is undermined or inferior. Judicial interpretation of common law has developed in pre and post-apartheid South Africa than the indigenous law legal systems.19 This query lack of indigenous law development on satisfactory level is understandable because recognition and protection of indigenous people’s legal system is essential for equal benefit of the law to all.
Mini Dissertation (LLM)--University of Pretoria, 2015.