The indiginisation of customary law : creating an indingenous legal pluralism

Abstract

In the advent of the current dispensation, South Africa’s Constitution elucidates that customary law is in parallel with common law under section 39 of the Constitution,1 in light to this contention, the study begs to claim that this is only superficial.2 The constitutional advancement of customary law has been delayed in terms of legislative and judicial reform and development, and the legislature is inattentive with respect to remedying the inadequate position customary law is placed in. Instead, the legislature has been replacing customary law considered ‘non-transformative and undeveloped’, with common law to promptly deal with customary disputes.3 The insufficiency of the development and reform of customary law allows the judiciary and the legislature to limit the development of customary law as a whole in terms of its application and interpretation. It is highly significant to engage with the need to ascertain indigenous people's human rights in South Africa, by paving the way and ensuring due regard to their legal regimes.4 Even at the advent of the codified version of customary law; there are still ambiguities and misunderstandings that exist within the official customary law.5 Engaging in the creation of indigenous legal pluralism in questioning whether customary law can exist as a separate pluralism within the South African state law pluralism, it is both bold and daunting. If an argument cannot be successfully made, the question left to ask by the study is, can customary exist successfully, undistorted and purposefully within the current dispensation? Can the courts and the legislature ensure its constant development and codification, especially giving due regard to living customary law and the customs that exist concurrently? There are foreign and international legal improvements and ways in which some states seek to enforce indigenous people's rights to self-determination and enforcing their legal regimes to recognise and apply their laws in solving their prevailing customary disputes.6 A comparative analysis is essential to assess the longstanding argument that will be made in the study. It is of great significance to consider not only national law in terms of seeking advancement and legislative reform of South Africa’s indigenous pluralism. Additionally, comparatively studying the legal status of foreign customary law that will be used in the study to shed light on how to create such deep indigenous pluralism. Not only considering foreign law but also the current reform of intellectual property law and environmental law; which seeks to recognise the indigenous people's rights for the protection of their indigenous knowledge and resources, respectively. The study would like to engage such legislative reform in order to answer the daunting question of the creation of deep indigenous legal pluralism to ascertain indigenous people's legal regimes and the hegemonic realism of their customary law.