Abstract:
The article examines the possibility of creating an indigenous legal
pluralism within the South African context. Due to the historical and
current marginalisation of customary law, can customary law be
developed, reformed and codified? Furthermore, can the legal regimes and
human rights of indigenous people of South Africa be ascertained? The
article renegades the historical marginalisation of customary law due to
colonialism and apartheid; where indigenous people’s legal regimes were
placed subordinate to common law. The article further implores the
current status of indigenous law nationally and internationally. The article
seeks to advance the argument based on legislative and judicial analysis,
that customary law is still marginalised under the current constitutional
dispensation. The international call and new recognition of customary law
are commendable; the article seeks to review whether South Africa is
keeping up or not to the international directives embedded within
declarations and conventions they are a signatory to. The article will
further comparatively analyse foreign countries that have managed to do
what South Africa is struggling to achieve with regard to the recognition,
development, application, and reform of customary law.
