The indigenisation of customary law : creating an indigenous legal pluralism within the South African dispensation : possible or not?

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.