Developing African Law through the promotion of Black Women's voices in Legal Education and Legal Adjudication

Abstract

Colonialism and apartheid have resulted in African law occupying an inferior position in the South African legal system compared to Roman-Dutch law and English common law, which are both recognised as forming the South African common law. This state of affairs has resulted in the lack of development of African law as an independent source of legal knowledge The effect of this dilemma was that African customs were legislated according to Western principles of legal positivism and legal formalism. This legislative approach resulted in the formulation of African principles in ways that exacerbated patriarchy and, in turn, affected the legal status of in particular Black women. This thesis focuses on the effect of colonisation and apartheid on African law and the position of Black women. The marginalisation of African law is argued in this study to have ultimately led to Black women’s silencing and subordination, which is evident from the case law discussed in this study. Furthermore, since white men historically dominated legal training, women have not always been well represented in the teaching and practising of law. Due to issues of racism, Black women have been further marginalised in academia and the legal profession. As a result, Black women still face challenges in academia concerning their academic success. Their upward mobility is severely hampered, which is problematic since the voices of Black women in law could prove beneficial in both academia and the legal profession in changing the current jurisprudence on African law and how it impacts Black women. The thesis seeks to provide recommendations to promote African law and Black women in the study and practice of law in South Africa.