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Reflections on the interplay of African customary law and state law in South Africa.

van Niekerk, Gardiol
June 4, 2015

Source: (2012) SUBB Jurisprudentia. 5(3):5-20.

South Africa has a multicultural society in which legal pluralism prevails.
Within the dual-systems state-law paradigm, the Western common law is the principal legal
system that directs legal development and reform. The common law is hybrid in nature:
predominantly founded on the civilian tradition (Roman-Dutch law) but substantially influenced
by the common-law tradition (English law). African customary law is recognised as state law but
assumes a secondary position. The dominance of the common law is revealed in the interplay of
the two state-law systems, but it is evident in judicial decisions that a measure of convergence of
the systems has taken place. Attempts at the harmonisation of the two systems of law are onesided
and directed only at the adaptation of the African customary law. This has resulted in the
expansion of the existing multiplicity of legal sources by the creation of a new official legal system
that has features of the Western common law and vaguely resembles African customary law.
Further, the adaptation of the African customary law to bring it in line with the predominantly
Western constitutional values has enhanced the divide between the official customary law and
the unofficial living African customary law that has developed in accordance with fundamental
African jural postulates. (author’s abstract)


AbstractAfricaCourtsPost-Conflict ReconciliationRJ in SchoolsStatutes and Legislation
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