The Application of Section 8(3) of the Constitution in the Development of Customary Law Values in South Africa's New Constitutional Dispensation

Keywords: Constitution, customary law, common law, potjiekos, jurisprudence, law

Abstract

                                     

The constitutional recognition of customary law alongside common law in the Constitution of the Republic of South Africa, 1996 is highly commendable. It also raises the question of whether or not the recognition was undertaken out of genuine respect for customary law or merely forgotten in section 8(3) of the Constitution. It is argued that the exclusion of customary law from the provision of the section is nothing more than the advancement of the dominant status enjoyed by common law, as was the case before the dawn of democracy. This argument is limited to the application of section 8(3) and the jurisprudence of the Constitutional Court, without focusing on the shortcomings of the latter in relation to the remedies provided in the resolution of disputes arising from customary law.

   ScienceOpen_Log03432116.png

References

Bibliography

Andrews 2009 Utah L Rev
Andrews PE "Who's afraid of polygamy? Exploring the boundaries of family, equality and custom in South Africa" 2009 Utah L Rev 351-379

Bekker and Van der Merwe 2009 De Jure
Bekker JC and Van der Merwe A "Indigenous legal systems and sentencing: S v Maluleke 2008 1 SACR 49 (T)" 2009 De Jure 239-248

Bennett Customary Law
Bennett TW Customary Law in South Africa (Juta Lansdowne 2007)

Care 2000 Journal of South Pacific Law
Care JC "The status of customary law in Fiji Islands after the Constitutional Amendment Act 1997" 2000 Journal of South Pacific Law 1-15

Dlamini 1992 Legal Studies Forum
Dlamini RM "Towards a new legal order for a new South Africa" 1992 Legal Studies Forum 131-144

Ellmann 1992 Legal Studies Forum
Ellmann S "Visions of legitimation in old and new South Africa: a summary and response" 1992 Legal Studies Forum 193-205

Fishbayn 1999 IJLPF
Fishbayn L "Litigating the right to culture: family law in the new South Africa" 1999 IJLPF 147-173

Grant 2006 Journal of African Law
Grant E "Human rights, cultural diversity and customary law" 2006 Journal of African Law 2-23

Kennedy Just Law
Kennedy H Just Law: The Changing Face of Justice and Why It Matters to Us All (Vintage London 2005)

Koyana 1997 Consultus
Koyana DS "Customary law and the role of the customary courts today" 1997 Consultus 126-128

Lehnert 2005 SAJHR
Lehnert W "The role of the courts in the conflict between African customary law and human rights" 2005 SAJHR 241-277

Makeri "Jurisdictional Issues"
Makeri SH "Jurisdictional issues in the application of customary law in Nigeria" (Unpublished paper presented at the Conference The Judiciary and the Challenges of Nation Building 5-9 September 2007 Kaduna State)

Mamdani Citizen and Subject
Mamdani M Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton University Press Princeton NJ 1996)

Meierhenrich Legacies of Law
Meierhenrich J The Legacies of Law: Long-run Consequences of Legal Development in South Africa, 1652-2000 (Cambridge University Press Cambridge 2008)

Moyo Relevance of Culture and Religion
Moyo TP The Relevance of Culture and Religion to the Understanding of Children's Rights in South Africa (LLM UCT 2007)

Myers Indirect Rule in South Africa
Myers JC Indirect Rule in South Africa: Tradition, Modernity and the Costuming Political Power (University of Rochester Press Rochester NY 2008)

Nhlapho "Judicial Function of Traditional Leaders"
Nhlapho T "The Judicial Function of Traditional Leaders: A Contribution to Restorative Justice?" (Unpublished paper presented at the Conference of the Association of Law Reform Agencies of Eastern and Southern Africa Vineyard Hotel Cape Town 14-17 March 2005)

Ntlama 2009 Stell LR
Ntlama N "Equality misplaced in the development of customary law of succession: lessons from Shilubana v Nwamitwa 2009 2 SA 66 (CC)" 2009 Stell LR 333-356

Ntlama and Ndima 2009 International Journal of African Renaissance Studies
Ntlama N and Ndima D "The significance of South Africa's Traditional Courts Bill to the challenge of promoting African traditional justice systems" 2009 International Journal of African Renaissance Studies 6-30

Qhubu "Development of Restorative Justice"
Qhubu NT "The Development of Restorative Justice in Lesotho" (Unpublished paper presented at the Conference of the Association of Law Reform Agencies of Eastern and Southern Africa Vineyard Hotel Cape Town, 14-17 March 2005)

Raday 2003 ICON
Raday F "Culture, religion and gender" 2003 ICON 663-715

RaoRane 2006 Pacific Rim Law and Policy Journal
RaoRane M "Aiming straight: the use of indigenous customary law to protect traditional cultural expressions" 2006 Pacific Rim Law and Policy Journal 827-856

Rautenbach 2008 EJCL
Rautenbach C "South African common and customary law of intestate succession: a question of harmonisation, integration or abolition" 2008 EJCL 1-14

Sarre 1997 Critical Criminology
Sarre R "Is there a role for the application of customary law in addressing Aboriginal criminality in Australia?" 1997 Critical Criminology 92-102

Sibanda "When is the Past not the Past?"
Sibanda S "When is the Past not the Past? Reflections on Customary Law under South Africa's Constitutional Dispensation" (Unpublished paper presented at the Conference Custom, Law and Tradition: Alternative Legal Systems and Their Impact on Human Rights American University Washington School of Law 15 February 2010)

Skelcher 2009 H-Net Reviews
Skelcher B "Review of Myers JC Indirect Rule in South Africa: Tradition, Modernity and the Costuming Political Power " 2009 H-Net Reviews 1-2

Register of legislation

Constitution of the Republic of South Africa, 1996
Law of Intestate Succession Act 81 of 1987
South African Schools Act 84 of 1996

Register of case law

Alexkor v Richtersveld Community 2003 12 BCLR 1301 (CC)
Bhe v Khayelitsha Magistrate 2005 1 BCLR 1 (CC)
Carmichele v Minister of Safety and Security 2001 10 BCLR 995 (CC)
Christian Education South Africa v Minister of Education 2000 10 BCLR 1051 (CC)
Gumede (born Shange) v President of the Republic of South Africa 2009 (3) BCLR 243 (CC)
Maneli v Maneli Case Number 14/3/2-234/05, Magistrate Serial No: 19/07 LB626/05, Special Review No. 19/07, 19 February 2010
S v Makwanyane 1995 6 BCLR 665 (CC)
Shilubana v Nwamitwa 2008 9 BCLR 914 (CC)
Views
  • Abstract 292
  • PDF 130
  • XML 8
  • epub 8
Views and downloads are with effect from 11 January 2018
Published
2017-05-22
Section
Articles