Legal Pluralism in South Africa

Learning Outcomes

• Explain legal pluralism.
• Compare narrow and broad interpretations of legal pluralism.
• Contrast pre- and post-Constitutional African customary law.
• Explain the difference between living and official customary law.
• Apply section 211 of the Constitution.

Graduate Attributes

• Critical thinking.
• Ethical reasoning.
• Written communication.

Preface

• Customary law is neither uniform nor linear.
• The colonial past cannot be undone.

Introduction to Legal Pluralism in South Africa

• South Africa is a multi-cultural, multi-lingual, and multi-ethnical society.
• There cannot be a singular perspective on law, hence legal pluralism.
• The focus is primarily on African customary law as it relates to the indigenous African people.
• Legal pluralism refers to the multitude of legal systems, including Islamic, Hindu, and Jewish law.

Narrow Interpretation of Legal Pluralism

• Characterized by state-sanctioned pluralism.
• Represented by the duality of the western (Roman-Dutch) legal system and customary (African) law.
• Focuses on the two legal systems officially recognized by the state.
• It is utilitarianism-based.
• The approach is positivism, emphasizing tangible and rational law sources.
• The prevailing motto of positivism is "the law is as it is not what it ought to be".
• An example of positivism is the apartheid regime in South Africa, devoid of morality.
• The state is central to the law, and law refers strictly to what is recognized by the state, excluding minority religious systems.
• The understanding of legal pluralism comes from the perception that law consists of norms created and sanctioned by official state organs in accordance with a basic rule of recognition.
• Laws from non-state institutions become "law" only when the state authorizes them.

Broad Interpretation of Legal Pluralism

• It is a social state of affairs, indicating the factual existence of different legal systems in a society.
• Official recognition (or lack thereof) does not change the fact that these legal systems exist.
• The dominance of the central legal system does not affect whether members of a society observe and practice this legal system.
• Religious legal systems primarily fall into this category, e.g., Islam and Hindi.
• Its members adhere to the normative authority because they feel it is socially or morally obligatory.
• There is no legal sanction, but the rules of the legal system are still followed.

State Law vs Deep Law Pluralism

• State law pluralism is akin to a narrow interpretation of legal pluralism.
• Official customary law falls under this category.
• Fails to take into account western hegemony, colonial influences, contemporary needs, cycles of oppression, etc.
• Rigidity is assumed to be certainty.
• Deep legal pluralism is the same as a broad legal pluralism interpretation.
• Living customary law falls under this category.
• It shows a nuanced approach to pluralism that considers modernity, changing societal needs, and general development.
• An example is Mabena v Letsoalo.