Critical Investigation of Challenges in the Recognition of Customary Law in the Democratic South Africa

Abstract

This paper identifies indirect colonial rule as an impediment towards recognition of indigenous authority in South Africa. Indigenous Africans have observed customary law from time immemorial in the pre-colonial era to govern its own people with success before the establishment of British colonial policies. Indirect rule treated indigenous tribal chiefs as political intermediaries, which has caused imbalance of the application of law. This policy was used as a mechanism from which apartheid emerged during the twentieth Century and changed African political identity landscape to favour imperialistic ideology. We explore potential alignment in the application of customary law with common law in our courts to mark the democratic dispensation in the post-colonial era. This paper aims to explore the implications of different legal systems used in democratic post-apartheid South Africa and which are influenced by the apartheid legacy and the failure to recognise African values and principles. The influence of western values resulted in the omission of Ubuntu humanist philosophy from the Constitution of the Republic of South Africa, 1966 (Act 108 of 1996) (hereinafter referred to as “the Constitution”).