Conservation of traditional values vis-à-vis the dependant’s action for loss of support in customary law — ‘go tsoša/tsosa hlogo’

Abstract

In light of the widespread loss and endangered future of indigenous knowledge, there is a need to preserve traditional practices, values and rules relating to the dependant’s action for loss of support in African customary law (‘ACL’). Literature on the dependant’s action generally fails to mention the presence or absence of traditional practices relating to the dependant’s action for loss of support in ACL. Instead, existing research focuses almost exclusively on Western common law despite South Africa being a pluralistic society. This scholarly literature gap may encourage the standard view or tacit belief that traditional values applying to the dependant’s action do not exist in ACL. This article documents these traditional values in our legal system, thereby contributing to ongoing intellectual and political debates about protecting indigenous knowledge and cultural practices. The article discusses the dependant’s action for loss of support from an African perspective and compares it to the Western perspective. The effectiveness of traditional rules in the assessment of compensation is evaluated. The article proposes that the knowledge, understanding and integration of traditional values could result in the development of a single dependant’s action tailored to satisfy different cultures and beliefs and applies fairly and consistently to all.