History is awash with the crimes of humanity against the indigenous peoples of Africa, the Americas, The Pacific Islands and beyond; and, the story is well told of how customs and laws of indigenous peoples’ were blatantly disregarded or relegated to an inferior status, so as to “civilise” the “heathens”; and, that every treaty was deceitfully contrived so as to claim imperial authority and custodianship; and, eventually enforce duties, levies and taxes on the new “subjects” without any consideration whatsoever, nor without their informed consent;
And, this racial discrimination continues, even today; Buyelekhaya’s case in point;
For a brief history into the infamous “age of discovery” and the culprits behind it, see https://giftoftruth.wordpress.com/age-of-discovery/
Every nation has their own sad story to tell; the following is what a few South Africans have to say about the state of customary law on Southern Africa;
George Bizos on Law, Justice and Morality: South Africa is at a crossroad -again!
At the School of Practical Philosophy Plato week held at Salisbury House, Johannesburg, in April 2013, Advocate George Bizos, lifelong friend of Nelson Mandela and renowned human rights lawyer since the apartheid era, spoke of the constant tensions between law, justice and morality in colonial, apartheid and democratic South Africa.
“Most notably, during apartheid, sophists supporting the regime would rely on what is termed Plato’s “useful falsehood.” In The Republic Plato argues that human beings (like the metals gold, silver, and iron and bronze) ‘possess different natures that fit each of them to a particular function within the operation of the society as a whole.’ It is my view that Plato was incorrect when he chose this particular metaphor. Human beings have minds, feelings; they yearn for dignity, equality and freedom-the value that each human being can make to a society cannot, and should not, be pre-determined.”
Further reading at: http://www.practicalphilosophy.org.za/
Constitution of South Africa:
On 27 April 1994, a new constitutional order came into existence with a commitment to equality, freedom and dignity for the Republic of South Africa in which the welfare and rights of the entire mass of people are the main consideration, rather than the privileges of a class or the will of a monarch.
A justiciable Bill of Rights is at centre stage in this new order. The Bill of Rights affirms a fundamental right to lawful, reasonable and procedurally fair administrative action in terms of the common law, the Constitution, other jurisdictions and the Promotion of Administrative Justice Act 3 of 2000.
A requirement of section 35(3) of the interim Constitution was that the common law, customary law and other jurisdictions such as natural law and natural justice be applied and developed, with due regard to the spirit, purport and objects of the Bill of Rights.’
In the words of retired Constitutional Court judge Albie Sachs:
“We are a new Court, established in a new way, to deal with a new Constitution. We should not rush to lay down sweeping and inflexible rules governing our mode of analysis. We need to develop an appropriately South African way of dealing with our Constitution, one that starts with the Constitution itself, acknowledges the way it came into being, its language, spirit, style and inner logic, the interests it protects and the painful experiences it guards against, its place in the evolution of our country, our society and our legal system, and its existence as part of a global development of constitutionalism and human rights.” (S v Mhlungu 1995 (7) BCLR 793 (CC) at 917 per Sachs J.)
The South African legal system is based on Constitution supremacy and any law that is inconsistent with the Constitution is null and void to the extent of its inconsistency with the Constitution. It has its roots from Roman Dutch law, from the common law owing to its English colonial history, and African Customary law and African Indigenous Justice philosophy.
Southern Africa law therefore consists of legal plurism which according to Professor Chuma Himonga is:
“The various legal orders existing in a State polity, that is, State law, indigenous law, and other normative orders are not completely independent of each other; they interact in various ways and at various levels. Presumably, their respective values also interact, or in some way rub against each other, so that they influence each other. In legally pluralistic States, therefore, one may find not only one but several, even mixed, legal cultures reflecting the interacting, diverse, legal systems.”
THE APPLICATION OF SECTION 8(3) OF THE CONSTITUTION IN THE DEVELOPMENT OF CUSTOMARY LAW VALUES IN SOUTH AFRICA’S NEW CONSTITUTIONAL DISPENSATION
Pursuant to the adoption of the 1996 Constitution,6 customary law is given formal recognition and placed on an equal footing with common law. This means that it is recognised as a legitimate system in South Africa’s new legal order. The period following 1994 affirms the legitimacy of the various sources of the law which are reinforced by the supremacy of the Constitution and the independence of the judiciary. Basically, the post-1994 period is characterised by a firm recognition of the mixed legal systems which Rautenbach refers to as a “potjiekos”. According to her, the system consists of common, civil and customary law layers which lay the foundation for the evolution of the values of the new constitutional dispensation.
The importance of the doctrine of “potjiekos” lies in the fact that it affirms that the legitimacy of the law receives its effectiveness from the consent of the people, which was not the case in the past.
When Is the Past Not the Past? Reflections on Customary Law under South Africa’s Constitutional Dispensation
This paper argues that over the last fifteen years, instead of producing a reformed, democratic, and culturally attuned system of customary law as envisaged at the time of its constitutional incorporation, reformers have reproduced the colonial legacy that again relegates customary law to a second-tier legal system and an instrument of rule and administration. In support of this argument, the paper refers to Professor Mahmood Mamdani’s thesis that despite post-independence states’ honest attempts to reform customary legal systems, many only managed to reproduce the colonial legacy through an administratively driven justice system characterized by a state form he terms “decentralized despotism.”
Source: WHEN IS THE PAST NOT THE PAST
See also Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism 27-29 (Princeton Univ. Press 1996).
Customary Law in a New South Africa: A Proposal
Fordham International Law Journal; Volume 15, Issue 1 1991 Article 3;
by Lynn Berat
This Article explores avenues open to South African politicians and jurists in their search for a more equitable South Africa. Part I examines the international position of customary law. Part II considers the treatment of customary law elsewhere in Africa and gives particular attention to unification of laws and legal systems. Part III reviews the experiences of legal dualism in South Africa’s neighbors, Botswana, Lesotho, and Swaziland. Part IV discusses customary law in South Africa. Part V contends that although the unification of laws is a desirable long-term goal for South
Africa, at present it is impractical. Part V also suggests that an integration model that combines elements of dualism and unification is the most prudent solution to the problems presently facing South Africa’s legal system.
uBuntu, Pluralism and the Responsibility of Legal Academics to the New South Africa
Inaugural lecture by Professor Drucilla Cornell; Department of Private Law. Faculty of Law; 10 September, 2008
Often pluralism is reduced to a simple proposition. There is, in any given nation state, a number of competing social, cultural and individual values, and these must be tolerated within an overarching sovereign order that both encompasses them all, and allows them a degree of independence. Indeed, as John and Jean Comaroff have eloquently argued, there is a dialectic between neoliberal capitalism and the proliferation of values taken as facticity by our global society precisely because the hegemony of the Washington Consensus seemingly eclipses all the big ideals that once claimed to stand in for the ideal of humanity. Famously, one such idea was an ethical, not simply an economic, version of socialism – from each according to her ability to each according to her need, to paraphrase Karl Marx’s famous phrase. As they have also pointed out, the terrifying encroachment of neoliberalism, with its endless force of reverse transubstantiation, has left many peoples and cultures few options but to enter the legal arena and battle for some kind of barrier against this force.
Ubuntu as a moral theory and human rights in South Africa
Thaddeus Metz; Humanities Research Professor of Philosophy, University of Johannesburg, South Africa; AFRICAN HUMAN RIGHTS LAW JOURNAL
There are three major reasons why ideas associated with ubuntu are often deemed to be an inappropriate basis for a public morality in today’s South Africa. One is that they are too vague; a second is that they fail to acknowledge the value of individual freedom; and a third is that they fit traditional, small-scale culture more than a modern, industrial society.
In this article, I provide a philosophical interpretation of ubuntu that is not vulnerable to these three objections. Specifically, I construct a moral theory grounded on Southern African world views, one that suggests a promising new conception of human dignity. According to this conception, typical human beings have a dignity by virtue of their capacity for community, understood as the combination of identifying with others and exhibiting solidarity with them, where human rights violations are egregious degradations of this capacity. I argue that this account of human rights violations straightforwardly entails and explains many different elements of South Africa’s Bill of Rights and naturally suggests certain ways of resolving contemporary moral dilemmas in South Africa and elsewhere relating to land reform, political power and deadly force. If I am correct that this jurisprudential interpretation of ubuntu both accounts for a wide array of intuitive human rights and provides guidance to resolve present-day disputes about justice, then the three worries about vagueness, collectivism and anachronism should not stop one from thinking that something fairly called ‘ubuntu’ can ground a public morality.
Source: UBUNTU AS A MORAL THEORY
The Rights of Indigenous Peoples: South Africa
1.2 Main human rights concerns of indigenous peoples
Indigenous peoples in South Africa suffer from a variety of breaches of their fundamental human rights and freedoms – some similar to those of indigenous peoples all over the world.35 That said, South Africa stands as one of the few countries on the continent that has embarked on ambitious efforts aimed at redressing the problems of its indigenous peoples. These include legislative, policy and judicial interventions that are emerging as possible best practices for other countries on the continent to borrow in their bid to address indigenous peoples’ concerns. However, at present some concerns remain and are hereto briefly highlighted. These concerns and how the state has attempted to solve them are discussed in further detail in part II of this report during the examination of the legal framework impacting upon and protecting indigenous peoples in the country. The following therefore are some of the main human rights concerns still pertinent to these groups:
1.2.1 Equality and non-discrimination
1.2.2 Recognition of their identity, language and culture
1.2.3 Rights to land and resources
1.2.4 Access to and enjoyment of economic social and cultural rights
1.2.5 Other important human rights concerns
Full Report: RIGHTS OF INDIGENOUS PEOPLES – SOUTH AFRICA
UZA summary: RIGHTS OF INDIGENOUS PEOPLES – SOUTH AFRICA summary
South African Common and Customary Law of Intestate Succession: A Question of Harmonisation, Integration or Abolition
It is no secret that colonialism had a considerable impact on the existence and development of law in South Africa. Modern South African law consists of a conglomeration of so-called transplanted laws made up of a mixture of Roman-Dutch law and English common law, as well as indigenous laws, referred to as customary law. In spite of customary law being the law of the original inhabitants of this country, there has never been parity between the transplanted laws and the indigenous laws. Customary law was initially ignored by the colonials, then tolerated and eventually recognised, albeit with certain reservations and conditions. The situation did not change much over the years until the Constitution of the Republic of South Africa, 1996, finally brought customary law on a par with the common law of South Africa by affording it constitutional recognition, but subject to the Constitution and other legislation.