The African law of the 21st century in South Africa

Abstract

This article discusses the problems inherent in the dual condition of the South African legal system in terms of which the dominant Western oriented common law applies to everyone, while the servient African law applies to Africans only. Consequently, a dichotomy between 'official' African law which seeks to rid itself of those cultural notions that are repugnant to Western civilisation and 'living' African law which retains its indigenous moral values has developed within the servient African system. The latter version applies in actual social practice and is part of the lives of its adherents. My approach rejects the 'official' version because the removal of African moral values by the application of the repugnancy clause has left African law distorted beyond recognition. This version is part of the colonial project which sought to dehumanise Africans and should not be one of the sources of our postapartheid African law. On the contrary, 'living' African law is the version that the adherents of the system continued to apply as part of their resistance to colonial dehumanisation and should be judicially and legislatively affirmed. Unfortunately, our courts continue to regard the distorted version as a legitimate precedent and rely on the instruments, policies and judgments that were used in the past in pursuit of the infamous colonial 'native' administration project. I submit that our legal practice is required to embark on the daunting task of developing the 'living' version that affirms the aspirations of its adherents as required by the constitution.

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