This paper examines how the post apartheid South African legal system manages cultural identities through administrative classifications and reacts to voluntary appropriations of cultural identities. Using the Pretoria High Court decision in Chinese Association of South Africa v Minister of Labour (18 June 2008 Case No 59521/2007) as a metaphor and context, this paper examines the classification and appropriation of cultural identities relevant to customary law, Islamic Law, religious laws and black economic empowerment.

This paper is intended to give an overview on the various structures pertinent to the Namibian legal system as one vital example of legal pluralism in Africa. Legal pluralism has become a recognised concept all over our globalised world and it is deeply anchored in the Namibian legal system. As the concept of legal pluralism is continuously developing in the field of legal theory, it cannot be reduced to one clear, all-encompassing definition. What is clear however, is that [t]he wide field of law in its various local, global manifestations is more than just a "law's empire": above all, it concerns dynamic and extremely complex and contested navigation patterns of rules and processes. A broad variety of elements influence the applicable sources of law and thus, a legal system in its entirety. These influencing elements include religion, ethics, morality, society, government, globalisation and international law. Different legal mechanisms may be applied for comparable situations. This is particularly true for the African, and in this case, the Namibian context, which will be elaborated in the following by focusing on applicable law and and various dispute settlement fora. In this context, light will first be shed on the national level, before turning to the the African regional level as an evidence for the implications of the internationalisation of the concept of legal pluralism for Namibia.

The term "customary law" is used to describe the law practiced by the indigenous tribes of South Africa. The courts are under a constitutional obligation to apply customary law when applicable subject to the Constitution and legislation. However two different concepts of customary law exist - the law applied by the courts and codified in legislation and textbooks or the so called "official customary law" and the law practiced by the communities or the so called "living customary law". Criticism against official customary law is that it is a misrepresentation of true living customary law, it over emphasises the patriarchal nature of customary law and does not reflect the true adaptable nature of living customary law. Problems arise regarding the determination of the content of living customary law. Determining whether a particular principle in an indigenous community is customary law or merely a custom is difficult. Can living customary law truly still exist in South Africa after official recognition of customary law in other words can an official living customary law exist? The South African court system functions on a precedent system. If a higher court applies a particular principle of customary law the other lower courts are bound by the decision. Official customary law is in fact created the moment a court decides on a customary law principle. Can living customary law still exist or does South Africa merely recognise official customary law and customs that in future might be recognised by the courts as law?

There are millions of orphans in Africa and many who are homeless and on the streets. For example, an estimated 3.4 million children in South Africa have lost one or both of their parents mainly due to AIDS related diseases. It is anticipated that this number will rise to 4.6 million by 2015. Orphans are only one category of children on the continent who are in need of alternative parental care. Adoption is one of the most permanent legal methods of providing such care. Given the fact that the UN Convention on inter-country adoptions has made inter-country adoptions easier and safer for children, this form of adoption has the potential to augment local adoptions to the benefit of children in need of care. However, my research in Malawi, Zambia, and Zimbabwe reveals that cultural factors militate against adoption of children. This paper discusses the interface between culture and the statutory law of adoption, and the role that culture plays in the adoption of children in the three countries. It shows that although there is enabling legislation in each of the countries concerned, cultural and supernatural beliefs about adoption prevents potential adopters from adopting children. The paper represents a preliminary analysis of a bigger investigation of the law of adoption in the three countries.

South Africa has a mixed, pluralistic legal system which reflects the plurality of its society. One area of law where this is particularly evident is family law. Nevertheless, the Marriage Act 25 of 1961 was the only Act that prescribing uniform rules for all marriages, except those concluded in terms of customary law. In 1998, the Recognition of Customary Marriages Act 200 of 1998 was promulgated to recognise the validity of monogamous and polygynous customary marriages. More recently, the Civil Union Act 17 of 2006 was passed to accept the fact that other forms of marriage, such as same sex unions and domestic partnerships, also exist. Moreover, in the pipeline is legislation aimed at recognising the validity of monogamous and polygynous Muslim marriages. While future legislation is being debated, the judiciary has been dealing with day-to-day inequalities as a result of marriage forms not yet recognised and regulated by the South African legislature. These inequalities relate to various domains, namely inaccessibility to financial resources, health outcomes and maintenance, including the quality of family relationships and other ties to the broader community. It is trite that South Africa became a democracy in 1994 with a new constitutional dispensation and the judiciary obtained the power to develop the common law and to interpret legislation in line with the new Constitution. The question which will be looked at in this paper is whether the judiciary's newly found developmental function has been instrumental in the recognition of family diversity in South Africa. The focus will be on Muslim marriages.

Cultural practises are essential to the identity of various cultural groups in South Africa and should not be interfered with. Cultural practises are clouded by a contentious debate as they can lead to the commission of common law crimes and/or an infringement of basic human rights protected in the Constitution of the Republic of South Africa, 1996. Criminal cases prior to and after 1996 reveal that there are numerous cases where an African accused, charged with committing a common law crime, put evidence of his cultural background and values before the court in an attempt to escape criminal liability or, at least, receive a lighter sentence. This is referred to as the "cultural defence" in criminal law. The focus of this paper is to consider whether the formal recognition of a cultural defence, a defence currently unknown to South African criminal law, will contribute to the protection of cultural identity.

Although some human rights, at first glance, may not be directly linked with cultural diversity, most of them have important cultural implications. The right to health, included in international treaties, is an example. The independent UN Committee supervising the International Covenant on Economic, Social and Cultural Rights, has determined that all health facilities and services must be culturally appropriate, meaning respectful of the culture of individuals and communities. What does this mean? Several groups, such as women, minorities and indigenous peoples, have the right to specific measures to improve their access to health services. However, does this mean that language facilities should be offered in all public hospitals? Are women entitled to be treated by a female doctor upon request? Should minority women be allowed to take a traditional midwife with them to childbirth? This paper explores the cultural dimension of the right to health and its implications for States implementing this right.

In a largely secular South Africa many women live according to gender disparate rules and principles of African customary law and religiously-based Muslim Personal Law (MPL). Both groups of women have experienced problems as a result of the historic non-recognition of their marriages by the civil law. However, while the civil law response to them shares certain commonalities this does not mean that women who are subject to customary law and MPL are in the same (legal) position. In fact, the South African Constitution accords customary law formal recognition by recognising it as part of South African law. However, unlike African customary law, the right to have MPL recognised is not constitutionalised. MPL must therefore first be formally recognised by statute. This process is currently in progress with the co-operation of the state and other stakeholders with formal recognition expected imminently. My presentation will focus on the link between culture and religion with an emphasis on MPL. It will also highlight the differences between the two systems. The relationship between gender equality and the right to practise culture and religion in South Africa will also be emphasised. The ways in which culture and religion overlap with feminism, race and class in the South African context will also be given consideration.