Paper short abstract:

The South African courts are under a constitutional obligation to apply customary law. There however exists a dichotomy between official and living customary law. The main element of differentiation between living and official customary law is that living customary law is regarded as flexible whereas official customary law is static. The paper investigates whether living customary law can still exist after official recognition of customary law.

Paper long abstract:

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?

Paper short abstract:

This paper considers whether the formal recognition of a cultural defence in South African law will contribute to the protection of the cultural identity of minority groups in South Africa.

Paper long abstract:

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.

Paper short abstract:

Domestic violence is an appropriate base to evaluate the impact of African regional human rights instruments on kinship penal regime because when a duty is imposed on kinship bodies to apply human rights norms, the outcome is a truncated version of rights that leans towards protection of the group.

Paper long abstract:

Despite the enactment of primary legislation in Africa to punish perpetrators of domestic violence, at the localised level, cases of domestic violence continue to be handled by kinship bodies that form part of what is referred to in legal parlance as 'traditional courts'. The legal reality is that the African regional human rights instruments place a positive duty on traditional courts to protect and enforce human rights within their settings. The process of negotiation and the use of ritual penalties in kinship justice make important study because of the complexity of transferring international human rights norms to praxis. When human rights law does not speak to kinship practices and when human rights instruments place a duty on kinship bodies to apply human rights norms, the outcome is a truncated version of rights that leans towards protection of the group.

Domestic violence is an appropriate base from which the application of human rights standards in kinship settings can be assessed. This is because the penal regime of kinship courts that handle domestic violence remains under researched. As a result, the localised interpretation of human rights law on the negotiation process and ritual penalties is relatively unknown. This article therefore seeks to put into perspective the overall impact that the African regional human rights instruments could have on the penal regime of kinship units.

Paper short abstract:

The administrative classification of cultural identities and the judicial reaction to voluntary appropriation of cultural identities.

Paper long abstract:

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.

Paper short abstract:

The question which will be looked at in this paper is whether the South African judiciary's found constitutionally endorsed developmental function has been instrumental in the recognition of family diversity in South Africa. The focus will be on Muslim marriages.

Paper long abstract:

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.