The substitution of the dominant Western jurisprudence for South Africa’s indigenous
normative values during colonial and apartheid times has resulted in a perverted
conception of law that presents Western jurisprudence as synonymous with law. In
the era of the constitutional recognition of African law where the application of the
democratic principle demands that the newly re-enfranchised African communities
deserve to be regulated by their own indigenous values, the resilience of this legal
culture has become problematic. To reverse this situation legal and constitutional
interpreters must rethink and reshape their contributions to the achievement of the
post-apartheid version of African law envisioned by the South African Constitution.
The application of African law in a free and liberated environment must reflect its
own social, political and legal cosmology in which its institutions operate within their
own indigenous frame of reference. A study of the anatomy of African jurisprudence
as a means of gaining insight into the indigenous worldview which was characterised
by the culture of communal living and the ethos of inclusiveness to counter the
prevailing hegemony of autonomous individualism, has become urgent. To achieve
this such pillars of African jurisprudence as the philosophy of ubuntu must be
exhumed in order for African law’s rehabilitation under the Constitution to be
undertaken on the basis of its authentic articulation uncontaminated by colonial and
apartheid distortions.
The task of developing the African law of the 21st century to the extent required by
the Constitution is a challenge of enormous proportions which demands an
appreciation of the historical and political environment in which African law lost its
primacy as the original legal system of South Africa after Roman-Dutch law was
imposed on the South Africa population. The revival of African law becomes more
urgent when one considers that when Africans lost control of their legal system they
had not abdicated sovereignty voluntarily to the newcomers. The validity of the
imposition of Western jurisprudence is vitiated by the colonial use of such imperial
acts as colonisation, conquest, and annexation as the basis on which the regime of
Roman-Dutch law was imposed on South Africa.
Ever since, African law has been subordinated and denigrated through colonial and
apartheid policies which relegated it, via the repugnancy clause, to a sub-system of
Roman-Dutch law with whose standards it was forced to comply. The repugnancy
clause left African law a distorted system no longer recognisable to its own
constituency. The advent of the new dispensation introduced a constitutional
framework for re-capacitating South Africa’s post-apartheid state institutions to recentre
African law as envisioned by the Constitution. This framework has become
the basis on which legislative and judicial efforts could rehabilitate the indigenous
value system in the application of African law.
The courts of the new South Africa have striven to find the synergy between
indigenous values and the Bill of Rights in order to forge areas of compatibility
between African culture and human rights. An analysis of this phase in the
development of African law, as evidenced by the present study, reveals successes
and failures on the part of the courts in their efforts to rehabilitate African law in line
with both its value system and the Bill of Rights. These findings lead to the
conclusion that whilst South Africa’s legislative and judicial institutions have not yet
achieved the envisioned version of African law, there is an adequate constitutional
framework through which they could still do so.
This study, therefore, recommends that the above institutions, especially the
courts, should adopt a theory of re-indigenisation that would guide them as they
proceed from the indigenous version of African law which is the basis on which to
apply the Bill of Rights. The application of such a theory would ensure that the
distorted ‘official’ version of African law which was imposed by colonial and
apartheid state institutions is progressively discredited and isolated from the body
of South African law and gives way to the version inspired by the Constitution. / Constitutional, International and Indigenous Law / LL. D.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:unisa/oai:uir.unisa.ac.za:10500/13854 |
| Date | 11 1900 |
| Creators | Ndima, Dial Dayana |
| Contributors | Mahao, Nqosa Leuta |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
| Format | 1 online resource (x, 273 leaves), application/pdf |
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