Historically South African law has been dominated by Western law. Indigenous law and
the jural postulates which underpin that law are insufficiently accommodated in the
South African legal order. The Western component of the official legal system is
regarded as institutionally and politically superior and is as such perceived to be the
dominant system. In contrast indigenous law is regarded as a servient system. The
monopolistic control of the legal order by the Western section of the population
resulted in the creation of a legal order primarily suited to its own needs.
The fact that few of the values of indigenous law are reflected in the official legal
system and the fact that there is a measure of conflict and tension between the
fundamental precepts of indigenous law and those of Western law, gave rise to a crisis
of legitimacy of the official legal system in South Africa. This in turn lead to the
emergence of unofficial alternative structures for the administration of justice.
Indigenous law should receive full recognition and enjoy the same status as Western
law. To accomplish this, legislative measures which entrench a distorted indigenous
law, limit the application of indigenous law, or affect its status in the South African legal
order, should be revoked.
Even in a multicultural society such as that of South Africa, there is a common nucleus
of core values that are shared by the whole society. But different cultures have
different conceptions of these basic values and their role in legal, political and social
ordering. The Bill of Rights should give due recognition to the postulates which
underscore both Western and indigenous law. This should be done by providing that
the values the Bill entrenches, must be interpreted in their proper cultural perspective
where circumstances so demand. But this will be possible only if the level of
knowledge of indigenous law and its fundamental precepts is drastically improved. / LL.D
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:unisa/oai:umkn-dsp01.int.unisa.ac.za:10500/17738 |
| Date | 06 1900 |
| Creators | Van Niekerk, Gardiol Jeanne |
| Contributors | Church, J., Van der Westhuizen, J.V. |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
| Format | 1 online resource (379 pages) |
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