Scl1502 Assignment Two Semester 1 2013

1190 words - 5 pages










In the modules Origins of South African Law (FLS1501) and Introduction to Law (ILW 1501) you were introduced to indigenous law as part of South African Law. Write a short essay (1-1.5 pages) in which you explain what indigenous law is and what its role is in South African Law generally. You MUST consult ...view middle of the document...

The Black Administration Act 38 of 1927 and the Black Authorities Act 68 of 1951 sought to regulate black people for specific segregationist purposes. The apartheid government used or abused Customary Law in its grand and ill-fated project to keep people in separate communities. Blacks were meant to stay in Bantustans (the so called independent states of the Transkei, Venda and Bophuthatswana) where paramount chiefs ruled according to indigenous law. These “countries” passed various pieces of legislation based on indigenous law principles[2]

In post-apartheid South Africa Customary Law is recognised in the 1996 Constitution as it provides that;

“The courts must apply customary law when that law is applicable, subject to the constitution and any legislation that specifically deals with customary law.”[3]

While many people have hailed this recognition of Customary Law as a step in the right direction, others[4] have argued that the application of Customary Law should have been made absolute in those areas where individuals chose to be so governed. Prof D. S. Koyana has made a strong case for the continued existence of customary courts to serve the needs of rural areas by showing the advantages and disadvantages of these courts. He notes that customary law applies to black people who chose to be so governed even today and that “westernised” black people may choose to be governed by common law.[5] He also argues that the selective application of customary law to blacks who so choose cannot be considered to be unfair discrimination. What I have not found in all the cases is what how a case where a white person chooses to be governed by customary law would be handled.

The application of customary law as dictated in the Constitution has been made in various cases which have entrenched the role of indigenous law in South Africa. Most of the cases have dealt with issues of inheritance, land rights and marriage.[6] One of the most popular cases is Alexkor and Another v Richterveld Community and Another 2004 (5) SA 460 (CC). This case gave the Ritcherveld Community the right to and exclusive power over their ancestral land (under the Restitution of Land Rights Act 22 of 1994) thus reinforcing the communal economic principles of indigenous law.

In this essay, I have defined indigenous law. I have also shown that customary law is part and parcel of South African law, interpreted and applied effectively within the context of a democratic society.



In the module Foundations of South African Law FLS 1502 you were introduced to the concept of indigenous property rights. Write an essay in which you explain the difference between the indigenous and Roman concepts of ownership. You MAY refer to the study guide...

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