Its a ‘Black Thing’: Upholding Culture and Customary Law in a Society Founded on Non-Racialism

ABSTRACT

This article engages with the racial distinction inherent in legal dualism and the application of customary law, and questions the justification for upholding this distinction in a society founded on non-racialism. After exploring the theoretical foundations of racialism and the links between racialist and culturalist ideology, the article engages in a brief historical overview of legal dualism in South Africa before investigating the manifestation of racialist ideology in legislation and judicial decisions involving the recognition and application of customary law. Concluding that upholding legal dualism frustrates the constitutional founding value of non- racialism, the article then contemplates instances of unfair discrimination on the ground of race relating to various aspects of legal dualism, choice of law as well as customary rules themselves. Thereafter, the article discusses the importance of protecting cultural identity and cultural rights in the constitutional dispensation, and attempts to locate customary law within this realm of protection. Keeping in mind the constitutional imperative to develop the common law and customary law in accordance with the spirit, purport and object of the Bill of Rights, the article finally investigates ways in which cultural values and customary law could be accommodated in the South African legal system. In particular, the article argues for the harmonisation and integration of common law and customary law in a manner that allows for interaction between these systems without perpetuating legal dualism.