Thinking the Boundaries of Customary Law in South Africa

Abstract

This article begins by taking up the theoretical proximity between scholar and attorney Wilmien Wicomb’s conception, drawn from a hybrid of Derridean thought and cybernetic theory, of customary law within South Africa as a ‘complex system’, and the complexity theory of founding neoliberal legal thinker Friedrich Hayek, for whom cybernetic complexity theory was a substantial intellectual influence. Wicomb’s theoretical frame raises the question of the role the market plays and ought to play in the creation and maintenance of spaces within which customary law can function as an independent, constitutionally recognised source of law within South Africa. This question is of pressing importance at a moment when neoliberalism, understood as a mode of governance, is an active and harmful paradigm in the lives of members of customary communities, as well as in the legal culture more broadly, in South Africa, as an analysis of the legal norms present in South Africa’s ‘vision for 2030’, the National Development Plan, will demonstrate. Wicomb’s work, it is argued, offers an occasion for a critical rethinking of the status of customary law, its boundaries, and the kinds of legal institutions capable of responding to it at the contemporary legal moment in South Africa.

Key Words:

• access to justice
• community rights
• courts
• customary law