n Acta Juridica - Contested power and apartheid tribal boundaries : the implications of 'living customary law' for indigenous accountability mechanisms

Volume 2011, Issue 1
  • ISSN : 0065-1346
  • E-ISSN: 1996-2088



The interface between customary law and the formal legal system in South Africa has been the subject of much recent litigation in the South African Constitutional Court. This contribution describes and reflects on the opportunities created by the emerging jurisprudence of 'living customary law' for asserting and protecting customary entitlements to land in the face of controversial new laws that bolster the authority of traditional leaders within fixed jurisdictional boundaries coinciding with the former 'homelands'. I examine the exclusionary effect of these boundaries (which determine both land and identity) on the more flexible and inclusive nature of the 'nested' boundaries typical of customary systems of law. I argue that the new laws attempt to outsource the governance of the poorest South Africans and, in so doing, undermine not only their citizenship rights but also indigenous accountability mechanisms which are inherent in living customary law. I contrast the contextual and purposive approach to issues of inequality and power adopted by the Court in pursuit of its stated transformative agenda with the bounded top-down view of customary law that informs the new traditional leadership laws. I argue that the 'living law' jurisprudence emerging from the Court is deeply embedded in its broader commitment to situate rights in the real-world context of unequal power relations. In addition I suggest that the Court's approach is fundamentally reshaping customary law, such that the new laws are bound to fall short of standards established in living customary law and the broader contextual and purposive approach advocated by the Court.

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