n Acta Juridica - Bhe v Magistrate, Khayelitsha : a cultural conundrum, Fanonian alienation and an elusive constitutional oneness : part III : reflections on themes in Justice Langa's judgments
|Article Title||Bhe v Magistrate, Khayelitsha : a cultural conundrum, Fanonian alienation and an elusive constitutional oneness : part III : reflections on themes in Justice Langa's judgments|
|© Publisher:||Juta Law Publishing|
|Affiliations||1 University of the Witwatersrand|
|Publication Date||Jan 2015|
|Pages||256 - 280|
With reference to Bhe v Magistrate, Khayelitsha, this article critically examines the interplay between customary and common law under the Constitution. More precisely, it questions the implications of judicial and legislative approaches that conceptualise customary law in cultural terms, whilst treating the common law as immune from similar characterisation. The article argues that such an approach results not only in the further entrenchment of misplaced notions of the cultural ascendancy of the common law over customary law, but also further cements a Fanonesque alienation of the adherents of both systems of law from each other and indeed themselves. This outcome, it is argued, has serious implications for the forging of a constitutionally inclusive citizenship.
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