The

phenomenon of
legal pluralism
Legal pluralism
• The coexistence of various officially recognised
state laws
• In the South African context, this refers to Roman
Dutch law as influenced by English law as well as
customary law incorporated through legislation
and precedent.
• This narrow interpretation however does not
explain the social reality in South Africa
• Why?
• It does not make provision for the various laws
which are unofficially observed by many South
Africans
• However this is changing and there are various
reforms aimed at recognising unofficial state laws
Narrow interpretation: State law pluralism
• Based on dual legal systems
• It is based on a system where European/western law and
traditional forms of law operate in a single society and are officially
recognised by a state.
• Simply put, it is where at least 2 legal systems run equally and
interact in limited prescribed circumstances
• The narrow approach flows from the perception that law consists
of norms/rules that are created by official state organs according to
the rule of recognition.
• By recognising indigenous law, it had to applied as well. However,
this was subject to public policy (this was what was perceived as
morally right by the western/apartheid rule)
• For example, indigenous law marriages were not legally recognised
due to their polygamous nature.
• Although today indigenous law is recognised by the Constitution,
western law is still regarded as a dominant legal system. This has
changed since the Alexkor case (indigenous law must be seen
through the lens of indigenous law not common law)
Broad interpretation: Deep legal pluralism
• This is pluralism in a wider sense (this is the
situation in which various legal systems exist and
are observed)
• This where various legal systems exist and are
observed in a community
• Simply put, the official recognition of certain legal
systems and non-recognition of others has no
effect on the factual existence of legal pluralism.
• For example, the recognition of various religious
legal systems
• The followers of those religious laws adhere to the
normative authority of non-state authorities
because they feel socially obliged to do so
Historical Emergence of pluralism in South
Africa
• Generally speaking, state-law pluralism originated
in South Africa during the second British
occupation of the Cape.
• While missionaries and traders from Europe had
an impact on the traditional cultures of Southern
Africa well before the initial British occupation of
the Cape in 1795 and even prior to the Dutch East
India Company (DEIC) arrival on South African soil
in 1652, their influence remained quite restricted.
• There is no record, during this early period, of the
recognition of customary laws or the imposition of
a European system upon the indigenous
population. as such, and there are no traces of any
form of state-law, pluralism.
Emergence of pluralism
• By the middle of the 19th century, South Africa was divided into four British colonies:
• Cape colony, Natal, Orange Free State and Transvaal
• The administrators of the various territories, to a greater or lesser extent, all aspired to
civilise the indigenous population and to oust their uncivilised laws.
• This gave customary law limited recognition, through the indirect rule. This meant
indigenous law had limited recognition and was subject to western norms.
• Where customary law was recognised, it was subject to the strict application of a
repugnancy clause.
• This meant that it was applicable where it was not against public policy or natural justice
• What do you think thus public policy was?
• By 1910, customary law was recognised to some extent in all the areas which were to
constitute the provinces of the Union of South Africa.
• This resulted in the consolidation of colonial legislation of customary law into the Black
Administration entrenching state-law pluralism for the country as a whole.
History of Deep legal pluralism
• Deep legal pluralism originated somewhat earlier than state-
law pluralism.
• It actually originated when the DEIC established a trading
post in the Cape.
• African customary law is essentially unwritten history
• The main source of information is in the form of oral
tradition
• (it is passed down orally from generation to generation)
• Due to this, it is challenging to trace and to establish the
extent to which legal pluralism existed in the pre-colonial
era.
• Due to it being unwritten history, there is insufficient
evidence of the observance of more than one legal system in
a single society.
History of Deep legal pluralism
Application of Customary law
• During the British rule, the first Magistrates’ Courts
were widely dispersed over large areas.
• Due to a lack of police officials, the South African
government was unable to enforce the foreign official
law imposed on the indigenous people and to curb the
influence of the unofficial traditional courts.
• Magistrates, as well as chiefs and headmen, continued
to apply unofficial customary law in civil matters
between African people despite the Cape
government’s policy of non -recognition of that law.
• This is because it had no statutory indication (was not
codified)
History of Deep legal pluralism
• Customary law now forms part of the
South African legal system hence the
state has a pluralistic system
• Do you think this includes living or
what was previously known as
unofficial law?
• Yes, courts apply living customary law
• It can also be argued that there is no
such thing as non-state customary law
and customary law in all its forms
(living and official) is indeed state law
Islamic law
• As early as the 17th century, Islamic law made its way into
South Africa. The initial Muslim arrivals in the 1650s were
soldiers working for the Dutch East India Company (DEIC).
• Despite an Act on August 2, 1657, ensuring freedom of
religion for these individuals, they faced a prohibition,
punishable by death, against public practice or propagation
of their religion.
• Even though the Dutch authorities declared freedom of
religion in 1804, and the first mosque was constructed
within a year of the second British occupation of the Cape,
Islamic law was never officially acknowledged or
recognized.
• The Natal Muslims did not experience the same kind of
hardship as the Cape Muslims, and it was easier for them
to practise their personal law and religion. Yet, even in
Natal, their law was not officially recognised.
Hindu law
• Like the Muslims, Hindus from India came to the British colony of Natal
to work on the sugar cane plantations. Thus,
• Hinduism entered South Africa during the 1860s.
• The first Hindus brought with them their religion and concomitant
personal laws.
• They struggled to get areas in which they could erect temples for
holidays to celebrate religious festivals.
• In 1862, the Methodist Mission began to celebrate their customary
festivals.
• An important method of transmitting the Hindu culture was by example
and through storytelling at home.
• (This is similar to customary law)
• from the earliest times, private rituals played a pivotal role in the
preservation of Hindu culture and personal laws.
• Indian personal laws were so insignificantly regarded that Muslim and
Hindu laws were often mentioned as if they were the same –not only in
academic writing, but also by the courts.
Jewish Law
• Jews made their initial entry into South Africa as early as 1669.
• However, due to the Dutch East India Company's policy of
exclusively hiring Protestant Christians and the Cape allowing
only Christianity as the public religion, numerous Jews opted to
convert to Christianity.
• Like other religious minority groups in South Africa, the Jews
experienced discrimination.
• Yet their position differed from, for example, the Hindus and
Muslims, since they belonged to the privileged “white classes”.
• The Jewish community faced discrimination through various
laws, such as the Immigration Act of 1902.
• This legislation stipulated that immigrants must submit their
disembarkation applications in Roman (European) characters,
with the intention of restricting the influx of both Asians and
European Jews.
People's law
• In metropolitan areas predominantly inhabited
by African people, people's law emerged as a
response to the perceived illegitimacy of the
official legal order imposed by the state.
• The emergence of people's law and popular
justice can be attributed to class
contradictions, the inefficiency of the
prevailing justice system, a shortage of legal
resources and access to justice, and economic
factors.
• The urban communities continued establishing
informal dispute-settlement structures which
applied an adapted urbanised customary law.
 State law pluralism today
• Remember: in South Africa, state law consists of a Western component and an African component.
• The Western component comprises the common law, legislation, judicial precedent and customary
law
• The African component comprises official customary law, that is, customary law incorporated into
legislation, or pronounced in judicial decisions as well as a body of living customary law which has
not been explicitly included in legislation or confirmed by the courts
• Section 211 of the Constitution
• Places indigenous law on par with the common law
• Section 211(3) indigenous law must be applied where applicable
• In spite of the fact that customary law is regarded as a source of South African law in terms of the
Constitution, its status remains problematic.
• This is because some of its rules contracdict the Bill of Rights (Bhe case, primogeniture rule on
section 9 of the Constitution)
• The introduction of new legislation, and the rulings from high courts and the Constitutional Court
reflect the government's recognition of the necessity to enhance the standing of customary law
and incorporate unofficial laws into the state legal framework.
• It is important to also note developments such as the Recognition of Customary Marriages Act of
1998 which gave official recognition to customary marriages.
Deep legal pluralism in South Africa today
• The enduring resistance to Western
influences is evident not just in customary
law but also in the cultural institutions of
religious laws.
• For example, Islamic and Jewish laws
• These laws and institutions continue to be
widely followed today, underscoring their
resilience even in the absence of official
recognition.
 Unofficial law
• Numerous informal dispute-resolution entities, including family councils
and regimental or age-group institutions, play a role in resolving disputes
outside of formal court settings, applying dynamic customary laws.
• The ward heads' courts serve as traditional administrative and judicial
bodies, operating unofficially in rural areas.
• Not only do these unofficial institutions apply living customary law, but
official traditional authority courts also occasionally function as informal
tribunals.
• The courts are more often recognising the fact that official customary
law is not in line with the changing needs of the society it serves and
that there is a widening deviation of the living customary law and the
official version that is applied by the state courts.
• In the dissenting judgment in the Bhe case, the judge pointed out that
official customary law should be brought in line with the living
customary law
• Mabena v Letsoalo, the Court gave effect to living Pedi law, confirming
that a woman could be the head of a family and receive lobolo.
Islamic law
• The courts have increasingly become open towards Islamic laws.
• However, they are guided by an ethos of legal positivism.
• As such, they still shy away from giving recognition to institutions
which are not consonant with Western values.
• Even with that said, we still see courts applying these rules, for
example:
• In Amod v Multilateral Motor Vehicle Accident Fund, the court
granted relief to the plaintiff by giving effect to a contract flowing
from a marriage concluded according to Islamic rites
• Even though the courts recognised Islamic laws, it excluded the
nature of Islam marriages which are also polygamous.
• The transition to a constitutional democracy and the constitutional
entrenchment of religious freedom sparked a renewed effort to
recognise aspects of Islamic law.
• For example, the reform of Islamic Marriages and Related Matters,
which contains a Draft Bill recognising Muslim marriages.
 People’s law
• Urban communities developed a unique mode of social
ordering which resulted in the development of a system of
justice rooted in traditional Africa but adapted to the
needs of urban life.
• People’s courts were instituted as alternative structures to
substitute state institutions which were regarded as
instruments of the apartheid regime, used to enforce
apartheid laws.
• Communities created community courts aimed at
resolving matters between those residing in a certain area
• In 1999, the Law Reform Commission issued a discussion
paper on traditional courts and the judicial function of
traditional leaders
• Traditional courts were established aimed at an accessible
system based on restorative participatory justice.
• Traditional courts have a more informal setting and parties
may appear without representation
Conclusion
• Based on what you have
learned, what are the
differences between living and
official indigenous law?
History of Deep legal pluralism
• Customary law now forms part of the
South African legal system hence the
state has a pluralistic system
• Do you think this includes living or
what was previously known as
unofficial law?
• Yes, courts apply living customary law
• It can also be argued that there is no
such thing as non-state customary law
and customary law in all its forms
(living and official) is indeed state law
Islamic law
• As early as the 17th century, Islamic law made its way into
South Africa. The initial Muslim arrivals in the 1650s were
soldiers working for the Dutch East India Company (DEIC).
• Despite an Act on August 2, 1657, ensuring freedom of
religion for these individuals, they faced a prohibition,
punishable by death, against public practice or propagation
of their religion.
• Even though the Dutch authorities declared freedom of
religion in 1804, and the first mosque was constructed
within a year of the second British occupation of the Cape,
Islamic law was never officially acknowledged or
recognized.
• The Natal Muslims did not experience the same kind of
hardship as the Cape Muslims, and it was easier for them
to practise their personal law and religion. Yet, even in
Natal, their law was not officially recognised.
Hindu law
• Like the Muslims, Hindus from India came to the British colony of Natal
to work on the sugar cane plantations. Thus,
• Hinduism entered South Africa during the 1860s.
• The first Hindus brought with them their religion and concomitant
personal laws.
• They struggled to get areas in which they could erect temples for
holidays to celebrate religious festivals.
• In 1862, the Methodist Mission began to celebrate their customary
festivals.
• An important method of transmitting the Hindu culture was by example
and through storytelling at home.
• (This is similar to customary law)
• from the earliest times, private rituals played a pivotal role in the
preservation of Hindu culture and personal laws.
• Indian personal laws were so insignificantly regarded that Muslim and
Hindu laws were often mentioned as if they were the same –not only in
academic writing, but also by the courts.
Jewish Law
• Jews made their initial entry into South Africa as early as 1669.
• However, due to the Dutch East India Company's policy of
exclusively hiring Protestant Christians and the Cape allowing
only Christianity as the public religion, numerous Jews opted to
convert to Christianity.
• Like other religious minority groups in South Africa, the Jews
experienced discrimination.
• Yet their position differed from, for example, the Hindus and
Muslims, since they belonged to the privileged “white classes”.
• The Jewish community faced discrimination through various
laws, such as the Immigration Act of 1902.
• This legislation stipulated that immigrants must submit their
disembarkation applications in Roman (European) characters,
with the intention of restricting the influx of both Asians and
European Jews.
People's law
• In metropolitan areas predominantly inhabited
by African people, people's law emerged as a
response to the perceived illegitimacy of the
official legal order imposed by the state.
• The emergence of people's law and popular
justice can be attributed to class
contradictions, the inefficiency of the
prevailing justice system, a shortage of legal
resources and access to justice, and economic
factors.
• The urban communities continued establishing
informal dispute-settlement structures which
applied an adapted urbanised customary law.
 State law pluralism today
• Remember: in South Africa, state law consists of a Western component and an African component.
• The Western component comprises the common law, legislation, judicial precedent and customary
law
• The African component comprises official customary law, that is, customary law incorporated into
legislation, or pronounced in judicial decisions as well as a body of living customary law which has
not been explicitly included in legislation or confirmed by the courts
• Section 211 of the Constitution
• Places indigenous law on par with the common law
• Section 211(3) indigenous law must be applied where applicable
• In spite of the fact that customary law is regarded as a source of South African law in terms of the
Constitution, its status remains problematic.
• This is because some of its rules contracdict the Bill of Rights (Bhe case, primogeniture rule on
section 9 of the Constitution)
• The introduction of new legislation, and the rulings from high courts and the Constitutional Court
reflect the government's recognition of the necessity to enhance the standing of customary law
and incorporate unofficial laws into the state legal framework.
• It is important to also note developments such as the Recognition of Customary Marriages Act of
1998 which gave official recognition to customary marriages.
Deep legal pluralism in South Africa today
• The enduring resistance to Western
influences is evident not just in customary
law but also in the cultural institutions of
religious laws.
• For example, Islamic and Jewish laws
• These laws and institutions continue to be
widely followed today, underscoring their
resilience even in the absence of official
recognition.
 Unofficial law
• Numerous informal dispute-resolution entities, including family councils and
regimental or age-group institutions, play a role in resolving disputes outside of
formal court settings, applying dynamic customary laws.
• The ward heads' courts serve as traditional administrative and judicial bodies,
operating unofficially in rural areas.
• Not only do these unofficial institutions apply living customary law, but official
traditional authority courts also occasionally function as informal tribunals.
• The courts are more often recognising the fact that official customary law is not
in line with the changing needs of the society it serves and that there is a
widening deviation of the living customary law and the official version that is
applied by the state courts.
• In the dissenting judgment in the Bhe case, the judge pointed out that official
customary law should be brought in line with the living customary law
• Mabena v Letsoalo, the Court gave effect to living Pedi law, confirming that a
woman could be the head of a family and receive lobolo.
Islamic law
• The courts have increasingly become open towards Islamic laws.
• However, they are guided by an ethos of legal positivism.
• As such, they still shy away from giving recognition to institutions
which are not consonant with Western values.
• Even with that said, we still see courts applying these rules, for
example:
• In Amod v Multilateral Motor Vehicle Accident Fund, the court
granted relief to the plaintiff by giving effect to a contract flowing
from a marriage concluded according to Islamic rites
• Even though the courts recognised Islamic laws, it excluded the
nature of Islam marriages which are also polygamous.
• The transition to a constitutional democracy and the constitutional
entrenchment of religious freedom sparked a renewed effort to
recognise aspects of Islamic law.
• For example, the reform of Islamic Marriages and Related Matters,
which contains a Draft Bill recognising Muslim marriages.
 People’s law
• Urban communities developed a unique mode of social
ordering which resulted in the development of a system of
justice rooted in traditional Africa but adapted to the
needs of urban life.
• People’s courts were instituted as alternative structures to
substitute state institutions which were regarded as
instruments of the apartheid regime, used to enforce
apartheid laws.
• Communities created community courts aimed at
resolving matters between those residing in a certain area
• In 1999, the Law Reform Commission issued a discussion
paper on traditional courts and the judicial function of
traditional leaders
• Traditional courts were established aimed at an accessible
system based on restorative participatory justice.
• Traditional courts have a more informal setting and parties
may appear without representation
Conclusion
• Based on what you have
learned, what are the
differences between living and
official indigenous law?