Student number: 67293646

Student name: Makina Boitumelo

Module Code: LJU4802
Assignment no: 02
1. Mnyongani stated that the constitution of the Republic of South Africa, was
hailed for its transformative agenda because of its transforming nature, in its
agenda it sought to change all the injustices of the past that led to the
marginalization of the vast majority of black people in the Republic, in the
hands of the apartheid regime brought about by the Boers. In an essence it
sought to transform the country from the unjust conditions it was in
economically and create a new one based on the values of human dignity,
non-racialism, and non-sexism. The central idea in the 1996 Constitution
(hereinafter referred to as the constitution) was and currently is equality, it
seeks to ensure that this time around people are treated fairly and equally
irrespective of gender, age, sex or marital status among other factors.
According to Mnyongani the Achilles heel of this agenda is customary law.
Even though there are factors that set up distinguishing division between
customary law and the dominant legal system. Customary law is the law of
customs that is applicable mainly to black people, it is an indigenous law and
this type of law would not apply to the western people, therefore it brings
about a conflict with the core values of the constitution of the Republic based
on non-racialism. However, this stereotypical view was put to rest when it was
stated in this era of the the new constitutional dispensation, this law is no
longer applied based on racial background but rather based on its applicability
on that subject matter at hand.
2. According to Mnyongani there is very little common between customary law
and the dominant western-inspired dominant legal system, he comes to this
conclusion after intimating that the two systems are founded upon two distinct
jural postulates and they differ distinctively substantively and procedurally.
What happens in one legal system may not happen in the other legal system
either procedurally or substantively with regards to fairness. For one to be
understood effectively they have to have a fluent understanding of the legal
language in the western inspired legal system, and cases in this world are
preferably heard by people with clear knowledge of the matter in question.
And with regards to customary law disputes, courts have not always paid
attentive attention to such cases, this is so because people involved in
customary law, should strive to promote the embodiment of the ethos,
worldview and rules of customary law. customary law should not be
shapeshifted to conform to the standards of common law, doing that would
prove futile.
While on the other hand with the Western-inspired dominant legal system, it
makes its language incomprehensible for the laymen, it proves difficulties for
lay people to understand the language used and the due process used in
 courts. One of the key features of the South African legal system is that it is
adversarial in nature, what this entails it involves two parties.
3. What the African philosophy is premised on four ideas. The first being the one
that is premised on the ‘Eurocentric viewpoint’1 which places the argument
against the existence of the African Legal Philosophy, they advance the
argument that it is so because of the ALP’s non textual nature, rather it owes
its origin to ‘communal thinking’2. However, the proponents of the African
Philosophy argue differently, and they state that some Western Philosophies
were also not codified, and they also owe their existence to communal
thinking.
The second idea is premised on the idea that African Legal Philosophy might
exist, ‘but that it’s impossible to determine its substance and content’3. It is in
this idea that you cannot distinguish legal from customs in the African context
and lastly assert that there is no legal basis for the African Legal Philosophy.
The third idea intimates that there is something called African Legal
Philosophy and is nothing short of similarity from the Western legal
philosophy. Within the African context the debate on the relationship between
law and morality, similarly, echoes the debate in Europe and English law.
Last but not least, the fourth idea, which is likely preferred by many Africans
has a basis on the fact that ‘there is a distinctive African philosophy of law’4.
The proponents of the African philosophy such as Oruka advance the
arguments that for African philosophy to be regarded and recognized as one it
need not follow the Western philosophy template. Its distinguishing character
is rooted in the fact that it reflects on human life and nature in more intuitive
ways.
This now leads us to the types of African legal philosophy and those are
ethnophilosophy, sage philosophy and naturalistic-ideological philosophy.
Ethnophilosophy is premised on the ‘communal though and collective wisdom
that is orally transferred’ individualism plays no role in this school of thought,
rather the metaphysical assumptions and traditional African wisdom5 usually
combine philosophy, mysticism and religions6 and factors such as criticism
and reason are of no consideration.
Sage philosophy is the diametric opposition of ethnophilosophy on the basis
that individualism takes center stage, ideas of a single are taken into
consideration rather than those of the collective mass. It is founded on the
thoughts of individuals whose concern is with the fundamental ethical and
legal issues in their society, those individuals possess the ability to offer
insightful solutions to some of the challenges they confronted with. The
custodians entrusted with the sustaining their society are referred to as the
sages.

1
Kroeze IJ Legal philosophy: Only study guide for LJU4801 (Unisa Pretoria 2017) 135.
2
Kroeze Legal philosophy 135.
3
Kroeze Legal philosophy 137.
4
Kroeze Legal philosophy 137.
5
Kroeze Legal philosophy 139.
6
Kroeze Legal philosophy 139.
 Nationalistic-ideological philosophy, traditional African socialism takes center
stage as this thought. It tries to develop a unique political theory based on the
former mentioned basis of the nationalistic-ideological philosophy. It excludes
capitalism and socialism as its basis, rather premises itself on African
communalism.
4. Ubuntu is the notion based on the Nguni saying that ‘umuntu ungu muntu
ngabanye abantu’, translated that one is because of others, this is an African
philosophy based on humanness, oneness, equality, fairness and respect in
the society.
 Bibliography
Books
Kroeze, Legal Philosophy
Kroeze IJ, Legal Philosophy Study Guide (University of South Africa,
2017)
Journal articles.
Mnyongani, “Duties of a lawyer in a multicultural society: A customary law
perspective”
Mnyongani FD “Duties of a lawyer in a multicultural society: A
customary law perspective” [2012] Stell LR 352-369.

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