African Customary Law · Study Hub
Study Hub
Flashcards, a lexicon, and FIRAC exam problems — coach yourself to a distinction.
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What is legal pluralism?
The coexistence of two or more legal systems within the same social field or state. In South Africa: common law, African customary law, and religious personal laws, all under the Constitution.
Distinguish weak (state-law) from deep (strong) pluralism.
Weak/state-law pluralism = the state recognises and incorporates other systems (SA's model, via s 211). Deep/strong pluralism = non-state systems exist and function independently of state recognition.
What is the status of customary law relative to the common law?
They are equal, independent, original systems — both subject to the Constitution and legislation. Customary law is not a branch of, or subordinate to, the common law (Alexkor).
What did Alexkor v Richtersveld establish?
That customary law is an independent, original source of law recognised by the Constitution, to be applied on its own terms rather than through the common law.
What is personal-law pluralism?
Where the legal system governing a person depends on their culture, religion or lifestyle (e.g. a customary vs a civil marriage), rather than on territory alone.