Original Articles

The Constitutional right to culture and the judicial development of Indigenous Law: a comparative analysis of cases

Published in: Anthropology Southern Africa
Volume 30 , issue 1-2 , 2007 , pages: 56–64

DOI: 10.1080/23323256.2007.11499947

Author(s): Joan Church Department of Jurisprudence, , Jacqueline Church Department of Procedural Law, Faculty of Law,

Keywords: Constitutional imperatives , culture , historical background , human rights , indigenous law , interpretative approach , judicial development , law reform , living law , lobolo , male primogeniture , succession , ubuntu

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Abstract

Although integral to the culture of indigenous peoples in South Africa, indigenous law was historically only recognised as a personal law subservient to the general law. This is no longer so. In the Constitution of the Republic of South Africa, 1996, its recognition is entrenched, explicitly as well as implicitly, as an aspect of culture. Where there is conflict between the indigenous norm and the relevant human rights provision, courts have an obligation to develop the indigenous law, an obligation that should be exercised intelligently.

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