African customary law is controversial. This is due to the dissonance between the past and present. The social settings in which Africans interact have changed over time. These changes have been characterised by a tense relationship between indigenous customs and statutory laws with colonial origins. Indigenous customs have communal, welfarist features, while statutory laws have industrial, individualistic features.
This dissonance is very evident in South Africa. The ethos of its formal legal order often conflicts with the values of indigenous customs. This has made the interaction of indigenous customs and statutory laws problematic. Two examples arise in the areas of marriage and inheritance.
Unlike in the past when heirs inherited property along with a duty of care to the family, modern heirs are influenced by socioeconomic changes to inherit for themselves. Similarly, it was natural in precolonial South African societies for the family to be involved in marriage contracts. The family came together to provide ilobolo (bridewealth in isiZulu) from their collective wealth. Today, ilobolo is no longer raised communally.
To regulate the application of indigenous customs, South Africa has adopted a range of laws. They include the Recognition of Customary Marriages Act, the Reform of Customary Law of Succession and Regulation of Related Matters Act, the Communal Land Rights Act, and the Traditional Leadership and Governance Framework Act.
But overshadowing these laws is the country’s constitution. It is the ‘face’ of state law.
My research shows that dissonance is at the heart of South Africa’s legislative regulation of indigenous laws. Statutory laws do not take sufficient account of the differences between African social settings in the past and present. The foundational values that underpin indigenous African customs are often disregarded.
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About the author: Anthony Chima Diala is Associate Professor at the Department of Private Law at UWC. An advocate of the Supreme Court of Nigeria, he has published on customary law, human rights, and constitutionalism. Read more