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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Legal pluralism or a new repugnancy clause
Authors:Thomas, Ph.J.ISNI
Tladi, D.D.
Year:1999
Periodical:The Comparative and International Law Journal of Southern Africa
Volume:32
Issue:3
Pages:354-363
Language:English
Geographic term:South Africa
Subjects:customary law
constitutions
1996
rule of law
Abstract:The new Constitution of the Republic of South Africa (1996) has caused paradigm shifts in South African law, including the introduction of a bill of rights in the constitution and the recognition of customary law as a valid source of South African law. The main argument of this article centres on the inherent conflict between the bill of rights in the constitution and indigenous law. This conflict is a logical consequence of the fact that constitution-making in postapartheid South Africa was to a degree the result of political settlement. The attendant compromise accommodated both Western and traditional African values. Constitutional support can be construed for the recognition of a pluralistic legal structure for a pluralistic society. As an alternative to the acceptance of a pluralistic legal structure the bill of rights could be seen as nothing more than a repugnancy clause with the power to annihilate large parts of indigenous private law. This is undesirable as it would serve to perpetuate cultural arrogance. Notes, ref.
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