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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:The African law of the 21st century in South Africa
Author:Ndima, D.D.ISNI
Year:2003
Periodical:The Comparative and International Law Journal of Southern Africa
Volume:36
Issue:3
Pages:325-345
Language:English
Geographic term:South Africa
Subjects:legal reform
customary law
Abstract:This article discusses the problems inherent in the dual condition of the South African legal system in terms of which the dominant Western-oriented common law applies to everyone, while the servient African law applies to Africans only. Consequently, a dichotomy between 'official' African law, which seeks to rid itself of those cultural notions that are repugnant to Western civilization, and 'living' African law, which retains its indigenous moral values, has developed within the servient African system. The latter version applies in actual social practice and is part of the lives of its adherents. The present author rejects the 'official' version because the removal of African moral values by the application of the repugnancy clause has left African law distorted beyond recognition. This version is part of the colonial project which sought to dehumanize Africans and should not be one of the sources of postapartheid African law. Unfortunately, South Africa's courts continue to regard the distorted version as a legitimate precedent and rely on the instruments, policies and judgments that were used in the past in pursuit of the infamous colonial 'native' administration project. The author submits that South African legal practice is required to embark on the task of developing the 'living' version that affirms the aspirations of its adherents as required by the constitution. Notes, ref., sum. [Journal abstract]
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