Talk:Customary law in South Africa/Archive 1

Archive 1

Class assignment

I have included an introduction to this page. As their class assignment, my students will input the remainder of the information that will fill out the contents of this article in accordance with the basic structure that I have set out in the introduction.

Sindiso ACL2011 (talk) 10:50, 14 March 2011 (UTC)

Group 1's Contribution

i worked with Molisa on summarizing a section of the McCledon Reading titled 'the father of Inventions'Thandiec acl2011 (talk) 14:34, 11 March 2011 (UTC)

Group 1 was divided into 5 subgroups. 4 of the subgroups were each tasked with the summarising and contextualising of a different assigned source. The 5th subgroup served as editors for the group and integrated all the pieces into an issue-based survey of colonial recognition of customary law in South Africa. AmyEA ACL2011 (talk) 08:02, 10 March 2011 (UT

Essentially I summarized and condensed pages 243 to the top of 250 of the Chanok article, sent it to our sub-editor Amy Armstrong who then sent it to the main editors for Group 1. My pages dealt specifically with the creation of legal discourses in Natal on "Native law", as it was referred to then. Uniquely, a process of codification was put in place in Natal. But the object of "Native law" was the same as elsewhere in South Africa: to control the indigenous population. Yet, the process of codification was done in an irregular and arbitrary manner. White "Native law experts" gave their opinions on the relevant law in drafting the code. The Natal legislature then passed the code without even looking at it clause-by-clause. The effect was the full-scale placement of official "Native law" in the hands of white administrators. Another consequence was that all indigenous populations were treated as 'one', i.e. the code applied to all indigenous populations equally and was thus insensitive to the notable differences in living law between different tribes. This skewed version of "Native law" was therefore rejected. People kept out of court. LlewellynA ACL2011 (talk) 15:52, 10 March 2011 (UTC)LlewellynA_ACL2011

The editing subgroup spend much time referencing the summaries received and checking their coherence, which limited the time spent on actually synthesising the material. JessicaEB ACL2011 (talk) 08:32, 10 March 2011 (UTC)

I was part of the editing subgroup which had to take the various summeries made by the rest of the group. We had to combine all the writings and to check referencing, we spent most of the time correcting referencing and ensuring the referencing that had been done was correct. Zen b (talk) 08:47, 10 March 2011 (UTC)

As I was part of the first sub-group, the entry which I made was on the Chanock Chapter. I looked specifically at African Customary Marriage in the Cape Colony, illustrating the debate over civil law vs. African Customary Marriage and how the Commission attempted to reconciel these two. — Preceding unsigned comment added by RobynLA ACL2011 (talk • contribs) 15:25, 10 March 2011 (UTC) In reading this section, I noted how Chanock noted two points of view; namely Kropf and Ayliff. Both views influenced how the Commission would deal with the issue of certain customary law practices in the Cape Colony. My individual contribution was therefore to examine this part of the reading in order to provide a more succinct version, making it easier to compare other areas in South Africa during this period, and their way of dealing with African Customary Law.

I was a part of the second sub-group, I looked at the Mamdani article, specifically the "conflict over the customary". I assessed the conflicting claims at the onset of the colonial ear and how this conflict was heightened by political, economic and political dislocations. SarahHB2 ACL2011 (talk)SarahHB2_ACL2011 —Preceding undated comment added 19:32, 12 March 2011 (UTC).

As part of the 3rd sub-group working together with another member of the group I read the Thomas McClendon article titled "Coercion and Conversation", and summarised the introduction to the article by providing a brief synopses of the work claimed to have been done by Shepstone in Natal dealing specifically with customary law reform in marriage rights. JasonCC ACL2011 (talk) 06:16, 14 March 2011 (UTC)

Arlene and I were in the second sub-group tasked with reading and summarizing 'Creating the Discourse: Customary Law and Colonial Rule in South Africa' (Mamdani) which was then submitted to Leo as editor of our sub-group before being sent to the sub-group who would post the summary on wikipedia. — Preceding unsigned comment added by MuneerMA ACL2011 (talk • contribs) 09:50, 14 March 2011 (UTC)

Group 2's Contribution

Group 2 was divided into 4 subgroups. each subgroup was assigned a category of work. Subgroup 1 focus on pre-Constitutional era, subgroup 2 focused on the Constitutional era, subgroup 3 focused on the Constitutional Jurisprudence while subgroup 4 made a critique of the cases at hand. each subgroup then edited their own submission and sent it to our general editor Simone Fourie which was then past to me for the posting onto this site. RoyJG ACL2011 (talk) —Preceding undated comment added 21:40, 9 March 2011 (UTC). MarkRG ACL2011 (talk) 08:24, 10 March 2011 (UTC)

I was asked to investigate the relationship between the Constitutional Principles and South African Customary Law. Here, Principles XI and XIII were relevant. Principle XI provides that the diversity of language and culture shall be acknowledged and protected, and conditions for their promotion shall be encouragedm, whilst S71(1)(a) of the Interim Constitution committed the Final Constitution to such Principles. In addition, Constitutional Principle XIII provided required the Final Constitution to continue to recognise the role of traditional leaders in the constitutional dispensation. From my experience of reading and using Wikipedia, I decided that it was important to keep this explanation fairly brief, with more information available using the references. “WilliamFC ACL2011 (talk)” —Preceding undated comment added 18:29, 10 March 2011 (UTC).

I was in the sub-group responsible for the section on the incorporation of African Customary Law into the Final Constitution. Each of us contibuted to the fleshing out of a basic framework for our piece using our own summaries of the readings. I concentrated on the question of the conflict between human rights and the meaningful recognition of ACL in our law. RobynND ACL2011 (talk) 09:15, 13 March 2011 (UTC)

I was in the subgroup responsible for critiquing the cases, particularly Alexcor and Shilubana, under the section entitled Negotiation and Inclusion of Customary Law in the Constitution. My partner and I read and drew from the Himonga and Bosch reading for our paragraph on the treatment of official versus customary law in the cases. HeitmannE ACL2011 (talk) 08:24, 14 March 2011 (UTC)

I was in subgroup 1 and we had general discussions about the state of customary law during the period before the constitutional era commenced leading right up to the adoption of the interim constitution. I contributed generally to the discussion and then i was in a further subgroup where we had to write a piece on ubuntu, how ubuntu has influenced teh development of customary law and South African jurisprudence in general. We also looked at teh fact that the notion of ubuntu was included in teh epilogue of teh interim constitution, but omitted from the final constitution, but despite this omission, it has become part of our law as one of the values in our legal system. — Preceding unsigned comment added by ReonC ACL2011 (talk • contribs) 21:41, 14 March 2011 (UTC)

Group 3's Contribution

Group 3 decided to divide the group up into four groups, each of which was responsible for reading and summarising one of the four articles assigned to us, as well as the Bennett reading. The first group's summaries, of the Anne Griffiths reading, were collected and further condensed Janine Howard, as was the John Griffiths reading by Portia Karegeya, the Gordon Woodman reading by Lauren Lewis and the Sally Falk Moore reading by Dan MacKintosh. Anelisa Keke organised the groups and I (Claire Ingram) attempted to condense all of the summaries into something resembling an argument/discussion, and posted them on Wikipedia. Almost all of the members of Group 3 contributed admirably and worked hard, although there were some exceptions - please contact Anelisa (anelisakeke@yahoo.com) for these details.

ClaireEI ACL2011 (talk) 07:09, 10 March 2011 (UTC) As part of my contribution to the Group 3 joint entry i was part of the group that read the Sally Falk Moore reading which i summarised and sent to Dan Mackintosh. I also read the Bennet reading which our group as a whole read. In my summary i payed particular attention to the practical examples that Moore gives as i felt that these were important to understanding the practice of studying law in its social context, this may also be because i learn and understand best through practical examples. If i can see it being applied then i am better able to understand it.(NolundiRL ACL2011) — Preceding unsigned comment added by NolundiRL ACL2011 (talk • contribs) 08:18, 10 March 2011 (UTC)

As Claire explained, Group 3 divided into four smaller groups each with a reading to summarise. I, Lauren Lewis, was part of group 3.3 and was required to summarise the Gordon Woodman reading. I also volunteered to collate and further condense the summaries of the other members of group 3.3.The final summary of the Woodman reading was emailed to Claire who then posted this on the wikipedia page. The main contribution Woodman made to the theoretical framework of cutsomary law was the development of the notion of selective legal pluralism. Consequently, the group 3.3 summary of the Woodman reading was primarily concerned with this apsect of the article. [User:LaurenLL_ACL2011] — Preceding unsigned comment added by LaurenLL ACL2011 (talk • contribs) 08:17, 10 March 2011 (UTC)

I am a member of Group 3 and the first sub-group which read Anne Griffiths 'Legal Pluralism'. As Claire said, Each member of the group made an individual summary of the entire article and then sent it to me. I then compiled a collective summary from the sub-group's submissions. Finally I sent this compiled version to our group's over-all editor and she put together the Wikipedia page. [User:JanineBH]JanineBH ACL2011 (talk) 18:41, 12 March 2011 (UTC)

I was part of the sub-group that was assigned the Anne Griffiths reading. An idea that I found very interesting in the article was how the conception of legal pluralism adopted impacts on the understanding of the effects of globalisation on local communities. I agree that 'strong' legal pluralism promotes a better understanding of different legal orders because it does not view the so-called 'other' legal order through the lens of a central law, but rather as a legal order in its own right by focusing on how the law works within the community that subscribes to that particular legal order. HemlataH (talk) 08:14, 11 March 2011 (UTC)HemlataH

I too (as part of the first sub-group) was assigned the task of summarising the Anne Griffiths reading'Legal Pluralism'.Our submissions were sent to a sub-group editor who compiled the best elements of each summary. Thereafter our over-arching editor assimilated each such summary into one succinct article. I believe the division of work was done in a fair and logical manner, which allowed for a smooth collaborative experience.

I was particularly impressed in the Anne Griffiths’ article by the arguments advanced in favour of strong legal pluralism. Here it was posited that within any sovereign nation state, there are multifarious normative orders affecting members of a society that do not necessarily depend on state recognition for their authority. For this reason, strong pluralism avoids the pitfalls of weak pluralism, since law can be viewed as porous medium in which there is room for different legal spaces to mix.

This is particularly pertinent to indigenous peoples since it affords them a choice in terms of which rights they wish to pursue, and perhaps more importantly, in which fora to pursue such rights. Furthermore, strong legal pluralism provides a better platform for engaging with gender inequality, since there exists a space in which to examine why women’s voices have been mute in much legal discourse. It also meshes better with the phenomenon of globalization, since it allows legal scholars to examine how global advances and developments influence local nation states, as well as to see how those nations respond to such influences. This promotes a more accurate account of the effects of globalization, as opposed to viewing states as insular and discrete entities.

A main critique leveled against strong pluralism is that it conflates any and all normative orders into law precisely because it is, by definition, to vague as to what law is. I do not believe this argument holds much merit. For one thing, a custom or practice would have to withstand Constitutional muster before it could be considered valid law in South Africa. To this end, I believe the Constitution acts as a safe-guard – one which precludes constitutionally unsavoury practices from being recognised as law. As an antithesis, those customs and practices which do not offend our Constitutional values may come to be imbibed a part of our law. Joshuasj ACL2011 (talk) 17:51, 13 March 2011 (UTC)

My contribution to group 3 was part of the summary on Anne Griffith's 'Legal Pluralism' and more specifically was inclusive of the Crtiques of this model of Legal Pluralisim. the article holds that one of the core critiques of this monel is its view that law, in this form, exists and develops externally to both state and society. The implications is that law can conform to an essentially 'non existant society' dependant only upon its own internal self-validating sources for regulation. I think that this notion of law fails to take into account the nature of democracy which we have today through which law maiking is not solely dependant upon one body of law makers who makes laws unchecked, rather society has the power the make and influence laws and thus there is some inclusitivity of external sources of forces.Kyle N Jason (talk) 09:59, 14 March 2011 (UTC)

My contribution to the group was to summarise John Griffiths’ critical analysis of Erlich’s theory of the living law, as well as Falk Moore’s theory of the semi-autonomous social field. His strongest critique of both of their pieces lies in the fact that they both assess legal pluralism in the context of a social association’s relationship with the State. I also coordinated the summary submissions of group 03, who were very cooperative. AnelisaANK ACL2011 (talk) 08:30, 10 March 2011 (UTC)

My Contribution to the group was to both summarise part of the John Griffiths' Article entitled "What is legal Pluralism?" and also to construct a coherent full summary of the article by combining the different summaries that we made by the other 5 members of the sub-group that were assigned to work on this article. Specifically, i summarise the begging of his article, where Griffiths'describes the difference between legal centralism and legal pluralism, showing his disapproval of the former. He also explicates the difference between weak legal pluralism and strong pluralism,saying that weak pluralism is basically centralist and is aided by the notion of 'recognition'.Portiamk ACL2011 (talk) 06:20, 14 March 2011 (UTC)

My contribution was to summarise Woodman on theories of legal pluralism and his arguments regarding a selected legal pluralism. After completion of this I sent it through to Louren who collated the Woodman summaries for the wiki. (DanielJL ACL2011 (talk) 18:33, 10 March 2011 (UTC))

My contribution was to summarise the article on Law and Social Change by Sally Falk Moore as well as (with all other members of the group) doing the reading on pluralism by Bennett. My summary was an attempt to explain the examples used by the author and how they are meant to explain legal pluralism and the role of African Customary law as a whole, while highlighting the comparisons between two very different jurisdictions the author draws in the article. My summary was sent to Daniel who collated the Moore summaries for Wiki. — Preceding unsigned comment added by BrigittaM ACL2011 (talk • contribs) 09:21, 11 March 2011 (UTC)

I was part of Group 3. We were responsible for the section on legal pluralism in relation to African Customary Law. We divided into sub- groups; each group was required to summarise one reading. We were given the first reading by Anne Griffiths; I personally summarised the reading and then passed it on to Janine (the group leader) who then compiled our report.LisaH ACL2011 (talk) 09:48, 14 March 2011 (UTC)

Group 4's Contribution

Group 4 divided into five different subgroups. Each subgroup was assigned a reading. Each subgroup then made a summary of that reading. Each subgroup then selected a subgroup editor, who attended a meeting with all the other subgroup editors. The subgroup editors, each armed with an intimate knowledge of his or her article, then decided on the structure of the article. The subgroup editors then made further summaries of their summaries that complied with the article's proposed structure. The subgroup editors then elected a meta-editor to combine these summaries and insert them into Wikipedia page.PetrusJO ACL2011 (talk) 21:10, 9 March 2011 (UTC)

My contribution was to summarise the Nyamu Msuembi reading: Towards an Actor-Oriented Perspective on Human Rights". I did so in point form and submitted it to the members of my sub-group. My criticism of the reading is pertained to one point made in the article with regard to some rights that only be conceived of in collective terms - Msuembi points out examples such as an indigenous communities knowledge of medicine etc... However even in indigenous communties such knowledge need not be collective - only certain members of the community might have specialised knowledge/skills exclusively hence only they should be afforded the rights individually rather than the community benefitting at large with these collective rights. ZaynSN ACL2011

As expained abovve our group was divided into 5 groups and each sub-group had to consider an articel and come up with a summary thereof. im my sub-group we each cacme with our different summaries of the article. we then met and discussed our summaries and decide what points were really crucial to take from the reading and include in the summary. i then went to consolidate and summarise my sub-group's summary and submitted it to the group leader. My subgroup was responsible for summarising teh Merry, Sally Engle reading. Our article loocked at the interplay between rights and culture ans sort to show that although some people hold the view that you cannot juxtapose the two the reality is that the two are somewhat similar in so far as the are both fluid concepts changing over time. The article also argued that rights are rooted in culture. --MoyombuyaTN ACL2011 (talk) 09:26, 14 March 2011 (UTC)MoyombuyaTN_ACL2011 — Preceding unsigned comment added by MoyombuyaTN ACL2011 (talk • contribs) 08:30, 11 March 2011 (UTC)

As part of group 4 and the final sub- group of that group I was responsible for reading the Merry article, I was specifically responsible for focusing on explaining how the concept of rights and the concept of culture have changed, within the broader scope of the article on how these concepts are not necessarily at odds with one another. Thus my focus was more theoretical, more about underlying meanings and stayed away from the case studies and historical events creating Merry's view.WayneM_ACL2011 — Preceding unsigned comment added by WayneM ACL2011 (talk • contribs) 10:17, 11 March 2011 (UTC)

I was part of a subgroup in group 4.Our subgroup was tasked with looking at Classens, Aninka and Mnisi, Sindiso's 2009 article on "Rural Women Redifining Land Rights in the Context of Living Customary Law". As a group we decided to all write summaries on the article and then choose the one that best captured the essence of the article while also nitpicking from the others any points that might have been explained better and these onto the final summary that we submitted as a group. this therefore enabled each of us to grapple with the article both individually and collectively. EdwinO_ACL20011 EdwinO ACL2011 (talk) 14:00, 13 March 2011 (UTC)

I was also part of the subgroup which summarised the Claassens & Mnisi article "Rural Women Redefining Land Rights in the Context of Living Customary Law". The process we followed is explained above by my fellow subgroup member EdwinO_ACL2011. Our article also discussed universalism/relativism as well as the rights v culture topic so it straddled two subheadings. Naturally for our part of the Wikipedia entry we focussed more on the rights/culture aspect of the reading. Due to the necessary brevity of a Wikipedia article, only a few lines of our summary made it into the final entry for Group 4 as a whole. EdwardCO ACL2011 (talk) 19:00, 13 March 2011 (UTC)

I was in the sub group that summarised the Merry article. Each member read the article and made an individual summary which 2 members then combined to make a 2 page summary. Moyo and I then went to and editors' meeting where we worked out how to combine all 5 of the group 4 articles along with the editors from the other sub group. I then condensed our article to approximately half a page and inserted references as far as i understood them to be appropriate for wikipedia and sent them to the final edit. ZinzileEM ACL2011 (talk) 22:03, 13 March 2011 (UTC)

I was in this group and we summarised the Merry arricle. we all had to read the article then come back and discuss as the subgroup what we got from the article.Moyo and I met to consolidate all the contributions of the sub-members to make one short summary.WandisaP ACL2011 (talk) 07:16, 14 March 2011 (UTC)

I was in the subgroup that summarised the Nyamu Musembi article. I read the article, and then I commented on the summaries that Zayne and Vivek made. I also played an administrative function, helping to coordinate the different subgroups within group 4. Finally, I integrated all of our final summaries together to make our final contribution to the Wikipedia page.PetrusJO ACL2011 (talk) 07:35, 14 March 2011 (UTC)

I was part of the sub-group that summarised the Himonga article. We divided the reading into three parts and for each part, there was one group member summarising their particular section of the article. After we summarised our individual sections we then submitted it to a our sub-group editor, who then made our summaries coherent and easy to follow. She then gave this to our group editor, who then joined the other group editors to structure the Wikipedia entry. My section in particular (from the Himonga article) focused specifically on the counteracting factors that negatively impact on implementation of the current legislation and case-based law in South Africa on customary law. I also summarised some of Himonga's suggestions for counteracting these factors. I found Himonga's article to be a bit dated (for instance, she lists the age of majority as being 21, when it is now 18) but that aside, it still has some good points especially with regards to the counteracting factors that she mentions.

In addition to this, I edited (very minor edits) some of our entry and put in fullstops where we forgot to put in fullstops.DeepaR ACL2011 (talk) 07:54, 14 March 2011 (UTC)

My substantive contribution fell under the heading ‘proposal for linking rights with African customary law.’ I was part of the supgroup which summarised Celestine Nyamu-Musembi’s article. We all read the article and made comments on the summaries that Zayne and Vivek made which we used as a template. TessNP ACL2011 (talk) 09:33, 14 March 2011 (UTC)

As already described above, I was part of a sub-group within group 4, which dealt with the article of Prof. Chuma Himonga on 'The Advancement of women's rights in the first decade of democracy in South Africa'. Our sub-group separated the article into sections for each of us to work on individually and submit it to a sub-group editor who would bring the article together coherently. I specifically dealt with the introduction in regard to the article that set the foundation for Himonga's argument and evaluations, but more importantly, I focused on the Recognition of Customary Marriages Act and its implications for an African Customary Marriages. More broadly, I also set out how Parliament used the Act to remove discriminatory elements within customary marriages especially against women in light of the new Constitutional dispensation. As Deepa said above, the article appears to be dated especially in regard to the Age of Majority Act but sets out clearly the problems that African Customary Law still faces under the advent of the Constitution. HeriAM ACL2011 (talk) 16:44, 14 March 2011 (UTC)

Group 5's Contribution

Group 5 divided into three different subgroups. Each subgroup was then assigned one of the three readings. Each sub group then nominated one person as the editor for that group. Each person then sent their individual summary to the sub group editor who then compiled the final summary of that particular reading. The sub group editors were then in charge of making sure that their groups completed summary was posted online. GhassanFS ACL2011 (talk) 21:56, 9 March 2011 (UTC)

Sub-group 3 in Group 5 got together to analyse Hund's article debating the topic: 'Customary Law is what people say it is'. We had to seminars as a group in which we outlined the salient issues. Ultimately, my contribution to the final articel consisted in supplying the editor of our sub-group with a full summary of the following question posed by Hund: whether Hart’s theory of primary rules can resolve, or at least clarify, a central methodological problem of legal anthropology, being the question of how to distinguish mere custom from customary law (the summary of which will be provided in the prescribed e-mail that forms part two of this assignment).FrancesJT ACL2011 (talk) 08:25, 10 March 2011 (UTC) As the de facto "editor", I, RichardST ACL2011 (talk), was tasked essentially with compiling the subgroup's substantive contributions into a cohesive document. The task was quite straightforward if not time-consuming. Overall, I feel we did justice to a the substance of the article and to its importance in jurisprudential approaches to customary law. The nature of the division of the tasks between sub-group members meant that the key value addition per each person was most effectively realised in the three seminars, with the aid of a whiteboard and a whiteboard marker. I have no qualms in acknowledging the particiaption and efforts of each of the subgroup members.

I was in the last of the sub-groups of Group 3, we were tasked with reading Mnisi Weeks, legal Pluralism Theory and its Relevance to thr African Context- - we did not divide up indiviiuddual tasks, we all read the article and ALL met to discuss it and discuss its main points/ arguments. Based on our group dissussion, we typed up a summary with our main thoughts. Honestly, this was a group effort and everyone contributed equally. Having said that, apparently there have been some problems with uploading our actual summary, Richard Wilkinson was tasked with this and he really struggled to upload it. — Preceding unsigned comment added by TahliaLY ACL2011 (talk • contribs) 07:02, 14 March 2011 (UTC)

I was a member of sub-group 3. I can submit we all took part in the talks. I put the collated article online. I edited the article and enriched the data online with links to other pages. DylanET (talk) 15:59, 14 March 2011 (UTC)

As part of group 5, sub-group 1, I was tasked, along with Adam Sack, of summarizing the second case study titled Mmlhtong's field in Comaroff, John and Simon Roberts (1981) Chapter 3: “The Normative Repertoire”. After which another sub-group member dealt with bring the entire summary together before posting it.AaieshahS ACL2011 (talk) 09:35, 14 March 2011 (UTC)

Criticisms

KhairiyahA ACL2011 (talk) 11:48, 11 March 2011 (UTC)Overall, I think everyone did a good job with summarising the readings and adding the summaries to the Wikipedia page. I think the editing could have been more consistent with regard to the headings. By this I mean to say that all the headings and sub-headings should have been formatted the same i.e. numbered, same font and same text size. Also there are still some grammatical errors.

KhairiyahA ACL2011 (talk) 11:48, 11 March 2011 (UTC)With regard to the content under the heading of “Constitutional Recognition of African Customary Law” there is a slight over-lap between different sections, especially the paragraphs pertaining to bride-wealth and the Law of Evidence Amendment Act. With regard to the case summaries under the heading of “Negotiation and Inclusion of Customary Law in the Constitution” I think it would have made more sense to put the critique of the case after the case summary.

KhairiyahA ACL2011 (talk) 11:48, 11 March 2011 (UTC)The content under the heading of “Rights and Culture” is particularly interesting. I think the Legislature and the courts were correct in advancing the rights of woman in African Customary Law. This advancement makes African Customary Law more in line with the Constitution and it makes official customary law more in line with living customary law especially since many women are the head of households and own land in modern society

LaurenSR ACL2011 (talk) 11:59, 12 March 2011 (UTC) Khairiyah, I agree that it could have been more consistent, but I think given that one page was complied by 130 different people, it was done pretty well.

LaurenSR ACL2011 (talk) 12:04, 12 March 2011 (UTC) I think the summary is a bit long for a summary, but I also think it was difficult to know exactly what was important given that the assignment was quite open-ended in terms of scope. Having said that, I do think it is extremely useful and will use it to study for the June test.

LaurenSR ACL2011 (talk) 12:21, 12 March 2011 (UTC) First, the Comaroff reading, while interesting, just strikes me as a very specific case study and I am not sure how far the findings of the authors can be applied across the board to all customary law. Also, I am not sure how the description of ACL in this case study fits in with the principle of legality. The judges/traditional leaders appeared to apply the law and impose punishments as they saw fit in the particular situation. With regard to the principle of legality requiring that crimes are known/defined prior to people being held liable for them, how is this approach justified? I ask this question specifically in relation to those case examples, but it is something I have wondered about the bigger scheme of things, especially with the constantly evolving nature of ACL.

Secondly, the Mnisi-Weeks article seems to argue that State law is very positivist and inflexible. I think that although it may be positivist and inflexible relative to LCL, I am not sure that it is absolutely so. Furthermore, in light of the problems and injustices that formalism gave rise to under Apartheid and the fact that South Africa (especially the legal community) has largely acknowledged this, I do think that there is definitely a strong migration away from this approach. Although we may not be where we should be yet, I think our society, through interpretation and case law (at least), is trying to evolve.

Thirdly, the Mnisi-Weeks article says, "the government should concentrate on empowering the ordinary and vulnerable people...". Is the government necessarily not doing this? It seems an ideal that is never quite achieved, even in more economically developed countries. Can it be said that this is true in any country in the world, even the most successfully 'democratized'?

Fourthly, a point that came across quite strongly, in all 3 readings under group 5, was the 'inherent flexibility' of customary law. This ties in with my first question in that the common law, too, is flexible and evolving and the Constitution requires it to be developed in certain cases, but isn't too much flexibility potentially detrimental in terms of the principle of legality and the requirement of certainty and predictability in the law? I realise that I may be appealing to Western ideals to justify Western ideals here.

Fifthly, it is largely contended that customary law is not adequately provided for in legislation, but, in trying to do this, is the State not then accused of turning living customary law into official customary law and largely distorting it as a result? How can one accommodate living customary law and provide for it adequately in the legislation simultaneously? On the surface, these goals seem to be mutually exclusive and contradictory, but I may be missing a fundamental point.

Lastly, one of the main criticisms of the TCB in Mnisi-Weeks’s article is that it "denies rural residents the entitlement to choose their forum by preventing them from opting-out of their local courts' jurisdiction. In fact, it makes it an offence for anyone within the jurisdiction of a traditional court, even a passer-by, not to appear before it, if summoned". Are these not two separate points? I agree entirely that it is not desirable that residents are not entitled to opt out of the jurisdiction. However, in all courts, everywhere, are people who are summonsed to appear in courts not committing an offensive if they do not appear? As far as I know (and I stand to be corrected), in South Africa, a warrant can be issued for your arrest if you fail to appear. Also, it is highlight that it is difficult to hold leaders accountable, but, without making a judgment, if one takes the case of Judge Hlophe for example, many people were of the view that he should be impeached. However, if one's case happened to come before his court, how much could one really do to change and object to that? One would still, ultimately, have to go head-to-head with him. I acknowledge that he may not be one's specific leader, but does it not amount to the same thing? I am not saying that the criticisms are invalid in respect of the TCB, I just think that they may apply to the broader legal system too.

I agree with Lauren that this assignment has been beneficial and feel that the class will benefit as a whole from having such an informative summary. Also I think that in order to understand African Customary Law and the role it plays in today's society, it is vital to understand the historical context. Thus I am glad the Wikipage has such an extensive description of the history of African Customary Law. It is not only fascinating but allows the reader to look at the more theoretical entries that follow with a better idea of the historical and present day significance of this legal system. Also, having done reading for the tutorial this week it has become apparent to me that having a 'formal' and 'informal' system of law often results in confusion for the individuals whose situations and rights straddle both systems. I would submit that it often places a burden on people who are often located in rural areas and cannot afford legal assistance, to try and work out what their rights are. This is connected, I think, to what others have said, that there is not sufficient legislation on customary law. But at the same time does this not defeat the dynamic character of living customary law? I feel that finding the right balance between codification whilst avoiding the stagnation of living customary law is in order, although achieving this is no doubt entirely more difficult. JanineBH ACL2011 (talk) 18:17, 12 March 2011 (UTC)

Firstly, I would just like to agree with what has already been said. The assignment has been very helpful and will come in great use during studying for the June exams.

Lauren, I want to agree with you on your fifth point. By not having legislation you are making living customary law very hard to determine. However due to the ever changing nature of Living Customary Law, by having legislation you will be "freezing" the living law at that point in time, which is also not desirable, again due to the changing nature of customary law. Secondly when you talk of the principle of legality and Living Law not being able to "live up to" the principle of legality; could it not be that a justification for this could be that the principle of legality is in itself a western principle which we now are trying to impose on a completely different system of law? I know that the principle of legality is a very important part in our Constitution and customary law has to comply with the constitution, I think the only way, to ensure that African Customary law lives up to the principle of legality would be that legislation would need to be passed in order to make crimes in customary law clear, defined and certain. By doing this, you will fall into the trap of codifying customary law, thus falling right back into the problem of living customary law versus official customary law.

While doing the readings on pluralism, it is clear to see that you can have 2 systems of law co-existing in one Jurisdiction. My only concern though, is that in South Africa, even though, as the courts in the Alexkor case stated, African Customary law is an independent source of law, it still seems to me that in practice African Customary Law yields to the so called "western laws" of South Africa. What I mean by this is that in certain situations African Customary Law is governed by legislation made by parliament. More often that not, this legislation is written from the perspective of the "western Laws" of the Republic and public policy is judged from a westernized point of view rather than through the "African Customary" view. Looking at this, does it not then seem to be that African Customary Law is still under restraint? By letting this happen, are we not elevating the status of the "western laws" over the status of African Customary Law, which goes completely against the equal position that has been given to African Customary law by both our courts and the Constitution?

I think that all these questions are very difficult to answer yet a fine but necessary balance needs to be found in order to protect the integrity of African Customary Law and its rightful place within the constitutional order on the one hand, and on the other hand making sure that African Customary law complies with all the provisions of the Constitution with as little western interference as possible. GhassanFS ACL2011 (talk) 11:45, 13 March 2011 (UTC)

Firstly, I would like to agree with Lauren that the summary is rather long for a summary. However, in saying this, I realize how many readings there were and how much work the editors’ had in compiling these readings. I think that as a whole it will serve us well when the June exams come. I found the readings interesting and helpful, mainly in constructing a clear background to African Customary Law.

I would like to expand on Ghassan and Lauren’s points. I too, agree that the only way in concretizing African Customary Law is to provide for it in legislation. The problem here, as Lauren has stated, is that we are left with ‘official’ customary law. Another problem, which Ghassan has touched on, is that the Constitution merely seems to uphold the essence of ACL, as it needs to conform to the Constitution’s Bill of Rights. In this context, it is obvious that ACL is adhering to westernized ideals. As I was part of group one, my job was to summarize an article on ACL marriage in colonial times and how the Commission tried to mold the civilized law with ACL. Having read the entries posted by Group 2, I am able to compare the colonial period with the constitutional period. It appears to me that both periods do the same thing, in that they attempt to mold ACL with the recognized system of law at the time. Although this may be disputed since the Constitution specifically recognizes ACL as a system, I agree with Ghaasan in that ACL is undermined. It is stressed by the Constitutional Court that, 'indigenous law feeds into, nourishes, fuses with and becomes part of the amalgamation of South African law'. In saying this, ACL is contributing to South Africa’s system of law. However, it is still clear that ACL’s stance is secondary to South African law. It was noted in one of the readings that Traditional Leaders attempted to stop ACL from being subjugated to the Bill of Rights. Traditional leaders spoke out so that their Law would not be overridden. In denying them this right, does this not go against the whole idea of ACL? In that it is there to represent the communities. In forcing leaders to accept the subjugation of ACL to the Bill of Rights, we are undermining ACL as a separate system and only accepting the essence of ACL, which can only then contribute to the South African system. Furthermore, how is ACL to contribute to the South African system, when it is firstly difficult to determine and secondly as it is ever-changing. As said by others, if courts recognize a living customary rule- this could be used as a codification, but it will be outdated soon enough as the rules are ever-changing. However, due to the lack of codification, courts may make wrong decisions based on what they attempted to find, to recognize the living customary law. Although there are many arguments for ACL being recognized in this way i.e. having a right yet being subject to the Bill of Rights- is it being disrespected? 137.158.152.207 (talk) 07:08, 14 March 2011 (UTC)RobynLA_ACL2011

I would like to comment on Lauren's fourth point, about whether the inherent flexibility of customary law isn't detrimental etc. I would like to argue, based on my understanding of the Himonga & Bosch reading "The application of African Customary law under the Constitution of South Africa: Problems solved or just beggining" that, the flexibility of living customary is not a problem that cannot be overcome.In their article, the authors agree that the flexibility of living customary law may subject it to manupilation, but they argue that, that problem can be solved by having checks and balances against manupilation of customary law rules. they argue that these checks and balances can be enhanced by " methods of investigating customary law that do not only catalogue the rules but also seek to understand the underlying values if such principles".I also agree that having checks and balances will help to guard against having too much flexibility in ACL which can cause rule twisting or uncertainty as the case may be.secondly, I agree with the authors that instead of focusing on the rules of living ACL themselves ( which do change) , we should rather focus on values,(which are durable) , "to provide the needed internal stability to living customary law"(p326).Thandiec acl2011 (talk) 15:00, 13 March 2011 (UTC)

“WilliamFC ACL2011 (talk)” —Preceding undated comment added 18:27, 13 March 2011 (UTC). First of all, I would like to aim my comments at the Wikipedia page in general.

I think it is the role of Wikipedia to analyse a specific topic in a concise and simple manner so as to be understood by all lay people, worldwide. It should give people a basic understanding of the topic. In this way, I think the page is too long, too technical and written in such a way that non South Africans or even non lawyers would struggle to understand all of it.

Second, one my specific qualms with African Customary law is its traditional leadership system, as has been entrenched into our law by Constitutional Principle XIII and Chapter 12 of our Constitution. Whilst the Constitutional Court has been at pains to ensure that African Customary law is brought into line with the Bill of Rights in cases such as Alexkor v Richtersveld Community and Shilubane and Others v Mwamitwa, I feel that the entire system of traditional leadership, with unelected and unscrupulous leaders imposing often great hardship onto their communities, it out of touch with a democratic system.

It is all good and well focusing on reforming specific areas of African customary law, but until all traditional leadership has become democratic, transparent and accountable to their communities, these types of judgments merely act as placing a plaster over a gaping wound. As De Vos has said, “the current system is undemocratic and (often) oppressive and has no place in a Constitutional democracy.”

NOTE: Having read up more on the topic, I find myself being less certain of my above viewpoints. Even though there are a lot of problems with traditional leadership, removing or dramatically reforming it would create a legal vacuum in a law that regulates almost 20 million people in our country.

In addition, it is patently obvious to me that I am seeing the whole customary law system through an incredibly bias and subjective mindset. Is it correct to impose broad human rights norms derived entirely from Western thinking on a customary scheme whose functioning, origins and subtleties we are not party to?

Quite frankly, it’s a perplexing issue and with this in mind, I feel the State and judiciary are approaching and resolving the problems around African customary law in a fairly responsible and admirable manner. “WilliamFC ACL2011 (talk)”

I, RichardST ACL2011 (talk), would just like to add to Will's comment above. I agree in substance with the majority of your views, although I do feel that yout point about bias and subjectivity is particularly interesting. In the reading our subgroup was assigned, concerning Hart's Concept of Law and its relationship with customary law, there was a compelling case made for the application of typically Western approaches to jurisprudence to customary law as studied as legal anthropology. Well worth a read if you have the time.

I thought the assignment was a great idea but I did find that trying to create a coherent summary of South African Customary Law from the contributions of approximately 130 students was highly challenging. I have found from reading the entry that there are some sections which overlap somewhat; specifically the section on “Constitutional Recognition of African Customary Law” (as was mentioned above by Khairiyah).

More specifically, I was part of Group 2 which completed the section on negotiations leading up to the Interim and Final Constitution. In this regard I would have liked to have exlpored in more detail the right of equality and how it relates to women in the Customary Culture. From my superficial knowledge of Customary Law, I often find that women are overlooked and treated as second class citizens. I would like to investigate how the connstitutional negotiators reconciled the right to equality with the general right to culture, specifically with regard to African Customary Law, as often these rights have the potential to conflict with one another.

I would also like to note for that I found the Himonga and Bosch article extremely easy to follow and very enlightening- it explained various aspects of African Customary Law clearly and concisely. This helped me enormously as I really had no real grasp of African Customary LAw before reading the article.

As a whole, I feel that while the general standard of the assignment could have been higher, it was beneficial from the point of view that it forced us to work as a group as well as teaching us how to create a wikipedia entry (which was very challenging for someone as technologically inept as myself)!AshleighHC ACL2011 (talk) 18:40, 13 March 2011 (UTC)

I largely find myself in agreement with the comments made by WilliamFC_ACL2011. The Wikipedia article is meant to be understood by laypeople around the world, in this regard I think we have failed. The tone of the article is too academic and difficult to understand, and the article is too long. It is meant to give a ‘snapshot’ view of the critical issues surrounding ACL, but fails to do so and discusses each topic in too much unnecessary depth. (Although for our purposes this may turn out to be an advantage.) EdwardCO ACL2011 (talk) 19:33, 13 March 2011 (UTC)

In terms of criticising the substance, I also feel that too much power is placed in the hands of unelected traditional leaders. This is undemocratic. I also agree with LaurenSR_ACL2011 that it goes against the principle of legality that matters are decided as they arise – which negates legal certainty and the non-retroactivity of law. But, again, this is coming at the issue from a Western point of view. Even if one approaches the issue simply from a natural justice point of view – surely someone shouldn’t be punished for doing something they didn’t know or couldn't reasonably have known was wrong or criminal at the time of its commission? EdwardCO ACL2011 (talk) 19:33, 13 March 2011 (UTC)

Lastly, I also haven’t been able to clearly distinguish between ‘living’ and ‘official’ customary law. There seems to be an attempt to codify customary law (which I think is good), but does ‘living’ customary law which is written down automatically become ‘official’ customary law? To me this seems counterintuitive. I feel that ‘living’ customary law which is codified is still ‘living’ customary law. EdwardCO ACL2011 (talk) 19:33, 13 March 2011 (UTC)

I agree with some that most of these summaries are very long and repeat throughout, but I doubt I personally would have done all these readings before exams, so this indeed serves as a useful guide or starting point to study preparation. I refer to the section with the heading, "The negotiation and inclusion of customary law in Constitutional Court case law"- just to add my bit - to eloborate on what living customary law is, given the difficulties of ascertaining what ACL is due to its dynamic nature, my group and I agreed that Living customary law is a collective reference to the manner in which communities govern themselves based in negotiation. It appears to be informed by considerations not only of largely established norms but also by extra considerations of the particular sensitivities of the community or disputes that have arisen. We thought it may be helpful, if not entirely accurate to describe these as guidelines rather than rules. The oral basis of this practice allows the flexibility necessary for achieving this degree of contextual sensitivity. (this was an extract taken from our summary). I do think of living customary law as guidelines, rather than pre-determined law. Do others agree?

In response to what KhairiyahA ACL2011 said above about the editing of the article needing to be more consistent, I feel that this could only have been done effectively if the class as a whole nominated a group of editors. Given the time constraints and the enormous about of work this would have involved for the appointed few, it is understandable that this was not done. While I agree that the finished product is lacking in some respects because of the fact that it was not generally edited, I feel that a respectable effort was made on the part of most if not all of the students.

Also in response to a point made by KhairiyahA ACL2011 above, and speaking on behalf of Group 2, which was responsible for the section dealing with the negotiation and inclusion of customary law in the Constitution, I agree that it might have made more sense to include the critiques of the Alexkor and Shilubana cases directly after the respective case summaries as opposed to under a separate heading (‘Critiques’). However, only these two cases are summarized and then critiqued and the use of sub-headings in the critique section eliminates the possibility of any confusion about which critique applies to which case. If our layout was erroneous it is perhaps not materially so.

Furthermore, I agree with the comment made by LaurenSR ACL2011 to the effect that the summary is too detailed for the purposes of a Wikipedia entry. In fact, I think that this entry is more useful for our test and exam purposes than it is for Wikipedia users. I fear that in creating the kind of entry we have (excessively detailed and perhaps too technical), we have subverted the original purpose of the assignment, i.e. to make customary law accessible to the layperson.

[Sorry to interrupt here, Ed, but I would like to second your point on this issue. I agree that this is far too detailed and intricate. That said, I think the nature of the exercise was such that it required a complex document- how is one to distill the deeply complicated arguments of the relevance of Hart to customary law? These are difficult issues and cannot be reduced to encyclopaediac accessiblity. RichardST ACL2011 (talk)]

A comment made by LaurenSR ACL2011 echoes my main misgiving about customary law. She speaks to the description of ACL in the Comaroff reading not fitting in with the principle of legality. In my opinion, the ambit of this complaint is much wider. It seems to me – and I stand to be corrected – that so-called ‘living’ customary law is violently at odds with some of the most important aspects of the virtues of legality and the rule of law. Firstly, ‘living’ ACL consists of ad hoc decisions taken by traditional leaders rather than concrete rules. Therefore, it does not seem to meet the generality requirement. Secondly, ‘living’ ACL falls short of the promulgation requirement because the laws are not published so that they are not made known to those to whom they apply. Thirdly, it is arguable that not all ‘living’ ACL is clear. In other words, the laws are not always formulated in such a way that it is possible to understand what they require. Fourthly, some ‘living’ ACL laws are contradictory: the fact that they require inconsistent behaviour makes it impossible to comply with the law. Fifthly and finally, the requirement of constancy through time is definitely not met. In fact, the laws are changed so frequently through constantly evolving social practice that it is impossible to adjust one’s behaviour to the law’s requirements. For these reasons, I find it difficult to contextualize ACL, particularly ‘living’ ACL, within the rule of law paradigm, which has formed the basis of everything I have learnt in law school thus far. However, it could be that I am the one in need of a paradigm shift.SimoneF ACL2011 (talk) 20:52, 13 March 2011 (UTC)

As many above have stated page is too long and fails to explain what African Customary Law really is and what it does in a clear and concise manner. I agree with what Ed stated about the distinction between ‘living’ and ‘official’ customary law. Furthermore does the codification of customary law have any real effect in certain rural areas? I struggle to see how simply codifying the law will actually change how rules and law are regulated in rural areas. In certain situations (Shilubana) issues will be brought before western courts, but in other cases this may not occur and ‘old traditional ways’ may continue to thrive. How will this change? In this regard customary law could not only be at odds with the rule of law as Lauren and Simone have suggested, but could contradict the law as made by judges as well as our Constitution.Sarahhb ACL2011 (talk) 21:21, 13 March 2011 (UTC)

The article makes it clear that a complex system of differing rules are being dealt with responsibly by our courts. A crit: Not only is the page too long for Wikipedia, but it has a number of spelling and grammar errors - for example 'The right to culture was protected in the Bill of Rights ... This is particularly notable because it is the first time that culture has been recognised as a fundamental right in South Africa' ('it' instead of 'was') or 'However, Thus Casalis and Ellenberger...'. Despite this, I am looking forward to using the article for exam study. DanielRB ACL2011 (talk) 05:20, 14 March 2011 (UTC)

It appears (although I can't be absolutely sure) that much of the text has been lifted directly from the reader itself. My main criticism is actually that I don't think summarizing articles (especially with such large groups) is effective for a Wikipedia article. The text is just too inconsistent, as is the referencing. The timeline of ACL is not clear, mostly because of the layout of the article DanielaHD ACL2011 (talk) 04:50, 14 March 2011 (UTC)

I think that although the wikipage has all the information on it, it doesn't really do exactly what one expects a wiki page to do, which is to be a pithy easy to understand explanation. It is too long and actually gets slightly too complex for what i think the ordinary wikibrowser with no prior knowledge of African Customary Law would like to know or find out. That said, African Customary is a complicated subject and a cursory look at all its different components would not really do it justice.Having read the page, the one issue that has stuck with me is whether customary law was ever really a system that can be validly legislated, i suppose that is why the distinction between official and living customary law was created, but what i mean to say is whether even the codified 'official' customary law can in anyway be thought of as valid or justified? Ignoring the fact that it is generally accepted that the official customary law is not reflective of reality, what I'm trying to get at is whether the western idea of 'Legislation' which makes certain rules and customs 'binding laws' is something that is compatible to customary and traditional ways, or whether (As i suspect it is) they are inherently incompatible. Can one really say that through the lens of a western system of law (regardless of whether that law is desirable e.g. the Constitution) a full, clear and accurate picture of customary law can ever be achievable?.Portiamk ACL2011 (talk) 06:46, 14 March 2011 (UTC)

KhairiyahA ACL2011 (talk) 06:56, 14 March 2011 (UTC)In response to what was said above, I do think that the Wikipedia page will be extremely useful for exam purposes.

In response to Lauren’s fourth point, I agree that too much flexibility is detrimental to the principle of legality as it requires laws to be consistent, easily accessible and predictable. If the law is ever-changing we will not know what the law is, and we will not be able to conform to it. Customary law, on the other hand, is inherently flexible because its laws are cultural laws/rules. Culture, as opposed to laws is inherently flexible in order to adapt to changing circumstances. Hence, there is this distinction between living and official customary law.

However, at the same time I agree with what Ghassan has said, in that the principle of legality is a Western ideal and we should not impose it on African customary law.

I disagree with the statement that because 'the rule of law' is a western idea it shouldn't apply to African Customary law. I agree that we should be cautious when applying foreign viewpoints on our unique cultures, but the rule of law very much underpins all law, even customary law. It embodies principles without which the very fabric of our legal system (which includes ACL) would unravel. The Rule of Law idea is a set of principles which is different from a document like the Universal Declaration of Human Rights which represents a set of normative, (European) value intensive list of rights which may or may not be applicable to African Customary Law. JarrodJP ACL2011 (talk) 07:32, 14 March 2011 (UTC)

I personally think that we should abolish official customary law as it represents laws which are out-dated and are no longer applicable. Instead, when a plaintiff comes to court we should assume that the customary rule exists, and decide the matter on that basis. In other words, we should treat it the same way as we treat the right to religion, where the plaintiff does not have to prove that the religion or the religious rule exists. In this way living customary law will always be given effect to.

I was impressed with the range of topics covered in the article, however, I would have loved to read some of the insight shared on this reader page in the actual article. Perhaps we should have a recommendations/looking to the future section to provide an analysis as to where we feel African Customary Law is moving in the future. Personally I believe that legislation will continue to roll out. Is this a bad thing? I have noted the rule of law arguments (in terms of certainty) versus the argument that the very nature of customary law is that it is ever changing and many varied. I am just not sure that making that concession helps in applying the law to actual cases. Will the doctrine of precedent ever apply? It is hard to see how we can achieve consistency which makes African Customary Law a dangerous body of law to rely on. Having said this, it may be a good idea to consider limiting the instances in which African Customary Law applies. This would require changing the Constitution somewhat so that African Customary Law is perhaps inapplicable in certain cases that have an impact (perhaps economic) in fields that require utmost certainty such as commercial dealings. JarrodJP ACL2011 (talk) 07:14, 14 March 2011 (UTC)

In connection with the summary on the theoretical framework, I found it was perhaps unnecessary to look at the different social anthropological models in detail in this type of a summary. The models of Pospisil, Smith and Erlich are difficult to understand and conceptualize and I found the Griffith’s reading did not give enough practical understanding of the models which made it difficult to fully understand and engage with. This made them difficult to summarize in a way that gave a thorough explanation of the concept while at the same time being concise. As a result, I found that the summaries on that section (of which I was part) were superficially dealt with and perhaps not appropriate for this type of overview summary of African Customary law.(JennaAK ACL2011 (talk) 07:22, 14 March 2011 (UTC))

I found the history and inclusion of customary law in South Africa very interesting from a comparative point of view, the codification and limits that brought about is especially interesting to me. This is mainly because the First Nations in Canada took a very different route from African Customary law as their emphasis has continually been on separation and self-governance. References in the Canadian Constitution refer to recognizing existing treaties and independence rights and less so on inclusion in the larger framework of the nation of Canada. As my research paper is touching on some of these issues, I'm very interested in these differences and how they came about. I found the historical account on this page very useful. DiannaKB ACL2011 (talk) —Preceding undated comment added 07:46, 14 March 2011 (UTC).

PetrusJO ACL2011 (talk) 07:53, 14 March 2011 (UTC)First, I think that there are problems with the formatting in this page. I get the idea that this is something that the meta-editors at Wikipedia care about, and as such I am uncertain that this page will make it to publication without some major edits.

With regard to the substance of the text, my tentative criticism of the whole concept of legal pluralism is as follows. Legal pluralism, in the context of African Customary Law, seems to imply that African Customary Law is something that falls outside of the main legal system.

I believe that this is not necessarily the case. First, African Customary Law is recognised by the Constitution as being a part of our law, just like statute and the common law. As such, rather than being outside the law, it is simply a component of our mixed legal system. Second, I believe it could be said that African Customary Law can be defined as “custom”, and is therefore part of the common law. In order for custom to be binding, according to Van Breda v Jacobs, it must be reasonable, must have been observed for a substantial amount of time, must be uniformly observed (within a community) and it must be provable. All of these factors apply to living customary law. As such, African Customary Law is recognised directly by the Constitution and indirectly through the common law. To hold that African Customary Law somehow falls outside of the South African legal system is to fail to recognise the diversity and inclusiveness of our official legal system.

I agree with Portia that the Wikipedia entry is too complex for the ordinary wed browser. People normally use Wikipedia as a first port of call to get general information on a topic and guide further reading. However, for the purpose of our class, I think it was a good exercise to prepare us for the exams. We got to grapple with the material and in addition have an opportunity to see what other people in the class took away from the readings which is useful in supplementing your own knowledge. Further, with regard to Ghassan’s comment, I agree that one of the major challenges with regard to customary law is to get the balance right between the nature of customary law as living and ever changing, on the one hand, and, on the other the legal certainty required by the rule of law which our system strives for. I don’t know what the solutions is or if there is one, but perhaps this is something that you could give could give us some guidance on in a future lecture and we all can discuss it. SarahHB2 ACL2011 (talk)SarahHB2_ACL2011 —Preceding undated comment added 08:19, 14 March 2011 (UTC).

I agree with Petrus, the formatting of the page is unprofessional and is unlikely to make publication. I take issue with the contention that African Customary Law (ACL) is actually given proper recognition under South African Law. Certainly, from a legislative perspective-it is. There are grand clauses to this effect in the Constitution. However, it seems to me that to the extent that ACL coincides with the mainstream (Constitution), it is lauded as recognition of the importance and prominence of that it deserves. However, I submit that this recognition ONLY happens in convenient cases where there is overlap. Hence, in grey areas, submission must be made to the Constitution. My personal view that this is correct aside, the following problem arises for those who are proud of our recognition of ACL. There pride is shallow. They are content with the publicising of the easy cases, where no conflict exists. However, true recognition must entail the same import given in the ‘grey’ area cases as given in the easy cases. That said, the discussion that is generated around instances where ACL is invoked greatly increases awareness and leads to a more accurate representation of what it is, what it demands and where it is used. — Preceding unsigned comment added by V-bomb (talk • contribs) 09:00, 14 March 2011 (UTC)

I agree with Portia in that the article is too complex. I also agree with Petrus that the formatting is not ideal and as this is obviously important to those who run Wikipedia this is a great flaw. however, beyond that this was a good exercise to get us as a class to grapple with the material and work in teams and will doubtless help us in our exam preparation. Further, on the subject of legal pluralism, I agree with Petrus in saying that in the context of our law 'custom' should be seen as being recognized directly by the constitution and indirectly by the common law. This is a necessary part of our mixed system. — Preceding unsigned comment added by DaneMK ACL2011 (talk • contribs) 09:11, 14 March 2011 (UTC)

I feel that while the assignment was quite a unique idea, it ended up being really difficult to get 130 people to come up with a cogent summary of South African Customary Law. As can be seen by the final product (and this was pointed out by Petrus and some others above), there are many overlaps as the formatting is somewhat suspect.

Somebody above also mentioned the issue of the rule of law in relation to Customary Law. I feel that the rule of law does not necessarily fit comfortable with the very nature of Customary Law; by its very nature it is fluid and ever- changing. Thus it would be difficult to fit it into the mold of the rule of law which promotes certainty and clarity. Are we not then trying to fit Customary Law into a Western system instead of allowing it to stand alone?

I also agree with Ashleigh above in relation to equality and women under Customary Law. I think it is an essential area of concern and it would have been quite helpful and informative to have included a section on this.

Overall, the assignment was beneficial from the point of view that it forced us to work in a large group, but the ultimate product shows that it was not entirely successful.LisaH ACL2011 (talk) 09:31, 14 March 2011 (UTC)

TessNP ACL2011 (talk) 09:38, 14 March 2011 (UTC)Firstly the wikipedia page as a whole is long, convoluted and repetitive. This unfortunately was always going to be the case trying to co-ordinate an essentially 120 person group project. The referencing in parts was also grossly insufficient. I felt that the structure of the assignment was such that not every single person was able to contribute as they would be saying the same things as their peers. This is unfortunate. Having said this, this page does still serve as a useful holistic view of African Customary Law where it fits in into our legal system , the history of African Customary Law, its viability, and how compatible it is with our notion of rights.

African Customary Law has been undermined and manipulated for over a century through this concept of ‘official customary law’. The legitimacy of African Customary law is constantly undermined given this and given the fluid nature of living customary law. Why however when law (the law we are accustomed to) is changing all the time via precedent and legislation do we seek to undermine the fluid nature of African Customary Law? This appears hypocritical to me.

Under the section ‘Constitutional Recognition of Customary Law’ the history of indirect law and the non-repugnancy clause are highlighted. Interestingly it was said that the non-repugnancy clause brought the legitimacy of customary law into disrepute as it could have been usurped at any moment by the colonial officials. Given the Constitutional supremacy today and with cases like Bhe I think this begs the question: Are things different today? Does African Customary Law really finally have the recognition that it deserves or have we just embarked on a new path of indirect rule pioneered under the auspices of ‘rights’?

Under the section ‘Critique of the Constitutional Court track record’ there seems to be a tone of heavy reliance on the Court for the development of ACL. Given that the one case took 10 years to reach a conclusion this is not viable. Alternative solutions must be sought. Finally many people critique African Customary Law with specific regard to living customary law that it undermines the principles of legality and the rule of law. It is hard not to arrive at this conclusion when the Constitutional Court itself refuses to develop official customary law on the basis that it is uncertain as to what living customary law is (as in Bhe). Resources need to be dispensed into rural communities so that adequate research can be done so that living customary law can be given the status that it deserves and that is constitutionally required. Without this process living customary law will lose its legitimacy and continue to be overruled and undermined by ‘rights’ rhetoric. TessNP ACL2011 (talk) 09:38, 14 March 2011 (UTC)

Comment on the whole: Our view of rights and culture is as fluid conceptions which can be appropriated by indigenous cultures and then changed to suit local conditions as Merry would hold. Nlapho contends that for us to have a truly universal conception of rights we need to move away from associations of rights with the West or with the UN, so we can legitimate them ourselves, and they can gain traction in our context. However, the human rights paradigm still has a Western foundation, is it not still paternalistic to claim that rights paradigms are being appropriated and changed to allow indigenous conceptions, and thus converge with ‘global’ ends of the rights process? Standards of morality can exist outside of the rights paradigm and need to be acknowledged as being capable of internal development not necessarily along the lines of rights. — Preceding unsigned comment added by WayneM ACL2011 (talk • contribs) 09:52, 14 March 2011 (UTC)

I would like to comment on what I feel is really the crux of the issue of our readings (perhaps not explicitly) which was highlighted in the discussions of Simone and Lauren. The issue of whether it is consistent with constitutional rights is a branch off the central issue of the legality of customary law. Is it even law in the sense that we have learned in our admittedly, Western- centric legal education? Simone made several compelling arguments which I will attempt to deal with in turn. First: Customary law is not general and decisions are made on an ad hoc basis. I would argue that this is the very benefit and main distinction of customary law from state law. It must adapt to living conditions which do change very fast as economic and social conditions alter. The responsiveness of this system is one of its strengths. While this may sometimes lead to capricious outcomes (supposedly) the size of the groups to which it will apply (assuming you adopt a model of living customary law that applies to smaller groups within a region and not a state-wide codification) makes this more just than a system of rules that are set in stone. The second concern was that customary law obviously cannot be promulgated- so then how can it be known? Piet mentioned that it can be slotted under “custom” which is indeed recognised under our law (albeit, and I would argue that this is problematic, as very much a subordinate principle, trumped by any legislation). Custom must be proved to be practiced uniformly. So I would argue (with massive epistemic problems as to how the practice really works on the ground) that the general practices are known. Not only are the practices known but they are based on principles that are familiar to members of the group to which they apply (for example Ubuntu, respect for elders, communal welfare rather than individualistic imperatives and many more). This means that the “rulings” by tribal elders, chiefs or customary law being applied by a magistrate, would simply be emulating how the common law works. State court decisions are often not intuitive, are frequently controversial and definitely not known in any way to the wider public who is subjected to them. This is supposedly dealt with by the fiction that courts are not “creating law” because their interpretation was the real meaning of the law retrospectively. This is a fiction and I would submit that customary law decisions are not alone in this dimension. Simone also raised that the laws are contradictory and therefore impossible to follow. Again I would argue that conflicting laws are not only ubiquitous in state law but are actually required for just outcomes. There will always be tensions in the law as there are tensions in the interests of co-existing people. Perhaps these conflicts are not dealt with as aptly as (you may argue) state law in their adjudication. However that objection does not justify the invalidity of customary law but rather implies that it requires further development and in a setting that has not artificially confined and altered its processes and content. Even though I have made my arguments with reference to state or common law, my main objection to this critique is that the paradigm we use as a metric to assess the legality of our law is not an appropriate paradigm in which to view or evaluate customary law. It is a different species of law. Fuller’s conception of a “legal” law presupposes a system that has centralized authority and which values individual liberties and assumes that this best serves society as a whole (and thereby the individual in turn as a member of that society). The decentralized nature of customary authority means that certain conditions can be dispensed with. Also the communal nature of welfare and the emphasis on the family unit inherent in customary law creates a different accountability system to the one that Fuller is espousing which may not be defective or inferior but rather, better adapted to meeting the needs of its subjects. Is that not what a system of governing rules is supposed to do? I do not have time here to examine what the correct paradigm would be but I do suspect that it is not the expressed version.AmyEA ACL2011 (talk) 10:52, 14 March 2011 (UTC)

Is it just me or is this page ugly. No pictures :P Reading through the epically long page (and just as a bit of geek humour I might point out that our page is over 5000 words longer than then entire page for the country of France), I get the feeling that its like 130 people are talking at the same time, with a few people listening to a few other people, and the rest kind of walking around the room wondering whats going on. It is information overkill, and so its like trying to eat a six-tier cake in a single bite. Inevitably you choke. I also thought the points we make aren't very clear, such that we actually don't lay the groundwork for the concepts and definitions. I think a good effort by the class nonetheless.

I have my doubts as to the functionality of official customary law, and I have issues with the unofficial form in that to me (I know this is so Euorcentric) but it lacks consistency (in the short term and long term) and so I feel like perhaps it is either nothing more than mediation or purely at the whim of traditional judge. I wonder if perhaps we have not come so far from the days when the system was efficient that trying to return to it is near to be impossible. I think it is possible that the well has in this instance been poisoned. Effectively I ask what is the value of it besides posterity or political conciliation. I do not mean to insult it, but I do question its benefits for those who are subject to it. DylanET (talk) 16:09, 14 March 2011 (UTC)

As a general point in terms of structure, the wikipedia entry appears to be more long-winded and detailed than a general wikipedia article, but then again it would appear unavoidable considering the length of most of the articles and the problem of of sometimes being unable to identify the key issues within those readings due to the fact that we have yet to cover some of the topics as well as we would have liked to. On a side point, the overarching theme, or the concept that seems to be running throughout this whole entry appears to be the fine, but necessary distinction between official customary law and living customary law. I say necessary because this distinction allows a student, an academic or any lay person, to recognize that there appears to be a disparity between what has been codified as customary law, and what is actually practised as customary law on the ground or in the everyday lives of people. It is necessary because, in any practical situation, without such a distinction, it would be easy to fall into the trap of holding or assuming the codified customary law as being true or valid or in cohesion with what is being practised on the ground, especially if you are a person who does not practice customary law. I believe that this fine distinction should be phased out eventually but only when the legislature and courts develop official customary law to be reflective of living customary law. HeriAM ACL2011 (talk) —Preceding undated comment added 17:07, 14 March 2011 (UTC).

I feel the summary is good enough given the amount of readings we had to do and the task of capturing the essence of each article in as little words as possible. The recurring theme that I have noticed in the summary is with regards to the rigidity of official customary law. This has been attributed to the fact that it does not take into account that society is ever changing especially with the new constitutional dispensation in South Africa. There is no recognition of the value of equality in terms of women’s rights, In many communities these rights are still seen as foreign and as such are not given effect too.

However from the Mnisi-Weeks article a few examples have been given of where changes are occurring, the Shilubane and Richtersveld cases were good examples of this. The government however by implementing the Traditional Courts bill might entrench the problematic nature of the patriarchal system which is inherent in customary law. The bill symbolizes a shift from the government’s stance on equality as it removes the need for traditional leaders to take into account the women’s’ plight and concerns . Furthermore the courts are comprised of male councilors who are unsympathetic to women’s issues and in many areas women litigants are not allowed to speak or represent themselves; they have to rely on male relatives to do it for them !!The bill thus definitely needs some major amendments before it can be passed as law.

I agree with what has been said about the codification of customary law this will affect its flexible nature as once it is done it will be hard to make changes as they happen once it is promulgated. I believe that the legislators should come up with a way of working round that problem so that we do not in turn repeat the same mistakes made with official customary law.EdwinO ACL2011 (talk) 19:38, 15 March 2011 (UTC)