Creating and Sustaining a ‘Tunnel Vision’ Argument for the Application of Customary Law—A Language Conundrum

• Jurisdiction: South Africa
• Date: 01 December 2023
• Pages: 1-18
• Author: Lesetja Monyamane
• Published date: 01 December 2023
• DOI: 10.25159/2522-6800/12159

Article

South African Public Law

https://doi.org/10.25159/2522-6800/12159

https://unisapressjournals.co.za/index.php/12159

ISSN 2522-6800(Online)

Volume 38 | Number 2 | 2023 | #12159| 18pages

© Unisa Press 2023

Creating and Sustaining a ‘Tunnel Vision’

Argument for the Application of Customary Law—

A Language Conundrum

Lesetja Monyamane

https://orcid.org/0000-0003-0999-9909

University of Limpopo

lesetja.monyamane@ul.ac.za

Abstract

Legal practitioners and scholars have argued that customary law in the South

African legal context has historically been underpinned by various issues which

include, but are not limited to, epistemologicalmisunderstanding, problems of

ill-will in the application of this law and intentional underdevelopment. While

there is contestation toa degree, the common ground among legal scholars is

that the praxis of law in the country is disconnected from indigenous people’s

customary beliefs, cultural practices and legal experiences. This has culminated

in the training and practice of law in South Africathat lacks inclusion and or a

reflection of indigenous people’s worldviews and understandings of law.

Naturally, this meansthat it overlooks the importance of indigenous languages

in the understanding and application of the law.Regrettably, the continued

intentional or unintentional consumption of law founded predominately on a

Euro-American worldview and cultural practices, renders South African law

problematic as far as its conceptualisation and application of customary law is

concerned. It is at this juncture that the present articleargues that language as a

cultural artefact is a critical tool in the formulation, teaching, training and praxis

of law. For the South African context, indigenous languages, therefore,become

a critical tool for this purpose as opposed to the prevailing use of the English

language. To this end, this contributiondebates African epistemological and

indigenous language questions intended to demonstrate their relevance in the

formulation, training and application of law in South Africa. Specifically, the

articleis intended to contribute to the decolonial discourse in the legal fraternity

with emphasis on the importance of correct conceptualisation and application

of the indigenous people’s customary beliefs, cultural practices and legal

experiences.

Keywords: indigenous people; language; epistemology; cultural access; adoption

Monyamane

2

Introduction

Marcus Cicero once remarked that ‘there is very little that is more important for any

people to know than their history, culture, traditions and language; for without such

knowledge, one remains naked and defenceless before the world.’1Cicero’s remarks

poignantly expose the reality of South African law when it comes to its indigenous

peoples and their customary law. It is the crux of this article to advance an argument to

support the premise that the indigenouspeople of South Africa are rendered naked and

defenceless by the Constitution.2This will be done through a demonstration of how the

use ofcommon law praxis has resulted in the disconnection of indigenous peoples’

beliefs, cultural practices and legal experiences. The articleis delimited to a discussion

of the so-called customary law adoption as living proof of the impact of ill-will and

vernacularisation of foreign concepts. To buttress this view, it is argued below that

language, as a cultural artefact, is a critical tool in the formulation, teaching, training

and praxis of law. To this end, it is important to point out that Maithufi (in memory) and

Maimela grappled with issues related to the difference in language between the medium

of curriculum and the language used in the cosmic order of the indigenous people.3The

authors rightly accepted that the medium of instruction in South African universities has

historically been English, and in some circumstances, Afrikaans is the alternative.4On

the face of it, the continued endorsement of this historical reality is without problems.

However, as shall be argued in this article, the dominant use of the English language in

Higher Education underlies unexamined difficulties; thus from a teaching and or

application perspective, meaning often gets lost or distorted in the transmission of law

from either lecturers to students or legal practitioners to black clients. From an academic

standpoint, it is arguable that the foreclosure of the academy to cultural elitism presents

troubles in the conceptual clarity of terms that cannot easily be translated into both

English and Afrikaans. This issue bears testament to infamous phrases such as ‘lost in

translation’ that havebecome common cause.

The language issue or perhaps the loss in translation metaphor, gives rise to the

misapplication, miseducation and misrepresentation of the indigenous people in legal

texts. Sadly, this exposes the inherent biases and weaknesses in the South African

1 Hassimi Maiga, ‘When the Language of Education is not the Language of Culture: The Epistemology

of Systems of Knowledge and Pedagogy’ in Joyce E King (ed), Black Education: A Transformative

Research and Action Agenda for the New Century (Lawrence Erlbaum Associates 2005) 159.

2 Mogobe Ramose, ‘An African Perspective on Justice and Race’ (2001) 3 Polylog: Forum for

Intercultural Philosophy—in his critical assessment of the Constitution, 1996, argues that the

Constitution is a form of subversion that the South African conquest used to legitimise colonialism

and its benefits to the conqueror. The following expression is noteworthy; ‘[i]f a constitution is at the

bottom the casting into the legal language of the moral and political convictions of a people than the

mere translation of Westminster and Roman Law legal paradigms into the vernacular languages of

the indigenous conquered people is not equal to the constitutional embodiment of theirmoral and

political convictions’ 6.

3 M Maithufi and Charles Maimela, ‘Teach ing the “Other Law” in a South African University: Some

Problems Encountered and Possible Solutions’ (2020) 41(1) Obiter.

4 Maithufi and Maimela (n 3) 6.