Hard Cases Make Bad Law: Reflections on the South African Constitutional Court’s Jurisprudence on the Development of African Customary Law in South Africa

• Jurisdiction: South Africa
• Date: 01 June 2023
• Pages: 1-25
• Author: Douglas Mailula
• Published date: 01 June 2023
• DOI: 10.25159/2522-6800/13717

Article

Southern African Public Law

https://doi.org/10.25159/2522-68 00/13717

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

ISSN 2522-6800 (Online ), ISSN 2219-6412 (Print)

Volume 38 | Number 1 | 2023 | #13717 | 25 pages

© Unisa Press 2023

Hard Cases Make Bad Law: Reflections on the

South African Constitutional Court’s Jurisprudence

on the Development of African Customary Law in

South Africa

Douglas Mailula

https://orcid.org. 0000-0001-9294-1286

University of Venda

Douglas.Mailula@univen.ac.za

Abstract

Judicial interpretation and adjudication are complex and controversial processes

that the judiciary has been grappling with for centuries. This persists in modern

constitutional judicial processes, particularly when adjudicating ‘hard cases.’

African customary law cases are indeed hard or difficult cases. This is especially

so when it comes to the development of African customary law. This article

reflects on the jurisprudence of the Constitutional Court of South Africa

regarding the development of African customary law. It is concluded that

although there were some commendable strides in the development of African

customary law in a few cases at its inception, the court has in subsequent

judgments faltered. In these ‘hard cases’ the court has, in many instances,

adopted a conservative, formalistic, literalistic approach, often using

technicalities to either avoid the development of African customary law or

simply abdicate its judicial responsibility. This flies in the face of the project of

transformative constitutionalism and produces bad law when it comes to the

court’s jurisprudence on the development of customary law.

Keywords: African customary law; transformative constitutionalism; development of

African customary law; Constitutional Court; judicial avoidance;

jurisprudence; hard cases; abdication of judicial responsibility

Mailula

2

Introduction

Judicial interpretation and adjudication are generally complex and controversial tasks.

The controversies and complexities of adjudicating ‘hard cases’ have been a topic of

intense scholarly debates1 since the twentieth century, between natural law theorists and

legal positivists,2 albeit in the context of jurisprudence in general, and not African

customary (living) law in particular.3 Hart,4 a legal positivist; and, Fuller and Dworkin,

both natural law theorists, stood out as preeminent contestants in the raging debate about

judicial interpretation and adjudication, particularly in the context of ‘hard cases’—‘in

which the result is not clearly dictated by statute or precedent.’5 These controversial

debates are continuing in modern constitutional adjudication in the context of the South

African (SA) Constitution.6 The debates recount mainly how far the judiciary can go in

interpreting legal texts such as constitutions, pieces of legislation, or common law or a

customary law principle. In South Africa, this is particularly the case when it comes to

adjudicating African customary law cases and the development of this field, as such

cases are generally hard to resolve. The outcomes of these cases are neither codified in

statutes nor reported in judicial precedents.

Dworkin posed several questions on adjudication: what judges should do in the absence

of law; whether they should fill the gaps cautiously; whether they should do so

democratically, trying to reach the result they believe represents the will of the people;

or adventurously, try to make the resulting law as fair and wise as possible, in their

opinion.7

It is conceded that in dealing with these questions, the Constitutional Court in South

Africa initially made some remarkable strides in a few cases. However, in general, it

has failed in executing its constitutional mandate to develop African customary law in

line with the Constitution and the ideals of transformative constitutionalism. The

twentieth-century debates about judicial interpretation and adjudication thus remain

prevalent in modern constitutional adjudication, particularly in the context of African

customary law.

1 Scott J Shapiro, ‘The ‘Hart-Dworkin’ Debate: A Short Guide for the Perplexed’

accessed 20 April 2022.

2 Gerrit Pienaar, ‘The Methodology Used to Interpret Customary Land Tenure’ (2012) 15(3) PELJ

153–183.

3 Wilfred J Waluchow, ‘Strong Discretion’ (1983) 33(133) Philosophical Quarterly 321.

4 Herbert H art, ‘American Jurisprudence Through Engl ish Eyes: Nightmare and the Noble Dream’

(1977) 11(5) Georgia Law Review 969.

5 Ronald Dworkin, ‘Hard Cases’ (1975) 88(6) Harvard LR 1057.

6 The Constitution of the Republic of South Africa 1996.

7 Ronald Dworkin, Law’s Empire (Belknap Press 1986) 9.