The resurrection of the indigenous values system in post-apartheid African law : South Africa's constitutional and legislative framework revisited : Centre for Indigenous Law

• Date: 01 January 2014
• DOI: 10.10520/EJC-797771063
• Record Number: sapr1_v29_n2_a4
• Published date: 01 January 2014
• Pages: 294-312
• Author: Dial Dayana Ndima

LLD (Unisa). Senior Lecturer: Department of Public, Constitutional and International Law, Unisa.

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The resurrection of the indigenous

values system in post-apartheid African

law: South Africa’s constitutional and

legislative framework revisited

Dial Dayana Ndima*

Abstract

A constitution that recognises customary law in South Africa must

prioritise indigen ous Africa n values in ord er to give dire ction to state

institutions in their quest to mainstream the African worldview in legal

interpretation. Its framework must ensure that the recognition of

indigenous African institutions res tores their cultura l meaning w hich mus t,

in turn, reflect custom and social practice as the roots for anchoring

African concepts to their own frame of reference. In order to reverse the

effects of cultural imperialism that generated the injustices of the past

South Africa’s constitutional framework must also serve as an injunction

enjoining state institutions to choose the living version of African law as

their point of departure whenever they respond to calls to pronounce upon

issues of in digenous African juris prudenc e.

In the South African context this task must entail effecting a change

in the role of interpretive institutions from their pre-constitutional culture

of denigrating African culture under the alienating repugnancy

dispensation towards refashioning African law with indigenous values as

envisioned by the ethos of transformation. The extent to which the

constitutional institutions can contribute towards rehabilitating African law

from being the po le-ca t of So uth Af rican ju rispr uden ce to a cred ible

component of the country’s justice system is the measure of their success

in this difficult and unenviable mission.

A clue to accomplishing this mission could be to develop a theory of

re-indigenisation as a counterweight to the distorted jurisprudence that

was developed by the discredited repugnancy clause of yester-year. Such

The resurrection of the indigenous values system in post-Apartheid African law 295

Rautenbach ‘South African common and customary law of intestate succession: A question of

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harmonisation, integration or abolition’ (2008) 12 1 EJCL 1.

See generally Ramose African philosophy through Ubuntu (2002) for the concept of philosophy

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of life.

Azapo v President of RSA 1996 4 SA 671 (CC).

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See the Promotion of National Unity and Reconciliation Act 34 of 1995.

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a theory wou ld persua de legal and constitutiona l interprete rs to

mainstream the African life-world to which to anchor the rules, principles,

concepts and doctrines derived from the indigenous value system.

1 Introduction

This article seeks to explore the extent to which South Africa’s constitutional

framework acknowledges the new status of African law, as a distinct and unique

component of South African law, as equal to the common law. This equality was

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introduced by section 181 of the interim Constitution of 1993 in an effort to end

the underdog status endured by African law since colonisation and to pave the

way towards guaranteeing the system’s future application in a democratic

dispensation. The changed status of African law was confirmed when it was

included in the 34 Principles that were reserved in Schedule 4 of the interim

Constitution as one of the non-negotiable principles on which the final

Constitution would be founded. Indeed this undertaking was fulfilled when section

211 of the 1996 Constitution appeared guaranteeing recognition of African law’s

institutions by the st ate and its application as one of the or iginal authoritative

components of the South African legal system in the courts.

This development gained the nation’s credence as the dawn of a new era

when the interim Constitution became the first authoritative official legal document

in South Africa to embody African law’s nucleus, the indigenous philosophy of life

known as ubuntu, in its postamble. When this philosophy of life made its debut

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it constituted the historic bridge that channelled South Africa’s unsavoury past

that was ravaged by despair towards the future that was teeming with hope. As

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such ubunt u’s introduction placed African jurisprudence in the mainstream of

South Africa’s constitutional development without which the country’s truth and

reconciliation processes could not have seen th e light of the day.4

In its new role as the instrument for nation building, the philosophy of ubuntu

provided the transformative process with the flexibility the newly formed Truth and

Reconciliation Commission needed in its quest to narrow the divide between the

perpetrators of apartheid and its victims and became the basis for their co-

operation in the reconstruction of the social fabric of the democratic South Africa.

In their practical application ubuntu’s transformative qualities proved instrumental

in exposing the fundamental incompatibility between the continued application of