Of Legal Pluralism and Secular Constitutional Centralism: The Development of Living Law in South Africa.

The Development of Living Law in South Africa.

Abstract

S 39(2) of the Constitution,[1] provides that courts, tribunals, or forums must strive to interpret legislation and develop common law and customary law in line with the objects and purports of the Bill of Rights. In addition, sections 15, 30, and 31 of the Constitution provide persons the freedom of religion and cultural identity free from unjust repression. The article seeks to address what this entails. South Africa is a multicultural society in which various socio-legal systems exist.[2] They exist as customary law and cultural-religious practices.[3] Customary law refers to “customs and usages” particular to indigenous black communities of South Africa,[4] while cultural-religious practices apply to the rest, for example, Islamic law.[5] Concerning customary law, the Constitutional Court has held that it exists as an independent source of law subject to the Constitution and must be treated as such.[6] The test lies in determining the reasonable extent cultural-religious practices can be accommodated within the bounds of the Constitution.[7] The Constitution becomes the center by which customary law and cultural-religious practices are ascertained, interpreted, developed, and applied. The test is whether such a rule is constitutionally valid. If not, the court will either develop it or strike it down.[8] Where a cultural-religious practice has not been accommodated, an inquiry as to why is conducted. This involves the Harksen v Lane test for discrimination to determine whether there are justifiable grounds by which said cultural-religious practice is not accommodated within the law.[9] It is this exercise of accommodating customary law and cultural-religious practices subject to the Constitution that has been term Secular Constitutional Centralism. It is an inclusionary method that seeks to incorporate various socio-legal systems, cultural or religious under the ambit of the Constitution.

Keywords: Legal Pluralism, Constitutionalism, Secularism, Secular Constitutional Centralism, Deep Pluralism, Living Law, Customary Law, Cultural-religious Practices, Freedom of Religion, Constitutional Compatibility.

[1] The Constitution of South Africa, 1996, see also S 211(3) of the Constitution of South Africa, 1996.

[2] Rautenbach C Introduction of Legal Pluralism in South Africa (5ed) 2017 at 5.

[3]  Rautenbach (2017) at 5.

[4] S 1 of Act 120 of 1998.

[5]  Rautenbach (2017) at 5.

[6]  Shilubana v Nwamitwa 2009 (2) SA 66 (CC) para 43.

[7] Prince v President of the Law Society of the Cape of Good Hope 2002 (2) SA 794 para 83-90.

[8] Bhe v Khayelitsha Magistrate 2005 (1) SA 580 (CC) para 95-119.

[9] Harksen v Lane 1998 (1) SA 300 para 42-50.