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Journal articles on the topic 'Customary law – South Sudan'

Author: Grafiati

Published: 4 June 2021

Last updated: 1 February 2022

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1

Hessbruegge, Jan Arno. "Customary Law and Authority in a State under Construction: The Case of South Sudan." African Journal of Legal Studies 5, no. 3 (2012): 295–311. http://dx.doi.org/10.1163/17087384-12342014.

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Abstract Customary law in South Sudan is a powerful symbol of emancipation from two centuries of external domination, and paradoxically, also the product of such external domination. Most citizens of the world’s newest state rely more on customary laws and local authorities to regulate their conflicts than on other civilian state institutions and statutory law. At the current juncture, influential decision-makers in and outside the government are pushing to develop Sudan’s customary laws into a Common Law for South Sudan. However, the legacy of the armed conflict, including patterns of militarization, and the ongoing modernization of society, pose challenges for customary systems. Furthermore, customary systems exhibit certain human rights deficits and, therefore, need to be made compatible with the constitutional framework of South Sudan. The recognition of customary authority and law as an essential part of the governance structure, coupled with targeted engagement and reform, are indispensable elements of state and peace building in South Sudan. The government and its external partners must walk a tightrope to integrate the local capacity offered by the customary system into their wider efforts without inadvertently stifling its potential to reform from within or undermining democratically elected institutions.

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2

Leonardi, Cherry, Deborah Isser, Leben Moro, and Martina Santschi. "The Politics of Customary Law Ascertainment in South Sudan." Journal of Legal Pluralism and Unofficial Law 43, no. 63 (January 2011): 111–42. http://dx.doi.org/10.1080/07329113.2011.10756659.

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3

Deng, Justice Benjamin Baak. "Traditional Justice Methods and Their Possible Impact on Transitional Justice Models in South Sudan." Max Planck Yearbook of United Nations Law Online 21, no. 1 (October 10, 2018): 331–52. http://dx.doi.org/10.1163/13894633_021001011.

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This paper discusses the legal framework of the traditional justice methods in several African countries, with a focus on South Sudan; the objective of customary law, the role of traditional courts or the forum of elders, and the methods of settlement of disputes. These methods of settlement of disputes are by-products of the practices, customs and traditions of the people that were devised as ways of maintaining peace and tranquillity, and thereby uphold the rule of law.

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4

Hove, Mediel, and Enock Ndawana. "Women’s Rights in Jeopardy: The Case of War-Torn South Sudan." SAGE Open 7, no. 4 (October 2017): 215824401773735. http://dx.doi.org/10.1177/2158244017737355.

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This study asserts that women’s rights are far from being recognized in South Sudan despite its efforts to include the rights of women in the Transitional Constitution after its attainment of independence from Sudan in 2011. While the article acknowledges the traditional modernization theory and cultural sovereignty theory, it engages international human rights standards as its conceptual framework. Using documentary research methodology involving analysis of primary and secondary sources, the manuscript established that a plural justice system involving incompatible customary and civil law failed to defend women’s rights in the country. This was worsened by the country’s descent into a civil war a few years after independence. Again, the fact that South Sudan has effectively been without a functioning permanent constitution and is one of the main challenges facing the country did not help the situation either. However, South Sudan still has opportunities to advance the promotion of women’s rights if, among other things, the ongoing civil war ends and the guidelines of its Transitional Constitution are to be effectively enshrined in a new constitution of the country with a view of implementing them.

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5

Rautenbach, Christa. "Oral Law in Litigation in South Africa: An Evidential Nightmare?" Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 20 (October 30, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a3268.

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In the past, customary law has been applied rather haphazardly in the courts. Its inherent adaptive flexibility and indeterminate nature created confusion in a court system ill-equipped to deal with litigation dealing with customary law issues. Understandably, customary law was treated in the same way as a common-law custom, which also originates in a community's acceptance of certain standards of behaviour. This meant that anyone averring a rule of customary law had to prove it, except where the rule was contained in a statute or precedent. The courts were not keen to engage in law-making and where the ascertainment of customary law proved to be difficult, they would merely apply the common law. In 1998, the Law of Evidence Amendment Act 45 of 1988, which allows the judiciary to take judicial notice of readily accessible customary law, made fundamental changes to this situation. The Act is still in operation, although it must now be interpreted in the light of the Constitution of the Republic of South Africa, 1996 (the Constitution). No direction on how this must be done can be found in the wording of the constitutional provisions dealing with the customary law. Besides instructing the courts to apply customary law when "applicable, subject to the Constitution and any legislation that specifically deals with customary law", the Constitution is silent on the way forward. Given the fact that most of the judiciary does not have any knowledge of the content of living customary law and the fact that there are fundamental differences between the evidentiary rules applied in the common and customary laws of South Africa, a few problems are bound to surface when litigating issues involving the customary law. They include: the status of customary law in the South African legal system; the applicability of customary law; and especially the determination of living customary law. The aim of this analysis is to determine if the existing evidentiary rules are appropriate to deal with these challenges in litigating matters involving customary law in the ordinary courts.

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6

Paterson, D. E. "South pacific customary law and common law: Their interrelationship." Commonwealth Law Bulletin 21, no. 2 (April 1995): 660–71. http://dx.doi.org/10.1080/03050718.1995.9986418.

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7

Mennen, Tiernan. "Lessons from Yambio: Legal Pluralism and Customary Justice Reform in Southern Sudan." Hague Journal on the Rule of Law 2, no. 02 (September 2010): 218–52. http://dx.doi.org/10.1017/s1876404510200052.

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8

Bronstein, Victoria. "Reconceptualizing the Customary Law Debate in South Africa." South African Journal on Human Rights 14, no. 3 (January 1998): 388–410. http://dx.doi.org/10.1080/02587203.1998.11834984.

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9

Diehl, Katharina, and Judith van der Horst. "The New Electoral Law in South Sudan." Verfassung in Recht und Übersee 46, no. 2 (2013): 215–33. http://dx.doi.org/10.5771/0506-7286-2013-2-215.

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10

Farran, Sue. "South Pacific Land Law: Some Regional Challenges, Cases and Developments." Victoria University of Wellington Law Review 32, no. 4 (December 3, 2001): 953. http://dx.doi.org/10.26686/vuwlr.v32i4.5864.

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Land in the South Pacific is largely regulated by introduced English Common Law. However, the vast bulk of the land in the region is held under different forms of customary land tenure, and the perceptions of land and its use are distinctly regional. In this article, the author considers how the Common Law has been adapted in the region to accommodate and reflect customary law and practice. Selected cases from the region are used to highlight the difficulties that the courts face in blending Common Law principles with customary practice and accommodating changing uses of land that challenge traditional solutions.

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11

Corrin, Jennifer. "Customary Land and the Language of the Common Law." Common Law World Review 37, no. 4 (December 2008): 305–33. http://dx.doi.org/10.1350/clwr.2008.37.4.0176.

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Independence constitutions in most small island countries of the South Pacific acknowledge the significance of customary law by giving it official status in the hierarchy of laws recognized by the state. More particularly, many of those constitutions make special provision for customary land, limiting its alienation and allowing it to be governed by customary law. However, in practice, the philosophy underlying these provisions has been betrayed. While paying lip service to customary law, changes have been introduced through the written law. In addition, more subtle changes have crept in through the inaccurate representation of customary concepts in common law terms. Using examples drawn mainly from Samoa and Solomon Islands, this paper seeks to demonstrate that, in spite of the constitutionally enshrined intention to protect customary land and the customary law governing it, the operation of the common law has led to significant changes in customary land concepts. It is argued that such changes have the potential to bring about dramatic and unplanned changes to customary society in the South Pacific.

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12

Liu, Chenhong. "Regional Customary International Law Related to China’s Historic Rights in the South China Sea." Korean Journal of International and Comparative Law 7, no. 2 (October 4, 2019): 262–76. http://dx.doi.org/10.1163/22134484-12340128.

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Abstract In the customary international law system, there exist general customary international law and regional customary international law. Based on the general practice and opinio juris of the States surrounding the South China Sea, China’s historic rights which conclude historic title to all the maritime features in the South China Sea, and historic fishing rights and navigational rights, are regulated by regional customary international law. Due to the parallel relationship between this regional customary international law and the United Nations Convention on the Law of the Sea (UNCLOS), China’s historic rights should co-exist with the rights regulated by UNCLOS.

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13

Osman, Fatima. "The Consequences of the Statutory Regulation of Customary Law: An Examination of the South African Customary Law of Succession and Marriage." Potchefstroom Electronic Law Journal 22 (December 12, 2019): 1–24. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a7592.

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In pluralistic legal systems, the regulation of non-state law through statute carries the risks associated with codification; namely the ossification and distortion of law. This article examines the effects of statutory regulation on unwritten systems of law in the South African legal context. It argues that the constitutional recognition of customary law in South Africa has forced the state to legislate in this arena, the most notable enactments being the Recognition of Customary Marriages Act 120 of 1998 and the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009. The enactments' attempt to align customary law with constitutional values have imported significant portions of the common law to regulate the customary law of marriage and succession. This has resulted in a distortion of customary law to reflect common law values and rules. Furthermore, it is argued that significant lacunae in the enactments have necessitated litigation and resulted in the judiciary playing a significant role in shaping customary law. Finally, despite the incorporation of living customary law into the enactments, the implementation thereof by courts and in practice has – and perhaps inevitably so – ossified and distorted portions of the law. Nonetheless, the article argues that legislation is critical to regulate customary law. It advocates that the shortcomings identified in the article are addressed to ensure a more accurate portrayal of customary law in legislation and the successful implementation thereof.

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14

Malan, MC Schoeman. "Recent Developments Regarding South African Common and Customary Law of Succession." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 10, no. 1 (July 4, 2017): 106. http://dx.doi.org/10.17159/1727-3781/2007/v10i1a2794.

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This article will concentrate on the development in the common law of succession and administration of estates versus the customary law of succession and inheritance as well as the winding up of estates pursuant to constitutional tendencies, case law, and statutory reform over the last ten years. The principles of customary law of succession and inheritance have become a contentious issue since the commencement of the Constitution and Bill of Rights which provide for a human rights dispensation in South Africa. As a pluralistic legal system was retained, the inevitable conflict between the principles of customary law of succession and the Constitution soon came to the fore. Although the South African Law Reform Commission reported on this issue and submitted their recommendations to the Minister of Justice and Constitutional Development, the report was never formally published. Aspects of intestate succession and the administration of estates of deceased blacks were challenged in court on constitutional grounds. This eventually lead to a number of principles of customary law being declared unconstitutional, and consequently invalid, by the Courts who had no choice but to provide relief until such time as the legislature enacted a lasting solution. As far as the intestate succession is concerned, the Intestate Succession Act 81 of 1987 was extended to all persons in South Africa, including those adhering to a system of customary law. No distinction will, for purposes of succession, be made in future between legitimate and illegitimate children, between a first born son and other siblings or between men and women. Notwithstanding several court judgments in this regard, the Intestate Succession Act has not been amended by the Legislature as yet. As far as the historical discrepancy in the winding up and administration of estates is concerned, all estates, including intestate estates of black persons that have to devolve under customary law, in the future will be administered by the Master. Magistrates no longer will be responsible for supervising and administering customary estates.

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15

Siegel, Nica. "Thinking the Boundaries of Customary Law in South Africa." South African Journal on Human Rights 31, no. 2 (January 2015): 357–78. http://dx.doi.org/10.1080/19962126.2015.11865251.

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16

M Maithufi (In Memory) and CA Maimela. "Teaching the “Other Law” in a South African University: Some Problems Encountered and Possible Solutions." Obiter 41, no. 1 (April 1, 2020): 1–9. http://dx.doi.org/10.17159/obiter.v41i1.10545.

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African customary law is a legal system that is recognised in South Africa and forms part of the law of the indigenous people of South Africa. Due to colonialism and apartheid, this legal system was rejected and underdeveloped in favour of common law. The supremacy of the Constitution and its recognition of African customary law as an independent legal system, separate from the common law, aimed to correct past injustices that flowed from the underdevelopment of this important legal system. Whether the Constitution and higher learning institutions have attained the goal of developing African customary law in South Africa is a question that will be explored and debated in this contribution. Its aim is to assess the role of higher learning institutions in developing African customary law through their teaching of this system of law, as well as to outline some of the challenges faced by these institutions in offering an African customary law course to students. Possible solutions are discussed; the aim is to ensure that the teaching component of African customary law is developed, and to contribute to the current debate about curriculum transformation among universities and various stakeholders in higher learning. Curriculum transformation is key to the future development and inclusiveness of the South African community that is so diverse.

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17

Bedigen, Winnifred. "Significance of Societal Customs in the South Sudan Civil War Resolution." Journal of Peacebuilding & Development 15, no. 1 (August 6, 2019): 3–17. http://dx.doi.org/10.1177/1542316619866422.

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The South Sudan intermittent conflicts and civil wars have attracted national, regional, and international interventions. Dominated by politically led conventional ideologies of peace approaches that revolve around suppression, negotiation, and mediation, such approaches have not achieved sustainable peace in the region. The case for societal customs presented here demonstrates a contrary view. Historically, the Nilotic Lwo ethnic groups of South Sudan, that is, Dinka and Nuer, have fought each other but utilised their customs in conflict resolution. The use of societal customs has prevailed at the grass-roots level in the face of intermittent interethnic conflicts, which feed into civil wars. This article explores the potential of societal customs in delivering sustainable peace even at a civil war level. It highlights a way of exploring further the themes (customary laws and practices) and of thinking about how/why/when these can be useful in meeting local’s interests, values, and perspectives in the civil war resolution.

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18

Manjoo, Rashida. "Legislative Recognition of Muslim Marriages in South Africa." International Journal of Legal Information 32, no. 2 (2004): 271–82. http://dx.doi.org/10.1017/s0731126500004133.

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Both theoretically and constitutionally, South Africa is a secular state with many religious and non-religious groupings co-existing with each other. The reality is that there is widespread observance of both religious and customary law — despite a lack of or limited recognition thereof under the apartheid government. The non-recognition of other forms of law in South Africa has had negative consequences and the remedial efforts of the present government is visible both in the area of customary law and also Muslim Personal Law, hereinafter referred to as MPL. This paper will confine itself to discussing the law reform efforts in respect of the recognition of Muslim marriages.

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19

Himonga, Chuma. "Editorial: Determining the Content of Indigenous Law with Special Reference to Recording of the Law - Continental Views." Potchefstroom Electronic Law Journal 22 (December 12, 2019): 1–10. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a7662.

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This special edition comprises a selection of contributions delivered at a conference hosted by the Chair in Customary Law, Indigenous Values and Human Rights at the University of Cape Town in collaboration with its research partner, the Research Chair on Legal Diversity and Indigenous Peoples at the University of Ottawa, on "The Recording of Customary Law in South Africa, Canada and New Caledonia" in May 2018.

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20

GRANT, EVADNÉ. "HUMAN RIGHTS, CULTURAL DIVERSITY AND CUSTOMARY LAW IN SOUTH AFRICA." Journal of African Law 50, no. 1 (April 2006): 2–23. http://dx.doi.org/10.1017/s0021855306000039.

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In the joined cases of Bhe v. Magistrate Khayelitsha and Others; Shibi v. Sithole and Others; South African Human Rights Commission and Another v. President of the Republic of South Africa and Another (2005(1) B.C.L.R. 1 (CC)), the South African Constitutional Court held unanimously that the male primogeniture rule according men rights to inheritance not enjoyed by women enshrined in the South African Customary Law of Succession violated the right to equality guaranteed under section 9 of the South African Constitution. On one level, the decision can be seen as a triumph for the universality of human rights norms. On another level, however, the case raises difficult questions about the relationship between human rights and culture. The aim of this paper is to assess the judgment critically in the context of the ongoing debate about the application of international human rights standards in different cultural settings.

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21

Curran, Ericka, and Elsje Bonthuys. "Customary Law and Domestic Violence in Rural South African Communities." South African Journal on Human Rights 21, no. 4 (January 2005): 607–35. http://dx.doi.org/10.1080/19962126.2005.11865150.

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22

RA, Firda Rosyana, Windy Dermawan, and Akim Ebih. "Conflict Resolution in South Sudan." Jurnal ICMES 3, no. 1 (June 29, 2019): 53–74. http://dx.doi.org/10.35748/jurnalicmes.v3i1.44.

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Despite secession from northern Sudan and became an independent country since then, South Sudan is now experiencing turmoil with the civil war there. Violations toward international law cannot be ignored occurred there, which resulted in many innocent people being victims; of murder, expulsion, rape, kidnapping, and many more. Internal conflict that occurred in South Sudan has attracted international attention. These violations in internal conflicts pushed the international community to provide humanitarian assistance and other assistance as an effort to resolve the conflict. However, after several cease-fire attempts that enable to the peace agreement, conflict still continues. Therefore, the writer intends to explain about the causes, impacts, and solutions that have been carried out by the international world. Thus, here is also analyzed solution that has been done after meeting in Addis, Ethiopia, using integrative negotiation approach. The research found that the integrative negotiation approach can raise awareness between parties and enable peace agreements as it is based on justice and mutual understanding as the pillars of negotiation

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23

Waldorf, Lars. "Inhumanity’s law: Crimes against humanity, RtoP and South Sudan." International Politics 53, no. 1 (December 8, 2015): 49–66. http://dx.doi.org/10.1057/ip.2015.37.

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24

Pimentel, David. "Rule of Law Reform Without Cultural Imperialism? Reinforcing Customary Justice Through Collateral Review in Southern Sudan." Hague Journal on the Rule of Law 2, no. 01 (March 2010): 1–28. http://dx.doi.org/10.1017/s1876404510100013.

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25

Kaup, Katherine P. "Controlling the Law: Legal Pluralism in China's South-West Minority Regions." China Quarterly 236 (November 5, 2018): 1154–74. http://dx.doi.org/10.1017/s0305741018001339.

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AbstractMillions of China's ethnic minority citizens remain subject to competing legal standards, even as state officials strive to strengthen a unified notion of state law. Minority customary law continues to bind many minority citizens in both civil and criminal arenas and often conflicts directly with state law. What happens when these laws conflict? Based on fieldwork in Yunnan, this article shows how local officials and communities navigate legal pluralism and what legal and policy provisions guide them. Granting local judges discretionary authority to set aside state law in favour of customary law, although seemingly undermining law enforcement, may in the long run be the best path to strengthening rule of law in China's minority regions.

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26

Faris, John Andrew. "African Customary Law and Common Law in South Africa: Reconciling Contending Legal Systems." International Journal of African Renaissance Studies - Multi-, Inter- and Transdisciplinarity 10, no. 2 (July 3, 2015): 171–89. http://dx.doi.org/10.1080/18186874.2015.1107991.

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27

Barratt, Amanda. "The South African action for adultery - common law, customary law, and constitutional perspectives." International Journal of Private Law 8, no. 3/4 (2017): 237. http://dx.doi.org/10.1504/ijpl.2017.087344.

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Barratt, Amanda. "The South African action for adultery - common law, customary law, and constitutional perspectives." International Journal of Private Law 8, no. 3/4 (2017): 237. http://dx.doi.org/10.1504/ijpl.2017.10008257.

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29

Diala, Anthony Chima. "Curriculum Decolonisation and Revisionist Pedagogy of African Customary Law." Potchefstroom Electronic Law Journal 22 (November 13, 2019): 1–37. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a4976.

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Fees-related protests in South African universities have pushed the decolonisation of the law curriculum to the front burner of academic discourse. As part of the curriculum, African customary law was marginalised in the courts, distorted by policy makers, and largely labelled as unfriendly to women and younger male children in issues of marriage, property, and succession. However, this normative system is shaped by the manner in which people adapt norms with agrarian origins to the socio-economic changes caused by colonial rule. In this historical context, scholars focus more on conflict of laws than on people's adaptation of indigenous norms to socioeconomic changes. So, in what ways should universities handle the pedagogy of African customary law? This article argues that colonialism endowed Africans with a new socio-legal identity, which questions the mainstream conceptualisation of customary law into "official" and "living" versions. Accordingly, the law curriculum should reflect this new identity and acknowledge the self-sustaining legacy of colonialism as a reality check on decolonisation. As the article suggests, re-conceptualising African customary law offers a framework for legal integration, especially in South Africa.

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Badejogbin, Rebecca Emiene. "The Conundrum of Judicial Notice as a Means of Ascertaining Customary Law in Nigerian and South African Courts amid the Convergence of Positivism and Legal Pluralism." Potchefstroom Electronic Law Journal 22 (December 12, 2019): 1–31. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a7589.

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The roles of the courts have become an inevitable social reality in adjudicating customary law disputes in Nigeria and South Africa. Because these courts are established and validated along positivist practice, they inevitably require the adoption of a process for ascertaining and applying customary law since the judges of these courts are not ordinarily conversant with its norms. Hence judicial notice has been adopted as one of the ways of ascertaining customary law. The conceptualisation and theoretical basis of customary law cannot be ignored in the analysis of the process of its ascertainment. Crucial to this are theories of centralism, legal pluralism and positivism. This paper therefore identifies challenges in ascertaining customary law through judicial notice in the various cadres of courts operative in both jurisdictions amid the operation of these theories and the attendant implications thereof. It elucidates the rules that guide the judge and identifies the challenges encountered in each jurisdiction based on how each law is scripted. It also contends that while positivist rules and procedure regulate how customary law can be ascertained and applied by the courts, its application must however be limited to the point where it threatens the essence of customary law.

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Himonga, Chuma, and Fatimata Diallo. "Decolonisation and Teaching Law in Africa with Special Reference to Living Customary Law." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 20 (October 30, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a3267.

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The student protests in South African Universities, which started in 2015, demanded the decolonisation of certain aspects of higher education. While the primary demand is free education, issues of the curriculum and transformation connected with the country's history of colonialism and apartheid have also surfaced. In the field of law, demands for curriculum change are accompanied by the broad issue of the decolonisation of law, translating into questions of legal history, the concept of law, the role of law in African societies, the status of indigenous systems of law in the post-independent/apartheid legal system, and how law is taught in law schools.This paper examines the idea of the decolonisation of law in relation to the teaching of law in African states previously under the influence of English or Roman-Dutch colonial/apartheid legal history. The teaching of law is with special reference to the system of law that governs the majority of people in Africa in private law and aspects of governance – living customary law. The paper examines the design of legal education with respect to three elements that are essential to the decolonisation of law and legal education. The elements under review are the inclusion of living customary law in legal education, a shift in the legal theoretical paradigm within which law is taught, and the interdisciplinary study of law. Thus, the paper links the decolonisation of law to how law is taught, with special reference to living customary law. In discussing these elements, the paper draws examples from the South African legal system, because it has the most advanced jurisprudential conceptualisation of customary law on the African Continent.

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32

Bennett, T. "Re-introducing African Customary Law to the South African Legal System." American Journal of Comparative Law 57, no. 1 (January 1, 2009): 1–32. http://dx.doi.org/10.5131/ajcl.2008.0001.

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33

Ntlama, Nomthandazo. "The Application of Section 8(3) of the Constitution in the Development of Customary Law Values in South Africa's New Constitutional Dispensation." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 15, no. 1 (May 22, 2017): 23. http://dx.doi.org/10.17159/1727-3781/2012/v15i1a2455.

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The constitutional recognition of customary law alongside common law in the Constitution of the Republic of South Africa, 1996 is highly commendable. It also raises the question of whether or not the recognition was undertaken out of genuine respect for customary law or merely forgotten in section 8(3) of the Constitution. It is argued that the exclusion of customary law from the provision of the section is nothing more than the advancement of the dominant status enjoyed by common law, as was the case before the dawn of democracy. This argument is limited to the application of section 8(3) and the jurisprudence of the Constitutional Court, without focusing on the shortcomings of the latter in relation to the remedies provided in the resolution of disputes arising from customary law.

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Carty, Anthony. "What Use Is Customary International Law?" Korean Journal of International and Comparative Law 9, no. 1 (May 28, 2021): 119–31. http://dx.doi.org/10.1163/22134484-12340149.

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Abstract Customary international law as a source of general law is given a primary place in Article 38 of the ICJ Statute. However, it is historically a concept created by legal doctrine. The very idea of custom supposes legal persons are natural persons living in a dynamic, evolving community. This was the assumption of the historical school of law in the 19th century when the concept of custom was developed. Now the dominant notion of legal personality is the State as an impersonal corporation and international legal theory (Brierly and D’Amato) can see well that the death of the historical school of law has to mean the death of the concept of custom. What should replace it? Two steps need to be taken in sequence. Firstly, following the Swedish realist philosopher Haegerstrom, we have to ascertain the precise constellations of the conflictual attitudes the populations of States have to the patterns of normativity which they project onto international society. Secondly, we should follow the virtue ethics jurisprudence of Paul Ricoeur and others, who develop a theory of critical legal doctrinal judgement, along the classical lines of Aristotle and Confucius, to challenge and sort out the prejudices of peoples into some reasonable shape, whereby these can be encouraged to understand and respect one another. Then one will not have to endure so many silly interpretations of international law such as the one declaring that there are only rocks in the South China Sea and not islands. Such interpretations have nothing to do with the supposedly ordinary legal language analysis of a convention and the State practice surrounding it. They have to do entirely with a continued lack of respect by Western jurists for non-Western societies and nations.

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Farran, Sue. "Law, land, development and narrative: a case-study from the South Pacific." International Journal of Law in Context 6, no. 1 (February 25, 2010): 1–21. http://dx.doi.org/10.1017/s1744552309990279.

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This article explores a primary source of legal studies, case-law, as a form of narrative in the context of indigenous land rights, and considers how this narrative negotiates pre-colonial land claims in a post-colonial context. Its case-study is the South Pacific island country of Vanuatu, a small-island, least-developed, nation-state, where laws introduced under Anglo–French colonial administration are still retained and sit uneasily alongside the customary forms of land tenure which govern ninety percent of all land in the islands. The article looks at the traditional and changing role of narrative presented as evidence by claimants and their witnesses against a context of rapid social and economic change, and asks whether the metamorphosis of narrative signals the future survival or imminent demise of customary indigenous land rights and what that might mean for these island people faced by the pressures of development.

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Nwauche, ES. "Affiliation to a new customary law in post-apartheid South Africa." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 18, no. 3 (December 9, 2015): 568. http://dx.doi.org/10.4314/pelj.v18i3.04.

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Bavinck, Else A. "Conflicting Priorities? Issues of Gender Equality in South Africa’s Customary Law." Amsterdam Law Forum 5, no. 2 (March 1, 2013): 20. http://dx.doi.org/10.37974/alf.249.

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DEVEAUX, MONIQUE. "Liberal Constitutions and Traditional Cultures: The South African Customary Law Debate." Citizenship Studies 7, no. 2 (July 2003): 161–80. http://dx.doi.org/10.1080/1362102032000065955.

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L. Muriaas, Ragnhild. "Dilemmas Connected to Recognising Customary Law and Courts in South Africa." Human Rights in Development Online 9, no. 1 (2003): 205–33. http://dx.doi.org/10.1163/22116087-90000008.

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Johnson, Douglas H. "Judicial Regulation and Administrative Control: Customary Law and the Nuer, 1898–1954." Journal of African History 27, no. 1 (March 1986): 59–78. http://dx.doi.org/10.1017/s0021853700029200.

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Administrative commitment to customary law among the Nuer wavered under British rule. Its value was first briefly appreciated as a means of obtaining the effective submission of the people to government authority. By igio dissatisfaction with the rate of progress of submission led provincial officials to abandon active involvement in the settlement of internal disputes among the Nuer, but in doing so they ceased to have any real contact with the peoples they tried to govern. Withdrawal from settlement of internal cases made it impossible for administrators to arbitrate external disputes between the Nuer and their neighbours. In the 1920s government supervision of the settlement of disputes once again became a central part of administrative policy, and by the end of that decade customary law and leaders were subordinated to government control. Innovations from the 1920s to the 1940s were concerned mainly with procedure and enforcement. By the last decade of Anglo-Egyptian rule in the Sudan the administration of law had become the main function of Nuer administration, and reforms in the legal procedure meant reforms in the administrative structure.

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Feris, Loretta. "A Customary Right to Fish when Fish are Sparse: Managing Conflicting Claims between Customary Rights and Environmental Rights." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 16, no. 5 (May 17, 2017): 554. http://dx.doi.org/10.17159/1727-3781/2013/v16i5a2448.

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This contribution considers the potential conflicts that may arise between customary rights and environmental rights in the face of dwindling marine resources. It sets the scene by reflecting on some of the common themes present in indigenous claims to marine resource by communities who were subjected to colonisation. In doing so it analyses the South African judgment, S v Gongqose Case No. E382/10 (unreported), which alluded to the existence of a customary right to fishing, a concept that has until now remained unexplored in South African law. This discussion is followed by a brief overview of the rapidly declining state of marine resources, worldwide and in South Africa. The note then considers the relationship between customary law and marine resources and some of the challenges in meeting rights-based customary claims to marine resources against the need to conserve a dwindling resource. It concludes by offering possibilities for reconciliation.

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Hutchison, Andrew, and Nkanyiso Sibanda. "A living customary law of commercial contracting in South Africa: some law-related hypotheses." South African Journal on Human Rights 33, no. 3 (September 2, 2017): 380–405. http://dx.doi.org/10.1080/02587203.2017.1392430.

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Dyani-Mhango, Ntombizozuko. "Reflecting on South Africa's Attempt to Withdraw from the Rome Statute in Favour of Immunities for Sitting Heads of State: An Analysis of the International Crimes Bill 2017." African Journal of International and Comparative Law 28, no. 2 (May 2020): 319–51. http://dx.doi.org/10.3366/ajicl.2020.0315.

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This article reflects on South Africa's International Crimes Bill 2017 in relation to the customary international law immunities of sitting heads of states. It revisits the discussion on these immunities and examines their legal status in South Africa. It argues that if South Africa adopts the International Crimes Bill, subject only to the procedural prescripts of the Constitution of the Republic of South Africa, this will have the effect of recognising customary international law immunities for sitting heads of state in South Africa thereby resolving the legal conundrum arising from the non-recognition of immunities for sitting heads of state.

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Ntlama, Nomthandazo, and Dazo Ntlama. "The Constitutional Divide of Postapartheid South Africa in the Jurisdiction of the Traditional Justice System." Southern African Public Law 29, no. 2 (December 18, 2017): 282–93. http://dx.doi.org/10.25159/2522-6800/3641.

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The exclusive jurisdiction of the traditional justice system – which in effect is based on racial classification – has been the subject of debate in South Africa since the attainment of democracy in 1994. The debate is drawn from the Constitution, which recognises the general system of customary law, and limits its application to the people who observe it. The debate is further fuelled by the non-explicit recognition of the customary court system within the judicial structure of the Republic. These courts are inferred from the concept of ‘any other courts’ in the Constitution. The inference of customary courts from ‘any other courts’, compromises the legitimate status of these courts in the resolution of disputes that arise from the system of customary law – in line with the ideals of the new constitutional dispensation. This considered, this article critically reviews the constitutional status of the customary court system in South Africa. The objective is to examine the effect of its exclusive jurisdiction in the application of the principles of traditional justice. It is also limited to the review of South Africa’s constitutional perspective on the protection of customary law relating to the advancement of the traditional justice system. It is argued, therefore, that the exclusive jurisdiction of the traditional justice system is a direct racial classification under the guise of the foundational values of the new democratic dispensation. Equally, the status given to customary courts – which is inferred from the concepts of ‘any other’ – constitutes a manifestation of the historic divide that compromises the legitimacy of these courts in the application of traditional justice. The extent, to which the exclusive jurisdiction can move towards a system that inclusively reflects the values of the new democratic dispensation, is also reviewed in general.

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Monyamane, Lesetja, and Mpho Paulos Bapela. "Gongqose v Minister of Agriculture, Forestry and Fisheries – A Tale of Customary Rituals and Practices in Marine Protected Areas." Potchefstroom Electronic Law Journal 22 (December 10, 2019): 1–17. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a5937.

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The correct application of customary law post constitutionalism continues to be the subject of much judicial and academic deliberation. This is especially true where the existence and/or scope of customary rights and cultural practices are not well defined in a specific case. Gongqose v Minister of Agriculture, Forestry and Fisheries 2018 5 SA 104 (SCA) presents a perfect example of the dissonance between the recognition of customary law by the Constitution of the Republic of South Africa, 1996 and the regulation of rights and cultural practices emanating from customary law. The case grapples with the meeting point of customary rights and customs and the need to preserve the environment. This intersection is considered in view of earth jurisprudence as an emerging legal thought topic in environmental law. On the whole, the decision of the SCA demonstrates encouraging signs of an appreciation of customary law as deserving of an equal place on the legal podium.

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Marlin, Marlin, Farida Patittingi, and Suriani BT Tolo. "Customary Payment to Achieve A Justice in The Land Disputes." Al-'Adl 14, no. 1 (January 27, 2021): 57. http://dx.doi.org/10.31332/aladl.v14i1.2408.

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The indigenous people of South Konawe highly uphold the Tolaki customary law from ancient times to the present, namely through the Kalosara media, which is considered very sacred to its existence. Land dispute resolution through customary payment has a purpose to restore disturbed conditions caused by the disputing parties. This research examines and describes the implementation of customary payments for land disputes, whether it can fulfill a sense of justice for the indigenous people of South Konawe. The research uses some secondary data through literature studies and primary data through the interview. The result indicates that the customary payment in giving a sense of justice in land disputes in South Konawe is considerably applicable. However, a comprehensive study is needed to find the justice which is aspired by the Tolaki Indigenous People in South Konawe.

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Bonthuys, Elsje. "A Duty of Support for All South African Unmarried Intimate Partners Part 2." Potchefstroom Electronic Law Journal 21 (October 30, 2018): 1–36. http://dx.doi.org/10.17159/1727-3781/2018/v21i0a4411.

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Part I of this two-part article argued that post-constitutional developments of the right to support have excluded the largest and most vulnerable sector of South African women – African women in invalid customary marriages and in intimate partnerships which do not resemble monogamous Western nuclear households. Part II explores the avenues to develop customary and common law to extend rights to support to these women. It argues that the current position discriminates against poor, rural African women on multiple intersecting grounds, which creates a duty for courts to develop the current legal rules. Customary law affords scope for development in relation to women in invalid customary marriages. Common law rights to support can be extended either ex contractu or ex lege. Because contractual support rights are of limited use to poor women, the legacy of the majority judgments in Volks v Robinson 2005 5 BCLR 446 (CC) (Volks) must be confronted to strengthen the legal basis for an automatic duty of support to all women in unmarried intimate relationships. The argument in Volks that, women choose to forego legal rights by not getting married is criticised. The minority judgment in Laubscher v Duplan 2017 2 SA 264 (CC) does, however, create potential for overturning this reasoning.

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Mmusinyane, B. "The Role of Traditional Authorities in Developing Customary Laws in Accordance with the Constitution: Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC)." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 12, no. 3 (June 26, 2017): 135. http://dx.doi.org/10.17159/1727-3781/2009/v12i3a2737.

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South African customary law is a body of law by which many South Africans regulate their lives in a multicultural society. South Africa's constitutional dispensation is based on the premise that all existing laws are subject to the Constitution of the Republic of South Africa 1996, including African customary law, and that all laws are limited only by the Constitution. Customary law existed long before the adoption of the Constitution which, among other things, aims at harmonising the different cultural practices that exist in the country. It is apparent that some traditional cultural practices that still exist are in conflict with the Constitution but, until they are challenged before a court of law, they will remain enforceable in our communities. This contribution investigates customary systems of succession that are guided by the principle of male primogeniture: a deceased's heir is his eldest son, failing which, the eldest son's oldest male descendant is his heir. The discussion focuses in particular on the case of Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC). This case concerns an application to the Constitutional Court for a leave to appeal against a decision of the Supreme Court of Appeal substantially confirming a decision of the Pretoria High Court that prevented a woman from being a Hosi (traditional leader) of her own community

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Pienaar, Gerrit. "The Methodology Used to Interpret Customary Land Tenure." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 15, no. 3 (May 29, 2017): 152. http://dx.doi.org/10.17159/1727-3781/2012/v15i3a2506.

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Customary land tenure is normally not based on codified or statutory sources, but stems from customary traditions and norms. When westernised courts have to interpret and adjudicate these customary traditions and norms, the normal rules of statutory interpretation cannot be followed. The court has to rely on evidence of the traditional values of land use to determine the rules connected to land tenure. Previously courts in many mixed jurisdictions relied on common or civil law legal principles to determine the nature of customary land tenure and lay down the principles to adjudicate customary land disputes among traditional communities, or between traditional and westernised communities in the same jurisdiction. Many examples of such westernised approach can be found in case law of Canada and South Africa. The interpretation of the nature of customary land tenure according to common law or civil law principles has been increasingly rejected by higher courts in South Africa and Canada, e.g. in Alexkor Ltd v The Richtersveld Community 2004 5 SA 469 (CC) and Delgamuukw v British Columbia 1997 3 SCR 1010. This paper explores the methodology the courts should follow to determine what the distinctive nature of customary land tenure is. As customary land tenure is not codified or based on legislation, the court has to rely, in addition to the evidence of indigenous peoples, on the expert evidence of anthropologists and sociologists in determining the nature of aboriginal title (in Canada) and indigenous land tenure (in South Africa). The court must approach the rules of evidence and interpret the evidence with a consciousness of the special nature of aboriginal claims and the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in. The court must not undervalue the evidence presented simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law tort case.

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Osman, Fatima. "Comment on the Single Marriage Statute: Implications for Customary Marriages." Potchefstroom Electronic Law Journal 24 (July 19, 2021): 1–18. http://dx.doi.org/10.17159/1727-3781/2021/v24i0a10471.

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The South African Law Reform Commission is currently canvassing views on a potential single marriage statute that would reconcile the several enactments currently regulating marriage in South Africa. This comment considers the implications of the proposed Bill for the regulation of customary marriages. It argues that the definition of a marriage / life partnership may be under-inclusive and must be expanded to included polygamous – rather than polygynous – relationships without a religious or cultural basis and life partnerships where the partners are not cohabitants. Furthermore, while the Bill is commended for requiring a husband to obtain the consent of existing wives before he enters into a further customary marriage, the Bill must give meaning to the notion of consent. Finally, the Bill must address existing issues within the Recognition of Customary Marriages Act 120 of 1998 which have invalidated a range of customary marriages too often at the expense of women.

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