The Modern Day Impact of Customary Laws in South Africa
It is no secret that colonialism had a large impact on the development of law in South Africa. In 1652 the Dutch East India Company established a refreshment station in the Cape. As a natural result of the Dutch colonisation of the Cape the law applicable to the settlers was Roman-Dutch law, which was the official law of the Netherlands at that stage. The Dutch government was confronted with the existence of indigenous people on Cape soil whose customs and usages were totally different that was accustomed to. At first no account was taken of these customs and usages, because it was seen as “uncivilised”. From 1806 the British followed a policy of non-interference with the customs and usages of indigenous people provided that these customs and usages were not repugnant to the principle of public policy and natural justice. In 1927 the various colonial laws were finally consolidated in the controversial Black Administration Act which provides for the management of indigenous affairs. The Act made provision for the recognition of customary law but also contributed to the transforming of customary law into a fixed code of law which is not subject to change. Two recent decisions of the High Court of South Africa changed this situation regarding the customary law of succession, and this paper will mainly deal with the modern day impact of these two decisions within this field.
Rautenbach Christa (South Africa)
Faculty of Law
North-West University (Potchefstroom Campus)
My career in law commenced in 1981 as a public prosecutor at the department of Justice, South Africa. In 1994 I was appointed as lecturer at North-West University, South Africa. In 1995 I was promoted to senior lecturer and eventually to associate professor. I have published extensively in my fields of interest in local and international journals, reports and chapters in books and have participated in a variety of local and international conferences. I am the executive editor of the Potchefstroom Electronic Law Journal (found at http://www.puk.ac.za/law/per/per.htm) and an evaluator for the National Research Foundation. I am a practising Advocate of the High Court of South Africa, as well Commissioner of the Small Claims Court for the district of Potchefstroom.
(30 min. Conference Paper, English)