An Appraisal of the Borrowing of European Values to Systematically Convert Customary Law into “Constitutional Customary Law”

Customary law has survived centuries of colonial onslaught whereby it was seen as uncivilised and in need of reform. Customary marriages were not viewed as marriages but as unions. Today, however, they enjoy recognition as marriages. The Constitutional Court stated in Alexkor v Ritchsveld that customary law would no longer be viewed with the eyes of the common law in the post-constitutional era but would be equal with the common law. It is argued, however, that the position of customary law has not changed since the enactment of the 1996 Constitution. It was hoped that this would bring change as it was an affirmation that customary law is recognised. However, the old order repugnancy clause only allowed customary law to be recognised only if it was consistent with rules of natural justice and public policy. This happens through using the right to equality and dignity in their Western setting rather than interrogating them and trying to infuse an African understanding and interpretation of these rights. Similarly, the LLB curriculum needs to be decolonised because it remains Eurocentric and produces judges and lawyers who also see customary law as a problem and see the common law as the solution. There is, therefore, a need to embrace African law as part of a dispute resolution avenue.