A critical analysis of the judicial attitude to the right to culture in the context of African customary laws

Abstract

This research critically examines the judicial attitude to the right to culture in the context of African customary laws in South Africa. Despite the constitutional recognition of customary and common law as equal sources of law, the former is subordinated to Western legal standards in judicial decision-making. The research traces the historical marginalisation of African customary law through colonialism and apartheid and ongoing challenges in the post-1994 democratic dispensation. It explores how judges, trained in Western legal traditions, often adopt a jurispathic approach that distorts or abolishes indigenous norms rather than develop them under constitutional imperatives. Through an analysis of case law, the study reveals the judiciary’s tendency to prioritise common law principles/state law over cultural rights, thereby undermining genuine legal pluralism. The research further critiques legislative and policy efforts to reconcile African customary law with common law, arguing that such measures often impose Western legal values on indigenous traditions. To address these challenges, the study proposes judicial reform, legislative amendments, and curriculum transformation to ensure a culturally sensitive approach to adjudication. Ultimately, this study calls for a jurisprudence that genuinely embraces deep legal pluralism, ensuring that the right to culture is upheld alongside other constitutional rights in South Africa’s diverse legal landscape.