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LJU4801LEGAL PHILOSOPHY
NOTES, QUESTIONS AND ANSWERS
FOR FURTHER CLARIFICATION PLEASE
KEVINLUGWIRI98@GMAIL.COM
, lOMoARcPSD|48946436
Read the article: Mnyongani FD <Duties of a lawyer in a multicultural society: A customary
law perspective= 2012 Stell LR 352-369.
Answer the following questions by referring to the article AND the study guide: Learning
Unit 4: AFRICAN LEGAL PHILOSOPHY
1. Mnyongani states that when the 1996 Constitution was enacted it was 8hailed9 for its
transformative agenda. Discuss his motivation for this view as well as what according him
is the 8Achilles heel9 of this agenda. (12)
2. According to Mnyongani there is very little in common between customary law and the
dominant Western-inspired legal system. Explain how he comes to this conclusion. (16)
3. What is African Legal Philosophy all about and what types of African Legal Philosophy
can be distinguished? (10)
4. Explain Ubuntu in your own words. (2)
1
, lOMoARcPSD|48946436
1. Mnyongani states that when the 1996 Constitution was enacted it was 8hailed9 for
its transformative agenda. Discuss his motivation for this view as well as what
according him is the 8Achilles heel9 of this agenda. (12)
Mnyongani states that when the 1996 Constitution was enacted it was 8hailed9 for, among
other things, its inclusion of justiciable socio-economic rights and its transformative agenda.
A transformative constitution seeks <to facilitate a fundamental transformation in the unjust
political, economic and social conditions inherited from our colonial and apartheid past, and
to create a new society based on social justice, democracy and human rights=.1
Mnyongani9s motivation for this view is that the South African Constitution is founded upon
the values of human dignity, non-racialism and non-sexism. In keeping with the rights
discourse, the Constitution mentions race within the context of the right to equality. The
drafters of the Constitution have situated the equality clause at the heart of the inequalities
of the past. The equality envisaged by the Constitution is both formal and substantive. 2
Formal equality, as De Waal writes, refers to sameness of treatment, that is, everyone must
be treated in the same manner regardless of their circumstance, while substantive equality
refers to the fact that the circumstances of each individual must be considered so as to
ensure equality of outcome. The equality clause therefore occupies <a central and
overarching place= in the South African legal order. As a value and as a right, Albertyn and
Goldblatt argue, equality is central to the task of transformation. A further point to make is
that rights are interdependent and interconnected. 3
Liebenberg and Goldblatt propose what they call an interpretive interdependence of rights.
By this, they envision a form of interpretive dependence whereby courts are encouraged to
consider how values which underline one right may be of assistance in developing the
jurisprudence of another right. They also propose that since equality is a foundational value
in the Constitution, it must inform the interpretation of all the rights in the Bill of Rights.
With regard to equality and socio-economic rights that acknowledges the inter-relationship
between these rights is also more likely to be responsive to the reality that the most severe
forms of disadvantage are usually experienced as a result of an intersection between group
based forms of discrimination and socio-economic marginalisation. 4
1
Mnyongani FD <Duties of a lawyer in a multicultural society: A customary law perspective= 2012 Stell LR 357.
2
Mnyongani FD <Duties of a lawyer in a multicultural society: A customary law perspective= 2012 Stell LR 357.
3
Mnyongani FD <Duties of a lawyer in a multicultural society: A customary law perspective= 2012 Stell LR 357.
4
Mnyongani FD <Duties of a lawyer in a multicultural society: A customary law perspective= 2012 Stell LR 352 –
369.
2
, lOMoARcPSD|48946436
It is therefore argued that in this contribution such an approach may be of assistance in
dealing with the legacies of colonialism and apartheid. The constitutional transformative
agenda to build a society based on democratic values, social justice and fundamental human
rights is far from being realised. 18 years into a Constitutional democracy, South Africa
continues to be beset by challenges of racial discrimination, poverty as well as inequality.
The apartheid footprints refuse to go away, as Liebenberg and Goldblatt note: <Its legacy is
very much with us. It is manifest in the racialised geography and unequal provision of
services characterising South African townships and cities, the vastly inferior quality of
education experienced by black children in informal settlements in urban areas, and in the
inadequate, overtaxed public health-care system serving mainly middle income to wealthy
communities=. 5
According to Mnyongani, Customary law seems to be the Achilles heel of the constitutional
transformative agenda. Race is still at the centre of the division between customary law and
the dominant legal system. Customary law is applicable mainly to black people, and this
potentially puts customary law on a collision course with the founding value of non-
racialism in the Constitution. Ndima however, is of the view that in a constitutional era,
customary law is no longer applied based on the race of the litigating parties, but on its
applicability. Ideally, the view by Ndima is correct and accords with the constitutional
injunction that <courts must apply customary law when it is applicable=. The reality
however, is that in essence customary law will still continue to be applicable to the majority
black people. Correctly or incorrectly so, the court has also adopted the same view. 6
In most civilised societies, people often rely on the courts of law to give direction in their
disputes. How the court discharges this task will have a bearing on how the public views the
whole justice system. In colonial times and later apartheid era, courts of law did not have
legitimacy in the eyes of the black majority. They were viewed as institutions of oppression.
In the constitutional era, there has been an effort to ensure legitimacy of the courts and the
law. Some judges are also sensitive to this. This sensitivity is well captured by Cameron who
states that:
<What we as judges and magistrates have most in common is this. We are, quite literally,
the edge that cuts the law. To the public, we represent the face and the force of the law.=
To reach the institutions tasked with dispensing justice, such as courts, parties to a dispute
5
Mnyongani FD <Duties of a lawyer in a multicultural society: A customary law perspective= 2012 Stell LR 352 –
369.
6
Mnyongani FD <Duties of a lawyer in a multicultural society: A customary law perspective= 2012 Stell LR 352 –
369.
3
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