,Introduction to Legal Pluralism
in
South Africa
Fifth Edition
C Rautenbach
Editor
Professor Faculty of Law
North-West University, South Africa
, Preface
Legal Pluralism within a South African context reflects the re-
alities and complexities of a diverse society and the impact it
has on a legal system. (Watney “Book Review” 2012 TSAR
202.)
South Africa’s official legal system comprises a number of distinct legal traditions; a com-
mon-law mix of transplanted European laws (Roman-Dutch law and English law), as well as
traditional community laws, collectively known as customary law. The South African Constitu-
tion provides for the future recognition of other legal traditions founded on religion or custom.
The personal laws of Hinduism, Judaism and Islam increasingly enjoy attention from the judici-
ary and legal scholars but are not officially recognised (yet).
Based on the recommendations made by Watney in 2012 TSAR 202, the book is divided into
three parts. The first part discusses the phenomenon of legal pluralism in South Africa. Chapter
1 deals with the phenomenon of legal pluralism, while chapters 2 and 3 cover the nature, sphere,
application and ascertainment of customary law. The transformation of legal education necessi-
tates a re-evaluation of the notion of decolonisation, and we have added a section dealing with
some of the issues in chapter 3. Chapter 4 discusses the incidence of deep legal pluralism and
more specifically the incidence of Hindu, Jewish and Muslim personal law in South Africa.
The second part of the book is aimed at covering the core content of African customary law as
applied in South Africa. Given the fact that customary law consists of both official and living
law, and that living law changes from place to place as well as from time to time, and is differ-
ently interpreted from one person to the next, it is almost impossible to reduce it to a text for use
by the legal fraternity. Nevertheless, the contributors have tried to discuss at least the official
laws and those living laws that have – to a certain extent – certain commonalities.
The third part of the book is aimed at the core contents of Hindu, Jewish and Muslim personal
law, albeit only in an introductory fashion. The focus is on family law and the law of succession.
This fifth edition was necessary because the law has developed considerably in several areas
since the publication of the fourth edition in 2014. Barring a few exceptions, the research that
preceded the publication of this book was concluded in January 2018.
Since the inception of this book a number of editors have been involved in developing it into
what it is today. When the first edition was published as two volumes in 2002, five editors were
involved: JC Bekker, JMT Labuschagne, LP Vorster, C Rautenbach and NMI Goolam. Sadly,
two editors, JMT Labuschagne and LP Vorster, passed away before the second edition was pub-
lished. We incorporated the two volumes into one book and it was edited by the remaining
v
,vi Introduction to Legal Pluralism in South Africa
editors: JC Bekker, C Rautenbach and NMI Goolam. They remained involved in the second edi-
tion published in 2006 and also the third edition in 2010. The fourth edition was edited by C
Rautenbach and JC Bekker only and was published in 2014. After a lifetime of scholarly contri-
bution to African customary law, JC Bekker retired this year. This book is dedicated to him and
all the other editors who were involved in the editorial processes over a span of 16 years.
Ultimately, it is hoped that the fifth edition of the Introduction to Legal Pluralism in South Af-
rica will continue to make a meaningful contribution to the introduction of law students and
scholars into the rich and complex legal culture that underpins our constitutional democracy.
This edition is published in English only.
Christa Rautenbach
November 2018
, Contributors to the Fifth Edition
The following contributors either rewrote, modified or updated various chapters or sections in
this edition. In the case of a modification or update of the original text written by an author other
than the one who did the modification or update, the name of the author who wrote the original
text is not listed but can be found in one of the earlier editions.
Amien, Waheeda BA LLB LLM PhD (Ghent). Associate Professor Chapters 4 & 14
in the Department of Public Law at the Faculty
of Law, University of Cape Town. Member of
the Executive Body of the International Com-
mission on Legal Pluralism
Bekker, Jan C BA LLB LLD Emeritus Professor, Former Dean Chapters 2 & 7
and Head of Department of Private Law of the
former Vista University
Himonga, Chuma LLB LLM PhD (London) Emeritus Professor of Chapter 3
Law in the Department of Private Law, University
of Cape Town
Moosa, Najma BA LLB LLM LLD Professor, Faculty of Law, Chapters 4 & 14
University of the Western Cape and former
member of Project 59 (Islamic Marriages and
Related Matters) of the South African Law
Reform Commission
Müller-Van der LLB LLM Lecturer in the Department of Private Chapter 5
Westhuizen, Caroline Law, Faculty of Law, University of the Free State
Olivier, NJJ (Nic) BA LLB BA (Hons) MA BPhil LLD LLD Chapters 8 & 10
Professor and Director of SADC Centre for
Land-Related, Regional and Development Law
and Policy, University of Pretoria
Pienaar, Juanita M BIur LLB LLM LLD Professor in the Department Chapter 6
of Private Law at the Faculty of Law, Stellen-
bosch University. Research Fellow of the South
African Research Chair in Property Law
vii
,viii Introduction to Legal Pluralism in South Africa
Rautenbach, Christa BIur (cum laude) LLB (cum laude) LLM LLD Chapters 1, 2, 3, 4,
Professor, Faculty of Law, North-West University 7, 9, 11, 12, 13 &
(Potchefstroom Campus). Ambassador Scientist 14
of the Alexander von Humboldt-Foundation and
member of the Advisory Committee of the South
African Law Reform Commission (Project 144)
Tshivhase, Aifheli E B Juris LLB PhD Associate Professor and Head Chapter 2
of Department: Criminal & Procedural Law,
Faculty of Law, Nelson Mandela University
Williams, Clara LLB LLM Extraordinary Lecturer, Faculty of Chapters 8 & 10
Law, University of Pretoria, legal researcher and
consultant
, Contributors to the previous four editions
The first edition of Introduction to Legal Pluralism was published in 2002. Twenty-one authors
participated in the writing of the original text. With the publication of the second, third and
fourth editions, the text was either rewritten, modified or updated by the same authors, or, if they
were no longer able or willing to contribute, by others.
The term “contributor” refers to either the author of the original text or the updater of the
same. In some instances quite a number of contributors have added to the content of a chapter or
section over the years, and it is sometimes difficult to pinpoint who wrote exactly what. Also, in
some instances, the contents of chapters were reshuffled, and this complicates our efforts to
acknowledge the exact contribution of each and every author who has participated in this book
since the first edition. The alphabetical list of contributors to the first four editions provided
below should therefore be read in conjunction with the information provided in the first four
editions, where the contributors concerned were listed at the beginning of the book, on the
contents page, or in a footnote at the beginning of a section. In a case where a chapter or section
was updated by an author other than the one who wrote the original text, the name of the original
author has not been listed again; instead, only the name of the updater has been included. The
name of the original author can, however, be found in a previous edition. The biographical
particulars of the contributors are given as they were at the date of their participation in the
previous editions.
Special thanks go to the contributors who participated in the first four editions, either as au-
thor or updater. Also, the assistance of Professor Alan Brimer (language editor) and Tina Coet-
zer (technical assistant), who assisted with the fourth edition, is acknowledged.
Amien, W BA LLB LLM PhD (Ghent). Associate Professor, Faculty of Law,
University of Cape Town and Member of the Executive Body of the
International Commission on Legal Pluralism
Badat, JGH BA (Law) LLM MA (Gender Studies) Formerly Lecturer, School of Law,
former University of Durban-Westville
Bekker, JC BA LLB LLD Emeritus Professor, Formerly Dean and Head of the
Department of Private Law, former Vista University
Bennett, TW BA LLB PhD Professor, Department of Public Law, University of Cape
Town
ix
,x Introduction to Legal Pluralism in South Africa
Bernard, NM BA (Humanities) (Yeshiva University) Rabbi Emeritus of The Oxford
Synagogue Centre in Johannesburg
Bilchitz, D BA (Hons) LLB PhD (Cambridge) Candidate Attorney at Ross Kriel
Attorneys and part-time Lecturer, University of Witwatersrand
Boonzaaier, CC BA BA (Hons) MA DPhil (Anthropology) Associate Professor,
Department of Anthropology and Archaeology, University of Pretoria
Dlamini, CRM BProc LLM LLD LLD LLD LLD LLD Rector of the University of
[deceased] Zululand
Du Plessis, W BIur LLB LLM LLD Professor, Faculty of Law, North-West University
(Potchefstroom Campus)
Gokul, R BProc LLB LLM Formerly Senior Lecturer, Department of Law, Durban
Institute of Technology; accredited mediator, councillor and arbitrator and
member of the TOKISO panel
Goolam, NMI BA LLB (UCT) MCL (International Islamic University Malaysia)
Associate Professor, Department of Jurisprudence, University of South
Africa
Heyns, MF BA BA (Hons) BD MA PhD Senior Lecturer, School of Philosophy,
North-West University (Potchefstroom Campus)
Jansen, R-M BIur LLB BSoc Sc (Hons) LLM Associate Professor, Department of
Private Law, University of the Free State
Knoetze, E BIur LLB LLM LLD Associate Professor, School of Law, Nelson Man-
dela Metropolitan University
Koyana, DS LLB LLM LLD LLD Formerly Dean and currently Professor, Faculty of
Law, Walter Sisulu University
Labuschagne, JMT MA DPhil LLD Professor in Private Law, University of Pretoria
[deceased]
Maithufi, IP BIur LLM LLD Professor, Department of Private Law, University of
[deceased] Pretoria
Mojela, K BIur LLB LLM Lecturer, Faculty of Law, University of Limpopo
Moosa, N BA LLB LLM LLD Professor and Dean, Faculty of Law, University of
the Western Cape
Mqeke, RB LLB LLM LLD Professor, Faculty of Law, Rhodes University
Müller-Van der LLB LLM Lecturer, Department of Private Law, Faculty of Law, Univer-
Westhuizen, C sity of the Free State
Olivier, NJJ BA LLB BA (Hons) MA BPhil LLD LLD Professor and Director of
SADC Centre for Land-Related, Regional and Development Law and
Policy, University of Pretoria
Pienaar, JM BIur LLB LLM LLD Professor, Faculty of Law, Stellenbosch University
and Acting Judge of the Land Claims Court of South Africa
Rautenbach, C BIur LLB LLM LLD Professor, Faculty of Law, North-West University
(Potchefstroom Campus), Alexander von Humboldt Fellow and Ambas-
sador Scientist
,Contributors to the previous four editions xi
Van den Heever, JA BIur BA (Hons) LLD Emeritus Professor, Formerly Dean, Faculty of
Law, University of Limpopo
Van Niekerk, GJ BA LLM LLD Professor, Department of Jurisprudence, University of
South Africa
Venter, AM BIur LLB LLM Senior Lecturer, Faculty of Law, University of Johannes-
burg
Vorster, LP BIur LLB MA DPhil Professor in Indigenous Law, University of South
[deceased] Africa
Whelpton, FP van R BA BIur LLB LLD Professor, Department of Constitutional, International
and Indigenous Law, University of South Africa
Williams, C LLB LLM Extraordinary Lecturer, Faculty of Law, University of Pretoria,
legal researcher and consultant
,
