Back to overview

Judicial renegotiations of “customary law” in post-apartheid South Africa

Type of publication Peer-reviewed
Publikationsform Other publication (peer-review)
Author Zenker Olaf,
Project Land restitution and the moral modernity of the new South African state
Show all

Other publication (peer-review)

Publisher Max Planck Institute for Social Anthropology Working Paper No. XXX, Halle


Since the end of apartheid, South Africa has experienced a profound legal transformation. The bifurcated state (Mamdani) was abandoned in favour of a new constitution guaranteeing all citizens equality before the law, while also acknowledging traditional authorities and customary law. Against this backdrop, pre-existing customary law has been the subject of intense political and legal renegotiations. This paper first summarises key steps in the post-1994 reconstitution of customary law in South Africa through both statutory and judicial developments. The text then offers a case study of legislative and judicial renegotiations of customary law in the context of the ultimately successful constitutional challenge of the Communal Land Rights Act (2004). Against this background, the paper identifies three gaps that actors have reshuffled in different ways: first, the gap between “official” customary law and the “living” customary law, which deals with the legitimacy of customary law, the power to define and enforce it, and the underlying paradox of how the modern state can and should deal with alternative normative orders. Second, the gap between “traditional custom” and “modern ideals”, whether marked by a repugnancy clause, a Bill of Rights or a Human Rights test, crucially addressing questions of justice. Finally, the gap between an authentic customary past and tainted histories misconstrued under colonialism. South African legal pluralism is thus shown to be evolving through the mindful treatment of gaps in contested configurations of legitimacy, justice and historical authenticity.