DOI: 10.5176/2251-3809_LRPP15.25

Authors: Siyambonga Heleba

Abstract:

The advent of the Constitution in 1996 ushered in a new era for indigenous law as it states that courts must apply customary law subject to the Constitution and any legislation specifically dealing with customary law. Thus the Constitution took away the choice by courts to apply customary law and obligated the courts to apply customary law. While legal status of indigenous law is more secure under the Constitution this however does not mean the end of the troubles for indigenous law. The main issue of course lies with the qualification contained in the Constitution: ‘…subject to the Constitution….’ A clash between indigenous law – a system largely founded on patriarchy and discrimination against women and children – and the Constitution – a document envisioning a free and equal society – was always looming. The clash materialized thanks mainly to section 9

Keywords: indigenous law; Constitution; Bill of Rights; right to equality; human dignity and freedom.

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