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Abstract from

Talking the Talk and Walking the Walk: How Can the Development of African Customary Law Be Understood?

Julia Sloth-Nielsen, BA, LLB (Stel), LLM (Cape Town), LLD (Western Cape) is a Professor and currently Dean of the Faculty of Law, University of the Western Cape.

Lea Mwambene, DipN, LLB (Hons) (Malawi), LLM, LLD (Western Cape), is a Senior Lecturer, Faculty of Law, University of the Western Cape.

This article describes a very preliminary typology in which customary law is evolving, being integrated or otherwise interacting with the generally applicable law under the umbrella of the Constitution in South Africa. The typology is drawn particularly from recent examples in the family law, succession, and child law fields. The framework proffered comprises seven scenarios which we hope explain (partially at least) the interplay between the generally applicable law and custom and traditional practice. The approaches by courts and legislature we have described show considerable confusion about how to accommodate customary law in the face of the Constitution, a confusion that supports Chanock’s theory that ‘the development of customary law is at its best a method of legitimation and not a system of rules’.

(2010) 28 No 2 Law in Context  27

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