Editorial: Determining the Content of Indigenous Law with Special Reference to Recording of the Law - Continental Views

This special edition comprises a selection of contributions delivered at a conference hosted by the Chair in Customary Law, Indigenous Values and Human Rights at the University of Cape Town in collaboration with its research partner, the Research Chair on Legal Diversity and Indigenous Peoples at the University of Ottawa, on "The Recording of Customary Law in South Africa, Canada and New Caledonia" in May 2018

Same-sex unions and guardianship of children

This note considers three issues concerning children and same-sex partnerships that have come before the Constitutional Court in recent cases,namely, adoption, the status of children born as a result of artificial insemination, and guardianship.In Du Toit & another v Minister of Welfare and Population Development & others (Lesbian and Gay Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC) the applicants, partners in a long-standing lesbian relationship, had initially brought an application before the High Court to determine their claim jointly to adopt two children.The High Court challenge impugned the validity of ss 17(a),17(c),and 20(1) of the Child Care Act 74 of 1983,and s 1(2) of the Guardianship Act 192 of 1993, in so far as they provided for the joint adoption and guardianship of children by married couples only. (Because of these legislative restrictions, the second applicant alone had become the adoptive parent.) The court held that the provisions in question violated the applicants’ rights to equality and dignity, and did not give paramount importance to the best interests of the child, as required by s 28(2) of the Constitution of the Republic of South Africa, Act 108 of 1996. To remedy these defects, the court ordered that certain words should be read into the provisions to allow for the joint adoption and guardianship of children by same-sex life partners (see Du Toit & another v Minister of Welfare and Development & others 2001 (12) BCLR 1225 (T))

Protection of Women's Marital Property Rights upon the Dissolution of a Customary Marriage in South Africa: A View from Inside and Outside the Courts

Based on an empirical study of marital dissolution, this paper examines the effectiveness of the Recognition of Customary Marriages Act 1998 and its enforcing institutions to provide the necessary protection of women's marital property rights when customary marriages end. Drawing on data from court (divorce) files and semi-structured interviews, the paper will examine the effectiveness of the new laws for individuals who seek to regulate marital dissolution through both judicial and extra judicial systems. In doing so, it examines how judicial and extrajudicial systems interact and co-exist. The findings show that both systems of regulation are failing to recognise women's right to an equitable distribution of the marital estate upon divorce. The paper demonstrates the weaknesses inherent in the judicial regulation of divorce combined with the consequences of the continued private regulation of marital dissolution. Resistance to an equal division of marital assets continues and a more dedicated and systematic effort is required to curb financial exploitation upon the dissolution of a customary marriage if the State wants women living under customary law to enjoy their human rights under the Constitution

Decolonisation and Teaching Law in Africa with Special Reference to Living Customary Law

The student protests in South African Universities, which started in 2015, demanded the decolonisation of certain aspects of higher education. While the primary demand is free education, issues of the curriculum and transformation connected with the country's history of colonialism and apartheid have also surfaced. In the field of law, demands for curriculum change are accompanied by the broad issue of the decolonisation of law, translating into questions of legal history, the concept of law, the role of law in African societies, the status of indigenous systems of law in the post-independent/apartheid legal system, and how law is taught in law schools. This paper examines the idea of the decolonisation of law in relation to the teaching of law in African states previously under the influence of English or Roman-Dutch colonial/apartheid legal history. The teaching of law is with special reference to the system of law that governs the majority of people in Africa in private law and aspects of governance – living customary law. The paper examines the design of legal education with respect to three elements that are essential to the decolonisation of law and legal education. The elements under review are the inclusion of living customary law in legal education, a shift in the legal theoretical paradigm within which law is taught, and the interdisciplinary study of law. Thus, the paper links the decolonisation of law to how law is taught, with special reference to living customary law. In discussing these elements, the paper draws examples from the South African legal system, because it has the most advanced jurisprudential conceptualisation of customary law on the African Continent.     &nbsp

Decolonisation and Teaching Law in Africa with Special Reference to Living Customary Law

The student protests in South African Universities, which started in 2015, demanded the decolonisation of certain aspects of higher education. While the primary demand is free education, issues of the curriculum and transformation connected with the country's history of colonialism and apartheid have also surfaced. In the field of law, demands for curriculum change are accompanied by the broad issue of the decolonisation of law, translating into questions of legal history, the concept of law, the role of law in African societies, the status of indigenous systems of law in the post-independent/apartheid legal system, and how law is taught in law schools. This paper examines the idea of the decolonisation of law in relation to the teaching of law in African states previously under the influence of English or Roman-Dutch colonial/apartheid legal history. The teaching of law is with special reference to the system of law that governs the majority of people in Africa in private law and aspects of governance – living customary law. The paper examines the design of legal education with respect to three elements that are essential to the decolonisation of law and legal education. The elements under review are the inclusion of living customary law in legal education, a shift in the legal theoretical paradigm within which law is taught, and the interdisciplinary study of law. Thus, the paper links the decolonisation of law to how law is taught, with special reference to living customary law. In discussing these elements, the paper draws examples from the South African legal system, because it has the most advanced jurisprudential conceptualisation of customary law on the African Continent.     &nbsp

Reflections on Judicial Views of uBuntu

Since S v Makwanyane, ubuntu has become an integral part of the constitutional values and principles that inform interpretation of the Bill of Rights and other areas of law. In particular, a restorative justice theme has become evident in the jurisprudence that encompasses customary law, eviction, defamation, and criminal law matters. This contribution explores the scope and content of ubuntu, as pronounced on by the judiciary in various cases, and demonstrates that its fundamental elements of respect, communalism, conciliation and inclusiveness enhance the constitutional interpretation landscape. Two major epochs are highlighted in the development of ubuntu, marked by the constitutional decisions in Makwanyane and PE Municipality respectively. The former carved the central avenue of development for ubuntu, while the latter marked the start of the thematic development of the concept in the direction of restorative justice. Furthermore, the article engages critically with the use of ubuntu, with criticisms levelled against the conceptualisation of ubuntu as a legal notion, ranging from its ambiguity to its redundancy, to perceptions of dichotomies, and issues of exclusion. The paper also questions the manner in which the courts have applied the legal concept of ubuntu uncritically, without reference to African sources to illustrate its meaning in different contexts, and without questioning its compatibility with the Bill of Rights. Finally, it attempts to reveal the connections between ubuntu and the values underlying  the Bill of Rights.   &nbsp

The right to traditional, complementary, and alternative health care

BackgroundState parties to human rights conventions and declarations are often faced with the seemingly contradictory problem of having an obligation to protect people from harmful practices while also having an obligation to enable access to culturally appropriate effective healing. As people increasingly migrate across the globe, previous distinctions between ‘traditional’ and ‘complementary and alternative medicine’ practices are being transcended. There are connections across transnational healing pathways that link local, national, and global movements of people and knowledge.ObjectiveThis paper contributes to the development of the concept and practice of the right to health in all its forms, exploring the right to traditional, complementary, and alternative health (R2TCAH) across different contexts.DesignThe paper draws on four settings – England, South Africa, Kenya, and Jordan – and is based on key informant interviews and a literature review undertaken in 2010, and updated in 2013. The paper begins by reviewing the international legal context for the right to health. It then considers legal and professional regulations from the global north and south.ResultsAdditional research is needed to establish the legal basis, compare regulatory frameworks, and explore patient and provider perspectives of regulation. This leads to being able to make recommendations on how to balance protection from harm and the obligation to ensure culturally appropriate services. Such an exploration must also challenge Western theories of human rights. Key concepts, such as individual harm, consent, and respect of the autonomy of the individual already established and recognised in international health law, could be adopted in the development of a template for future comparative research.ConclusionsExploration of the normative content of the right to health in all its forms will contribute to supporting traditional, complementary, and alternative health service users and providers in terms of access to information, non-discrimination, clarification of state obligations, and accountability

The right to traditional, complementary, and alternative health care

Background: State parties to human rights conventions and declarations are often faced with the seemingly contradictory problem of having an obligation to protect people from harmful practices while also having an obligation to enable access to culturally appropriate effective healing. As people increasingly migrate across the globe, previous distinctions between ‘traditional’ and ‘complementary and alternative medicine’ practices are being transcended. There are connections across transnational healing pathways that link local, national, and global movements of people and knowledge. Objective: This paper contributes to the development of the concept and practice of the right to health in all its forms, exploring the right to traditional, complementary, and alternative health (R2TCAH) across different contexts. Design: The paper draws on four settings – England, South Africa, Kenya, and Jordan – and is based on key informant interviews and a literature review undertaken in 2010, and updated in 2013. The paper begins by reviewing the international legal context for the right to health. It then considers legal and professional regulations from the global north and south. Results: Additional research is needed to establish the legal basis, compare regulatory frameworks, and explore patient and provider perspectives of regulation. This leads to being able to make recommendations on how to balance protection from harm and the obligation to ensure culturally appropriate services. Such an exploration must also challenge Western theories of human rights. Key concepts, such as individual harm, consent, and respect of the autonomy of the individual already established and recognised in international health law, could be adopted in the development of a template for future comparative research. Conclusions: Exploration of the normative content of the right to health in all its forms will contribute to supporting traditional, complementary, and alternative health service users and providers in terms of access to information, non-discrimination, clarification of state obligations, and accountability

Reflection on Bhe v Magistrate Khayelitsha: In Honour of Emeritus Justice Ngcobo of the Constitutional Court of South Africa

This article highlights the major areas of convergence between Justice Ngcobo’s judgment and living customary law as revealed in the findings of recent empirical research. Its purpose is to enhance the confidence of the courts and inform their interpretation of the Reform of the Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 by drawing on the minority opinion. Put differently, the article seeks to vindicate the minority opinion in Bhe & Others v Khayelitsha Magistrate & Others with regard to its reflection of the grounded realities of succession under living customary law, using the findings of recent empirical research. In this way, the article highlights the contribution that Justice Ngcobo’s constitutional jurisprudence can make to the interpretation of legislation dealing with the reform of the customary law of succession—subject, of course, to the fact that any precedent has inherently limited value for understanding a dynamic and ever-evolving system of law such as living customary law. Needless to say, the courts must continually be alert to this caveat when interpreting and applying any legislation that deals with customary law

Goals and Objectives of Law Schools in Their Primary Role of Educating Students: South Africa-The University of Cape Town School of Law Experience

This paper examines the goals of law schools in their primary role of educating students, and the implications of the changing conditions in the legal and business world for these goals. Hereafter, unless otherwise indicated, school(s) will be used instead of faculty(ies) . I would argue that there is no uniformity among law schools with regard to the purposes for which they educate students. The definition of a school\u27s goals and objectives is influenced by factors peculiar to its own circumstances. Furthermore, the goals of a law school are potentially dynamic. They may change from time to time in response to national and international changes affecting the school in its own local setting, such as a country\u27s political history or economic-development needs