The application of section 8(3) of the constitution in the development of customary law values in South Africa's new constitutional dispensation
Abstract
The constitutional recognition of customary law alongside common law in the
Constitution of the Republic of South Africa, 1996 is highly commendable. It also raises
the question of whether or not the recognition was undertaken out of genuine respect
for customary law or merely forgotten in section 8(3) of the Constitution. It is argued that
the exclusion of customary law from the provision of the section is nothing more than
the advancement of the dominant status enjoyed by common law, as was the case
before the dawn of democracy. This argument is limited to the application of section
8(3) and the jurisprudence of the Constitutional Court, without focusing on the
shortcomings of the latter in relation to the remedies provided in the resolution of
disputes arising from customary law.