Study Unit 1: The Phenomenon of Legal Pluralism

Question 1

Define Legal Pluralism

Answer 1

The coexistence of multiple legal systems within a single jurisdiction.
Where various forms of law operate simultaneously
1. State Law
2. Customary law
3. Religious law
And may influence or interact with eachother

Question 2

What is the necessity of Legal Pluralism in SA?

5 Aspects

Answer 2

1. Cultural Diverity
2. Historical Context
3. Access to Justice
4. Recognition of Rights
5. Harmonization of Laws

Question 3

What is State-Law Pluralism?

Answer 3

The Narrow interpretation of legal pluralism where:
* Only laws recognised or implimented by the state are considered valid / legitimate
* Sidelines unofficial or customary laws

Question 4

What is the relationship between legal positivism and legal centralism?

Answer 4

Legal Positivism:
* Laws are established through formal processes and sources
* Such as legislation and judicial decisions
* Focusing on what the law is, rather than what it ought to be

Legal Centralism:
* Compliments this by promoting the idea that law should be uniform
* And state sanctioned
* It excludes unofficial legal systems

Question 5

What is Deep Legal Pluralism?

Answer 5

• A broader view of legal pluralism
• Recognises the existence and validity of multiple legal systems within society
• Including those that are:
  1. Unofficial
  2. Non-state
  3. Based on cultural or religious traditions

Question 6

How did deep legal pluralism historically emerge in SA?

Answer 6

• Due to the coexistence of indigenous legal systems with the imposed British legal system during colonial times

Question 7

What is Unofficial Customary Law

Answer 7

• Practices and norms
• Of communities that operate outside of the formal recognition of the state
• Maintaining their own dispute resolution mechanisms, cultural practices, and norms

Question 8

What contributions did Islamic Law have in SA?

Answer 8

• Offering an alternative legal framework for Muslim communities
• Particularly in:
  1. Personal Law
  2. Marriage
  3. Family matters
  …which the state increasingly recognizes and seeks to integrate into the national legal system

Question 9

What is Hindu Law?

Answer 9

• Body of law that governs legal matters relating to Hindu communities in SA
• Including
  1. Marriage
  2. Divorce
  3. Inheritance
• Not always officially recognized
• BUT, plays a significant role in the lives of those who practice it

Question 10

What is the status of Jewish Law in SA?

Answer 10

• Lacks formal recognition by state law
• Leads to ongoing dscussions about its integration and application in the legal system

Question 11

What is People’s Law?

Answer 11

• Informal legal systems and community-based frameworks used for dispute resolution by marginalized communities
• Aim: to offer justice through locally accepted practices and norms despite a lack of formal recognition by the state

Question 12

Amod v Multilateral Motor Vehicle Accident Fund

Answer 12

Court granted relief to the plaintiff by giving effect to a contract flowing from a marriage concluded according to Islamic rites
but, explicitly deferred from recognising a Muslim marriage (which is potentially polyganous) as a marriage

Question 13

Bhe v Magistrate, Khayelitcha

Answer 13

The rule of male primogeniture in customary law of intestate succession was declared unconstitutional

Question 14

Daniels v Campbell

Answer 14

• CC declared the word “spouse” as used in the Intestate Succession Act to include surviving partner to a monogamous Muslim marriage
• The word “survivor” as used in the Maintenance of Surviving Spouses Act to include the survivor to a monogamous Muslim marriage