A customary insurance law?
Authors Andrew Hutchison
Affiliations: Associate Professor in the Department of Commercial Law, University of Cape Town
Source: South African Mercantile Law Journal, Volume 29 Issue 1, 2017, p. 17 – 42
This paper will explore risk-spreading practices in the so-called popular economy in South Africa. Concepts like ‘insurance’, ‘insurance law’ and ‘customary law’ will be interrogated, with the analysis falling on traditional and more modern informal responses to risk, as well as more formal responses resulting from the increased penetration of private insurance in the democratic era. This contribution aims to address concerns expressed about both informal and formal risk-spreading practices, to argue towards a conclusion that a pluralistic notion of ‘insurance’ should not necessarily be sacrificed in service of corporate profit aims. Value remains in customary insurance law, and these cultural responses may provide evidence of a broader contract value system to be used in the service of developing the South African laws of contract and insurance. At the very least, this value system should inform concepts like ‘consumer insurance law’ and should be foregrounded in developing a notion of micro-insurance. South Africa has the potential to be a world leader in the field of customary insurance law, as the failings of a comparable system—funeral insurance in Australia—demonstrate.