The Constitutional Court of Justice Moseneke and the Decolonisation of Law in South Africa: Revisiting the Relationship Between Indigenous Law and Common Law

Authors Chuma Himonga

ISSN: 1996-2088
Affiliations: Professor of Law and DST/NRF Chair in Customary Law, Indigenous Values and Human Rights at the University of Cape Town
Source: Acta Juridica, 2017, p. 101 – 123


This paper is written to honour Justice Dikgang Moseneke for his roles in recent South African legal history – as a member of the technical committee that drafted the interim Constitution of the Republic of South Africa in 1993, a member of the Constitutional Court from 2002 to May 2016 and as Deputy Chief Justice of South Africa, among others. The paper focuses on the decisions of the Constitutional Court during his time in this court concerning the relationship between indigenous law and common law in a broad sense (ie South African law of European origin, including Roman-Dutch law and legislation). Taking constitutional legal pluralism as a point of departure, the paper examines the equal treatment of indigenous law and common law in state law and institutions against the backdrop of the demands for the decolonisation of the law spurred on by the student protests in South Africa in 2015 and 2016. The paper argues that the Constitutional Court has endorsed the constitutionally guaranteed legal pluralism that recognises the equality of indigenous law and common law, and it has thereby contributed to the decolonisation of the law. However, some of its pronouncements have served to cast a shadow of ambiguity and contradiction rather than shedding light on the relationship between the two components of South African law under consideration. This shadow requires revisiting in the face of demands for decolonisation. The paper also argues that the court’s shadow has placed indigenous law in a vulnerable position, open to being obliterated by the Constitutional Court itself and by the other courts. This means that the dominance of common law in the legal system – as was the case during the colonial and apartheid eras – may continue to characterise the national legal system. Thus, the issue of the court’s shadow is not merely academic, but has broader implications for the decolonisation of law.