(2010) JLP 60: 143-177
Christa Rautenbach
Abstract
South Africa has a diverse society where individuals and groups have different backgrounds, religions, cultures, preferences, customs and usages. The mixed character of the South African legal system allows for a limited form of legal pluralism where either the common law or the African customary law is applied depending on the circumstances. Although the South African Constitution creates the possibility for legislative recognition of other cultural or religious systems of personal and family law, such recognition has not happened. For various historical and other reasons South African society remains splintered along cultural and religious lines, a situation which creates the ideal breeding-ground for deep legal pluralism in South Africa. The phenomenon of deep legal pluralism gives rise to unique legal challenges, most notably in the area of human rights. From time to time, individuals from cultural and religious communities living under their own legal systems, approach the South African courts for human rights protection. This contribution focuses on the way in which the South African courts have been dealing with the claims of the Muslim community to have aspects of their family law recognised or protected and attempts to draw a parallel between the cases delivered during the apartheid era and those after it. It is argued that the judiciary’s accommodation of religious and cultural diversity is contributing to the phenomenon of deep legal pluralism in South Africa.