Legal Pluralism
Course Outline - 2024
Aim of the Course:
Welcome to Legal Pluralism. This course aims to provide knowledge on legal pluralism
– which refers to the coexistence of and interaction of multiple legal systems within the
country. It refers to the interaction of multiple normative systems (informal as well as
formal social norms) in a state. It will introduce students to the theoretical and
methodological basis for the study of the coexistence of legal orders and the
challenges this raises and familiarise students with the debates on socio-legal
concerns and the comparative perspectives of cross-cutting issues around pluralism.
The course will stimulate debate and critical legal thinking on thematic issues such as
the application of customary law and other religious norms in our courts, the
interactions between human rights and customary/religious norms, Muslim and Hindu
marriage laws, and issues around women’s rights. Students will be encouraged to
develop critical perspectives in light of their diverse historical and socio-economic
backgrounds.
Expected Outcomes:
Students who have studied the course are expected to be able to:
1. Identify the socio-legal systems of the South African normative order.
2. Understand the operation of and tensions within a plural-legal society such as
South Africa.
3. Demonstrate an understanding of the historical development of African
customary law and problems associated with its application in the legal system.
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4. Acquire capacity to conceive law in plural ways and understand law in
comparative perspectives, exceeding the level of formal law.
Topics:
Part A
1. Theories of legal pluralism and challenges to the concept of law.
2. Origins and evolution of legal pluralism in South Africa (History and application
of African customary law and other socio-legal norms, transformative
constitutionalism and the legitimisation of new forms of authority, traditional
leadership and the Constitution.
3. Bill of Rights and customary/religious normative systems (case-oriented study).
4. Marriage laws in comparative perspectives (customary, Hindu, and Muslim
norms).
5. Settlement of disputes in plural legal settings (Traditional courts, role of
traditional institutions, relationship between state institutions and local
institutions, informal systems of alternative dispute settlement).
Part B (Capita Selecta)
1. Customary property rights
2. Status of Muslim marriages in South Africa
Assessment:
Examination will account for 70% of the marks and term work 30% (test 12% and
assignment 18%). Students will be expected to do one essay and write a test. The
essay will be research related and students will be expected to deal with problems that
are ordinarily not covered by lecturers, but which will be examinable, nonetheless. The
dates and times of the assignment and test will be communicated during lectures.
Students should note that attendance of lectures is compulsory, and they may not miss
a maximum of six lectures, unless a satisfactory explanation is furnished. Students are
encouraged to consult the Law Faculty’s Survival Guide for rules regarding DPs and
LOAs. It is every student’s responsibility to sign the class register circulated during the
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lecture. The class register will serve as proof of attendance or non-attendance of
lectures.
Selected Reading Materials:
1. C Rautenbach et al, Introduction to Legal Pluralism in South Africa, 6th edition
Lexis Nexis (2021).
2. L Mofokeng, Legal Pluralism in South Africa, Van Schaik (2009).
3. C Himonga et al, African Customary Law in South Africa, Oxford (2014).
4. J C Bekker, Seymour’s Customary Law in Southern Africa, 5th edition (1989).
5. TW Bennett, Customary Law in South Africa, Juta (2004).
Lecturer Contact details:
Name: Ms Sipesihle Mguga
Email Address: Sipesihle@lrc.org.za
Offices: Legal Resources Centre, 116 High Street.
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