STUDY UNIT 1 AFRICAN CUSTOMARY LAW OF PERSONS

Lecture 1 Legal status and the choice of law Recommended reading Bennett Human rights and African customary law (1995) 51–60, 80–112 Cowen “Can ‘dignity’ guide South Africa’s equality jurisprudence” (2001) 17(1) SA Journal of Human Rights 34–58. Pieterse “It’s a ‘black thing’ upholding culture and customary law in a society founded on non-racialism” (2001) 17(3) SA Journal of Human Rights 364– 403 Additional reading Kaganas & Murray “The contest between culture and gender equality under South Africa’s interim constitution” (1994) 21(4) Journal of Law and Society 409–433 Van der Meide “Gender equality v right to culture” (1999) 116 SALJ 100– 112 (Recognition of customary law with specific reference to unfair discrimination.) STUDY OUTCOMES After having studied this lecture you should be able to • • • • •discuss the legal position of a person in terms of indigenous law explain the notion of shared rights and duties discuss factors influencing the choice of law with regard to a person’s status evaluate the impact of the constitutional recognition of customary law on the indigenous law of persons identify areas of conflict that may arise as a result of the constitutional rec- ognition of customary law with specific reference to unfair discrimination. 2 1 Legal status Status refers to the legal position of a person as a member of a specific class. The legal position of a person is related to his or her powers, rights and duties. In terms of indigenous law, people belong to different classes or categories as a result of factors such as age, sex, rank within the family, legitimacy or illegitimacy of birth, adoption, disinheritance, mental capacity, order of birth within the family, marital status and kinship. In indigenous law a person’s status is influenced by several factors, with the result that no two people have the same status.