When judges, legislators, and policymakers neglect the foundational dynamics of indigenous customs, they worsen conflict between indigenous laws and state laws.
Perceptions of marriage abduction as a recent phenomenon hide the violence that has been done to women as part of culture.
The judgment highlights the lack of interest by successive government ministers in curtailing the self-interested actions of rural elites.
Denying people the right to opt out of the traditional court system conflicts with the notion of customary law as a voluntary and consensual system of law.
Institutional problems make it difficult to satisfy livestock and crop farmers’ interests, already in contest over agricultural resources.
Traditional leaders do not adequately represent the interests of rural communities in dealing with mining companies.
Countries where traditional laws exist must uphold children’s rights and push for their best interest.
South African customary law should be understood from the perspective of dissonance between the past and the present.
South Africa’s rural communities where mining licenses have been granted are often excluded from consultations and bear the brunt having their environment and livelihoods destroyed.
The contested law also defines the jurisdiction of traditional leaders in terms of territory. But traditional community boundaries are actually set by personal relationships.
Villagers from a community in South Africa’s Eastern Cape fought to be consulted and for the power to consent to mining their land.
South Africa has made progress towards interrupting the looting of land by chiefs, state officials and mining capital.
Some communities on South Africa’s Platinum Belt have received substantial mining revenues, but these are controlled by chiefs.
The law can both make and break criminals.
Conservationists need to assess costs which allow for the adequate compensation of communities on protected lands, whose livelihoods are deeply entwined with forest use.
Although South Africa has taken steps to rid itself of the apartheid-era view of marriage as only heterosexual and monogamous, discrimination against religious marriages persist.
The ALRC report made some useful recommendations about how settler law could deal more fairly with Aboriginal people by taking their traditions and customs into account.
The emergence of the restorative justice philosophy responds to the need to change South Africa’s retributive criminal justice system to accommodate African legal practices.
By challenging the courts, King Dalindyebo is testing the degree of impunity with which traditional leaders can get away.