Celebration of Difference: Judicial Accommodation of Cultural and Religious Diversity in South Africa

By Christa Rautenbach.

Published by The Diversity Collection

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Article: Print $US10.00
Article: Electronic $US5.00

There can be no doubt that the expression ‘rainbow nation’ was, and still is, a spoken metaphor for South African unity, intended to unify the greatly divided nation where strict divisions between racial groups existed. Nevertheless, apartheid may have been abolished but the fibre of the South African society remains splintered along cultural and religious lines. The legal system of South Africa still symbolises this divide. For example, members of cultural and religious communities (previously forced to live together as a result of apartheid) observe certain aspects of their own laws which are generally not recognised by our law. This phenomenon is known as ‘deep legal pluralism’. The legal fraternity is faced with the complexities of legal pluralism on a daily basis. The Constitution provides that the state may pass legislation recognising systems of personal and family law consistent with and subject to other provisions of the Constitution. However, there is no responsibility on the government to incorporate cultural or religious laws into state law, and so far the state has not done so. The judiciary has been less passive in affording individuals belonging to religious or cultural groups protection where needed. This presentation discusses the change in judicial policy regarding aspects of religious family law and the contribution of the judiciary to the emergence of deep legal pluralism in South Africa. The emphasis is on jurisprudence dealing with religious family laws, and more particular Muslim family law, which reached a peak in Hassam v Jacobs 2009 (5) SA 572 (CC). The jurisprudence demonstrates that the judiciaries’ accommodation of religious and cultural diversity manifests a celebration of difference which is a quite novel approach that protects the rights of cultural and religious communities.

Keywords: Cultural Diversity, Religious Diversity, Legal Pluralism, Constitutional Adjudication, Jurisprudence

International Journal of Diversity in Organizations, Communities and Nations, Volume 10, Issue 2, pp.117-132. Article: Print (Spiral Bound). Article: Electronic (PDF File; 696.402KB).

Prof. Christa Rautenbach

Professor of Law, Faculty of Law, North-West University (Potchefstroom Campus), Noordbrug, Northwest, South Africa

Christa Rautenbach spent fourteen years in the employ of the Department of Justice, as clerk and public prosecutor. She remains involved in the practical side of law as an Advocate of the High Court of South Africa and Commissioner of the Small Claims Court, Potchefstroom. Her principal area of interest is legal pluralism and the law of succession, and she is co-editor and writer “Introduction to Legal Pluralism in South Africa” (2006 LexisNexis Butterworths) and “The Law of Succession in South Africa (2009 Oxford University Press); and co-writer of “Customary Law of Succession and Inheritance” in The Law of South Africa (vol32) (2009 LexisNexis) 190-247. Since 2006, she is a fellow of the Alexander von Humboldt Foundation in Germany. She was project leader of the “Constitution and Law” funded by the Konrad-Adenauer Foundation, and is the project leader of a project entitled “Modern Day Impact of Religious Legal Systems in South Africa.” She has published extensively on national and international level on legal pluralism issues, as well attended numerous national and international conferences where she delivered papers on related matters. She lectures in Legal Pluralism and the Law of Succession and is the co-editor of the Potchefstroom Electronic Law Journal. Since 2003, she is the treasurer of the Society of Law Teachers of Southern Africa. She is an evaluator of the National Research Foundation of South Africa and also an evaluator of the Seventh Framework Programme of the European Commission.

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