The destructive impact of colonisation upon the societal and legal structures of many indigenous communities in Africa, Australia and elsewhere, has all but become general scholarly wisdom. As a result, the debate as to how customary law may be 'reinstated' to play the regulating role that it did in pre-colonial times, is raging. One obvious difficulty with such an attempt is the fact that state law came to stay. Any attempt to 'resuscitate' customary law must therefore include reflection upon how customary law and state law may co-exist.

Our contribution to the debate about codification and registration of communal land rights is set against the background of an ongoing legal challenge of the Communal Land Rights Act 11 of 2004 (CLARA). In Tongoane and others v The National Minister of Agriculture and Land Affairs and others  the constitutionality of CLARA was successfully challenged in the High Court and the matter is currently pending before the Constitutional Court.

The question of the appropriate accommodation of customary law is an important one on various levels. In South Africa, at least, customary law has an impact on the lives of an estimated 21 million people or nearly half of the population. On a practical level, it has been observed that an insensitive imposition of state law upon customary law communities leads to one of two outcomes: on the one hand, the fixed, hierarchical system of state law that is intolerant to negotiated rules has sometimes stifled communities' customary law into obscurity. On the other, the irreconcilability between the two systems often leads to a complete lack of local engagement with state law beyond the strictly formal, with communities

choosing to ignore the state's 'rules' as far as possible.

Background reading:

1              Tongoane and others v The National Minister for Agriculture and Land Affairs and others, 11678/2006 (NGHC October 30, 2009)

http://www.lrc.org.za/images/stories/Judgments/20091030151846273.pdf

2              On "living" customary law, see Alexkor Ltd and Another v The Richtersveld Community and Others above at paras 52 - 53; Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 (1) SA 580 (CC) (2005 (1) BCLR 1) at para 87, 109 - 112; MEC for Education, Kwazulu-Natal, and Others v Pillay 2008 (1) SA 474 (CC) at

para 153; Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC) at para 46. 

3              Members of the Yorta Yorta  Aboriginal Community v Victoria (2002) HCA 58; 214 CLR 422; 194 ALR 538; 77 ALJR 356 (12 December 2002)

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2002/58.html?query=^yorta%20yorta