CSL2601 Assignment 2 Semester
1
QUESTION 1
Critically discuss the differences between living customary law and official customary law.
In terms of Section 1 of the Constitution 1, South Africa is one, sovereign, democratic state
founded on the following values:
• Human dignity, the achievement of equality and the advancement of human
Section 19 of the Constitution2, read in conjunction with section 1(d) of the Constitution,
underscores the idea that an integral aspect of our conception of representative
democracy is that it is a multiparty democracy rather than a one-party state or some
other formulation that places limits on political participation at a party-political level. In
United Democratic Movement (UDM) v President of the Republic of South Africa 3 the
Court made the point as follows:
1
Constitution of the Republic of South Africa [No. 108 of 1996],
2
Constitution of the Republic of South Africa [No. 108 of 1996],
3
United Democratic Movement v Speaker of the National Assembly 2017 5 SA 300 (CC)
, “A multiparty democracy contemplates a political order in which it is permissible for
different political groups to organise, promote their views through public debate and
participate in free and fair elections. These activities may be subjected to reasonable
regulation compatible with an open and democratic society. Laws which go beyond that,
and which undermine multiparty democracy, will be invalid”.
However, it is equally important to realise that there are limitations of the system that
may have long-term consequences. We briefly outline a few of these below:
• The failure to regulate political parties in the Constitution may give rise to an elite
driven democracy. The fact that there is no requirement that the parties practise
some form of internal democracy ultimately has the effect of conferring a huge
amount of power on the party leadership who may dominate party affairs and
impose their preferred representatives.
• The lack of opportunity for the electorate to influence directly their
representatives outside the five-year election intervals is also less than ideal. In
similar fashion to the point raised above, it leaves the electorate in the position of
onlookers as elected representatives take decisions in the name of the electorate
without an opportunity to oppose independently unpopular decisions.
• Another major limitation of the system is that it makes it difficult for people who
are not actively involved in political parties to make an impact on legislative and
policy issues affecting them. In other words, for those without party affiliations
and therefore no representative, the opportunities to contribute their views
effectively are severely limited.
• Finally, and possibly most controversially, the fact that the South African political
landscape is dominated by one party, namely the ANC, presents its own
challenges. This situation is referred to as a dominant party democracy. It is of
particular concern as it affects democratic accountability and limits democratic
participation by making the governing party the primary site for all debate and
decision making. The fact of one-party dominance does not in and of itself present
an immediate crisis of democracy. However, in the long run, it has been shown to
lead to an entrenchment of a system of patronage, erosion of the separation
1
QUESTION 1
Critically discuss the differences between living customary law and official customary law.
In terms of Section 1 of the Constitution 1, South Africa is one, sovereign, democratic state
founded on the following values:
• Human dignity, the achievement of equality and the advancement of human
Section 19 of the Constitution2, read in conjunction with section 1(d) of the Constitution,
underscores the idea that an integral aspect of our conception of representative
democracy is that it is a multiparty democracy rather than a one-party state or some
other formulation that places limits on political participation at a party-political level. In
United Democratic Movement (UDM) v President of the Republic of South Africa 3 the
Court made the point as follows:
1
Constitution of the Republic of South Africa [No. 108 of 1996],
2
Constitution of the Republic of South Africa [No. 108 of 1996],
3
United Democratic Movement v Speaker of the National Assembly 2017 5 SA 300 (CC)
, “A multiparty democracy contemplates a political order in which it is permissible for
different political groups to organise, promote their views through public debate and
participate in free and fair elections. These activities may be subjected to reasonable
regulation compatible with an open and democratic society. Laws which go beyond that,
and which undermine multiparty democracy, will be invalid”.
However, it is equally important to realise that there are limitations of the system that
may have long-term consequences. We briefly outline a few of these below:
• The failure to regulate political parties in the Constitution may give rise to an elite
driven democracy. The fact that there is no requirement that the parties practise
some form of internal democracy ultimately has the effect of conferring a huge
amount of power on the party leadership who may dominate party affairs and
impose their preferred representatives.
• The lack of opportunity for the electorate to influence directly their
representatives outside the five-year election intervals is also less than ideal. In
similar fashion to the point raised above, it leaves the electorate in the position of
onlookers as elected representatives take decisions in the name of the electorate
without an opportunity to oppose independently unpopular decisions.
• Another major limitation of the system is that it makes it difficult for people who
are not actively involved in political parties to make an impact on legislative and
policy issues affecting them. In other words, for those without party affiliations
and therefore no representative, the opportunities to contribute their views
effectively are severely limited.
• Finally, and possibly most controversially, the fact that the South African political
landscape is dominated by one party, namely the ANC, presents its own
challenges. This situation is referred to as a dominant party democracy. It is of
particular concern as it affects democratic accountability and limits democratic
participation by making the governing party the primary site for all debate and
decision making. The fact of one-party dominance does not in and of itself present
an immediate crisis of democracy. However, in the long run, it has been shown to
lead to an entrenchment of a system of patronage, erosion of the separation
