2024
LJU 4801 ASSIGNMENT 2
LEGAL SEMESTER 1
SOLUTIONS
PHILOSOPHY
WITH FOOTNOTES
& BIBLIOGRAPHY
Varsity
Assist
, LJU4801 – 2024 – ASSESSMENT 2 - SEMESTER 1
1. Mnyongani states that when the 1996 Constitution was enacted it was ‘hailed’
for its transformative agenda. Discuss his motivation for this view as well as
what according him is the ‘Achilles heel’ of this agenda. (12)
The fundamental change brought about by the 1996 Constitution1 accords customary
law equal status with the common law; this enables the development of customary law
using constitutionalised principles within the framework of the latter system itself.
Customary law seems to be the Achilles heel of the constitutional transformative
agenda.
A transformative constitution seeks to facilitate a fundamental transformation in the
unjust political, economic and social conditions inherited from our colonial and
apartheid past, and to create a new society based on social justice, democracy and
human rights.
It paves the way for the infusion of the local content in the production of legal
knowledge. This change has the potential to shape the functioning of the courts to
affirm a constitutional framework that may contribute to the reconstruction of South
Africa’s jurisprudence.
The court has paved the way for the abolition of decades of subordination of customary
law as a legitimate source of law in the resolution of relevant disputes. However, the
envisioned transformation of the constitutionalised jurisprudence fell short of making a
pronouncement for the incorporation of the Africanised principles in the broader
constitutional framework of the jurisprudence of our courts.
The recognition of customary law highlights South Africa’s pluralistic character, which
sees the co-existence of both the living and official versions in the resolution of
constitutional and legal aspects that emanate from the system. In essence, the historic
survival of customary law, culminating in its constitutional recognition, is indicative of
its relevance as a source of law to the many South Africans who subscribe to the
system. The Constitution also envisages the affirmation of its practices, rules and
1 Constitution of the Republic of South Africa 1996.
LJU 4801 ASSIGNMENT 2
LEGAL SEMESTER 1
SOLUTIONS
PHILOSOPHY
WITH FOOTNOTES
& BIBLIOGRAPHY
Varsity
Assist
, LJU4801 – 2024 – ASSESSMENT 2 - SEMESTER 1
1. Mnyongani states that when the 1996 Constitution was enacted it was ‘hailed’
for its transformative agenda. Discuss his motivation for this view as well as
what according him is the ‘Achilles heel’ of this agenda. (12)
The fundamental change brought about by the 1996 Constitution1 accords customary
law equal status with the common law; this enables the development of customary law
using constitutionalised principles within the framework of the latter system itself.
Customary law seems to be the Achilles heel of the constitutional transformative
agenda.
A transformative constitution seeks to facilitate a fundamental transformation in the
unjust political, economic and social conditions inherited from our colonial and
apartheid past, and to create a new society based on social justice, democracy and
human rights.
It paves the way for the infusion of the local content in the production of legal
knowledge. This change has the potential to shape the functioning of the courts to
affirm a constitutional framework that may contribute to the reconstruction of South
Africa’s jurisprudence.
The court has paved the way for the abolition of decades of subordination of customary
law as a legitimate source of law in the resolution of relevant disputes. However, the
envisioned transformation of the constitutionalised jurisprudence fell short of making a
pronouncement for the incorporation of the Africanised principles in the broader
constitutional framework of the jurisprudence of our courts.
The recognition of customary law highlights South Africa’s pluralistic character, which
sees the co-existence of both the living and official versions in the resolution of
constitutional and legal aspects that emanate from the system. In essence, the historic
survival of customary law, culminating in its constitutional recognition, is indicative of
its relevance as a source of law to the many South Africans who subscribe to the
system. The Constitution also envisages the affirmation of its practices, rules and
1 Constitution of the Republic of South Africa 1996.
