Report on customary law

OUTPUT TYPE: Research report- client
TITLE AUTHOR(S): G.Hagg, I.Kriel, J.Kriel, N.Pophiwa, M.Dipholo, N.Bohler-Muller, K.Kgoroeadira
DEPARTMENT: Democracy, Governance and Service Delivery (DGSD)
Print: HSRC Library: shelf number 8576

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The Bafokeng commissioned the HSRC (a) to document Bafokeng customs, laws, values, and principles with a view to guiding future generations in preserving and developing the 'Bafokeng way' and (b) investigate the traditional and corporate institutions of governance within Bafokeng society. The findings are presented in two reports of which the current one is on 'customary law'. In the initial stages of the research, Bafokeng customary law was approached from a legalistic perspective with a view to the possible development of a 'regulatory framework'. Accordingly the rules established by the prior decisions of those 'courts' that functioned within the Bafokeng morafe (nation) understandably predominated. They were systematised under headings reminiscent of those in handbooks on South African Law with its foundations in Roman-Dutch and English Law. This 'legalistic' approach did not allow for an exploration of the values and the rules and codes of (good) conduct which underlie the established 'legal' rules (melao). Towards the end of 2013 the initial 'legalistic' approach was consequently altered to allow for the accommodation of more ethnographic data on the social groups, the controlling authorities, and the practices (mekgwa: customs) underlying the 'legal rules' (melao: laws).