Cultural Expertise in Litigation in South Africa: Can the Western World Learn Anything from a Mixed, Pluralistic Legal System?

Abstract

Abstract South Africa’s mixed, pluralistic legal order demands a nuanced approach to cultural expertise in litigation. Culture in general and cultural expertise in particular have always played an important role in all areas of law, both state and non-state, and a rich collection of jurisprudence is available to serve as illustration. Even though both the common law and the customary law are both recognized legal systems, they are treated differently by the judiciary. The general rule is that judicial notice must be taken of the common law rules and that judicial notice of customary law may only be taken “in so far as such law can be ascertained readily and with sufficient certainty.” The ascertainment of customary law provides a challenge to the judiciary because of its adaptive inherent flexibility and indeterminate nature, especially where the rules are oral or so-called “living” customary law. Cultural expertise also plays an important role in the case of non-state law. A considerable quantity of case law exists where the courts have considered expert evidence regarding the content of certain religious legal systems to provide protection to litigants claiming that they are subject to those systems. The aim of this contribution is to investigate the diverse approaches of the South African courts when it comes to the admissibility of expert evidence in cases where culture (both custom and religion in both state and non-state law) is relevant. The fact that the South African legal system has its roots firmly in Western law and has been confronted with cultural diversity for a very long time might provide some lessons to the Western world, even if those lessons are only to prevent it from making the same mistakes as the South African legal system has made or might still be doing.