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74 Chapter 5
only a decade of decision-making under its belt. No, the Constitution
envisages a unified legal system within an overall objective,
normative framework provided by the explicit text of our
Constitution. That legal system encompasses statute law, common
law and customary law and subjects them all to the discipline of
compliance with constitutional norms and values. All courts are
enjoined to work within this unified system on the foundation of the
constitutional text.
This means, simply, that each area of the law requires careful
consideration to determine whether it complies with the
constitutional framework or not. No area of the law is exempt from
reconsideration but many will require little, if any re-cultivation.
Some areas of law have already seen significant development both by
the Supreme Court of Appeal and the Constitutional Court and also
usefully by the legislature, sometimes under express constitutional
direction: I think for example of legislation regulating access to
freedom of information, the promotion of equality, and the
promotion of administrative justice, to name a few areas.
I would now like to respond very briefly to what Professor
Michelman said at the end of his remarks about legal pluralism. It is
clear, as the Constitutional Court enunciated in Carmichele, 30 that
the law might quite constitutionally regulate an issue in several
different ways. And which way is selected may be left either to the
legislature or to other courts to determine. This possibility, however,
does not mean that there is more than one legal system. There is still
one legal system whose precise content is not entirely or perhaps even
substantially determined by the Constitution. But it is not correct to
say that because you may have different ways of regulating a matter
constitutionally, you no longer have one legal system. Similarly, I am
anxious about describing the possibility of different but
constitutionally competent ways of regulation as ‘legal pluralism’. It
is clear from the text of our Constitution that we do have a legally
pluralist society. 31 The area of family law is the classic example
where we have different communities, different cultures and
different systems of family law. What is clear from the Constitution
is that all those systems of family law may exist as long as they are
30 Carmichele (n 20 above).
31
See, for examples, secs 211 and 212 which provide for customary law and
traditional leadership.