Duties of a lawyer in a multicultural society: a customary law perspective?

Abstract

This article is about duties of a lawyer in a multicultural society like South Africa. South Africa is a multicultural society characterised by among others a constant competition of cultures, values, and norms. At the heart of the competition lies the use of the law as a tool for social change. Under the colonial government and later apartheid, the Western-influenced legal system de-centred the African customary law to become the dominant normative point of reference. African customary law, which was applicable to the majority black population and still is today, became applicable in as far as it was not repugnant to the Western-inspired norms. The dominant legal system, its norms, values and procedures became the standard against which customary law was to be measured. Available literature on the two legal systems reveals that there are more dissimilarities than there are similarities. One such dissimilarity is the use of lawyers in dispute resolution processes. Customary law knows no class of people called lawyers and has no role for them in its processes and procedures. In a constitutional democracy, however, legal representation has become an indispensable feature of justice in both legal systems. South African lawyers are trained according to the norms and values of the Western-inspired dominant legal system. They execute their duties in accordance with the dictates of the dominant legal system. This article has argued that duties of a lawyer in South Africa are designed to serve the dominant legal system and are therefore not adequate to respond to the challenges of a multicultural society. The premise of the argument is this: If legal dualism is a reality in South Africa and there are vast dissimilarities between the two systems, then the duties imposed by the two legal systems should also be different.