A living customary law of commercial contracting in South Africa: some law related hypotheses
| dc.contributor.author | Hutchison, Andrew | |
| dc.contributor.author | Sibanda, Nkanyiso | |
| dc.date.accessioned | 2020-05-26T14:28:59Z | |
| dc.date.available | 2020-05-26T14:28:59Z | |
| dc.date.issued | 2017-10-01 | |
| dc.description.abstract | Inspired by calls to ‘decolonise’ South African law and legal education, this paper will posit some hypotheses as to the nature of a living customary law of commercial contracting from the perspectives of two South African contract law teachers. An account of the commercial format of customary contracting is largely absent from the law reports and leading legal textbooks in this country. The dominant narrative in existing legal sources, however, (which may be stereotyped), is of African communalism prevailing in customary contract practice. This is reflected (for example) in the discourse on ‘ubuntu’, which is being used at present as a vehicle for the constitutional transformation of the South African common law of contract. Other existing empirical accounts from discourses such as economics and anthropology also suggest, however, that contracting in indigenous African communities rests on notions of trust and community. This is reinforced by the existence of informal township dispute resolution structures. We will thus posit a central hypothesis that customary commercial contracting is relational in nature, using an inter-disciplinary literature review and drawing on the lived experiences of the authors. Other related hypotheses will also be developed. Ultimate truth here is a matter for future empirical study. | en_US |
| dc.identifier.apacitation | Hutchison, A., & Sibanda, N. (2017). A Living Customary Law of Commercial Contracting in South Africa: Some Law Related Hypotheses. <i>South African Journal on Human Rights</i>, 2017(33(3)), 380-405. | en_ZA |
| dc.identifier.chicagocitation | Hutchison, Andrew, and Nkanyiso Sibanda "A Living Customary Law of Commercial Contracting in South Africa: Some Law Related Hypotheses." <i>South African Journal on Human Rights</i> 2017, 33(3). (2017): 380-405. | en_ZA |
| dc.identifier.citation | Hutchison, A. & Sibanda, N. 2017. A Living Customary Law of Commercial Contracting in South Africa: Some Law Related Hypotheses. <i>South African Journal on Human Rights.</i> 2017(33(3)):380-405. | en_ZA |
| dc.identifier.ris | TY - Journal Article AU - Hutchison, Andrew AU - Sibanda, Nkanyiso AB - Inspired by calls to ‘decolonise’ South African law and legal education, this paper will posit some hypotheses as to the nature of a living customary law of commercial contracting from the perspectives of two South African contract law teachers. An account of the commercial format of customary contracting is largely absent from the law reports and leading legal textbooks in this country. The dominant narrative in existing legal sources, however, (which may be stereotyped), is of African communalism prevailing in customary contract practice. This is reflected (for example) in the discourse on ‘ubuntu’, which is being used at present as a vehicle for the constitutional transformation of the South African common law of contract. Other existing empirical accounts from discourses such as economics and anthropology also suggest, however, that contracting in indigenous African communities rests on notions of trust and community. This is reinforced by the existence of informal township dispute resolution structures. We will thus posit a central hypothesis that customary commercial contracting is relational in nature, using an inter-disciplinary literature review and drawing on the lived experiences of the authors. Other related hypotheses will also be developed. Ultimate truth here is a matter for future empirical study. DA - 2017-10-01 DB - OpenUCT DP - University of Cape Town IS - 33(3) J1 - South African Journal on Human Rights KW - Contract KW - Customary Law KW - Culture KW - Economic Activity KW - Informal Economy KW - South Africa LK - https://open.uct.ac.za PY - 2017 T1 - A Living Customary Law of Commercial Contracting in South Africa: Some Law Related Hypotheses TI - A Living Customary Law of Commercial Contracting in South Africa: Some Law Related Hypotheses UR - ER - | en_ZA |
| dc.identifier.uri | https://hdl.handle.net/11427/31996 | |
| dc.identifier.vancouvercitation | Hutchison A, Sibanda N. A Living Customary Law of Commercial Contracting in South Africa: Some Law Related Hypotheses. South African Journal on Human Rights. 2017;2017(33(3)):380-405. . | en_ZA |
| dc.language.iso | en | en_US |
| dc.publisher.department | Department of Commercial Law | en_US |
| dc.publisher.faculty | Faculty of Law | en_US |
| dc.source | South African Journal on Human Rights | en_US |
| dc.source.journalissue | 33(3) | en_US |
| dc.source.journalvolume | 2017 | en_US |
| dc.source.pagination | 380-405 | en_US |
| dc.source.uri | https://www.tandfonline.com/toc/rjhr20/current | |
| dc.subject | Contract | en_US |
| dc.subject | Customary Law | en_US |
| dc.subject | Culture | en_US |
| dc.subject | Economic Activity | en_US |
| dc.subject | Informal Economy | en_US |
| dc.subject | South Africa | en_US |
| dc.title | A living customary law of commercial contracting in South Africa: some law related hypotheses | en_US |
| dc.type | Journal Article | en_US |