Alter-Native Constitutionalism and the ‘Common’ Law

In Tongoane v National Minister for Agriculture and Land Affairs , the Constitutional Court of South Africa ruled that the government’s attempt to regulate property in traditional communities through the Communal Land Rights Act (CLARA) was unconstitutional. It emphasised that traditional land was already governed by indigenous ‘living law’ and CLARA sought to replace this vernacular law, a system evolved over time, with legislation. This highlighted the presence of indigenous law predating colonialism, challenging colonial notions like ‘ lex nullius ’ (no law) and ‘ terra nullius ’ (empty land), which denied indigenous Africans their rights. This chapter argues that South Africa’s post-apartheid constitutional vision fails to fully recognise and integrate this vernacular law, undermining true transformation, and instead advocates for ‘Alter-Native Constitutionalism’, which would amalgamate ‘customary’, ‘common’ and vernacular law to reflect the realities and normative convictions of most South Africans. This approach aims to rectify historical injustices and create a more just legal system, rooted in indigenous values and addressing social and economic inequities. Explicating the indigenously feminist decolonising concept of Alter-Native Constitutionalism, the chapter calls for reconstitution of South Africa’s legal framework and content to give full voice to indigenous world-sense and law-sense, advocating a shift away from Eurocentric logics and norms.