Master of Laws in Legal Pluralism and Family Law

Purpose

The purpose of the Master of Laws in Legal Pluralism and Family Law qualification is to respond to the problematic relationship between indigenous African laws, religious laws, and human rights in South Africa. By studying how the interaction of these normative orders affects the family, learners will contextualise the conflict of laws in South Africa and critique the use of law reforms to produce a common law. Learners will benefit from the qualification's legal revisionist pedagogy. This pedagogy challenges orthodox ideas about customary family laws, adapts them to new empirical evidence, and encourages learners to transition from dormant receptors of knowledge to self-aware, curious, and critical individuals.

Learners who achieve this qualification would be able to engage in critical evaluation of how normative orders interact in South Africa in the context of family law. Learners would be able to deconstruct key theories of legal pluralism, challenge the mainstream conceptualisation of African customary law, conduct independent research, and display persuasive data collection skills.

Upon completion of this qualification, qualifying learners will be able to

• Apply sound knowledge and understanding of legal pluralism and family law, with a critical attitude to the impact of colonialism on legal identity in South Africa and the transformative role of the Constitution in an era of globalization.
• Use empirical skills to conduct field research by identifying, evaluating, selecting, and analyzing relevant information sources using multimodal literacies to produce well-referenced and argued texts.
• Identify conflict of law problems, question the definition of African customary laws, challenge the conceptualization of legal pluralism, and identify different approaches.
• Work independently and in collaboration with others, integrating individual creativity into collaborative efforts to solve problems such as patriarchy, widowhood disinheritance, and women's limited matrimonial property rights.

Rationale

Due to globalisation, notably the migrant crisis and agitations for curriculum changes from the 2015 learners' protests, cultural pluralism has become valuable knowledge for understanding normative behaviour. European imposition of relatively industrial laws on Africa's largely agrarian societies displaced the normative monopoly of indigenous African laws. Aided by technology and other socioeconomic changes, the imposed laws eventually transformed into state laws and began coexisting with Indigenous laws in an unequal relationship loosely labelled as legal pluralism. Significantly, the transplanted European legal systems were accompanied by radical changes in the education, morality, religion, work, food, dressing and philosophy of Africans. These changes influence the normative behaviour of Africans and question their socio-legal identity. This qualification will enable learners to understand the dissonance between the agrarian or communal origins of indigenous laws and our individualistic modern conditions, and how this dissonance causes hardship for Africans, especially in issues of property, land, marriage, and traditional leadership.

Due to an emergent cultural renaissance spawned by globalisation, previously tolerated situations of racism, patriarchy, discrimination, and inequality are succumbing to new values of equality, human dignity, and wealth distribution. This renaissance demands a new approach to the identity of African laws. However, not much attention is devoted to this identity in higher education. With its legal revisionist pedagogy, this qualification brings critical attention to how legal orders interact, thereby charting the future of laws in South Africa and postcolonial societies generally. The introduction of the qualification was influenced by two factors.

The first is agitations for the decolonisation of the law curriculum, which emerged from the Rhodes and Fees Must Fall protests. The second is field work conducted by the Centre for Legal Integration in Africa (CLIA) in Limpopo and the Eastern Cape provinces on the foundational values of African customary laws. Indeed, the intellectual structure of the qualification emerged from engagements with traditional leaders, communities, civil society organisations, and researchers affiliated with CLIA. In particular, the National House of Traditional Leaders offered useful ideas for the revisionist approach to the pedagogy. The chairperson of the Limpopo House is currently registered as a doctoral student in the CLIA.

The target learners are Bachelor of Law (NQF Level 8) learners, aspiring academics, and human rights practitioners, including attorneys and advocates in government and civil society organisations. Graduates will benefit from knowledge of cultural pluralism and empirical research skills for careers in academia, industry, the Department of Justice, advisory organs of government, and international organisations such as the African Union and the United Nations.

The qualification will benefit learners, society, and the economy by promoting the cultural diversity of South Africa and responding to the legal needs of a developmental society in a globalised world. Learners will acquire independent research skills through assignments that advance their knowledge and stimulate critical thinking about the relationship between customary family laws, religious laws, and the human rights elements of state laws. By emphasising how indigenous African laws and religious laws adapt to socioeconomic changes, the qualification will equip learners to contribute to the development of a common law in South Africa. Their research tasks will use insights from sociology, political science, and legal revisionism to present the interaction of normative orders as a cultural struggle for the future of law in South Africa. Research learners will benefit from internships in the CLIA, the South African Law Reform Commission, the Parliamentary Monitoring Group, and the Department of Justice and Constitutional Development. The benefits of the qualification will be achieved through excellence in teaching and research that promotes holistic, Africanised, and change-responsive interdisciplinary studies.

Recognition of Prior Learning (RPL)

The institution has an approved Recognition of Prior Learning (RPL) policy applicable to equivalent qualifications for admission into the qualification. RPL will be applied to accommodate applicants who qualify. RPL thus provides alternative access and admission to qualifications, as well as advancement within qualifications.

RPL for access

• Learners who do not meet the minimum entrance requirements or the required qualification that is at the same NQF level as the qualification required for admission may be considered for admission through RPL.
• To be considered for admission in the qualification based on RPL, applicants should provide evidence in the form of a portfolio that demonstrates that they have acquired the relevant knowledge, skills, and competencies through formal, non-formal and/or informal learning to cope with the qualification expectations.

RPL for exemption of modules

• Learners may apply for RPL to be exempted from modules that form part of the qualification. For a learner to be exempted from a module, the learner needs to provide sufficient evidence in the form of a portfolio that demonstrates that competency was achieved for the learning outcomes that are equivalent to the learning outcomes of the module.

RPL for credit

• Learners may also apply for RPL for credit for or towards the qualification, in which they must provide evidence in the form of a portfolio that demonstrates prior learning through formal, non-formal and/or informal learning to obtain credits towards the qualification.
• Credit shall be appropriate to the context in which it is awarded and accepted.

Entry Requirements

The minimum entry requirement for this qualification is

• Bachelor of Laws, NQF Level 8.

Or

• Bachelor of Laws: Old Curriculum, NQF Level 8.

Or

• Postgraduate Diploma in Law, NQF Level 8.

Or

• Postgraduate Diploma: Family Law, NQF Level 8.

This qualification consists of the following compulsory and elective modules at NQF Level 9 totalling 180 Credits.

Compulsory Modules, Level 9, 120 Credits

• Legal and cultural pluralism, 30 Credits.
• International Family Law, 30 Credits.
• Research Project, 60 Credits.

Elective Modules, Level 9, 60 Credits (Choose any two from the following)

• Children's Rights, 30 Credits.
• Islamic Law and Jurisprudence, 30 Credits.
• International Protection of Human Rights Law, 30 Credits.

1. Demonstrate advanced knowledge and theories of legal pluralism and critique of African customary law
2. Demonstrate competence in Islamic law principles by accessing, analyzing, and critically evaluating knowledge on the legal recognition of Muslim personal laws in South Africa
3. Demonstrate advanced knowledge of the human rights implications of legal pluralism in issues of marriage, succession, property, and contract
4. Demonstrate mastery of the jurisprudence of children's rights in the context of family laws and legal pluralism in South Africa
5. Produce a research report or mini dissertation, that reflects a high level of theoretical engagement and intellectual independence, and that documents the ethical and professional execution of all phases of a research project to do with legal pluralism and human rights in Africa.

Associated Assessment Criteria for Exit Level Outcome 1

• Critically evaluate and compare competing theories of legal pluralism in the context of family laws in Africa.
• Analyse the historical evolution and contemporary dynamics of legal pluralism in specific African countries.
• Illustrate an in-depth understanding of the interaction between formal legal systems and various forms of customary family laws.
• Critically assess the strengths and limitations of African customary law systems in upholding human rights principles.
• Develop well-reasoned arguments on how to ensure fair and equitable application of indigenous or traditional legal systems in Africa.
• Propose and critically analyse potential reforms to address patriarchal structures and discriminatory practices within selected African customary law systems.
• Critically evaluate primary and secondary sources, including emerging legal scholarship to develop a strong, original theoretical framework or expand on existing theories of legal pluralism and family laws.

Associated Assessment Criteria for Exit Level Outcome 2

• Accurately access and analyse relevant Islamic legal sources related to family law topics on marriage, divorce, and inheritance.
• Illustrate an understanding of different Islamic legal schools of thought and their practical application to personal law matters through essays and oral presentations.
• Apply Islamic legal reasoning principles to analyse contemporary issues related to Muslim personal laws.
• Critically evaluate the current status of Muslim personal laws in South Africa, including relevant judgements and legislative developments.
• Analyse the arguments for and against the legal recognition of Muslim personal laws in the South African context.
• Assess the potential impact of legal recognition on the rights and obligations of Muslim persons and families in South Africa.
• Critically evaluate academic literature, judgments and policy documents on Muslim personal laws in the context of the family.
• Develop a well-reasoned argument on how to reconcile Islamic legal principles with the South African legal framework.
• Propose potential solutions or recommendations for addressing the legal recognition of Muslim personal laws, considering human rights principles and social justice concerns.

Associated Assessment Criteria for Exit Level Outcome 3

• Critically evaluate how legal pluralism affects people's human rights in the context of marriage, succession, property, and contract law.
• Analyse potential conflicts and inconsistencies arising from the coexistence of different normative systems regarding these areas.
• Illustrate an in-depth understanding of how legal pluralism can both promote and undermine human rights.
• Critically assess how specific legal pluralistic practices in marriage impact human rights, particularly women's and children's rights.
• Analyse how indigenous rules of succession with patriarchal features might disadvantage certain family members and propose practical solutions for equitable outcomes.
• Evaluate the challenges of enforcing property rights and contractual agreements when different legal systems are involved.
• Develop a well-reasoned argument on how to balance respect for cultural traditions with the protection of universal human rights within a legal pluralistic framework.
• Conduct independent research using advanced legal and social science methodologies to explore specific human rights concerns within legal pluralism.
• Critically analyse case studies and empirical research on the interaction of human rights, legal pluralism, and specific legal issues.
• Develop or expand on a theoretical framework to analyse the human rights implications of legal pluralism in issues of family laws.
• Propose legal or policy reforms to address identified human rights concerns that affect family laws within a legal pluralistic context.

Associated Assessment Criteria for Exit Level Outcome 4

• Illustrate comprehensive knowledge of international and South African legal instruments concerning children's rights.
• Critically analyse leading court cases in South Africa that address children's rights within family law matters.
• Apply relevant legal principles to identify potential violations of children's rights within different family law frameworks.
• Critically evaluate the challenges and opportunities presented by legal pluralism in upholding children's rights within family law matters.
• Analyse specific areas of potential conflict between customary law practices and children's rights principles.
• Develop sound arguments on how to ensure the best interests of the child are prioritized in legal pluralistic contexts.
• Critically analyse literature, judicial decisions and policy documents on the intersection of children's rights, family law and legal pluralism.
• Propose solutions or recommendations for addressing identified challenges, considering comparative law best practices and international children's rights principles.
• Demonstrate a high level of ethical awareness when analyzing sensitive issues involving children's rights and cultural differences.
• Articulate the importance of cultural sensitivity in advocating for the protection of children's rights in legal pluralistic settings.

Associated Assessment Criteria for Exit Level Outcome 5

• Critically evaluate and select appropriate research designs, research methods and techniques to address legal research questions and objectives.
• Formulate a well-defined research question related to legal pluralism and its human rights implications in an African context.
• Develop a research plan or proposal that outlines and justifies the design, methodology, data collection methods, and ethical considerations, and that explains the strengths and limitations of the design in the chosen research context.
• Conduct a thorough literature review, pertinent to the research question, that critically engages with different stakeholder perspectives as articulated in academic sources, legal materials, and policy documents.
• Illustrate correct in-text and bibliographic referencing skills, applying the required academic citation style.
• Conduct independent research using legal and social science methodologies to explore the legal recognition debate.
• Implement appropriate data collection strategies such as documentary analysis, interviews, and questionnaires that anticipate and make allowances for potential challenges, and that ensure data quality, reliability and ethical considerations are appropriately addressed.
• Organize and manage collected data efficiently, using appropriate data management tools, and demonstrate proficiency in data analysis techniques consistent with the research design and data collected e.g. thematic analysis.
• Present the research results and conclusions of the study objectively, critically, and in a clear and concise manner, by way of coherent and sustained arguments that are supported by the data.

INTEGRATED ASSESSMENT

Learner assessment will be formative and summative.

Formative Assessment

Formative assessment will provide regular feedback from the course convenors and lecturers. This will be in the form of oral and written feedback to enable learners to improve their performance. Learning objectives are set in close alignment with the institution. Graduate Attributes, with an emphasis on the below elements:

• Relevance of module content to graduate attributes and University or faculty goals.
• Prescribed reference books and articles.
• Learners' self-assessment of the learning experience.

Summative Assessment

Summative assessment will occur after the final examinations, in the case of dissertations, it will occur during interactions with supervisors. The latter will be examined by internal and external examiners appointed by the relevant university committees. The learners' promotions will be determined by the results of the internal and external examiners' reports.

Criteria to be satisfied by the learner before awarding of the degree include the following

• Completed one or two calendar years as a registered learner for the qualification.
• Obtained at least 50% in each of his/her modular tests during the course as well as a final assessment of 50% comprised of 50% of the coursework mark and 50% of the examination mark.
• Written examination papers covering the modules as prescribed in the module descriptors.
• Submission of the mini thesis. Successful completion of the mini-thesis is a prerequisite for awarding the degree. The report of the external examiners must indicate that the learner is capable of independent research, applying a thorough literature study to the research topic, analysing results, and arriving at meaningful conclusions.

A pass mark will be 50% and an overall final mark of 75% will be required to pass with distinction. The final mark is calculated by taking 50% of the coursework average and 50% of the mark allocated for the mini thesis.