At the end of 2017, we published an article which laid out a new theory for the study of commercial contracting in South Africa. We set about moving the study of contracting from the centralised law of the state into the context of what happens in the popular economy – the space where the informal and formal sectors meet.

The formal and informal worlds shape each other, giving rise to an interesting intersection. We think that the South African popular economy is a good micro-context to study, since the “Western” norms said to characterise the central state’s law of contract play less of a role here.

Our findings are preliminary and rest on research done by social scientists. We’ve also included a measure of contract and economic theory.

Why should South African lawyers be interested? Our project is partly ideological. We believe that the study of indigenous business norms is a worthwhile exercise in any African country. Yet there’s no legal debate on the issue. African customary law courses do not address these more business-related points and commercial law courses do not speak to African customary norms.

The reason for this is that there are notional boundaries between the two legal subjects. As legal historian Martin Chanock has shown, this is as a result of South African history, with past discriminatory rules about which law to apply in which situations shaping the development of both customary and common law.

We aim to change this trend. Here are our preliminary ideas.

Indigenous cultural practices

What legal norms regulate contemporary cultural practices such as the stokvel (a common informal savings and credit association), the burial society (a stokvel which helps save towards funeral expenses), the township loan-shark, or other types of commercial activity which exist as an alternative to the formal sector banking, insurance and financial services industries?

The published literature of economic anthropologists working on the popular economy in South Africa throws up recurring stories about financial activity in this sector. Most speak to the role of community in contracting.