Customary Law 171 PDF

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Customary Law Study Unit 1: Introduction to legal pluralism Pages: 5-16 1. Introduction SA is a multicultural society (11 official languages) – this means that we have legal pluralism. We do recognise African customary law. But there are other religious law systems that aren’t recognised to the same...

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Customary Law Study Unit 1: Introduction to legal pluralism Pages: 5-16

1. Introduction SA is a multicultural society (11 official languages) – this means that we have legal pluralism. We do recognise African customary law. But there are other religious law systems that aren’t recognised to the same extent. Courts as a result to our constitution are more open to recognising personal (religious system) laws. Legal systems: o Types: § State law § §

Religious based Official customary law

§ Living customary law o Initially only state legal pluralism accepted. All that was recognised was western law. o Nowadays we see they’re moving towards deep legal pluralism because of our diversity. Starting to accept religious customary law. o Customary law might be applicable to you, but you’re always subject to national law. Case of ukutwala (stealing girl to start lobola negotiations): o Jezile v S and others (2015) o Jezile sees this girl, still a child (14). o Started negotiations with grandmother. o Girl still at school and didn’t want it. o Ukutwala is allowed to be practiced, but under strict laws. o Convicted of rape. o He said it was his culture, but he didn’t follow proper procedure. o If legal pluralism is used correctly then it’s fine, but when it comes against national law, then national law is always the deciding law.

Customary law: Law that was originally applicable in South Africa and the only legal system other than the western system, which is to an extent officially recognised. Used as generic term to indicate the various laws of the indigenous people of South Africa. Legal pluralism: Exists because of the prevailing cultural pluralism. Narrowly interpreted, it’s the coexistence of various officially recognised state laws. State laws: Roman-Dutch law as influenced by English law, adapted and developed through judicial decisions and legislation, as well as customary law incorporated into legislation or pronounced in judicial decisions. State law pluralism: Legal pluralism + state laws Living customary law: Law that is actually applied by indigenous people. Often conflicts with official customary law. The constitutional court increasingly takes cognisance of living customary law. o Applied in rural areas. o Courts of the ward heads and sometimes by state recognised traditional authority courts. Today greater tolerance towards unofficial laws: o The South African reform commission: §

Harmonisation of customary law and common law and recognition of Islamic personal views.

People’s law: Generated by the community through unofficial dispute. Roots in traditional customary law, developed and adapted to function within urban areas. Applied by non-official institutions/ courts namely the regimental courts, family councils and courts of ward heads. o Resolution institutions. o Displays many similarities to traditional customary law.

2. Theoretical overview Narrow approach: state law pluralism; weak legal pluralism; official legal pluralism o Narrow approach is loosely based on a dual theory of law. o Dual system is also based on idea of Western law, legal positivism and legal centralism. o Therefore in South Africa there’s two autonomous legal systems existing parallel to one another (western law and customary law). o If we consider the narrow approach to legal pluralism there has to be at least two legal systems running parallel. o Exists because of colonial takeovers. o Colonial said they’ll recognise customary law, but with many exceptions. o Colonial only provisionally officially recognised customary law because of the repugnancy clause. § §

Cannot be repugnant to western law. Not repugnant to rules of natural justice: audi alteram partem.

§ Not repugnant to public policy: nemo iudex in resuo. o Customary law had an unequal status, only used if it didn’t interfere with western law. o Becoming increasingly difficult because of constitution S 39 (2) and (3) – When they’re confronted with a case they must develop customary law. If customary law is applicable to a matter it must be taken into account. When the constitution was drafted government became more tolerant of customary law. o By officially recognising customary law, it was incorporated into the official legal order of South Africa and became state law. o Even though customary law is recognised by the constitution as a source of South African law, western law is still regarded as a dominant system and legal development is largely directed by Western values.

Legal positivism: Ascribe at least two propositions. The first one is that law can only be found in tangible or empirically observable sources such as legislation, case law and customary law. The second one flows from the first one, if law can only be found in tangible sources, it means that law cannot be based on moral values. The law as it is and not what it ought to be. Legal centralism: the idea that law should be state-sanctioned, uniform for everyone. The state has the monopoly to make laws and lesser normative orderings (such as the church, family...) are subordinate to the law and institutions of the state. Unrecognised religious legal systems are thus not regarded as law in South Africa. Broad Approach: deep legal pluralism; strong legal pluralism; unofficial legal pluralism; non-state legal pluralism o Factual situation existing in a social field, observance of various legal systems or legal orders. o Recognition or non-recognition doesn’t have an effect of your factual existence o Whether it’s recognised by government or not, people live by it. o Real Diversity. No inequality. o Recognition of the unofficial legal systems. o They are all recognised to same extent. o All customs are relevant

3. Historical emergence of state legal pluralism Historical state legal pluralism: o 1652 -> 1795 (Dutch) § Strategic importance of Cape trading post by DEIC. o 1795 -> 1803 (British) § Articles of capitulation. o 1803 -> 1806 (Dutch) § Unchanged. o 1806 -> 1910 (British)

§

Official recognition of customary law.

§

Repugnancy clause, S 1(1) law of evidence amendment act 45/ 1988.

§

Customary law applied if not in conflict with boni mores (good morals) or public policy or rules of natural justice.

§ §

No legal uniformity. British treaty system (1833).

§

Indigenous people governed captains in terms of treaty system.

§

Treaties: First formal instruments of state legal pluralism. By 1910 customary law was recognised in the whole

§

union of South Africa. o 1929 §

BAA 38/ 1927.

4. Historical emergence of deep legal pluralism Historical deep legal pluralism: o Unofficial customary law: § Unwritten history. §

Oral tradition (unwritten communications of the

§

past). Existed pre-colonial, but to what extent is unclear.

§ §

Originated earlier than state legal pluralism. Existed in colonial: 1652

§

During British rule: ú Magistrates courts ú Unofficial traditional courts

§

Continued to apply customary law despite the Cape government’s policy of non-recognition of that law.

§

Transvaal, Orange Free State and Natal’s customary courts continued operating unofficially.

o Islamic law: § Introduced to South Africa in the 17th century. §

Act of 2 August 1657: ú

Prohibited Islamic law.

ú th

Penalty of death for public practices. and 18th centuries: Never officially recognised.

§

17

§

1860s: Natal Muslims didn’t experience the same hardships as Cape Muslims, but even in natal it wasn’t officially recognised.

o Hindu law: § Entered South Africa in 1860s. § § §

1862: Began celebrating customary festivals. Hindu is based on story telling and private rituals. 1891: Prohibited by law to enter or live in the

§

Republic of the Orange Free State. 1893: Gandhi started Indian political activism.

§

1920: Removed from voters roll and no freedom of movement.

§

Indian personal laws were seen as insignificant by the courts and often referred to incorrectly. But they still couldn’t suppress Hinduism in South

§

Africa. o Jewish law: §

Entered South Africa in 1669.

§

The DEIC only employed protestant Christians so

§

many of them converted to Christianity. 1820s: More came from England, Germany and Holland.

§

1860s: Diamonds resulted in more Jewish immigrants.

§

1880s: Gold rush resulted in more Jewish immigrants. Experienced discrimination, but belonged to the

§

privileged white class, so discrimination not as bas a Hindu and Muslims. §

1880s: Much prejudice against Jews, but never prevented from practising their religion.

§

Discriminatory laws: ú Immigration act of 1902: Immigrants have to write disembarkation application in Roman characters.

ú

Immigration quota acts and aliens act: Put a halt to immigration of Jews to South Africa.

o People’s law: § Developed in metropolitan areas mainly populated by African people. §

Reaction against lack of legitimacy of the official legal order of state: ú ú ú

§

§ §

Class contradictions. Inefficiency of existing justice system. Lack of legal resources and access to justice.

1901: Unofficial urban institution with dispute settlement functions started in Cape Town townships. 1950s: Informal courts were run by Cape African Congress. Continued establishing informal dispute settlement structures which applied an adapted urbanised customary law.

5. State legal pluralism in South Africa today State law pluralism components: o Western component: § Common law (Roman Dutch law influenced by English law and expanded), legislation, judicial precedent and customs developed within the framework of Roman Dutch Law influenced by English common law. o African component: §

Entails official customary law incorporated in legislation or pronounced in judicial decision. As well as substantive customary law, indirectly supported and recognised by the State. Deals with official customary law, but also living customary law.

S 211 (3) constitution 108/1996:

o The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. S 1(1) law of evidence amendment act 45 v 1988: o Courts may take judicial notice of foreign/ indigenous laws if:

§

Readily ascertainable and sufficient certainty and not against natural justice and public policy. And doesn’t conflict with the constitution.

§

Repugnancy clause.

§

Fair discrimination: If we can justify why a certain group needs to be treated differently according to section 36 of the constitution (limitation clause), it will be easier to prove fair discrimination. o Affirmative action o Deemed as fair discrimination Promotion of equality and prevention of unfair discrimination act 4 of 2000: o According to this act the right to equality will take preference. o Act 8 prohibits discriminatory practices. o Act 8 (c): Succession § Legal development because of the Bhe-case and the reform of customary law of succession and related matters act 11 of 2009. o Act 8 (d): Dignity and Equality § §

Recognition of customary marriages act 120/ 1998. Section 6 of the constitution.

6. Conclusion They harmonised legal systems, but it wasn’t supposed to just be a unification. What we started to see was the common law concepts applied to customary law. It was difficult because we have different customary law systems.

Not unification, was supposed to be a simulation, seeing how far they can work together. Common law concepts are made applicable to customary systems. o Risk: § §

People will still adhere to the customary systems and not the common law. Will have “paper law”: Law is only on paper and people won’t live by it.

1999 law commission report: o Their job is to see to what extent they can use old legislation and when they must create new legislation.

Customary Law Study Unit 2: Nature of African customary law Pages: 17-34

1. Introduction Customary law was always subjected to the repugnancy clause (S 1(1) law of evidence amendment act 1988). Since the commencement of the constitution we still have the repugnancy clause but customary law is also subject to the constitution. What does western law consist of? o Common law o Official customary law Customary law: The South African customary law consists of the various customs and usages traditionally observed under the indigenous African people of South Africa and forms part of the culture of those peoples. Various customary legal systems: o Common features and principles. o Makes the study of customary law easier, but still problematic.

2. Problems of definition Customary law: o The earlier definition focused on how customs bind members of a particular group to the exclusion of outsiders. o Hamnett: §

“A set of norms which the actors in a social situation abstract from practice and which they invest with

binding authority.” o Bennett: § “Customary law is derived from social practices that the community concerned accepts as obligatory.”

o Statutory definition of customary law in the law of evidence amendment act: §

§

S 1 (4) Law of evidence amendment act 45 of 1988: ú “Indigenous law as the law of custom as applied by the Black tribes in South Africa”. S 1 Recognition of customary marriages act: ú

§

“Customs and usages traditionally observed among the indigenous African people of South Africa and forms part of the culture of those people” • This definition was also included in S 1

reform of customary law of succession and regulation of related matters act 9 of 2009. • Definition can be void of meaning if “customs and usages”, “indigenous people” and “culture” is unknown. “Customs and usages”: ú ú

Some written, oral or embedded in legislation. Examples: Lobolo is defined in the act.

ú

Lobolo/ bogadi/ bohali/ xuma/ lumalo/ thaka/

ú

ikhazi/ magadi/ emabheka: Property in cash or in kind which a prospective husband or head of his family undertakes to give to the head of the prospective wife’s family in consideration of a customary marriage. “Indigenous African people”: • Black population only? How to distinguish •

• •

between Africans? Some say that customary law only applies on the basis of race and others disagree and say it applied on the basis of culture. Indigenous usually refers to someone’s origins. It is accepted that “indigenous African people” are the ethnic groups

traditionally grouped on the basis of language and other cultural features. §

“Culture”: ú Constitution does not define culture. ú No exact definition. ú

Bennet describes culture as: • High intellectual or artistic endeavor. •

ú

2001 UNESCO universal declaration on cultural diversity: •

ú

Denotes people entire store of knowledge, beliefs, arts, morals, laws and customs, in other words, everything that humans acquire by virtue of being members of a society.

“a set of distinctive spiritual, material, intellectual and emotional features of society or a social group, that encompasses, in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs”.

S 16 (1)(c) of constitution: • “everyone has the right to freedom of expression, which includes – freedom of artistic creativity”

3. Customary law vs common law Customary law vs common law: Type of law

Customary law

Common law

Non specialised.

Specialised.

Unwritten, largely

Find, apply.

uncodified.

Readily ascertainable.

Not always clear.

Uncodified.

Flexible. Interlinked with culture.

Language

African.

English or Afrikaans

Observed in tribe’s own

legislation.

language. Hard to find equivalent when codifying, misunderstandings.

Government

Moments in time

Categorisation

Traditional African leader

Democratically elected

or hereditary king is the

functionaries (judges,

apex of community.

legislative assemblies).

No separation of power.

Separation of power.

Time plays a minimal

Moments in time are

role in determining when

important, an action

rights and duties come

must be instituted

into existence.

before a certain time.

No rigid distinction

Distinguishes between

between categories

categories, institutions,

(intent and negligence).

concepts (public and private).

Traditional

No legal procedure.

Formal courts.

authority courts

Informal.

Win or lose.

and procedure

Mediate.

The executive is an

CCC: Consultation,

integral part of western

consensus, compromise.

law.

Reconciliation, restorative justice. No formal body that maintains order (police). Main objective is to reconcile parties.

Marriage, family

Union of families.

Man and woman alone.

Representatives negotiate lobolo. Ceremonies. Wife belongs to new family.

Contract

Head of family concludes

Contracting parties

contract on behalf.

must acquire rights and

Incurs obligation on

liabilities.

behalf.

Individuals.

Vicariously liable.

Legal facts

Legal persons

Concrete performance of

Property transferred

act.

without actual handing

Literal “handing over”.

over.

Groups, family is a legal

Individuals, groups of

entity.

companies (by

Head represents unit.

legislation).

Ubuntu.

Change,

Changes as a result of

Very time consuming to

development

social circumstances.

change.

Ubuntu: o Ubuntu refers to the key values of group solidarity (compassion, respect, human dignity and conformity to basic norms and collective unity): §

Ubuntu has an indigenous, purely African philosophy of life used in different contexts by different societies or reflect on a similar purpose.

§ §

Aimed at giving a coherent structure to society. Requires Africans to express the distinctive collective

§

consciousness in their behavior. Principles are sharing, loving, trust, etc.

§

Creates a conductive atmosphere for people to relate

§

well with each other and promote solidarity. Means that individuals belong to and identify with a certain gr...