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S TUDY UNIT 1: AN INTRODUCTION TO LEGAL PLURALISMState legal pluralismIs the parallel existence if more than one legal system in one jurisdictional area/domain/territoryState/common law Roman-Dutch law, as influenced by English law adapted and developed Includes case law and legislation Customary la...

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STUDY UNIT 1: AN INTRODUCTION TO LEGAL PLURALISM State legal pluralism Is the parallel existence if more than one legal system in one jurisdictional area/domain/territory National law

State/common law

Customary law

State/common law -

Roman-Dutch law, as influenced by English law adapted and developed Includes case law and legislation

Customary law = Indigenous Law The customs and usages traditionally observed among the indigenous African people of South Africa and which forms part of the culture of those people - There is a variety of customary laws because we have cultural pluralism (many cultures in RSA) - Term “indigenous law” was used in earlier scholar sources & other legislation (i.e. s1 (1) of Law of Evidence Amendment Act) but it is preferable to use the term “Customary Law” as this is how it is expressed in the Constitution - There are two types of customary law: official and living - Subject to the repugnancy clause

Repugnancy clause -

Customary law cannot be in conflict with: public policy, rules of natural justice and good morals (boni mores) Clause was created before the Constitution – now customary law is subject to Constitution

Official Customary Law -

Formally recognised customary law in legislation and by courts This is also known as dual theory/dual legal pluralism = western law + customary law (that have western values) Customary law is viewed as having an inferior status to western law Therefore, official customary law is NOT a true representation of the country Examples of official customary laws: Codes of Zulu

Living Customary Law -

Applied by customary law institutions i.e. ward heads, family councils & regimental courts - Represents the factual situation of the country as ALL customs are recognised and are relevant (not based on inequality) - Not written & uncodified - Not recognised in legislation or by government - Includes religious laws & peoples law - Customary law has undergone considerable change as a result of the colonial (Western) environment therefore there is a need to adapt it to the changing circumstances – it needs to be flexible Examples: i. Individuals have become autonomous. Communal life has disintegrated – needed to change customary law to suit this ii. Women acquired a large measure of independence i.e. earning cash income and functioning independently, female-headed households therefore society was no longer purely patriarchal -

CASE: Mabena v Letsoalo 1998 Women are able to negotiate and receive lobolo for their daughters

CASE: Bhe v Magistrate, Khayelitsha (originally referred to Commission v President of the Republic of South Africa 2005) -CC recognised that true customary law acknowledges continual change

People’s law -

Developed from customary law and adapted to suit urban areas (form of customary law) Also subject to the repugnancy clause Applied in unofficial institutions i.e. ward heads, family councils, regimental courts Run by respected members of society (NOT of legal background) – give opinions and raise questions Based on restorative justice or participatory justice Developed as a result of: a) Class contradictions b) Unaffordable and inaccessible common law courts c) Existing legal system had no legitimacy (during Colonialism and Apartheid) d) Legal system was ineffective and weak e) Other economic factors

Sources of customary law -

Can be controversial and incomplete

1. a)

Customs and usages Main source of customary law Certain requirements for proving the existence of custom or usage: Custom or usage must have been in existence for a long period of time

b) c) d) -

The relevant community must generally observe the custom or usage It must be reasonable Must be consistent with or subject to the Constitution and other legislation Can prove the customs and usages by means of expert evidence

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CASE: Sigcau v Sigcau 1944 Court may look to S1 (1) of Law of Evidence Amendment Act to find customs and usages

2. Legislation - Codified customary law has been criticised but there are still reasons for legislation - Allows changing or developing customary legal rules that are seen as unconstitutional Example: I. Recognition of Customary Marriages Act regulates customary marriages in RSA 3. Judicial precedent - Some older courts have been abolished (i.e. Appeal Court for Commissioners’ Court) but their decisions still form precedent 4. Scholarly and other writings - Be cautious of bias, ethnocentrism and viewing customary law through a common law lens CASE: S v Makwanyane 1995 -Court emphasised the importance of research material to determine how disputes were resolved and punished in traditional African societies CASE: Alexkor Ltd v Richtersveld Community -Court states that customary law may be established by reference to writers on customary law and other authorities and sources

Glossary Deep legal pluralism: takes into account living customary law Broad approach to legal pluralism: takes into account deep legal pluralism Weak legal pluralism: doesn’t incorporate all customs and account for reality Narrow approach to legal pluralism: only recognises weak legal pluralism Dual legal pluralism: official customary law + western laws Combined approach to legal pluralism: state legal pluralism (form) + narrow approach (approach) Legal positivism: law that have been promulgated and is recognised

State law legal pluralism: weak legal pluralism + legal positivism+ narrow approach to legal pluralism (two relevant legal systems are not equal as national law is placed above customary law. Terminology and classification is derived from national law)

CUSTOMARY LAW : STUDY UNIT 2 The acceptance of Customary Law in RSA: entrenched in the Final Constitution Two legal systems officially recognised: common law and customary law  Common law: transplanted from Western laws (the core being RomanDutch law and was subsequently influenced by English common law)  Customary Law: was accepted as a separate legal system in 1994 Constitution S 211 (3): Recognition (3) The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. Constitution S 30: Language and culture - Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights. Constitution S 31:Cultural, religious and linguistic communities (1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community(a) to enjoy their culture, practice their religion and use their language; and (b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society. (2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights. Constitution S 32 (2) - Courts have the responsibility to develop the customary law when interpreting any legislation, and when developing the customary law in line with the spirit, purport and objects of the Bill of Rights Constitution S 39 (2): Interpretation of Bill of Rights (2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. Constitution S 181(1)(c): State Institutions supporting constitutional democracy - The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities

CASE: Mthembu v Letsela 1997

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High Court confirmed that customary law has been chosen as a separate legal system by the Constitution CASE: Gumede v The President of the Republic of South Africa 2009 Constitutional Court confirmed that customary law “lives sides by side with the common law and legislation”

Customary law is: - Not a unified system of law - Enough common features of various customary legal systems that can be grouped into one (i.e. commonalities between Xhosa & Zulu & Pedi etc)

Definitions of Customary Law & problems with the definition Hamnet: Customary law can be described as a “set of norms which the actors in a social situation abstract from practise and which they invest with binding authority” Bennet: Customary law “derives from social practises that the community concerned accepts as obligatory” However, customary legal rules are not permanent – can often change, be forgotten and changed easily Statutory definitions: S 1 (4) Law of Evidence Amendment Act 45 of 1988: “Indigenous law as the law of custom as applied by the Black tribes in South Africa”. S1 Recognition of Customary Marriages Act: “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 S1 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” - Some written, oral or embedded in legislation Examples: Lobolo is defined in the RoCMA Lobolo/bogadi/bohali/xuma/lumalo/thaka/ikhazi/magadi/emabheka: is 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?

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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” - Constitution does not define culture - No exact definition - Bennet describes culture as: a) High intellectual or artistic endeavour b) 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 - 2001 UNESCO Universal Declaration on Cultural Diversity: “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”

States responsibility & the right of culture -

Must tolerate Preserve identity of the group Cannot discriminate based on culture Allow group to keep identity i.e. language and customs etc.

- ofCulture must not infringe on S 36 Constitution: restrictions onanother rights persons fundamental right Must not infringe on the broader interest ofonly the state (1) The rights in the Bill of Rights may be limited in terms of law of general application to the extent that the limitation is reasonable and justifiable in *Lawyers be wary of having viewsdignity, of customary law an openshould and democratic societyethnocentric based on human equality and -Ethnocentric: the belief that ones own patterns of behaviour are the best: the most freedom, taking into account all relevant factors, includingnatural, beautiful correct. Therefore (a) theand nature of the right; other people, to the extent that they live differently,(b) live by standards that immature and wrong. the importance ofare theinhuman, purpose ofirrational, the limitation; (c) the nature and extent of the limitation; Customary vs Common law (d) law the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.

Non-specialised More difficult to ascertain as not recorded (unwritten) Largely uncodified Observed in tribes own language Traditional African leader or hereditary king = apex of community. No separation of power. Time plays a minimal role in determining when rights and duties come into existence No formal structures – no professional judges or legal practitioners. Adult family members will discuss matter. Bring to party’s headman if no reconciliation. If non there then take to traditional leader’s court. * No formal/specific body that maintains order i.e. police, army. Restorative justice or even therapeutic justice used. Main objective to reconcile parties. Marriage is the union of two families. Family representatives negotiate the marriage and come to an agreement on the lobolo. ** Head of family concludes contracts on behalf of his family (will incur obligations under contracts entered into by members of his family with his consent) Based almost entirely on the concrete performance to act i.e. physical handing over of bride The group (family or community) constitutes a legal entity. Family head is the representative of legal unit. Continually changing, more in line with western ideas of equality: allowing women to participate in court hearings Ubuntu plays a major role: compassion, respect, dignity, and collective unity. Indigenous African philosophy. CCCconsultation, consensus, compromise No ridged distinctions between categories, institutions and concepts

Specialised: are divisions, definitions, classifications and delimitations Easily ascertainable from legislation, judicial precedents and textbooks (for most of it is written) Uncodified (even though it is specialised) Written almost exclusively in English or Afrikaans Democratically elected functionaries i.e. judges, legislative assemblies Separation of power in NB. Moments in time are important i.e. an action must be instituted before a certain time Formal court structures and formal legal professionals

The executive (police & army) is an integral part of western law.

Marriage is a contract between a man and a woman

Contracting parties themselves acquire rights and incur liabilities

Can complete acts without physical handing over of articles or goods Individuals have rights and duties.

Clearly distinguish between categories, institutions and concepts e.g. Private

law and Public law No administrative law: power and duties are given to all people in the community as “every person is his brothers keeper” Civil and criminal proceedings are not separated yet the distinction between delict and crime is known. Does not subscribe to the abstract *S 12(1)(a) and S 20(1)(a) of Black Administration Act: senior traditional leaders are granted civil and criminal jurisdiction yet the court council performs the judicial function ** Recognition of Customary Marriages Act: customary marriages are in line with common law marriages

Black Administration Act 38 of 1927 -

Most of the provisions in the BAA have been repealed by Repeal of Black Administration Act on 12 April 2006 and Amendment of Certain Laws Act 28 of 2005 Some provisions are not repealed BAA Act has had great influence on the application of customary law

Prior to Black administration Act (BAA) Brief history of customary law 

1652-1795: RSA was a Dutch colony for strategic importance (VOC). Little imposition of European system on indigenous people. No state legal pluralism

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1795-1803: British colony. Indigenous people must give up customary law and recognise British rule

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1803-1806: Dutch Colony. No change to legal system.

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1806-1910: British officially recognised customary law in certain areas but placed a repugnancy clause and put chiefs in charge of keeping order

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1833: treat system introduced - RSA was divided into autonomous areas (British colonies, indigenous kingdoms and Boer Republics), tribes were controlled by chiefs as British wanted to avoid direct rule over indigenous people

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1845: Treaty was abolished

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1 September 1927: Black Administration Act came into being- first piece of legislation entrenching customary law to the country as a whole

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15 November 2000: Recognition of Customary Law Marriages came into effect

How different laws were applied in South Africa? -

Four provinces and a number of self-governing territories (Transkei, Bophuthatswana, Venda, Ciskei and Zululand) Recognition and application of customary law varied in each

 Cape Colony: all Africans were subject to colonial law (under Act 3 of 1865), no direct recognition of customary law, though Africans still practised own legal system, therefore customary law started to gain recognition to an extend (i.e. customary succession was granted recognition in Act 18 of 1864)  Natal: customary law was recognised and codified by the Code of Zulu Law in 1878  Transvaal: recognised customary law in terms of Act 4 of 1885 as long as not in conflict with generally accepted principles of civilisation  Witzieshoek Reserve in Orange Free State: recognised customary law only in succession and guardianship  Transkei: customary law was consistently recognised under Annexation Act 1 September 1927: BAA made uniform recognition and application of customary law throughout South Africa After the BAA Section 11(1) - Native Affairs Commissioners’ Court discretion to apply customary law to all matters involving customs followed by African people (as long as custom has not been repealed or modified by the law and accords with public policy and natural justice) - lobolo or bogadi was codified

 Cape & Orange Free State - Common law was primarily applied - Customary law was only applied in matters “peculiar to native customs falling outside of the principles of the Roman Dutch Law”  Natal & Transvaal - Customary law primarily applicable to all blacks

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Common law was applicable to Blacks on exception CASE: re Yako v Beyi 1948 (A) Attempts to interpret S 11(1) of BAA Tried to create a device for elasticity (flexibility) Courts should consider all evidence and arguments then decide which system of law to apply to the case Follow precedent, take particular notice of the specific case but the dominant factor will be the judges own reasoned view of the applicable legal system to follow

BAA gave limited recognition in 8 ways 1. 2. 3. 4. 5.

In discretion of Commissioners Court to apply customary law Only Commissioners Court had discretion to apply customary law Apply in civil proceedings only Only in proceedings between African people Only in proceedings where a custom followed by an African person came into question 6. Only apply if custom hasn’t been repealed or modified by legislation 7. The law cannot be in conflict with public policy or natural justice

Recognition of Law of Evidence Amendment Act (LoEAA) (Came into operation on 3 October 1988)

Main difference S1 (1) if LoEAAbetween BAA and LoEAA: - - All courts noticenotice but only in so far aslaw it can ascertained Any court take may judicial take judicial of indigenous (atbe their judicial readily and with sufficient certainty discretion-give reasons for decision) - Law must be ascertained readily and with sufficient certainty NB: S1 of LoEAA hasbeseemingly redundant today as customary law is - (1) Law must not in conflictbecome with principles of public policy or natural now subject to the Constitution and Bill of Rights and not BAA or LoEAA. justice - It is unlawful for a court to apply such custom, including lobolo/bogadi, if CASE: to Mabena v Letsoalo 1998 (2) SA 1068 (T) it is repugnant such principles - The judge held hat the mother of a daughter may negotiate...