South African Customary Law

• Customary law, conflict of laws, and legal pluralism examined in the context of South Africa.

Historical Development of Customary Law

• Customary law governed trade, politics, marriage, and community relations.
• Community integration was achieved through intermarriage and mutual respect to avoid conflicts.
• Khoi and San groups had organized socio-political systems.
• Colonizers used "terra nullius" ('empty land') and "lex nullius" ("no law") myths to justify land seizure.

Colonial Era (1652-1910)

• Direct rule in Cape Colony replaced customary law with Roman-Dutch and English Common Law.
• The aim of direct rule was to assimilate indigenous people and eliminate local systems.
• Indirect rule involved colonizers co-opting traditional leaders to enforce laws.
• Indirect rule reduced costs for colonial governments and maintained local cooperation.
• Customary law was made subordinate to colonial courts.
• Land dispossession, forced labor, and cultural erasure were socio-economic impacts of colonialism.
• European laws were prioritized and customary law was deemed inferior.

Union Era (1910-1948) & Key Legislation

• The Natives Land Act (1913) restricted Black South Africans to 7% of the land.
• The Act was later ruled unconstitutional in Alexkor v Richtersveld Community.
• The Black Administration Act (BAA) gave the Governor General power to appoint or remove traditional leaders.
• Section 20(1) of the BAA limited traditional courts to minor criminal cases.
• Male primogeniture, where only men could inherit land, was enforced.
• Indigenous people were forcibly relocated to rural "homelands" based on ethnicity.

Apartheid Era (1948-1994)

• Customary law was manipulated to enforce racial segregation (Bantustans).
• Traditional leaders enforced apartheid policies.

Key Cases during Apartheid Era

• Beyi Case: Courts urged applying parties' chosen law, often sidelining customary law.
• Tongoane Case: The State President could revoke tribal authority at any time.

Constitutional Era (Post-1994)

• The Constitution (Sections 30, 31, 39) protects cultural rights.
• Courts must consider customary law.
• The Ubuntu Principle emphasizes communal harmony and restorative justice.

Reforms

• The Bhe v Magistrate, Khayelitsha (2005) case struck down male primogeniture as unconstitutional.
• LEAA Section 1(3) dictates that courts apply customary law based on parties' agreement or defendant's residence.

Internal Conflict of Laws

• Internal conflict of Laws resolves disputes between legal systems within a country, like customary law vs. common law.

Pre-Colonial Conflict Resolution

• Community Integration: Intermarriage, shared trade practices.
• Mutual Respect: Avoiding conflicts by respecting cultural differences.
• In lobolo negotiations, the bride's customary law applied during negotiations, while the husband's law governed daily marriage life.

Colonial and Apartheid Eras

• The Repugnancy Clause meant customary laws deemed "repugnant to justice/morality" were voided.
• Roman-Dutch Law dominance saw European laws overruled customary law, even if unjust.
• BAA Section 11(1) specified that courts applied customary law only if it aligned with "public policy."

Modern Rules

• LEAA Section 1(3): Determines applicable law based on agreement, defendant's residence/workplace, or applying the "first" version for multiple customary laws.

Constitutional Era

• Section 211(3) mandates that courts must apply customary law where applicable, subject to the Constitution.

Legal Pluralism

• Legal Pluralism refers to the existence of multiple legal systems within a single society.

Key Theories of Legal Pluralism

• Legal Positivism: Law equates to written rules, statutes, and court rulings, but ignores morality and is enforced by the state
• Legal Centralism: State monopolizes law-making and rejects non-state systems.

Types of Legal Pluralism

• Weak Pluralism: State-sanctioned systems are codified by statutes, such as traditional courts recognized under the BAA.
• Deep/Strong Pluralism: Community-driven laws are based on evolving practices.

Examples in Case Law

• Shilubana v Nwamitwa (2008) recognized living customary law's adaptability, allowing female chieftainship.
• Alexkor v Richtersveld Community (2003) restored land rights using customary law, overriding colonial-era dispossession.

Key Concepts

• Ubuntu: African philosophy emphasizing community, fairness, and reconciliation.
• Repugnancy Clause: Colonial tool to invalidate customary laws conflicting with European norms.
• Living Customary Law: Dynamic, unwritten rules evolving with community practices.

Key Takeaways

• Customary Law: It is rooted in pre-colonial traditions but marginalized during colonialism/apartheid.
• Customary law is now constitutionally protected but must align with human rights.
• Conflict of Laws: Colonialism imposed European legal dominance, but modern rules prioritize fairness and party autonomy.
• Legal Pluralism: South Africa's legal system blends state law, official customary law, and living practices.

Ascertainment and Proof of Customary Law

• Ascertainment involves determining how a customary law rule applies to a legal dispute.
• Proof means establishing the existence and content of customary law in court.

Key Challenges

• Ascertainment and proof rely on oral traditions, community practices, and unwritten norms, unlike common law.

Sources

• Sources of proof include language, history, folktales, storytelling, and media.

Historical Statutory Framework

• Introduced the repugnancy clause, voiding customary laws deemed "repugnant to justice/morality".
• Under the Black Administration Act (BAA), Section 11 required courts to apply customary law only if it aligned with "public policy."
• LEAA, section 1 allowed courts to apply customary law alongside common law.
• The LEAA permitted oral evidence to prove customary law and maintained the repugnancy clause to make justice more accessible.

Constitutional Era (Post-1994)

• Section 211(3) of the Constitution states that courts must apply customary law where applicable, subject to constitutional rights.
• Courts balance customary law with constitutional values without directly overriding it.

Problems with Official Customary Law

• Ossification: Official customary law is often outdated and disconnected from living customary law.
• Indigenous knowledge holders were excluded as witnesses in court.
• Courts recruited lay assessors to explain customary law, but many lacked expertise.

Key Cases

• Alexkor v Richtersveld Community (2003) affirmed customary land rights, overriding colonial dispossession.
• Shilubana v Nwamitwa (2008) recognized living customary law's adaptability, allowing female chieftainship.
• Mabena v Letsoalo (1998) recognized women's agency in negotiating lobolo.

Nature and Concept of Customary Law

• Customary Law consists of practices and traditions observed by indigenous communities, forming part of their culture.
• Living Customary Law is dynamic, unwritten rules evolving with societal needs.
• Official Customary Law is codified in statutes/textbooks, often rigid and outdated.

Colonial Influence

• Colonial authorities distorted customary law by codifying selective rules and voiding others.
• Scholars like Luluaki criticized colonial officials for lacking knowledge of customary law.
• Nhlapo highlighted collusion between colonial authorities and traditional leaders to enforce rigid rules.

Key Features of Living Customary Law

• Custom requires repetitive conduct recognized by a community and it must be reasonable, certain, and uniformly observed
• Acceptance refers to community consensus that gives legitimacy (voluntary or coerced by leaders).
• Evolution requires adapting to societal changes like gender equality in succession.

Living vs. Official Customary Law

• Living Customary Law: Community practices are the source, it is dynamic and evolving, recognized in cases, reflects current community needs.
• Official Customary Law: Statutes and textbooks are the source, enforced by courts but often criticized and disconnected from modern practices.

Mixed Customary Law

• Mixed Customary Law is the coexistence of customary law and common law.

Examples of Mixed Customary Law

• Succession: Combining male primogeniture with constitutional equality.
• Same-Sex Unions: Balancing traditional norms with LGBTQ+ rights.
• Challenges: Reconciling conflicting values, such as Gumede v President of RSA declared certain practices unconstitutional.

Reconciliation with Fundamental Rights

• Constitutional Provisions: Section 9 (Equality) abolished discriminatory practices.
• Section 39(2): Courts must develop customary law in line with constitutional values.
• Ubuntu Principle: Promotes communal harmony and fairness in applying customary law.

Key Takeaways

• Ascertainment: Proving customary law requires oral evidence and community input, but colonial legacies complicate this process.
• Living vs. Official: Living customary law adapts to modern needs, while official law risks becoming outdated.
• Constitutional Balance: Courts must uphold customary law while ensuring alignment with human rights.