Customary Law Notes PDF

lOMoARcPSD|42166856 1. Historical Overview and the Application of Customary Law under the Constitution Textbook: Chapter 1 – Historical overview of customary law Introduction Time periods are broadly defined at colonialism (1652-1909); Union (1910-1947); Apartheid (1948 – 1990) and the Transitional period (1990 – 1996). Pre-colonialism (-1652, -1820, -1891) The particular end dates referenced as potential markers of the pre-colonial period in title: o Jan van Riebeeck’s arrival on South Africa’s Atlantic shores (1652) o Arrival of the British at the Cape (1820) o Natal Native Code of 1891 was adopted, whose core tenets Mamdani demonstrates were later explicitly embraced as far as what was then known as Southern Rhodesia (present-day Zimbabwe) The hyphen in ‘pre-colonial’ therefore serves to imply that the decolonial project, de-centring colonialism in the narrative told of Africa’s history, has yet to be completed. Southern African peoples: Archived moments and movements The first emergence or arrival of Homo sapiens in the area has been dated as far back as 260 000 years ago (Middle Age) Previously derogated by Europeans assigning them the name ‘Bushmen’, the hunter-gathering peoples of Southern Africa are believed to be the direct descendants of these original human inhabitants of the region. o They were ascribed the unflattering name San by their herding neighbours, the Khoikhoi, the arrival of whose pastoralism, starting roughly 2 000 years ago, is used to mark the end of the Late Stone Age in Southern Africa. The Khoikhoi then gradually, through intermarriage, became the San’s kin. Khoi-San ancestors22— that is, the populations of indigenous Southern Africans whose arrival pre-dates that of the Ntu- speaking groups. Ntu-speaking peoples migrated to the area around the start of the 3rd century (SA Iron Age) o As evidenced by both rock paintings and transmission of linguistic traits such as the ‘click consonants’ to some of the Ntu languages in Southern Africa, there was some level of contact, interaction, and even integration between Ntu and Khoi-San peoples. What is meant by decolonising the archive? (refers to the fact that many Europeans spoke on SA) o ‘Archive’ refers to a collection of historical documents or records informing us about a subject of interest such as a group of people, a place, or an institution o ‘Decolonial’, in this context, is used to refer to the active de-centring of colonialism and the forms and content of knowledge that it recognised and, in many instances, fetishised. o Decolonizing knowledge is therefore not simply about de-Westernization. ▪ As writer Ngugi wa Thiong’o reminds us, it mostly means developing a perspective which can allow us to see ourselves clearly, but always in relationship to ourselves and to other selves in the universe, nonhumans included. Capitalism the economic policy and system ito which European countries sought to enlarge their wealth by expanding their assets and domains to foreign lands and that was therefore one of the primary drivers of colonialism Enlightenment a cultural and intellectual movement in the 1600s and 1700s that served to support broadly acceptable social knowledge and developments w/ the premises of materialism and humanism as opposed to tradition Berihun Adugna Gebeye’s summation of the wide-ranging forms taken by the social organisation of sub-Saharan African populations prior to imperialism’s arrival, indicating as follows: o Precolonial Africa hosted a mosaic of societies with different types of political organization across its vast geography. o Based on the nature of their political organization, three types of political systems existed in precolonial Africa. ▪ (1) centralized admin system - empires, states, kingdoms, and chiefdoms (state) ▪ (2) lineage structure - clans or tribes (stateless societies) ▪ (3) kinship and consisted of small communities tied to each other by that kinship Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 African social formation described by Gebeye as being small kinship-based communities has been overshadowed by the first two. o Delius has shown, centralised and hierarchical political arrangements were by no means the most common or the default. Rather, with land being abundant, the primary marker of pre-colonial society was freedom54 of movement. The socioeconomic and political rights context of pre-colonial normative orders Terra nullius the principle that where land has not been productively used by the people inhabiting it, it was not owned by those people who lived on and otherwise used the land Lex nullius the notion of colonists that the ‘natives’ were without law Looking at the evidence in support of this claim, one must recall that descriptions of pre-colonial history oftentimes rely upon the historical accounts of missionaries and other colonial actors read w/ anthropological research and archaeological discoveries. Delius; Schoeman: concept of definite or fixed ‘tribes’ determining the identities of pre-colonial peoples, such as the Koni, is wholly false. As Bonner et al. summarise Delius and Schoeman’s findings on the Koni’s pre colonial reality in a separate publication: o settlements were not ‘defensive’, thus suggesting that the population had lived in relative peace with its neighbours while having deliberate and well-established routes and infrastructural supports for their agricultural and trade activities o Not easily defendable’ reinforces the sense of relative stability and security that has already been suggested from Delius. Guy’s narrative clearly suggests that despite certainly somewhat insecure circumstances because they were ever vulnerable to attack, along with a lot of hard labour for the simple purpose of survival as well as some class stratification, especially in gendered terms,indigenous Africans predominantly lived in circumstances that were substantially stable and were assessed by them to be relatively secure. Rights under pre-colonial normative orders Oral histories are a crucial part of the decolonial archive. Generally what goes on record is not the words of the witnesses, but a version of their testimony translated into legal jargon literally dictated by the judge to the clerk. Observations about written historical records: o written historical records began as audio-visual events that were recounted by someone as oral history and reduced to writing by another. o those who were able to write often fit a very particular profile ▪ Portelli points to the class bias in the fact that those who learn to write and become published and widely read as writers are predominantly those with some means. o linguistic and experiential differences—often between those who are the primary agents in and/or orally recount the indigenous historical events and those who write it down As Charles-Louis Montesquieu (1689–1755) recognised legal facts are localised social constructs and the law therefore depicts a very particular way of conceiving the world in light of the context out of which it emerges. Human rights were not introduced to the African continent by Europeans. Pre-colonial normative orders sought to: o recognise some version of the fundamental individual and collective right to dignity o secure substantive equality and the paramountcy of the best interests of the child o protect political rights o protect the right to life Colonialism (1652-1909) Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 Direct rule a policy initially applied by the colonial British government where they sought largely to assimilate the ‘natives’ under English common law. Indirect rule a policy later applied by the colonial British government whereby ‘native’ administrations, courts and treasuries were established in the Cape and Natal colonies in accordance w/ their understanding of customary law to ensure the cooperation of traditional leaders and communities and to relieve the financial burden on the colonial governments Policy of assimilation a policy compelling people not originally subject to a culture or law to embrace that culture or law as their own and conform to it in their practice The British implemented indirect rule in 3 parts: o (1) The British recognised traditional leaders by establishing ‘native’ administrations of which traditional leaders formed a part. o (2) They established local dispute resolution forums as ‘native’ courts. o (3) They established ‘native’ coffers into which the ‘natives’ paid taxes that were then used for ‘native’ administration as the colonial government did not want to squander its wealth Socioeconomic and political context of colonialism Colonialism was primarily a struggle over resources, authority, and cultural/moral legitimacy Colonizers asserted power through physical and legal coercion Traditional leaders and institutions were undermined Stereotypes and notions of cultural superiority were prevalent The reason for adopting these means of colonisation was that the colonisers wanted to legitimise their rule and hence their laws. The colonisers were especially interested in securing control of contractual relationships and financial dealings, particularly control over property. Property was the main asset that the colonisers wanted legally to possess and in fact own (land and people) o In the process, therefore, the colonisers dispossessed the local population of their property by relying on the principle of terra nullius. o The principle of terra nullius was complemented by the principle of lex nullius. British colonization was driven by industrialization, the Enlightenment, and capitalism Indigenous peoples were incorporated into the settler economy as laborers Recognition of customary law Recognition of customary law was driven by state objectives, not respect for indigenous autonomy Initially, British policy favored direct rule and assimilation Indirect rule was later adopted, particularly in Natal under Theophilus Shepstone. o Hoping policy would accomplish 2 major purposes: ▪ fragment the majority population into tribes (small groups rather than one dominant race and this reduces a threat of revolt) ▪ create the impression of group autonomy and independence (permit indigenous communities to govern themselves) Union (1910-1947) The precision of this period comes from the fact that its official beginning is dated to the establishment of the Union on 31 May 1910. Union of South Africa established in 1910, merging British colonies and Boer republics. One of the hallmarks of this period was the beginning of reverse urbanisation o A process by means of which the government sought to compel people who had moved from rural areas to urban areas to return to the rural areas. o This was achieved through law, forced removals, and the creation and compulsory assignment of language-based ‘homelands’ for black people. Political background and wider legal context of the Union Government objectives: regulate behavior and movement of "natives" with minimal administrative investment Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 The underlying purposes were to ensure that regulating the ‘natives’ took the least administrative and resource investment from the state possible, while ensuring that the ‘natives’ remained at the disposal of the state for labour and production purposes. Key legislation: o Natives Land Act (1913): ▪ Confined black people to 7% of land, prevented land acquisition outside "scheduled native areas" o Black Administration Act (BAA) (1927): ▪ Gave Governor-General power to reshuffle "tribes" ▪ Made Governor-General "supreme chief" of all "natives" in certain provinces ▪ Established separate court system for customary law application ▪ Prescribed administration of black estates Customary law, chiefs’ courts, and state courts S20(1) BAA: The Governor-General may confer upon any native chief or headman jurisdiction to try and punish according to native law and custom S11 BAA: set up a separate state court system for the application of customary law. o Native Commissioners’ Courts and Native Appeal Courts o Customary law can only be applied if it is consistent with “public policy or natural justice” There were numerous ways in which the infiltration of the common law into customary law took place under the new order imposed by the BAA. o This infiltration resulted in the distortion of the customary law ▪ (1) Union officials staffed the Native Commissioners’ Courts and Native Appeal Courts. Apartheid (1948 – 1990) Political context of apartheid The transition from colonialism to the apartheid era was slow and took place over the few decades constituting the Union period In South Africa, the policy of indirect rule discussed above simply became more formalised and entrenched in legislation under the National Party (NP) government to become ‘separate development’ Customary law and tribal authorities The 1948 decision of AD (now SCA) in Ex parte Minister of Native Affairs: In re Yako v Beyi: o No presumption was to exist in favour of applying either the common law or customary law, but courts should apply the law that was most applicable to the parties and the circumstances of the case. Post-apartheid case of Tongoane v National Minister for Agriculture and Land Affairs: o The Black Authorities Act gave the State President the authority to establish ‘with due regard to native law and custom’ tribal authorities for African ‘tribes’ as the basic unit of administration o Under apartheid, these steps were a necessary prelude to the assignment of African people to ethnically based homelands s4(1)(d) Black Authorities Act: tribal authority shall exercise such powers and perform such functions and duties as in the opinion of the Governor-General as long as they fall within tribal admin. S4(1)(a) Black Authorities Act: the tribal authority was responsible for ‘generally administer[ing] the affairs of the tribes and communities in respect of which it has been established’. S4(1)(b) Black Authorities Act: tribal authority was to assist the tribal leader in his performance of ‘powers, functions or duties conferred or imposed upon’ him S1 LEAA: permitted the court to take judicial notice of customary law principles that were readily ascertainable and apply them where it deemed them applicable. By the mid-20th century three forms of customary law had come into being: o (1) official customary law - captured in statute and precedent (Roman-Dutch & English law) o (2) academic law - body of treatises on customary law o (3) living customary law - developed and used by indigenous communities (attested orally) Transitional period (1990-1996) After Nelson Mandela got released, there was a transitional period where negotiation took place about the new order of gov. Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 In the uncertainty of the transitional period, customary law, the role of traditional leaders, and women’s rights were hotly contested issues. Key debates: o Protection of customary law in the Constitution o Role of traditional leaders o Women's rights under customary law Interim Constitution (1993): o S181-184: Provided for role of traditional leaders o Constitutional Principle XI: Protected language and culture o Constitutional Principle XIII: Recognized customary law subject to constitutional rights Introduction of ubuntu as constitutional value in S v Makwanyane (1995) Certification of final Constitution (1996): o Had to comply with Constitutional Principles XI and XIII o Key provisions: ▪ S9(3): Equality protection including culture ▪ S30-31: Cultural rights ▪ S39: Development of customary law ▪ Chapter 12: Role of traditional leaders ▪ S211(3): Application of customary law by courts Ongoing challenges: o Defining and identifying living customary law o Balancing individual rights with traditional leadership claims o Regulating customary institutions and practices Textbook: Chapter 2 – The nature and concept of customary law Introduction Customary law as opposed to customary laws Customary law refers to the general principles shared by indigenous communities in South Africa, despite variations between communities There is no single uniform system of customary law for all indigenous communities Customary law and colonial history Understanding colonial history is essential to grasping the concept of African customary law Customary law is a colonial invention aimed primarily at facilitating and entrenching the colonial agenda in the management and control of colonized peoples and to bring them closer within the larger colonial and latterly neo-colonial legal, economic and cultural whole Official customary law emerged as a colonial invention for governing Africans. Factors that contributed to the emergence of this official customary law: o the treatment by the state courts of customary law as a fact that had to be proved in every case, as well as the inevitable use of oral methods of proving living customary law in the courts o the ignorance of the officials of state courts about the content and nature of customary law o the use of precedent and academic literature as sources of customary law o the codification of customary law o the quest for legal certainty in the norms of customary law as sources of law o the use of the repugnancy clause, which had the effect of changing existing customary law to suit official requirements Nhlapo points out, the process of creating the customary law component of the colonial, Union, and apartheid legal systems: o usually took the form of an alliance between the colonial authorities and African male elders Alexkor Ltd v Richersveld Community: o Although a number of text books exist and there is a considerable body of precedent, courts today have to bear in mind the extent to which indigenous law in the pre-democratic period was influenced by the political, administrative and judicial context in which it was applied Definition and concept of customary law Introduction Two main forms: living customary law and official customary law Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 Bhe v Magistrate, Khayelitsha: The official rules of customary law are sometimes contrasted with what is referred to as ‘living customary law’, which is an acknowledgement of the rules that are adapted to fit in with changed circumstances. o The problem with the adaptations is that they are ad hoc and not uniform. Mabena v Letsoalo: The court noted that it had to recognise the principle of living, actually observed, law as this would constitute a development in accordance with the spirit, purport, and objects of the BoR. The two major statutes dealing with customary law post-1994 also recognise the concept of living customary law by implication. o Recognition of Customary Marriages Act (RCMA) and the Reform of Customary Law of Succession and Regulation of Related Matters Act (RCLSA) o both define customary law as ‘the customs and usages traditionally observed among the indigenous African peoples of SA and which form part of the culture of those peoples’ In Bhe, the minority judgment of Ngcobo J identified three forms of customary law and stated that all three forms are different: o customary law that is practised in the community o customary law that is found in statutes, case law, or textbooks on official customary law o academic law that is used for teaching purposes Living customary law Patrilineage a group of persons who are related to a person by blood through the male line Matrilineage a group of persons who are related to a person by blood through the female line hosi the term for a senior traditional leader among the Valoyi Definition of living customary law Consists of actual practices/customs of indigenous communities Derived from widespread social practice and acceptance Unwritten and constantly evolving to meet changing needs Source is custom that emerges from social practice and acceptance Requires perpetual consent and acceptance of the people Distinguished from common law concept of custom Recognized by courts as adaptive and evolving Official customary law: o Applied by courts and state institutions o Sources include codes, legislation, court precedents, textbooks o Often does not represent actual customary practices of people o More rigid and rule-oriented than living customary law Contestations over content of living customary law: o Conflicts due to unwritten nature and lack of single authority o Debates over authenticity of living law applied by courts o Arguments that living law is transformed when entering judicial process Mixed customary law New hybrid form resulting from reform of customary marriage and succession laws Incorporates elements of civil/common law and customary concepts Examples: Recognition of Customary Marriages Act, Reform of Customary Law of Succession Act Risk of undermining customary law through significant importation of civil law Reconciling customary law with fundamental human rights Potential conflicts between customary law and Bill of Rights, especially in family relationships Courts have invalidated customary practices that violate constitutional rights (e.g. male primogeniture) Debates on reconciliation approaches: o Constitutional rights trumping conflicting customary law o Retaining substance of customary values while reforming problematic aspects o Viewing rights and culture as complementary rather than oppositional o Applying living customary law as more adaptable to rights Need for nuanced balancing approach recognizing constitutional status of customary law Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 Importance of community involvement when reforming practices Articles: A C Diala ‘The concept of living customary law: a critique’ 2017 The Journal of Legal Pluralism and Unofficial Law 143-165. Introduction The concept of living customary law is analyzed within the framework of legal pluralism. Legal pluralism acknowledges the existence of multiple legal systems within a given society. The article aims to critique the mainstream conceptualization of living customary law, particularly in postcolonial African societies. Colonial Rule and Legal Transplant European colonialists imported their legal systems into Africa, disrupting indigenous normative systems. Precolonial societies had a communal and complementary social structure, with less distinction between proper conduct and law. Colonial rule introduced socio-economic changes, including new educational, religious, and political systems, along with alien laws. Customary law was misinterpreted and distorted by colonial officials, often infusing it with patriarchal elements. These distortions led to a version of customary law that differed from the law traditionally practiced by the indigenous people. Effect of Indirect Rule and Legal Transplant The indirect rule policy allowed customary law to apply alongside transplanted European laws, with restrictions. Customary law had to be compatible with Western legal standards to be upheld in courts. This policy gave Africans a false sense of political control while ensuring they adhered to European laws. African judges assessed customary law from a rule-based, legal positivist viewpoint, recognizing it only if it met the standards of transplanted European laws. This created a divergence between the customary law recognized in courts and the law observed by the people, leading to a new version of customary law. Emergence of Official Customary Law Official customary law emerged from efforts to standardize customary law within Western legal systems. It consists of judicial precedents, codifications, and academic descriptions of customary law. Colonial judicial officers, often ignorant of indigenous customs, relied on interpretations by chiefs and elders, some of whom had vested interests. This led to a distorted version of customary law that often emphasized patriarchal features and minimized communitarian values. The Constitutional Court's jurisprudence highlights the negative impact of these distortions on groups like women and younger male children. Main Takeaway The article critiques the mainstream conceptualization of living customary law, arguing that it is often a distorted version shaped by colonial and postcolonial influences. The concept of living customary law must be understood within the context of legal pluralism and the socio-economic changes brought by colonial rule. There is a need to distinguish between genuine living customary law and its distorted versions to ensure the protection of indigenous people's rights and values. C Himonga & C Bosch ‘The application of African customary law under the Constitution of South Africa: problems solved or just beginning’ 2000 South African Law Journal 271. Introduction Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 Recognition of Customary Law by the Constitution: The paper addresses the challenges in applying indigenous customary law within South Africa's constitutional framework. Human Rights Concerns: Emphasizes the importance of the issue for the human rights of a large part of South Africa's population. Aim: Encourages debate and further study on the operation of the legal system regarding customary law. Recognition of Customary Law Pre-constitutional Era Confusion and Inconsistency: There was confusion regarding the status of customary law during the colonial era and after the union in 1910. Native Administration Act 38 of 1927: Limited the application of customary law to disputes involving only black litigants and special tribunals. Judicial Notice and Proof: Customary law rules could be judicially noticed if readily ascertainable and sufficiently certain, else they needed to be proved as facts. Repugnancy Proviso: Customary law could not be applied if considered contrary to public policy or natural justice. Interim Constitution Supreme Law: The Interim Constitution of 1994 became the supreme law of the Republic. Recognition in Bill of Rights: Customary law was recognized in the Bill of Rights, ensuring its elevated status in the national legal system. Sections 33(2) and 35(3): Addressed the limitations and interpretations of customary law within the constitutional framework. Factors Determining Application of Customary Law Constitutional Provisions: Sections of the Constitution directly impacting the application of customary law. Judicial Discretion: Courts' discretionary power to apply customary law and the influence of previous legislation on this discretion. Conceptualization and Ascertainment of Customary Law Conceptual Challenges: Difficulty in conceptualizing customary law within the constitutional framework. Ascertainment: Challenges in ascertaining and proving customary law rules in court. Court Cases and Judicial Interpretation Historical Cases: Cases highlighting the historical approach to customary law, including issues of public policy and the repugnancy proviso. Post-1993 Cases: How courts have dealt with the application of customary law since the Interim Constitution came into effect. Main Takeaway Need for Continued Debate and Study: The paper highlights the complex nature of integrating customary law within South Africa's constitutional framework and underscores the necessity for ongoing debate and further research to find appropriate solutions. C R M Dlamini ‘Towards a new legal order for a new South Africa’ 1992 Legal Stud. F. 131. Introduction New Legal Order: The discourse focuses on the transition to a "new legal order" in the context of a "new South Africa". The History of the Recognition of African Law in South Africa Colonial Encounter: Initial encounters between black and white populations involved conflicts, leading to the subjugation of black people and the imposition of Roman-Dutch law over African law Positivist Influence: Analytical positivism influenced the disregard for African customary law, relegating it to positive morality rather than recognizing it as "law properly so-called" Early Application: In practice, some magistrates in areas like the Cape had to recognize customary law due to its impracticality to apply foreign legal systems that black communities did not understand Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 Colonial Policies: Different colonies had varied policies regarding customary law. Natal went furthest by adopting a system similar to indirect rule, recognizing customary law and traditional rulers to facilitate effective control over the African population Uniform Policy in 1972: A uniform policy for recognizing customary law was adopted in 1972, subjecting it to a repugnancy clause which ensured that customary law did not contradict public policy and natural justice The Creation and Abolition of Special Courts for Blacks Special Courts Establishment: Special tribunals were created to apply customary law between blacks, provided it was not contrary to public policy and natural justice Jurisdiction of Traditional Courts: Traditional courts were given limited civil and criminal jurisdiction, and officers relied on their knowledge of customary law, although the process often became formalistic and involved legal technicalities Criticisms of Special Courts: These courts were criticized for their inefficiencies, formalistic procedures, and their limited adaptation to changing socio-economic circumstances Abolition of Special Courts: The Hoexter Commission recommended the abolition of special courts for blacks, leading to the enactment of the Special Courts for Blacks Abolition Act in 1986. Consequently, ordinary courts were empowered to apply and take judicial notice of customary law The Dual Court Structure and Its Implications Dual Court System: The dual court system led to uncertainties and anomalies, such as the non- recognition of customary marriages by the Supreme Court due to their polygynous nature, which was contrary to public policy Access to Justice: Despite criticisms, the special courts allowed many poor black people to access justice at lower costs compared to ordinary courts Judicial Training: One major issue identified was the lack of formal training in customary law for judicial officers, impacting the effective application of such laws Main Takeaway Legal Transition: The article highlights the historical evolution and challenges in recognizing African customary law within the South African legal system, illustrating the complexities and implications of a dual legal structure and the gradual move towards a unified legal system D N Ndima ‘The resurrection of the indigenous values system in post apartheid African law: South Africa's constitutional and legislative framework revisited: Centre for Indigenous Law’ 2014 Southern African Public Law Journal 294-312. Introduction The article examines the resurrection of the indigenous values system in post-apartheid African law. It highlights the shift from the official codified version of African customary law to a living and dynamic version. The Constitution of South Africa recognizes the version of customary law practiced by communities, supporting self-determination and democratic governance through indigenous customs and usages. The Constitutional Framework for the Recognition of African Law The South African Constitution acknowledges customary law as a legitimate and integral part of the legal system. Section 211 of the Constitution grants recognition to the customary law practiced by traditional communities. The Constitution mandates courts to apply African law in matters regulated by it, emphasizing its dynamic and evolving nature. The recognition of customary law aligns with the right to self-determination and respects the communities' customs and usages. The Legislative Scheme for the Development of African Law The Recognition of Customary Marriages Act restores full recognition to customary marriages, aligning them with the Bill of Rights. The Act mandates that customary marriages must be negotiated and celebrated under customary law, with both spouses consenting and being above the age of 18. Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 This legislative approach integrates indigenous cultural features with international human rights standards. The Act replaces the derogatory "customary union" with "customary marriage," ensuring respect and dignity for indigenous practices. The Jurisprudential Framework for the Interpretation of Post-Apartheid African Law The Constitutional Court has established that African law should be understood and interpreted in its own terms, independent of common law. African law is recognized for its flexibility, adaptability, and evolutionary characteristics, which allow it to respond to the changing needs of communities. The Constitution and legislative framework provide a basis for a jurisprudential theory that respects African values and aligns them with the Bill of Rights. Courts are encouraged to appreciate African law's consensus-seeking qualities and its role in fostering community cooperation and responsibility. Conclusion The article outlines the design for restoring African values to a central position in South Africa's legal framework. It emphasizes the importance of recognizing African culture and customs as legitimate sources of law. The analysis reveals a significant shift from apartheid-era legalism to a system that respects and integrates indigenous African values. The main takeaway is that the South African legal system has evolved to fully recognize and protect African customary law, ensuring it remains relevant and respected in the constitutional democracy. The main takeaway from the reading is the recognition and integration of African customary law within South Africa's constitutional framework, emphasizing its dynamic, evolving nature and its alignment with both indigenous values and the Bill of Rights. T W Bennett ‘Re-introducing African customary law to the South African legal system’ 2009 The American journal of comparative law 1-32. The Position of Customary Law Under South Africa's New Constitution Customary law was largely unaltered by apartheid-era legislation, resulting in laws lagging behind social practices and human rights standards. Post-apartheid reform was necessary, leading to legislative changes such as the Recognition of Customary Marriages Act 120 of 1998. The legislative process stalled, transferring the initiative to the courts, which faced challenges in aligning customary law with the Bill of Rights. Customary Law Under Apartheid: Positivism and the Critique During apartheid, legal positivism, linked to a conservative judiciary, dominated South Africa's legal system, undermining customary law. Customary law, applicable to most of the population, was distinguished from common law and often codified in ways that did not reflect actual social practices. Significant apartheid-era legislation included the KwaZulu Code of Zulu Law and the Transkei Marriage Act, which reinforced patriarchal norms. Problems of Proof Courts must differentiate between law and fact, and law and non-legal normative orders, as they can only presume to know their own law. Proof is required for everything else, such as foreign law, custom, or morality. Restatement of customary law was not favored due to the dynamic nature of social practices, which could render restatements outdated. Constitutional Interpretation and Judicial Methodology The courts' role in developing customary law involves a principled and consistent approach to determining which social practices should be accepted. Customary law sources are varied, and a clear-cut distinction between official and living law is impractical. Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 Recorded community practices begin transforming into official codes, which are then incorporated into the formal system. Development of Customary Law Customary law's evolution involves the incorporation of new social practices into the legal code. Judges need guidelines to approach the law-making role when customary law conflicts with constitutional mandates. The Law Reform Commission and research units like the Centre for Indigenous Law contribute to the development and perspective of customary law. Impact on Gender Equality and Human Rights Reforms addressed issues such as women's rights in customary marriages, previously governed by patriarchal norms. Cases like Bhe & Others v. Magistrate Khayelitsha and Shilubana v. Nwamitwa highlight the judiciary's role in evolving customary law to meet constitutional standards. Recognition of community acceptance is crucial for the validity and legitimacy of customary rules, challenging the imposition of official laws that may not reflect community practices. Main Takeaway The main takeaway from T.W. Bennett's article is that the integration and reform of African customary law within South Africa's legal system require a delicate balance between respecting traditional practices and aligning them with constitutional principles of human rights and equality. Courts play a crucial role in this process, ensuring that customary law evolves in a way that is both principled and reflective of actual social practices. 2. Recognition and Application of Customary Law Textbook: Chapter 4 - Ascertainment and proof of customary law Introduction Ascertainment and proof of a legal rule refer to the manner in which that rule is identified as applicable to an issue in judicial proceedings. The manner in which rules are ascertained differs from one legal tradition to another, depending on whether we are concerned w/ an oral or a written tradition. o On the one hand, the common law of South Africa is a written tradition in which specialised legal professionals ascertain legal rules from written sources. o On the other hand, the living customary legal system of South Africa is an oral tradition that survives in unwritten narratives. Indigenous communities themselves, using their own expertise, theorised about, practised, and administered customary law. Customary law’s qualities of flexibility and capacity for change as well as local particularity2 arose from the community’s participation in social interactions. African customary law is a product of social discourse generated by indigenous communities in South Africa. Customary law is found in sources such as the language, rituals, history, folktales, and storytelling, as well as in current issues that are prevalent in oral communications and the ‘media’. However, colonisation changed the situation dramatically by placing the administration of customary law in the hands of officials who were trained in the Western concept of law only (turned into writing) To enforce the reliance on written records, s1(1) Law of Evidence Amendment Act (LEAA) prescribes that ‘any court may take judicial notice of indigenous law in so far as such law can be ascertained readily and w/ sufficient certainty’. Through time customary law became constant reminders that Africans had lost the opportunity to determine their own legal culture.. o This did not discourage the colonial, Union, and apartheid authorities from entrusting Western- trained practitioners w/ the administration of customary law. CC in Shilubana v Nwamitwa, where the principle of an unbroken antiquity was rejected for customary law. o This judgment has authoritatively laid down that in customary law custom consists of the previous social practice, unless it has been abandoned in contemporary practice. Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 Adjudication officer: Appointment of local community members African people knew customary law as part of their cultural upbringing, and it was prevalent in the language of their social discourse. A better option for the colonial, Union, and apartheid authorities than the appointment of Western trained practitioners would have been to appoint judicial officers from the community of the adherents of customary law to apply their law. They did not do this as they wanted to prove that customary law arose from colonial, union and apartheid governments. Even under SA democracy, ethnicity is not a criterion for judicial appointment. o All judicial officers and lawyers practising in the South African courts, regardless of their cultural background, are enjoined by s211(3) Constitution to apply customary law when it is applicable. The statutory framework for the ascertainment and proof of customary law in the courts The position before the Law of Evidence Amendment Act 45 of 1988 Legislation had to be enacted to facilitate the ascertainment of the applicable customary law when disputes arose before the courts. An example of the earliest provisions to help the courts to cope w/ this difficult task was Proclamation 140 of 1885 that was issued for one of the Transkeian territories. In keeping w/ the policy of non-recognition of customary law, s22 Proclamation contained the repugnancy clause. o This clause allowed the courts to restrict the application of customary law to those rules that they deemed not opposed to the principles of public policy and natural justice. Ito the repugnancy clause, the version of customary law put forward by a party to litigation had to be in line w/ the common law standards of justice and morality otherwise this party had failed to ascertain the applicable custom. The repugnancy clause soon became so resilient that it was retained when Proclamation 140 of 1885 was later superseded by s104(10) Proclamation (Cape) 145 of 1923. The formation of the Union of South Africa in 1910 paved the way for the enactment of the Black Administration Act (BAA) in 1927, which superseded all the laws regulating the ascertainment of customary law in the past. o S11(1) BAA standardised the nature, status, and the method of ascertaining and applying customary law under the Union and apartheid South Africa. o Regardless of its merits and demerits the provision standardised the definition of customary law. o The ascertainment and application of customary law became uniform throughout the country. However, the courts’ interpretation of s11(1) continued to reflect the position taken by the different territories before the formation of the Union. o The main contribution of this provision was the clarity it gave to the repugnancy clause and how it was to be operationalised in the blacks-only courts. o A completely new addition to the repugnancy clause was the exemption of the custom of lobolo or bogadi. o Arguably, the exclusion of this custom from the grip of the repugnancy clause was not a matter of jurisprudential principle since Roman Dutch morality remained opposed to lobolo or bogadi, which was considered to be contra bonos mores. Ito the policy of non-recognition of customary law during this period, any customary law rule was regarded as a fact and litigants were required to prove such rules according to the criteria contained in s11(1) BAA. The BAA, however, endeavoured to resolve the matter of the ascertainment of customary law through the statutory framework provided in s23 (10)(a)–(e), read w/ regulation 2 of the Regulations for the Administration and Distribution of the Estates of Deceased Blacks. o This framework regulated the administration of estates of black people and was reinforced by s1(4)(b) of the Intestate Succession Act, which separated the administration of these estates from those of other races in South Africa. To ascertain customary law when administering the estates of black people, this framework constituted the authoritative written records to be used by the officials. Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 Once it was established that the estate fell under s23(10) BAA, s1(4)(b) Intestate Succession Act disqualified it from being administered under the Intestate Succession Act, which catered for everyone except black people in South Africa The position under the Law of Evidence Amendment Act (LEAA) The Hoexter Commission of Inquiry into the Structure and Functioning of the Courts to investigate the condition of customary law and its institutions in South Africa submitted its report in 1983. Commission found that the blacks-only Commissioners’ Courts discriminated between litigants on the ground of race and dispensed inferior justice to blacks. It concluded on this basis that these blacks-only Commissioners’ Courts were repugnant institutions that needed to be abolished. When the legislature implemented the recommendations of the Commission, it repealed s11(1) BAA and replaced it with s1(1) LEAA, which reads: o Any court may take judicial notice of the law of a foreign state and of indigenous law in so far as such law can be ascertained readily and with sufficient certainty: provided that – ▪ indigenous law does not oppose principles of public policy and natural justice; and ▪ shall not be lawful for any court to declare that the custom of lobolo or bogadi or other similar custom is repugnant to such principles. This section superseded s11(1) BAA by amending the method for ascertaining and proving customary law in an effort to improve the impact of the law on litigants. S1(1) LEAA introduced the following new features that had an impact on the ascertainment of customary law: o All SA courts were to apply customary law because the special Commissioners’ Courts had been abolished. The application of customary law remained subject to the courts’ discretion. o All the courts applying customary law were given the discretion to take judicial notice thereof. ▪ Judicial notice was restricted only to the extent that customary law could be ascertained readily and with sufficient certainty. ▪ The overuse of s1(1) LEAA impeded the growth of customary law and continued to have the effect of fossilising it. o S1(2) LEAA allowed the courts to continue proving unwritten customary law by oral evidence since it was not readily ascertainable with reasonable certainty. o For the purposes of ascertainment, s1(1) LEAA equated customary law with foreign law in South Africa. o The repugnancy clause was retained. o This meant that customary law still had to comply with the common law standards of public policy and natural justice to be valid. o The exemption from the application of the repugnancy clause that had been granted to the custom of lobolo or bogadi was retained. ▪ No court was allowed to hold that this custom was contrary to the principles of public policy or natural justice. The application of customary law under the LEAA: Mandatory versus discretionary debate o In Thibela v Minister van Wet en Orde en Andere: ▪ Court interpreted the wording of s1(1) LEAA as a mandatory provision that demanded the application of customary law by the courts. ▪ Question arose in the context of an enquiry into the validity of a customary marriage where the widow was claiming damages after her husband was allegedly unlawfully killed by the police. ▪ Husband agreed to be the father of her child from a previous relationship and in accordance w/ custom this was correct. ▪ The Court upheld this application, declared the customary marriage valid and that the child was entitled to maintenance as the child of the deceased by African custom. o Kerr and Bennett have criticised this case and are of the view that the application of customary law in terms of s1(1) LEAA is permissive rather than mandatory and that it is the taking of judicial notice that seems to be mandatory. o The view we take in this chapter is that no part of this section is mandatory as it is clearly couched in permissive language in its entirety. o Discretion was authoritatively laid down in Ex parte Minister of Native Affairs: In re Yako v Beyi, where Schreiner JA held: Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 ▪ Due to s11(1) BAA, the the native commissioner is to apply Common Law unless he thinks that native law is more calculated to do justice. o The use of ‘may’ in s1(1) LEAA speaks to discretion. s1(1) LEAA served a number of transformative purposes. o It endeavoured to facilitate the proof of customary law by relieving the courts of the burden of proving customary law in each and every case. o By allowing the courts to take judicial notice of customary law, this section sought to save the litigants the expense of having to bring witnesses to give evidence to ascertain customary law that was already ascertainable from the records such as legislation, court judgments, and textbooks. s1(2) LEAA provides for the ascertainment and proof of the unwritten customary law by way of evidence. s1(1) LEAA does not limit the courts to the application of written records of customary law but also allows them to receive oral evidence to prove its unwritten version. Long before 1988, the courts had accepted the tradition that customary law was recorded in precedents and tended to take judicial notice of it in many cases. o The statutory requirement that the courts may take judicial notice of customary law was simply recognition and consolidation of this practice S1(2) LEAA that regulated the calling of oral evidence for the ascertainment of living customary law was the statutory recognition of this fact. Judges often expressed frustration at having to apply living customary law that was not readily ascertainable o Example: Davis J says native law and custom of which without evidence the court necessarily knows nothing, it seems manifest that it cannot decide it. This extract represents the level of ascertainment of customary law in the Union courts where the judges made no secret of their ignorance of the system. s1(1) LEAA was a prominent aid in ascertainment proceedings because it permitted the courts to take judicial notice of customary law where it had been captured in written records and was readily ascertainable with sufficient certainty. Courts were therefore relieved of the burden of proving customary law in each case. o However, not all customary law was captured in written records so as to be readily ascertainable. S1(2) LEAA allowed the courts to receive evidence of the substance of oral rules adduced during legal proceedings. o This subsection therefore played a vital role in ensuring the continued relevance of living customary law. The Hoexter Commission recommended the continued existence of the courts of traditional leaders after 1988 while recognising their imperfections in a number of respects. o Such courts represented a measure of accommodation for African culture and were popular among the majority of the blacks The Position under the Constitution The ascertainment of a legal system relates to the determination of the conditions in which its rules can be identified and applied in legal proceedings. Ascertainment therefore relates to the resolution of the question whether the official or living version of a rule is applicable in a particular case. The internal conflict between the common law and customary law also relates to which of the possible legal rules or systems linked to the history of non-recognition of customary law is applicable. Yako v Beyi: common law as the law of the land is applicable to all matters and that in special circumstances, customary law may be applied in the interests of justice. S211(3) Constitution plays multiple roles in judicial proceedings. o recognition, application, and the alignment of customary law with the Constitution and any legislation specifically dealing with customary law. o S211(3) Constitution reads: The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. This is a clear deviation from the Yako judgment, which had held that in general, courts were mandated to apply the common law unless the interests of justice demanded the application of customary law. Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 The recognition role s211(3) enjoins the courts, in imperative terms, to apply customary law, thus making it a recognition clause. By so doing, the Constitution ended a long period of the non-recognition of customary law during which the common law was the general law of the land. The recognition of customary law relates to the injunction directed at the courts that they ‘must’ apply customary law as a matter of law as opposed to the previous situation under s1(1) LEAA, which merely gave the courts the discretion to apply it in the interests of justice. s211(3) is a recognition instrument that should recognise only the living version that is practised by the adherents of customary law, not the official version that has been used as an instrument of state oppression. This view is bolstered by s30-31 Constitution, which simultaneously recognise culture. The application role S211(3) functions as an application clause. This is implied in the wording ‘when that law is applicable’. This may relate to a possible conflict situation where a choice has to be made between the common law and customary law as the applicable system. The alignment role s211(3) functions to align customary law with the Constitution and legislation that deals with it. With regard to alignment with the Constitution, customary law is subject to the Constitution as the supreme law of the land. o Most importantly, it is not exempt from the application of the BoR. One of the most important issues regarding the application of the Bill of Rights is whether it applies to customary law directly or indirectly. CC in Du Plessis v De Klerk explained the difference between these two concepts as they relate to customary law. o Sachs J stated that direct application would entail the wholesale striking down of customary law because of the violation of the equality clause (Chapter 3) o The indirect approach would permit courts closer to the ground to develop customary law in an incremental, sophisticated, and case-by-case way so as to progressively, rapidly, and coherently bring it in line with the principles of Chapter 3. What does ‘subject to the Constitution and any legislation that specifically deals with customary law’ mean? o Only legislation that is intended to deal with customary law comprehensively, such as legislation intended to reform this system of law, qualifies. The ascertainment role The issue of ascertainment is called into question, first and foremost, by the mandate that courts ‘must apply customary law’ and, second, by the proviso ‘when that law is applicable’. o The courts must first ascertain the relevant rule, principle, concept, or doctrine of customary law before they can comply with the recognition imperative ‘must apply’ o The ascertainment of customary law under the Constitution involves determining the version that is recognised by the Constitution. The problems associated with official customary law The emphasis on recorded customary law was meant to facilitate judicial proceedings from the point of view of the system’s Western-trained administrators who were concerned with matters of efficiency and certainty as well as driven by considerations of pragmatism. The recording of customary law resulted in the development of a system of customary law that estranged the courts from the community. Recording of customary law exacerbated the impact of the repugnancy clause since it necessarily served to isolate and discard genuine customary law rules that were regarded as contrary to the common law principles of public policy and natural justice. The repugnancy clause was further debunked as generating the false consciousness that it was promoting public policy and natural justice. Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 The weight of academic criticism dismissed the official version of customary law as mere state culture that had nothing to do with the lived experiences of its adherents because it was uncustomary, distorted, and fossilised. The legislature was aware of these shortcomings of the official version and sought to minimise the cultural deficiency on the bench by providing for the appointment of assessors to fill the gap between the court and the community in which a matter arose. Assessors did not have the desired impact. The ascertainment of living customary law The constitutional changes from the old order to the current dispensation have influenced the post apartheid courts to heed academic calls to give priority to living customary law. For the purposes of the ascertainment of customary law, emphasis had shifted away from the written sources towards the law that was practised by the adherents of the system. o This is reflected by the reference to culture and customary law that can only relate to the living version since the interim Constitution itself represented a triumph for cultural self-determination over cultural imperialism. The courts have clearly taken advantage of the imperative language used in s211(3) Constitution, which enjoins the courts to apply customary law when it is applicable. Courts added the combined effect of s30-31 Constitution, which protect participation in and enjoyment of culture, respectively, to reveal the centrality of the living version of customary law in the ascertainment process. Certification of the Constitution of the Republic of South Africa, 1996: o acknowledged the ‘survival of an evolving customary law’ o Court thus used the occasion of the certification proceedings in ascertaining the living version of customary law as the version recognised by the Constitution. o This was simultaneously both a case of recognition and ascertainment. o Court thus ascertained the ‘living’ version of customary law as the authoritative version that the Constitution accepts for the new South Africa. o According to Bennett, this was a judicial declaration that constitutional protection was reserved for living customary law. o CC ultimately resolved the issue of the version to be ascertained for application by the courts between the official version, based on the common law standards, and the living version, based on African values and norms, in favour of the latter. Alexkor Ltd v Richtersveld Community: o While in the past indigenous law was seen through the common law lens, it must now be seen as an integral part of our law. o Like all law it depends for its ultimate force and validity on the Constitution. o Its validity must now be determined by reference not to common law, but to the Constitution o The phrase ‘by reference not to common law’ depicts the Constitution as liberating customary law from the hegemony of the repugnancy clause and freeing its own cultural values to define its content. o ‘Must now be seen as an integral part of our law’, Court is pointing out that it is the living version that is constitutionally recognised as opposed to the official version, which had sought to make customary law a subsystem of the common law by enforcing consistency therewith through the repugnancy jurisprudence. o The Court proceeded to apply this principle by holding that customary law was the applicable system in ascertaining the content of the community’s notion of ownership of or interest in land. In subsequent judgments, the CC reaffirmed the above dictum as authority for making the living version the focal point of the ascertainment process. Bhe v Khayelitsha Magistrate: Throughout its history customary law has evolved and developed to meet the changing needs of the community. o And it will continue to evolve within the context of its values and norms consistently with the Constitution. o Uses “values and norms” to distinguish the values of living customary law from the moral standards of official customary law that are based on the common law principle of public policy and natural justice. Mabena v Letsoalo: Court deviated from the standard textbook approach and applied living customary law that recognises what people do in practice. Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 o Prospective husband had negotiated the lobolo or bogadi of his future wife with his prospective mother-in-law. o Court accepted this gender-neutral development as consonant with the BoR. New developments in the ascertainment process Some courts have assumed that the mandate to apply customary law entails no more than their duty to take judicial notice of the written materials and have proceeded with the official version as usual. The three Mthembu cases, the customary law of intestate succession was confined to the framework prescribed in s23 BAA, read together w/ s1(4)(b) Intestate Succession Act, and the jurisprudence generated thereunder. o All three courts that handled the Mthembu matter neglected to ascertain whether a non-sexist and constitutionally compliant living rule regulating the customary law of intestate succession existed in social practice. o 1st court: Le Roux J relied on written materials based on academic opinion endorsing male primogeniture as a hallowed rule that had unassailable redeeming features. ▪ These features forced the male heir to provide shelter, sustenance, and maintenance for the widow and her children, and according to this view, he could not be faulted o 2nd court: attention drawn to the need to investigate the living experiences of the relevant community with a view to ascertaining the binding rules used in social practice. ▪ Mynardt J referred to the case of S v Makwanyane where the CC questioned the relevance of public opinion as a factor in resolving constitutional questions. o SCA endorses the referral of the matter to the legislature. Mpati AJA (as he then was) believed that In any event, we would be ill-equipped to develop the rule for lack of relevant information. ▪ Any development of the rule would be better left to the Legislature after a process of full investigation and consultation, such as is currently being undertaken by the Law Commission. Lehnert rejects the ascertainment jurisprudence generated by the Mthembu cases because the first major flaw of the judgments was that they gave no consideration to the application of living customary law. Hamnett endorses this view and agrees that the living law is the focus of the ascertainment process because customary law emerges from what people do, or from what people believe they ought to do, rather than from what a class of legal specialists consider they should do or believe. Deputy Chief Justice (DCJ) Langa admitted, the greatest challenge does not lie in whether or not the living law is the applicable version, but in how to find it. o The question whether the Court was in a position to develop that rule in a manner which would ‘promote the spirit, purport and objects of the Bill of Rights’ evoked considerable discussion during argument. Bhe: CC declared the official rule of male primogeniture that gave preference to men over women for the purposes of succession and inheritance unconstitutional. o Court’s first task then was to ascertain what the living version of customary law was in order to replace the impugned official version. o The injunction of the Constitution to apply customary law implies an effort to find the living version. Shilubana v Nwamitwa: Van der Westhuizen J endorsed Langa DCJ’s view that the true content of living customary law must be ascertained. o Said that the first step is to determine the community’s past practice. o Once that has be ascertained, past practice is the applicable customary law, subject to being constitutionally compliant and compliant with applicable legislation. o The only alternative to the community’s past practice is the ascertainment and proof that a new legally binding social practice has emerged. o Once the court has ascertained the new practice as the applicable customary law, it must accept it, subject, of course, to its compliance with the Constitution. There are only two ways of deviating from the community’s past practice o existing proof that a new community practice has superseded the past practice, in which case the new practice is the applicable customary law o developing past practice to align customary law with constitutional values. In the light of the Shilubana case, it is now clear that the post-apartheid judicial ascertainment of customary law has shifted from the official practice based on written precedents and is now firmly rooted in the practices of the community. Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 The starting point is therefore no longer the taking of judicial notice of written records, which often distorted community practice,96 but of social practice itself. CC has warned against the uncritical use of codified customary law that is found in records and precedents. o It has embraced the flexible and constantly adaptable living version that can never be outdated because past practices are constantly replaced by new practices. Van Breda v Jacobs: approach or ascertaining the legal validity of common law customs is not appropriate for customary law because the common law customs must derive their existence from an unchanging antiquity. CC deviated from the equation made between customary law and foreign law in s1(1) LEAA. The cases of Dumezweni and Yako represent the attainment of a milestone where the question of the subordination of customary law to the common law was placed beyond doubt. o These developments ensured that the time when customary law was sourced from its indigenous roots was over and anchored it firmly in colonial codes and precedents Textbook: Chapter 5 – Internal conflict of laws Introduction lex fori The law of the forum; the law of the court hearing and disposing of an action lex causae The law of the cause; where there is a conflict of laws, the law that has precedence lex locicelebrationis The law of the place where the marriage is celebrated The term ‘conflict of laws’ refers not to a conflict between legal systems but rather to the method of choosing an appropriate rule to apply in the interests of justice. Conflict of laws therefore refers to the rules for choosing the appropriate law Conflict of laws applies to two kinds of conflicts that courts are called on to determine when settling disputes between litigants: o (1) conflicts may arise between rules belonging to the legal systems of two or more different countries (refer to as private international law) o (2) conflicts may occur between different legal systems operating within a single national legal system (refer to as internal conflict of laws) Private international law o Courts apply the national legal system when settling disputes between litigants. o However, the national legal system is not always appropriate in all cases to bring justice to a matter before the court, especially where there is a foreign element in the dispute. Conflict of laws under customary law The conditions necessary for the existence of problems relating to conflict of laws are the presence of social and commercial intercourse between people subject to different legal systems. Most writers on conflict of laws start narrating the history of the subject from the time of colonisation. o This creates the false impression that the management of conflict of laws is a foreign concept that was introduced by people from outside Africa. Conflict of laws problems often ensued from social, economic, and political interactions among individuals and groups belonging to different jurisdictions. Resolution of conflicts between the laws of different systems of customary law The nature of customary law itself contributes to the avoidance of conflicts between different systems of customary law. Where these conflicts occur, there are conflict of laws rules that are used to resolve them. Avoidance of conflicts (1) There is a tendency to integrate different communities into the legal system of the dominant group so that in due course no further conflicts arise. o Integration as a conflict-resolving factor became more apparent after the imfecane/difaqane upheavals that afflicted Southern Africa following the rise of King Shaka in the first quarter of the 19th century. Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 (2) Communities tended to keep to themselves when contracting marriages and conducting business transactions. In this way, they avoided conflict of laws situations (3) African communities continued to respect one another’s cultures after integration Resolution of conflicts under customary law (1) Conflict of laws problems arise when the spouses come from different communities. o In a conflict of this nature, there is evidently no single rule applicable across different systems of customary law (case-by-case basis) (2) Conflicts may also arise within the same community Legislative intervention Discussion of conflict rules in this section is limited to the legislation of 1988 that is still in force. In 1988, Parliament enacted legislation to regulate the determination of the appropriate legal system in conflicts between systems of customary law. o In this respect, s1(3) Law of Evidence Amendment Act (LEAA) states: ▪ In any proc between Blacks who do not belong to the same tribe, the court may not just apply any law (especially if no agreement has been made) “Proc between Blacks” is problematic as s1(1) portrays this Act as non-racial. Before arriving at the decision as to which version of customary law to apply in those circumstances, the court must follow the steps below: o Make a finding as to whether the parties agreed expressly or tacitly as to the version to be applied at judicial proceedings. o If the parties made an express agreement, the court’s task is simply to implement the agreement. o In the event of a tacit or implied agreement, the court will impute the terms of the agreement to the parties, taking into account their prior conduct, their cultural orientation, or the nature of the transaction. o In the absence of any agreement between the parties, the court will seek to resolve the conflict by selecting the version of customary law that applies to the place where the Def. resides or works, if such is the only prevailing version at that place. o Where the defendant’s version of customary law is one of several versions prevalent at either his or her residence or workplace, neither of which is in a traditional area, the court must apply the first mentioned version. Is there a need to amend s1(3) LEAA? o S1(3) LEAA is quite problematic and a better approach to resolving these issues is to amend the section to provide for a single rule that empowers the courts to apply the system of law that best serves the interests of justice and that complies with the Constitution. Conflict rules regulating conflicts between customary law and the common law In South African law, conflicts often occur where the rules of customary law and the common law compete for selection. Conflict of laws rules during the colonial era In 1652, first group of Hollanders led by Jan van Riebeeck arrived at the Cape of Good Hope to establish a refreshment station for use by their company’s trading empire (Roman-Dutch law regulated the affairs of Hollanders) In due course, they transformed into a permanent governing authority and became involved in business with Africans. An internal conflict question arose as to which of the two legal systems should apply to those transactions involving Africans and Europeans (Roman-Dutch prevailed regardless of whether interests of justice was served) The British colonisers’ disregard of conflict of law principles appeared when they initially applied Roman-Dutch law and later English law as the lex fori, regardless of the applicability of customary law as the lex causae. o The reason for this jurisprudential ignorance was ostensibly to rescue Africans from the application of their supposedly inferior justice system. British chose Roman-Dutch and English law through the politics of non-recognition of customary law (only these 2 legal systems were recognized in SA) Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 When the white rule expanded, the conflict of laws rule that emerged at this stage was that the courts must apply the appropriate customary law rule if it does not conflict with public policy and natural justice. Conflict of laws rules during the union era To provide a legal framework for the establishment of a uniform ‘native’ policy for the entire Union, the Native Administration Act, later known as the Black Administration Act (BAA), was enacted in 1927. S11(1) BAA made the choice of customary law a matter of judicial discretion and read as follows: o Notwithstanding the provisions of any other law, it is the discretion of the courts of the native commissioners in all proc involving questions of customs applying native law as long as it doesn’t oppose the principles of public policy or natural justice. Conflict rules versus imperial interests: o Ex parte Minister of Native Affairs: In re Yako v Beyi: ▪ There is no support that s11(1) BAA has the view that native law should be treated as prima facie applicable in cases between natives. ▪ Indications are rather that common law was intended to be applied unless the native commissioner in his discretion saw fit in a proper case to apply native law. ▪ Dictum reveals the purpose of the BAA to be the subordination of customary law to the common law through the courts. o Confirmed by the inclusion of the repugnancy clause in s11(1) BAA. The application of a uniform ‘native’ policy through the BAA with its repugnancy clause sought to confirm the status of customary law as a subsystem of the common law rather than to select the system which best served the interests of justice. It served to direct the courts to choose the official version of customary law that complied with common law standards rather than the living version founded on African cultural norms. S11(1) BAA was designed to serve the purposes of colonial, Union, and apartheid legalism rather than to choose a just solution for the dispute. Conflict of laws rules during the apartheid era Under the BAA, customary law applied only to black people and all transactions involving other races were dealt with according to the common law. In due course, the BAA was repealed and replaced by the LEAA. However, there is controversy about the extent to which s1(1) LEAA is a conflict rule. Is s1(1) LEAA a conflict of laws rule? (many different views) o Bennett: LEAA is not a conflict of laws enactment as it does very little to assist courts indeciding when to apply customary law. ▪ Part of s1(1) LEAA can be invoked either as a choice of law rule or only after customary law has been selected as the applicable system. ▪ Not using the repugnancy clause is that there is a vacuum ito the applicable law and s1(1) does not indicate how the vacuum must be filled. o Hlophe in Mabuza v Mbatha: ▪ Expressed the view that the Constitution rather than the repugnancy clause is the appropriate test for the validity of customary law: The approach whereby African law is recognised only when it does not conflict with the principles of public policy or natural justice leads to an absurd situation whereby it is continuously being undermined and not properly developed by the courts, which rely largely on experts. ▪ s 39(2) Constitution enjoins the judiciary when interpreting any legislation, and when developing the common law or customary law, to promote the spirit, purport and objects of the BoR. o Thibela v Minister van Wet en Orde: HC held that s1(1) LEAA is a conflict of laws rule. ▪ Kerr criticized decision and argued that what s1(1) does is to impose a duty in appropriate cases to take judicial notice of customary law, not to apply it.. o Bennett agrees with the position held by Kerr. ▪ Thus, except for the repugnancy clause, section 1(1) of the LEAA is not a conflict of laws rule for resolving conflicts between customary law and the common law. The regulation of conflict of laws under s211(3) Constitution S211(3) Constitution reads as follows: Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 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 S211(3) Constitution as a conflict of laws rule It enjoins the courts to select customary law when customary law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. In line with its role as a conflict rule, s211(3) determines that matters governed by customary law must be resolved according to this legal system. Rautenbach illustrates the various historical stages in the development of the choice of customary law as the applicable system in the following terms: o Customary law was initially ignored by the colonials, then tolerated and eventually recognised, albeit with certain reservations and conditions o The situation did not change much over the years until the Constitution finally brought customary law on a par with the common law of South Africa by affording it constitutional recognition, but subject to the Constitution and other legislation. A controversial suggestion for the reform of conflict of laws o In its report on the reform of the conflicts of laws rules in 1999, the South African Law Commission (SALC) suggested that in the event of a conflict between customary law and the common law, the conflict of laws process to determine the selection of the applicable law should be governed directly by constitutional norms. o It stated: ▪ Any court’s decision to apply customary law must be in harmony with the supervening value system of the country (BoR) Conflict of laws rules under the Constitution S211(3) Constitution does not provide any guidelines as to how the courts should determine the applicable legal system when customary law conflicts with common law or with another system of customary law. Agreement and intention Parties to a contract can agree expressly or tacitly on the legal system that should regulate their rights and duties. This arrangement promotes the objective of the conflict of laws to bring justice to the matter because the parties normally select a legal system that is connected in some way with them or with the transaction. Problems may arise from allowing the parties too much autonomy as this may be open to abuse. Nature of the transaction S211(3) Constitution demands the application of customary law when this is the applicable legal system. The requirement of applicability implies that the Constitution makes the nature of the transaction an indicator that the parties chose customary law if the dispute arises from a transaction peculiar to customary law. In the past, the courts ignored the primary role of the lobolo/bogadi transaction, which always preceded the civil ceremony. o Today, the Constitution protects the right to practise the culture of one’s choice, thus enabling the parties to practise the custom of lobolo/bogadi. Selecting the nature of the transaction as a conflict of laws rule is therefore a dramatic shift away from the previous situation where race was at the centre of the conflict of laws process. The nature of the transaction focuses on the cultural environment in which it takes place. Subject matter and environment of the transaction In the old order, the courts used the fact that the transaction involved home-grown mealies and the parties stayed in a homeland to determine that customary law was applicable to their dispute. However, under the Constitution, people have a right to live anywhere in the Republic as there are no longer homelands. Hence, such a conflict of laws rule can no longer be countenanced. Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 Where the transaction is common in both customary law and the common law, the court should look rather at the form of the transaction and the orientation of the parties before deciding on the applicable system wherever the parties are living in the country. The lifestyle of the parties This is another inappropriate category of conflict of laws rules because it focuses on people rather than transactions. This is not a valid argument because delictual claims are already treated as either common law or customary law wrongs without regard for how the parties live. Exemption from customary law This conflict of laws rule was a direct attack on African culture and was based on a succession of statutes dating as far back as Natal Law 11 of 1864. This statute allowed Africans to apply for exemption from the application of customary law provided that they were sufficiently civilised to be allowed to enjoy the benefits of the common law. This conflict of laws rule has no place in the present dispensation as it suggests that African culture is an obstacle to the achievement of civilisation. Marriage by civil or Christian rites In the past, the courts took marriage by civil or Christian rites as an exemption from customary law. Main reason Africans wanted to marry according to civil or Christian rites was to avoid having a marriage classified as a customary union. CC in Gumede (born Shange) v President of the Republic of South Africa: o The Recognition of Customary Marriages Act (RCMA) abolished the difference in the legal consequences between some customary and civil or Christian marriages. Inherent differences between the cultural foundations underlying customary marriages and civil or Christian marriages: o (1) customary marriages are potentially polygamous in the sense that a man may have more than one wife. o (2) lobolo/bogadi transaction plays a big role in bringing together two groups of families in an affinity relationship. Testate succession A will is an institution of the common law in terms of which a testator expresses his or her wishes regarding the distribution of his or her assets after his or her death. the Wills Act determines the validity of the will, the capacity of the testator to make it, and the testator’s intention regarding the distribution of his or her assets. o However, the Wills Act does not prescribe that the testator must make his or her dispositions in a common law manner. According to customary law, the family council administering the estate of the deceased gives effect to the property dispositions the deceased made on his or her deathbed. Similarly, a person may make donations during his or her lifetime with an instruction that these donations be implemented after his or her death. o Such customary dispositions were normally interpreted consistently with the customary order of succession. Intestate succession In the past, s23 BAA read with regulation 2(e) BAA’s regulations regulated the intestate succession of deceased Africans. CC invalidated s23 BAA and regulation 2(e) in Bhe v Khayelitsha Magistrate for being unfairly discriminatory on the basis of race and gender. The legislature promulgated the Reform of Customary Law of Succession and Regulation of Related Matters Act (RCLSA), endorsing the Bhe judgment. o S2(1) RCLSA provides that the property belonging to a deceased person living according to customary law who died intestate must be distributed according to the Intestate Succession Act. Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 o S2 RCLSA modifies the Intestate Succession Act that was initially designed for monogamous marriages under the common law system of succession so that it now accommodates spouses of a polygamous marriage and their children. The conflict of laws rule o The conflict of laws rule regulating the choice of law in customary law of intestate succession is that the common law applies currently. o Alexkor Ltd v Richtersveld Community: By enjoining the courts to desist from the practice of viewing customary law through the lens of common law, it thereby fashioned a choice of law rule that says that where the two systems are competent for selection, customary law must prevail in customary law matters. Articles: N Ntlama ‘The Application of Section 8(3) of the Constitution in the Development of Customary Law Values in South Africa's New Constitutional Dispensation’ 2012 Potchefstroom Electronic Law Journal 24-44 Introduction Customary law gained constitutional recognition alongside common law in South Africa's new democracy post-1994 Prior to 1994, customary law was only recognized to perpetuate discrimination against the majority The Constitution now recognizes customary law as a legitimate system alongside common law The demise of the institutionalised historical subjugation of customary law: The Constitution recognizes customary law as equal to common law S30 and 31 protect the right to culture S39(3) reinforces the importance of customary law o Recognizes the existence of other rights conferred by customary law, provided they are consistent with the BoR. CC affirmed customary law must be accommodated, not merely tolerated Recognition of customary law is seen as legitimizing the new South Africa Factors motivating constitutional recognition of customary law: o Need to incorporate African legal traditions o Majority of South Africans follow customary law o Existing functioning customary legal system Section 8(3) and its potential to limit the development of customary law values: S8(3) limits development of customary law by only referring to common law Excludes specific reference to customary law in application of Bill of Rights Contrasts with S39(2) which refers to developing both common and customary law Factors essential for developing customary law (from Shilubana v Nwamitwa case): o Consider traditions of the community o Respect right of communities to develop their own laws o Balance flexibility with legal certainty and constitutional rights Exclusion from S8(3) compromises equal development of customary law values Conclusion: Simultaneous recognition of customary and common law is commendable S8(3) negates shared understanding in evolving customary and common law principles Constitutional Review Committee should review formal recognition of customary law to ensure equal status with common law Main takeaway: While the Constitution formally recognizes customary law, s8(3)'s exclusive focus on developing common law potentially limits the equal development and application of customary law in South Africa's new constitutional order. Cases: Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC) Facts Downloaded by Sifanelwe Mhlongo ([email protected]) lOMoARcPSD|42166856 Background: The case involves the succession dispute over the chieftainship of the Valoyi community following the death of Hosi Richard Nwamitwa. Initial Appointment: After Hosi Richard's death, the Royal Family appointed Ms. Shilubana, his daughter, as Hosi. Conflict: Mr. Nwamitwa, the deceased chief’s eldest son, contested the appointment, claiming that according to the Valoyi customary law, he was the rightful heir. Legal Proceedings: Mr. Nwamitwa sought a declaratory order from the High Court, which ruled in his favor. This decision was later upheld by the Supreme Court of Appeal. Issue Primary Question: Whether the Royal Family had the authority to appoint Ms. Shilubana as Hosi, despite the historical male-only succession under the Valoyi customary law. Constitutional Compatibility: Whether such an appointment was consistent with the constitutional mandate to eliminate gender discrimination. Principles Customary Law and Constitution: Section 211(2) of the Constitution empowers traditional authorities to develop their customs to align with constitutional values, including gender equality. Traditional Leadership and Governance Framework Act: Consideration of the applicability of this Act in resolving traditional leadership disputes. Application Authority of the Royal Family: The Court examined whether the Royal Family's decision to appoint a female leader was within their customary authority and consistent with the constitutional imperative to eliminate gender discrimination. Historical Context: The Court assessed the historical application of the Valoyi customary law and its development over time. Constitutional Mandate: The Court determined that the Royal Family’s actions were in line with the constitutional directive to promote gender equality. Conclusion Ruling: The Constitutional Court upheld the appeal, overturning the decisions of the High Court and the Supreme Court of Appeal. Implications: The judgment affirmed the authority of traditional communities to evolve their customs to comply with constitutional principles, particularly the elimination of gender discrimination. No Order as to Costs: Due to the public interest and constitutional significance of the issues raised, the Court did not make an order as to costs. Main Takeaway The case highlights the evolving nature of customary law in South Africa and underscores the authority of traditional leaders to adapt their customs in a manner that aligns with the Constitution, particularly in promoting gender equality. Maisela v Kgoloane 2000 (2) SA 370 (T) Facts Respondent sued Appellant for return of a tractor or payment of R12,000 Appellant raised a special plea of prescription Default judgment was granted against Appellant when he failed to appear in court Appellant applied for rescission of the default judgment Magistrate refused rescission, finding Appellant's attorney was in wilful default Magistrate dismissed special plea of prescription, applying indigenous law Appellant appea

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