Customary Law in South Africa - Lecture 1 2025

The place of customary law in the national legal system Definition, nature, main features and sources VIWE GOBENI Prescribed case law and readings ! 1. Van Breda v Jacobs (1921) AD 33 2. Mabena v Letsoalo 1998 (2) SA 1068 (T) 3. Shilubana and others v Nwamitwa 2009 (2) SA 66 (CC) Definition...

The place of customary law in the national legal system Definition, nature, main features and sources VIWE GOBENI Prescribed case law and readings ! 1. Van Breda v Jacobs (1921) AD 33 2. Mabena v Letsoalo 1998 (2) SA 1068 (T) 3. Shilubana and others v Nwamitwa 2009 (2) SA 66 (CC) Definition- “customs and usages traditionally observed among indigenous African people of South Africa, and which form part of the culture of these people.(SALRC , 1998) Benson refers to as an “unwritten social contract” is an essential source of law which regulates the lives of the majority of the South African population since time immemorial There is no single or uniform system of customary law that applies to all indigenous communities in SA; there are many different versions of Customary Law as there are various indigenous communities (similarities may exist) – PLURALISM WITHIN AFRICAN CUSTOMARY LAW Black South Africans are often classified into 4 main groups ; Nguni,Tsonga, Sotho and Tswana and 9 subgroups: Zulu, Xhosa, Swazi, Ndebele, Tsonga, Pedi, Sotho, Tswana and Venda - AFRICAN CUSTOMARY L AW PLURALISM WITHIN CUSTOMARY LAW When studying customary law, it must be remembered that there has never been only one general legal system that applied to all indigenous African groups. In former times, each tribe or kingdom had its own legal system Among most of the 280 Zulu tribes for instance, it is customary to deliver all the marriage goods (ilobolo (noun); ukulobola (verb)) before or during the marriage ceremony. In most Xhosa-speaking communities however, the marriage goods are delivered over a period of time after the woman has been handed over to the man’s family group. In some Xhosa groups, the woman’s family “impounds” her from time to time and keeps her until the husband has delivered a further portion of the marriage goods. This custom is known as utheleka.  Nature The goal of African legal systems is not to give each person his due but to preserve societal harmony and cohesion. Society is regarded as more important than the individual and individual obligations towards society rather than the rights of individuals are regarded as worthy of protection. In such systems law does not exist as a separate normative system but is integrated with religion and morality. customary law was an established system of immemorial rules which had evolved from the way of life and natural wants of the people., the general context of which was a matter of common knowledge, coupled with precedents applying to special cases, which were retained in the memories of the chief and his councilors, their sons and their sons’ sons until forgotten, or until they became part of the immemorial rules.  Concept of Customary Law “Customary law can be regarded as a set of norms which the actors in a social situation abstract from practice and which they invest with binding authority.” and: “Customary law is pre-eminently embodied in a set of concrete principles, the detailed application of which in particular cases and subject to change. Customary law denotes those legal systems originating from African societies as part of the culture of particular tribes or groups that have continued to exist, supplemented, amended or superseded in part by: (a) changing community views and the demand of a changing world; (b) contact with societies that function within other legal backgrounds; (c) contact with and influenced by other legal systems; and (d) direct and indirect influence of foreign (non-indigenous) government Customary law is the recognition of customs as law Legal recognition of customs What is the difference between repetitive habit vs Custom? Custom is a habitual course of conduct observed uniformly and voluntarily by the people. It is created by the people, through their unconscious adoption of a certain rule of conduct Its recognition is based on long continued use, recognition and acceptance of the social practice by the group or community  Legal recognition of customs The courts (in van Breda v Jacobs) developed the following requirements for a rule of custom to be recognized as law: It must be reasonable. This meant, among other things, that it should serve a legitimate purpose and not be in conflict with a fundamental rule of common law. It must be uniformly or consistently observed. – This included the fact that the practice should be one that is observed by a sizable population. It must be well established. –Initially this was taken to mean that it should have existed since time immemorial but this requirement has been criticized as one that refuses to recognize the progressive development of customary law. It must be certain or ascertainable. Concept of customary law OFFICIAL V LIVING Living customary law Definition – “Actual practice or custom of an indigenous community” - Constant state of evolvement ; as communities change, so do the rules. - Unwritten, but can be recorded in writing(textbooks) - disadvantage – not easily ascertainable as there is no comprehensive source - Advantage – aligned with our Constitution Mabena v Letsoalo Shilubana and others v Nwamitwa Official customary law Definition – Written versions of the law that is found in legislation, precedent and books. - treated with caution given the historical distortions effected by the state and how it is considered not to be a true representation of the people - Thus it must be interpreted in a manner that promotes the objects of the constitution - Advantage – easily ascertainable Recognition of Customary Marriages Act Reform of Customary Law of Succession and related matters Act Traditional leadership and Governance Framework Act Mixed Customary Law Definition – Hybrid form of Customary law that comprises customary law and common law of Marriage and succession - Aligns Customary law with Bill of rights Recognition of Customary Marriages Act – Incorporates family law from Marriage Act and Matrimonial property Act so as to ensures that Customary law aligns with the Constitution.But at the same time still retains concepts such as Lobola, polygamy and ukungena Reform of Customary Law of Succession and related matters Act – incorporates succession Act Sources of Customary Law CUSTOM, CONSTITUTION, LEGISL ATION, CASE L AW AND ACADEMIC/SCHOL ARLY WRITINGS Customs The primary source of customary law is, first, the custom, practices or rules that have been generated by the traditional communities themselves from generations to generations. As indicated above that customary law is unwritten and dynamic, it is referred to as “living” law because it emanates from the practices as exercised and enjoyed by the communities themselves.  Constitution the Constitution forms the bed-rock as a source for the application and development of customary law within the framework of the values of the new constitutional dispensation It provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition o human rights, democracy and peaceful co- existence and development of opportunities for all South Africans, irrespective of colour, race, class, belief, or sex. The recognition of customary law within the context of the Constitution shows respect for customary law and confirms its legitimacy within the broader framework of the legal system & recognition serves to integrate customary law into South Africa’s legal system.  Legislation Emanates from laws passed by Parliament and other legislatures. Laws passed by Parliament are referred to as legislation (or Acts/statute) and (its) validity depends on (its) compliance with the Constitution. To date, there are various statutes adopted by Parliament in trying to address customary law issues. These statutes are related to the: recognition of the institution of traditional leadership - Traditional Leadership and Governance Framework Act 41 of 2003; functioning and the role of the institution as envisaged in the Traditional Leadership and Governance Framework Act 41 of 2003 monitoring, oversight and advisory role of the institution- National House of Traditional Leaders Act 22 of 2009; regulation of private relationships-Recognition of Customary Marriages Act 120 of 1998; regulation of intestate succession by the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009; and many other related pieces of legislation. Case Law Deals with the application and development of customary law. It demonstrates the practical application of customary law values within the context of the new constitutional dispensation. The judiciary (courts) is particularly mandated to develop customary law subject to the Constitution as envisaged in section 39(2)of the Constitution. This means that the reliance on case law which is based on the doctrine of judicial precedent is a constitutional mandate and must be relied upon as a legitimate source of law. Academic/scholary writings Academic writing is another source of customary law. It is essential because it does play an influential role in the legislative and judicial decision-making. Its influence on the application and development of customary law rules and principles cannot be underestimated. This means that academic writing has a persuasive role and is not necessarily obligatory. It therefore provides an insight on the interpretation relating to the legitimacy of the challenged customary law rule. Lecture 1 Quiz will be done in our next class…13/02/2025