IND2601 Study Guide PDF - African Customary Law

© 2017 University of South Africa All rights reserved Printed and published by the University of South Africa Muckleneuk, Pretoria IND2601/1/2018–2021 70539561 InDesign CC CGM_Style CONTENTS Page...

© 2017 University of South Africa All rights reserved Printed and published by the University of South Africa Muckleneuk, Pretoria IND2601/1/2018–2021 70539561 InDesign CC CGM_Style CONTENTS Page Introduction (v) STUDY UNIT 1. AN INTRODUCTION TO AFRICAN CUSTOMARY LAW 1 Lecture 1: General introduction 3 Lecture 2: Some characteristics of African customary law 11 Lecture 3: The nature of customary law 16 Lecture 4: Recognition of customary law in the Constitution 24 2. CUSTOMARY LAW OF PERSONS, FAMILY LAW AND MARRIAGE LAW 34 Lecture 1: Introduction to customary law of persons 36 Lecture 2: Introduction to customary family and betrothal law 46 Lecture 3: The legal requirements for customary marriages 53 Lecture 4: The consequences of customary marriages 70 Lecture 5: The dissolution of customary marriages 81 3. CUSTOMARY LAW OF PROPERTY AND SUCCESSION 89 Lecture 1: Customary law of property 91 Lecture 2: Customary law of succession and inheritance 95 Lecture 3: Legal developments in the regulation of customary succession and administration of estates 102 Lecture 4: Constitutional and statutory reforms of the customary law of succession 106 4. JUDICIAL APPLICATION OF CUSTOMARY LAW 112 Lecture 1: Customary courts and general principles of court procedure 114 Lecture 2: Jurisdiction of the courts of traditional leaders 121 Lecture 3: The African customary law of evidence 127 Lecture 4: Sentencing and execution of sentences in the customary courts 134 IND2601 (iii) 5. AFRICAN CUSTOMARY CRIMINAL LAW 138 Lecture 1: The act as an element of a crime 140 Lecture 2: Unlawfulness, guilt and punishment as elements of a crime 147 Lecture 3: Contempt of the ruler, assault and rape 153 6. TRADITIONAL LEADERSHIP 160 Lecture 1: Legal recognition of traditional leadership 162 Lecture 2: Institutions of traditional authority in South Africa 167 Lecture 3: Succession to traditional leadership 175 Lecture 4: Traditional leadership and governance 184 REFERENCES 193 INTRODUCTION Welcome to the module in African Customary Law. We hope you will find it interesting and rewarding to engage with the study material. 1. PURPOSE OF THE MODULE IN AFRICAN CUSTOMARY LAW This is probably the first time you have encountered the subject of African customary law, but it is important to note that African customary law is now a fully recognised and applicable branch of law in the national legal system of South Africa. In broad terms, the purpose of this module is for you to gain sufficient knowledge, skills, attitudes and competencies to analyse legal material (the Constitution, legislation, case law and academic opinion) directly pertaining to customary law (particularly the law regulating family relationships and the institutional framework within which state power is exercised), to formulate legal arguments and to apply your knowledge to practical problems that may arise. In particular, this module aims to provide you with a basic knowledge and understanding of African customary law as recognised under the South African Constitution enable you to explain some of the concepts and principles of African customary law empower you to identify the issues involved in the practical application of customary law and to apply your knowledge to such problems enable you to argue customary law issues in an informed and critical manner The module begins with a general introduction to issues pertaining to customary law, after which you will be introduced to the following, in particular: the place of customary law in the national legal system the recognition of customary law under the Constitution of the Republic of South Africa, 1996 and its compatibility with human rights customary laws pertaining to the person and family customary laws regulating property and succession the application of customary law in the courts laws regulating criminal activity in the African context laws regulating traditional leadership in African customary law IND2601 (v) INTRODUCTION 2. APPROACH TO THE STUDY OF AFRICAN CUSTOMARY LAW 2.1 Your attitude to the module Before embarking on your studies in African customary law, we believe that it is important to say something about the attitude that you should adopt while studying this subject. Customary law is a LAW MODULE. In saying this, we want to warn you not to take this module lightly. Most of you may be thinking that it is a fairly easy subject because, as Africans, “Who doesn’t know how things are done in terms of custom?” We want to point out from the start that African customary law – like all law modules – has to be studied. For instance, the law of marriage prescribes requirements that have to be met by parties to enter into a valid marriage. It is the same in customary law. The law lays down requirements that parties must comply with to enter into a valid customary marriage. As a core module, African Customary Law is compulsory and has to be passed to obtain the LLB degree. It is offered as a semester module. The amount of work to be covered in this module is substantial, but manageable – if you aim to start working on the course material as soon as you have registered and received your study material. It is a 12-credit module, which means that you have to spend at least 120 notional hours actively engaged with the material for this module. You will need to read the study material, make summaries, do activities and assignments and go online to myUnisa regularly. Below we will elaborate on the requirements for studying this module when we refer to Tutorial Letter 101. 2.2 Study plan: Start by consulting Tutorial Letter 101 Before we continue with the study guide, you need to refer to Tutorial Letter 101. We urge you to read Tutorial Letter 101 carefully and to keep it with you as the primary learning resource for guidance in this module. It contains important information regarding assessments (assignments/examinations) deadlines lecturers’ contact details the prescribed textbook and other pertinent information This is a semester module, so time management of your studies is crucial. As was mentioned in 2.1, you should devote a minimum of 120 notional hours of active studying to this module. You will be well on your way to success if you lay a firm foundation by planning your studies, getting off to an early start and resolving to do the activities and the assignments properly – and, of course, being well prepared for the examination. We strongly advise you to make use of a diary and calendar to record important deadlines and tasks (see examples in figures 1 and 2 respectively). (vi)  Introduction FIGURE 1: Example of a diary FIGURE 2: Example of a calendar Time management is essential to ensure you succeed in your studies. You must read all the tutorial letters you receive during the year immediately and carefully, as they always contain important and, sometimes, urgent information. Some of this tutorial matter may not be available when you register. Tutorial matter that is not available when you register will be posted to you through the postal service as soon as it becomes available. Alternatively, if you have access to the internet, you can download it for yourself directly from myUnisa. We will now consider the materials required for this module. 3. THE STUDY MATERIAL To be successful in this module, you must understand how the study material is structured. (a) Study units Your syllabus has been divided into six study units, each covering a specific section of African customary law. Each study unit, in turn, has been subdivided into a number of lectures, each covering a specific facet of customary public law and customary private law. Please note that the study material in this study guide is merely an introduction to the subject. In other words, not all the themes have been covered comprehensively. IND2601 (vii) INTRODUCTION (b) Structure of the study units This study guide contains an overview of each of the study units. This overview includes an outline of the structure and contents of each study unit and explains what you are supposed to be able to do after working through it, in other words, the skills you are expected to have acquired by achieving the learning outcomes. In turn, each study unit contains several lectures that deal with various themes and include the following: learning outcomes; compulsory (prescribed) reading; recommended reading; important principles; activities/self-assessment exercises; and feedback on these activities. We will elaborate on each of these aspects next. Learning outcomes Learning outcomes have been set for each lecture. You may think you can achieve these learning outcomes within just a few weeks before the examination, but that is definitely not the case. It is essential to start working on the module as soon as you have registered. Prescribed (compulsory) reading This includes the relevant section of the textbook for the particular theme of the lecture, as well as references to legislation applicable to the discussion (if there is any). To gain a full understanding of a lecture, you must consult the textbook and any relevant legislation and make notes linking the information from all the sources. Recommended reading Certain reading material on a particular theme will be recommended, but you will not be examined on it. If you are interested in reading more about a particular theme, you can consult these references. Some of you may also find that these recommended reading references enable you to understand the subject matter better. Important principles The main legal issues covered in a particular lecture will be outlined. Here we include a comprehensive discussion of the principles and legal issues surrounding them, as well as pointing out the law applicable to them. We strive to provide you with a clear understanding of the principles of customary law. However, as second-year law students, we do expect you to read the prescribed textbook on the relevant theme under discussion. In some cases, we will even require you to make your own notes while referring to the prescribed book and legislation. You will be examined on these important principles. Activities/self-assessment exercises Once you have studied the concepts and principles of the law applicable to a lecture, you can test your understanding of the issues discussed in that lecture by doing the activities/self-assessment exercises. This will not only enhance your understanding of the work, but will also give you an indication of the type of questions you can expect in the examination. Feedback The activities are followed by feedback and comments on answering the questions. We want to emphasise that these are only suggestions, not model answers. Always attempt to answer the questions on your own before looking at the feedback and comments. This will make the exercise more meaningful, as you will be challenged to understand (viii)  Introduction the tutorial matter and find the correct answer. Then, when you refer to the feedback and suggested answers, you will be able to reflect on and assess your own answers. This leads us to strongly recommend that you make study notes. We also strongly advise you to make notes on where your answers may have been incorrect/inadequate. 4. KEEP A JOURNAL We advise you to obtain a notebook – or open a new file on your computer – in which you can make notes about the study material for this course and jot down your own reflections. In doing so, consider the following: (i) Most of the required material for the course is contained in the study guide. There are some sections, however, where you will be asked to supplement your reading from the prescribed book and the relevant legislation; in that case, you will have to make your own notes. Study the prescribed chapters of the textbook and prescribed legislation and then make your own notes and summaries. (ii) Take time to write down your answers to the activities at the end of each lecture. Although we do not require you to submit your answers to us for marking, your responses to the activities will make it easy for you to study when preparing for the examination. (iii) Incorporate any further tutorial matter you may receive (such as tutorial letters) into your own notes so that you have a fully integrated set of tutorial matter to study for the examination. (iv) Note the meanings of the following terms that you can expect to find in the activi- ties (self-assessment exercises) for every lecture: “Explain/describe” usually have the same meaning, namely that you are required to give facts. “Discuss” means that you have to arrange and clarify the facts. In some cases, you will have to give several points of view and compare them. “Compare” means that you have to discuss similarities and differences. 1) The expressions “evaluate” and “discuss critically” have more or less the same meaning. Here you must be able to give your own point of view and justify it. “Apply” means that you must link general principles to specific facts – often with a view to solving a problem. As mentioned previously, you are required to read extensively to gain the necessary knowledge, develop skills, inculcate (cultivate) attitudes and demonstrate competencies. These four items are the cornerstones of analysing and solving challenges relating to African customary law. Studying is an active process, so you need to read to understand and then make brief notes to summarise what you have read. Figure 3 shows the requirements for successful study. You need to make full use of the 120 notional hours it will take you to work actively through the module. IND2601 (ix) INTRODUCTION FIGURE 3: The four cornerstones of successful studying The study guide must be used as a framework for and an explanation of the prescribed textbook and prescribed legislation. The study guide will be supplemented on occasion by tutorial letters and additional information posted on myUnisa. Figure 4 stresses the integrated resources required to study this module effectively, namely the study guide, textbook, prescribed legislation, supplementary tutorial letters and myUnisa. FIGURE 4: The resources required to study this module Next we take a closer look at the assessment of this module. 5. ASSESSMENT Assignments are seen as an important part of the learning process for this module. They provide you with formative assessment. As you do the assignments, study the reading texts, consult other resources, discuss the work with fellow students or do research, you are actively engaged in learning. There are TWO assignments for IND2601. The assignments for this module are compulsory. If you submit them in time, you will gain admission to the summative assessment (examination) at the end of the semester. The marks for both assignments for this module will be taken into consideration when calculating your semester mark. Therefore, to ensure you earn a good semester mark (x)  Introduction – which will contribute to a better final mark – it is very important to submit your assignments in time. The main summative assessment is the 2-hour examination you will write at the end of the semester. How your final mark will be calculated: The assignment marks will contribute to your final mark as follows: Assignment Marks allocated Assignment 01: Compulsory 10% Assignment 02: Compulsory 10% Examination mark 80% Total marks (final mark) 100% It is important for you to understand the terminology used in this module, which is why we have provided you with a glossary of key terms below. 6. GLOSSARY OF KEY TERMS This glossary contains definitions of key concepts/words/terms that you will encounter while studying this module. It is important for you to gain a proper understanding of all these words. Read through the glossary before you start studying and refer back to it every time you come across a word in the study guide that you do not understand. Hint: If English, Zulu or Southern Sotho is not your first language, we suggest that you log on to the internet and use Google Translate to translate terms that you struggle to understand into your home language. Please note that Google Translate is not a perfect translation tool; it is merely an aid. Even if you have a fairly good command of English, you may still encounter difficult English words; in that case, you can use a dictionary or thesaurus to explain these words. As a lifelong learner, it is good practice to look up the meanings of words/terms with which you are unfamiliar. Please add more terms to the following table as you work through the study guide. Latin/legal English Zulu Southern term Sotho deliver all (ilobolo) the marriage goods A person is umuntu motho ke a person in ngumuntu motho ka relation to other ngabantu batho people. IND2601 (xi) INTRODUCTION Latin/legal English Zulu Southern term Sotho (xii)  Introduction Latin/legal English Zulu Southern term Sotho Now that you have a framework for your studies, we can begin with study unit 1: An introduction to African customary law. IND2601 (xiii) INTRODUCTION (xiv) 1 STUDY UNIT 1 AN INTRODUCTION TO AFRICAN 1 CUSTOMARY LAW Overview In this study unit you will be introduced to customary law as a field of study. In lecture 1 we discuss the relation between laws in general and law in human relationships. We also distinguish between public law and private law. Before we discuss the name of the subject, we will explain how customary law is divided into certain subdivisions. We end this lecture by referring to the cultural division of people who live according to customary law. In lecture 2, customary law is located within the African context. We refer to certain aspects of customary law that are typical of indigenous systems of African law. In lecture 3 we discuss the nature of customary law. Customary law is said to be unspecialised law. We will answer questions such as: What is meant by the term “unspecialised law”? How does an unspecialised legal system compare with a specialised one? What are the characteristics of unspecialised law? In lecture 4 we consider the extent to which customary law was officially recognised in South Africa before 1994 and we examine the impact of the Constitution of the Republic of South Africa, 1996 on customary law. We explain what we mean when we say that customary law is subject to the Bill of Rights (Chapter 2) in the Constitution. Finally, we discuss the application of customary law and the question of choice of legal system. Learning outcomes After having studied all four lectures in this study unit, you should be able to demarcate the field of study known as customary law state the main questions concerning customary law in a democratic system discuss the nature and characteristics of customary law indicate the considerations relevant to the application of customary law IND2601 1  Structure of the study unit LECTURE 1: General introduction LECTURE 2: Some characteristics of African customary law LECTURE 3: The nature of customary law LECTURE 4: Recognition of customary law in the Constitution 2 1 LECTURE 1 2 General introduction Prescribed reading None. Recommended reading None. Learning outcomes After you have studied this lecture, you should be able to explain the relation between the law and human relationships classify customary law indicate the different indigenous legal systems that are in force in Southern Africa and the legal implications of this diversity 1.1 THE LAW AND HUMAN RELATIONSHIPS The purpose of any legal system is to regulate the relations of its people. These people may be individuals or groups of people. These relations include the relationships between the government and its subjects. This describes the scope of public law. Any legal relationship between people – whether between individuals or groups, or a government and its subjects – creates responsibilities and obligations. The subject, for instance, is obliged to abide by the laws enacted by the government, while the government is obliged to protect the subject. When two individuals enter into a deed of sale, the one is obliged to deliver the object, while the other is obliged to pay the price. Note that the emphasis in customary law is on duties, whereas most people place the emphasis on rights. People often speak about the protection of their rights, or say that their rights should be protected by the government. Rights and duties are two sides of the same coin: one person’s rights create duties for another. In customary law, the emphasis tends to be on duties rather than on rights. What is public law? By “public law”, we mean the legal relations between a government and its subjects, and the relations between the different parts of government. By “different parts of government”, we mean government institutions, that is, the legislative, executive and judicial organs. “Legislative organs” are government organs (e.g. parliament in modern states) responsible for the passing of statutes. “Executive organs” are government organs IND2601 3  (e.g. the police and revenue services) responsible for the application of statutes and other public services. “Judicial organs” generally refer to the courts. What, then, is “private law”? This describes the legal relationships between individuals and groups in their capacity as private persons. This distinction is discussed in more detail in 1.3 below. This general division of law also applies to customary law. The aim of any legal system is to maintain order within the society concerned, and this maintenance of order is supported by means of approving and disapproving legal sanctions. The word “sanction” has two meanings: On the one hand, it may mean approval or confirmation of an action. On the other hand, it may mean punishment for non-compliance with, for instance, statutes or behavioural prescriptions. An example of a legal sanction is the punishment that may be imposed for theft. Legal sanctions are further supported by public opinion regarding religion (you should not steal), informal and formal education, respect for the property of others (an attitude that is learnt), participation in the judiciary (as a witness), political control (statutes) and economic factors (fines). In customary law, the above-mentioned factors play an even more important part than purely legal sanctions in ensuring that people obey the law. 1.2 THE NAME OF THIS SUBJECT The term “customary law” means “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples” (section 1 of the Recognition of Customary Marriages Act 120 of 1998). This term now enjoys wide acceptance and is regarded as synonymous with “indigenous law”. 1.3 THE DIVISION OF CUSTOMARY LAW There are various opinions about how the law should be divided. In this introduction, however, we will not elaborate on this point. Since the law is basically concerned with relations between individuals and groups and between a government and its subjects, the law may, generally speaking, be divided into national and international law. National law governs the relations between subjects and foreigners, as well as the relations between subjects and government within a certain state. International law, on the other hand, governs the relations between states. The above-mentioned division also applies to customary law. Initially, most of the indigenous African people in Africa had their own independent “states”, with their own authority under the supervision of the tribal chief. Some kingdoms consisted of several tribes and remnants of tribes, ruled by a king or a paramount chief. Examples of kingdoms in Southern Africa today are the kingdoms of the Zulu, the Swazi and the Southern Sotho. From now on, we will refer to “tribal law” only and include the law of these larger units. We would also like to point out that in customary law, a distinction can be drawn between tribal law (national law) and the law of different tribes (international law). Little is known about intertribal law, which we could also refer to as “indigenous international law”. What is known, however, is that tribes entered into agreements to help one another against common enemies. We also know of marriages between tribal chiefs and women from the ruling families of other tribes, and the sporadic practice of barter between tribes. 4  STUDY UNIT 1: General introduction As we have already said, in tribal law, a distinction may be drawn between public law and private law. Customary public law governs the relations between traditional authorities and subjects, and the relations between these authorities within the tribe. Customary public law may be subdivided as follows: Customary constitutional and administrative law (discussed in more detail in study unit 6). This is that part of customary law that relates to the composition, powers and functions of the public organs of authority. In the case of a tribe, the highest authority is the tribal chief; and in the case of a kingdom, it is the king. The tribal chief has various councils that help him to perform his duties. A tribe is usually subdivided into several (territorial) wards. Each ward is headed by a headman, assisted by a system of councils. In former times, the tribal chief, together with his councils, had the power to legislate. The chief-in-council had to see to it that these laws (and other community rules) were applied. The chief and each headman had a court in which cases were tried. The customary adjudicatory organs and the law of procedure (discussed in detail in study unit 4). This is that part of customary law that deals with the composition and jurisdiction of the various indigenous or customary courts and the various procedures that must be followed when cases are brought before the court and tried, and when judgment is executed. It also relates to the evidence that may be led in court to reach a decision. Customary criminal law (discussed in study unit 5). This is that part of the law that deals with public action against a subject with the purpose of punishing the subject when he/she transgresses a rule that is punishable by law. In Western legal systems, private law usually comprises seven subdivisions. In the discussion that follows, an indication will be given of the extent to which this classification is useful for South African customary law. The law of things and the law of immaterial property are often collectively known as the law of property. The law of persons determines the status of a person, that is, his or her rights, duties, powers and capacities according to sex, age, mental state, married or unmarried status, legitimacy, etc. The rules concerning status play an important part in South African customary law and may safely be dealt with as the law of persons (see study unit 2). Family law (concerning marriage, parents and children, guardianship and curatorship) should be distinguished from the law of persons (see study unit 2). The law of things consists of the rules concerning real rights over material objects, such as land, cattle, motor vehicles and furniture. Such material objects, which people can control, are referred to as “things” in law. Some jurists object to the use of the term “law of things” in South African customary law. However, provided that the distinctive features of rights over a particular type of object among the indigenous African people of South Africa are borne in mind, the term is perfectly acceptable (see study unit 3, lecture 1). The law of immaterial property consists of the rules concerning rights over immaterial property, such as patents and copyright. As far as we know, this legal concept is unknown in South African customary law. The law of obligations consists of the rules relating to obligations. An obligation is a legal tie between the debtor and the creditor that requires the debtor to perform, that is, to give, do or refrain from doing something. The creditor has an obligatory right and the debtor a duty, namely to perform. The phenomenon of being bound also occurs in South African customary law. The term “law of obligations”, therefore, need not be rejected here, provided that its peculiarities are taken into account. In IND2601 5  South African customary law, the parties were previously agnatic (family) groups. An obligation may arise from contract, quasi-contract or delict. As far as South African customary law is concerned, the tie between a patient and a medical specialist or traditional healer may be called contractual; the tie between a guardian and a person supplying his/her ward with the necessities of life without his/her consent may be called quasi-contractual; and the tie between an owner and another who has wilfully damaged his/her property may be called delictual. The law of succession is the aggregate of rules determining what is to become of a deceased person’s estate, namely his/her patrimonial rights and duties. The South African indigenous people have a well-developed law of succession. Group rights formerly excluded the individualistic notion of inheritance, and succession was confined to the position of the deceased family head as the person having most control over the group’s estate (see study unit 3, lecture 2). The nature of the law of personality (right to honour, good name and privacy) is indicated by the term itself. This division of indigenous private law is dealt with in a more advanced module. Law may also be subdivided into substantive law and adjective law. Substantive law prescribes norms or requirements and attaches sanctions to these. The sanction may be that of approval, as in the case of validity of lawfulness, or that of disapproval, as in the case of invalidity or unlawfulness or punishability. Adjective law – or the law of procedure and evidence – prescribes the manner in which norms are to be enforced and sanctions applied. This distinction is acceptable for South African customary law, since this system comprises not only norms, but also fixed rules of procedure. In private law, unlawfulness consists of the infringement of a right. An infringement resulting in liability is termed a delict. We may distinguish between the following rights in customary law, according to the object, as summarised in table 1.1. TABLE 1.1: Rights in customary law, according to the object, with relevant examples Right Object Example Real right Corporeal thing apart from Ownership the person Obligatory right Performance Right to a fee for professional services Right of authority Productivity and freedom of Guardianship a group member Right of personality Corporeal or incorporeal part Right to make decisions of vestee’s personality about your body Right to your honour The first three fall within the vestee’s estate. Consequently, any violation of these entails patrimonial loss (i.e. losses that can be determined in economic terms), and this loss is the basis for an action for damages. Rights of personality do not fall within the vestee’s estate. Violation of a right of personality results in an action for satisfaction (solatium). Violation of these rights may occasionally also result in patrimonial loss, for instance when it is alleged that someone is a thief (violation of a person’s right to a good name) and such person loses his/her job as a result of such allegation (loss of income and 6  STUDY UNIT 1: General introduction thus patrimonial loss). Unfortunately, the legislation and court decisions do not always distinguish clearly between damages and satisfaction. Group ownership is typical among indigenous African people and covers movables such as cattle and agricultural produce, as well as immovable property such as land. It is perfectly justifiable to speak of “real rights” in customary law. The example of obligatory rights in the table is as valid for South African customary law as it is for Western systems, and there is every reason to accept such rights for South African customary law. However, it is not only the right that is vested in an agnatic group. The duty to perform also applies to an agnatic group, as in the case of the right of a bride’s family to have marriage goods delivered to them by the bridegroom’s family. The indigenous African people are apparently unacquainted with any right comparable to the immaterial property rights of Western systems. The patrimonial group right of “guardianship” is well known in customary law. Apart from its objective regarding the freedom of members, guardianship is also considered a patrimonial right because it entitles the group concerned to the productivity of its members. This particular element of guardianship is lacking in modern Western legal systems. We can speak of rights of personality among the indigenous African people, for example in cases where rituals are performed to remove pain, sorrow, or defilement. An example of defilement is defloration of a woman among some Southern Nguni, where a beast is taken from the wrongdoer’s place of residence by the women who belong to the seduced girl’s group. This beast, called the isihewula beast, is then ritually slaughtered by the group as an act of cleansing and to obtain satisfaction. The fact that the vestee of the right may be a group does not alter the nature of the right. Note that, where pregnancy follows, the girl’s guardian, as the representative of her group, is also considered to have suffered patrimonial loss and may recover damages. The same action may therefore lead to the infringement of various rights. 1.4 VARIOUS AFRICAN CUSTOMARY LEGAL SYSTEMS When studying customary law, it must be kept in mind 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 that, in varying degrees, differed from the legal systems of other groups. Among most of the Zulu tribes in KwaZulu-Natal under the authority of traditional leaders (chiefs), 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 of the Eastern Cape, 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 theleka. In this module it is not possible to discuss all the different local indigenous legal systems. Fortunately, there is a great deal of similarity between them, especially as far as underlying legal principles and legal values are concerned. In this study guide, we will be focusing on these common underlying principles. In the following part we will give an overview of the most important differences between the legal systems of the different indigenous African people of Southern Africa. IND2601 7  1.5 THE DIVISIONS AND FEATURES OF THE INDIGENOUS AFRICAN PEOPLE OF SOUTHERN AFRICA 1.5.1 Introduction The term “African language” refers to a family of languages with a marked degree of correspondence and a common origin. People speaking one of the languages belonging to this family of languages are referred to as “African-speaking”. Apart from the African languages, other languages, such as Nama, Khoe (Khwe) and !Xe (!Kung), are also spoken in Southern Africa. Based on language and other cultural features, the following main groups can be identified in South Africa, Botswana, Lesotho and Swaziland: the Nguni groups the Sotho groups the Venda the Shangaan-Tsonga These groups differ from one another in important respects, that is, they each speak a different language and have a different legal system and different customs. Despite these differences, sufficient similarities do exist for these groups to be discussed together. This is because these groups all have a system of traditional succession to leadership, although – individually – their rules of succession differ greatly. These differences do play an important role as far as the practical application of the law is concerned. Therefore, it is often necessary to determine the personal laws of a specific community. However, if you focus on the underlying legal principles, you will clearly see the significance of the variations that occur in these systems. For instance, if you have a good knowledge of the legal principles underlying the custom of lobolo, you should find it easy to determine the legal implications of the marriage goods being delivered at different stages in different groups. 1.5.2 Characteristics of the main groups 1.5.2.1 The Nguni groups The most important languages in this main group are Zulu, Xhosa, Swazi and Ndebele. The original areas where the Nguni groups settled are as follows: the Zulu-speaking groups: KwaZulu-Natal the Xhosa-speaking groups: the Eastern Cape (especially Ciskei and Transkei) the Swazi-speaking groups: Swaziland and Mpumalanga the Ndebele-speaking groups: Mpumalanga, north-east of Pretoria Characteristic of the Nguni groups was a composite household, which was divided into two – and, sometimes, three – sections. Each section had a senior wife, as well as affi liated wives who were subordinate to the senior wife. Each wife in a section formed a “house” with its own identity and rank, property and successor. The following explanation makes this clear: 8  STUDY UNIT 1: General introduction The household is subdivided into three sections, namely A, B and C. Each section has a senior wife, namely 1, 2 and 3, respectively. Wives 4 and 5 are affiliated to the senior wife in section A. Wife 6 is affiliated to senior wife 2 in section B, and wife 7 is affiliated to senior wife 3 in section C. This division of the household is still found in rural areas. In urban areas, where a man has more than one wife according to customary law, the wives usually live in separate houses and, sometimes, in different local government areas. 1.5.2.2 The Sotho groups The most important languages in this main group are Tswana, Northern Sotho and Southern Sotho. The original areas where the Sotho-speaking people settled are as follows: the Tswana-speaking groups: in Botswana, North West and parts of the Northern Cape the Northern Sotho-speaking groups: in Limpopo the Southern Sotho-speaking groups: in Lesotho and the Free State An important characteristic of the Sotho-speaking people is that the household is not divided into sections. Each married woman has a certain rank, and her house has its own identity, own property and successor. 1.5.2.3 The Shangaan-Tsonga group This group is sometimes also referred to as the “Tsonga” or “Shangaan”. The Shangaan- Tsonga originally settled in Limpopo and Mpumalanga, in areas adjacent to Mozambique. 1.5.2.4 The Venda The Venda originally settled in the north-eastern part of Limpopo. Their language is also called “Venda”. They have historical links with the Shona-speaking people of Zimbabwe. ACTIVITY 1.1 Answer the following questions before referring to the feedback. (1) Briefly explain the relation (connection) between law and human relationships. (5) (2) Illustrate, by means of a diagram, how customary law can be subdivided into different categories. (8) (3) Illustrate, by means of a diagram, how the indigenous African groups of Southern Africa can be subdivided into different groups. (5) FEEDBACK ON ACTIVITY 1.1 Your answers could include some of the following points: (1) Law regulates relations between people. Two types of relationships may be distinguished: One type comprises the relations between the government and its subjects. This type of legal relationship is generally described as “public law”. The other type comprises IND2601 9  relationships between people in their private capacity. This type of legal relationship is generally described as “private law”. (2) Your diagram must include the following: national law and international law the subdivisions of national law, namely public and private law the subdivisions of public law the subdivisions of private law (3) The diagram must include the four main groups, as well as the most important groups under each main group. Make sure that you have achieved the learning outcomes for this lecture by checking the outcomes listed at the start. In the next lecture we will investigate some characteristics and sources of African customary law. 10 2 LECTURE 2 3 Some characteristics of African customary law Prescribed reading None. Recommended reading None. Learning outcomes After you have studied this lecture, you should be able to identify the general characteristics of customary law explain the role of magico-religious conceptions in customary law explain the factors that encourage the observance of customary law 2.1 INTRODUCTION The indigenous legal systems of the indigenous groups of Southern Africa are related to the indigenous legal systems of Africa, especially to the systems found south of the Sahara. In this lecture we will briefly discuss some characteristics of this “family” of legal systems, and in lecture 3 we will discuss the nature of indigenous legal systems. According to Allott (131), the indigenous legal systems of Africa do not form a single system. He says that, instead, the legal system of Africa is a “family of systems which share no traceable common parent... But, more fundamentally, African laws reveal sufficient similarity of procedure, principles, institutions, and techniques for a common account to be given of them.” 2.2 CHARACTERISTICS OF AFRICAN CUSTOMARY LAW 2.2.1 The unwritten nature of African customary law Originally, African customary law was not recorded in written legal sources, such as statutes, law reports or textbooks. Court procedures were conducted orally, and the law was also transmitted orally from one generation to the next. This process of legal transmission was furthered by the public participation of adult men, in particular, in the administration of justice. The result was that the community had a broad general IND2601 11  knowledge of the law. To a large extent, important legal principles were expressed by means of legal maxims. The following are examples of such maxims: motho ke motho ka batho (Sotho); umuntu ngumuntu ngabantu (Zulu): A person is a person in relation to other people. This expresses group orientation and humaneness. o mo tshware ka diatla tše pedi (Northern Sotho): You should hold him/her with both hands. This expresses the marital relationship between husband and wife. kgoši ke kgoši ka batho le batho ke batho ka kgoši (Northern Sotho) – A kgoši (ruler) is a kgoši through his people (subjects), and the subjects are subjects through their kgoši (indicating that a kgoši should reign through his councils, and by so doing, act in accordance with the will of his people). go sa boelwego ka teng, maropeng goa boelwa (Northern Sotho) – There is no return to the womb; to the ruins is the return. This indicates that subjects who leave the area will later be welcomed back by the tribe, although they will not be given the best or a new position; rather, they will get back – and resume occupation of – only what they previously had, prior to their departure from the area. 2.2.2 The customary nature of african customary law Most indigenous legal systems in Africa are the result of age-old traditions and customs that, in the course of time, came to be classified as “law”. There are also examples of laws promulgated by chiefs. These laws were mainly limited to direct orders and instructions from the ruler. Formal administration of justice was also known, but the indigenous court’s function was limited to the application, and not the creation, of law. Furthermore, a system according to which indigenous courts were bound by their previous decisions – or by the decisions of a higher court – was unknown in indigenous African law. In other words, the indigenous courts had no system of precedent. (“Precedent” means that a court’s decision sets a precedent that must be followed in similar cases by courts of the same order or by courts of a lower order.) 2.2.3 Customary law as an expression of community values Public participation in the process of adjudication resulted in the laws also giving expression to the prevalent values or the general moral behavioural code of the community. As values changed in the course of time, so did the law. Conflict between legal and moral values was therefore unknown. In a dispute between parties, usually family groups, the emphasis was not on which party was right and which party was wrong. The dispute affected the wider community, which meant that any decision had to take into account future relations between the parties within the community. These relations were extremely important if the wider community was to enjoy harmony. Thus, the administration of justice did not concern legal justice as such, but the reconciliation of people (“human” justice). As a result, the interests of the community were considered so important that, in the eyes of the law, the individual had no special part to play. The individual did, however, have a role to play within the group, that is, within the family, on the one hand, and within the community, on the other. 12  STUDY UNIT 1: Some characteristics of african customary law 2.2.4 The role of magico-religious conceptions in African customary law Given the danger of distorting the data relating to this aspect of African law (i.e. by making wild generalisations), we will highlight only two supernatural beliefs, both of which are fairly common throughout the continent of Africa. One is the belief in ancestral spirits, and the other, the belief in sorcery. Note that each cultural group has its own particular conceptions of these phenomena, and these conceptions may differ in detail from the general description we give below. Briefly, the belief in ancestral spirits means that after death, a person continues to live in a spiritual world, more or less in the same way as he or she did on earth. Relations that existed on earth, so it is believed, are continued in the spiritual world. From the spiritual world, the ancestral spirits maintain contact with their living relatives on earth. Ancestral spirits have an interest in the community living on earth and may make their wishes known to the living in various ways. It is believed that the rules for living, and thus also the law, are derived from the ancestors and are protected by the ancestral spirits. The ancestral spirits ensure that these rules are observed. Any disregard of, or deviation from, these rules for living may lead to punishment by the ancestral spirits. Misfortunes such as illness, drought, hail, floods and heatwaves that are experienced are often interpreted as forms of supernatural punishment, even today. The effect of this belief in ancestral spirits on the law is twofold in nature. First, this belief explains the law, and therefore also forms a basis for the law. In other words, the law has a supernatural origin and is therefore seldom questioned. Secondly, it results in the law’s appearing static and unchangeable: any change may be against the wishes of the ancestral spirits. The belief in sorcery is related to the belief that there are supernatural powers at work in the universe that may be used by a person for his or her own ends. People may use these supernatural powers in two ways: either to the advantage or to the disadvantage of other people or their interests. Cases of sorcery always involve a person, that is, a “sorcerer”, who uses these supernatural powers in order to harm others. It is therefore in the interests of the community that the sorcerer be identified and removed from the community. Some form of supernatural process is often implemented to identify the sorcerer. To this end, use is often made of extraordinary evidence to point out a sorcerer. Usually, the sorcerer is then killed or removed from the community. 2.2.5 The observance of rules for living in African customary law It is significant that, in general, the vast majority of the members of any community faithfully observe most rules for living – including legal rules – on a daily basis, without feeling that they are being “forced” to comply. The motives for such voluntary observance of the law often indicate that a particular rule is a rule of law, even though its nature has never been determined by a court. Why do people voluntarily observe legal rules and rules for living? The availability of law enforcement organs, such as the police, courts and judges, certainly encourages the observance of the law in any community, but in many communities, there are other factors that are more important than the existence of such organs. As far as customary law is concerned, the following factors may be of importance in this respect: The religious or sacral (holy) element of the law. (Think of examples of your own religious beliefs and also keep in mind what we said earlier on about the belief in ancestral spirits.) IND2601 13  Public opinion and, particularly, sensitivity about what other people may think and say about a person’s behaviour. (In customary law, the interests of the community are very important.) The knowledge that, if a person is harmed, that person will endeavour to get compensation or will take measures to protect himself or herself. (African customary law, for instance, allows for the use of all kinds of medicines to protect a person from harm. Remember what we said about sorcery earlier on.) The fact that everybody in the community has a broad general knowledge of the law. This is because there is general participation in the legal process, and the law is handed down, orally, from one generation to the next. In short, everybody has an opportunity to find out how the law operates in that particular society. Fear of punishment. This refers especially to punishment of supernatural origin, when the conduct in question conflicts with accepted legal principles. The influence of indigenous leaders in the community. These people are regarded as the living representatives of the ancestors and are responsible for the community’s observance of the law, without there necessarily being – or even before there is – any question of a formal legal ruling. Of particular importance is the fact that the recognised indigenous leaders played an important part in the community’s daily life, without having to refer to their judicial authority. For instance, because of their hereditary (inherited) position, indigenous leaders played an important part in allocating land for residential and agricultural purposes, in admitting strangers to the communal territory, and in communicating with the ancestral spirits. The authority emanating (flowing) from these positions alone was enough to ensure observance of the law, without any formal administration of justice being necessary. Further, local heads of families and kinship groups were consulted before anything important, such as the institution of legal action, was undertaken. This ensured that the proposed action would not be opposed and that the interests of others would not be harmed in an unfair and unlawful manner. It also meant that the local headmen and leaders would be informed about the matter, should any legal dispute arise from that particular action. Finally, it must be remembered that these leaders, with their advisers, are the bearers of the local community’s traditions and that it is they who must ensure that these traditions are observed. They are therefore regarded as the people who have the authority to pronounce on what is allowed and what is not allowed. 2.3 SOURCES OF CUSTOMARY LAW There is evidence of a number of sources of African customary law. However, the problem of authenticity of some of the recognised sources of African customary law has led to the introduction of a distinguishing feature of sources of African customary law, namely official sources and living versions of customary law. Refer to the prescribed book on pages 17–32 and make your own notes on the following: 1. the classification of the sources of customary law 2. the dichotomy between the living and the official versions of customary law 14  STUDY UNIT 1: Some characteristics of african customary law ACTIVITY 1.2 Answer the following questions before you refer to the feedback. (1) Discuss the relationship between African customary law and magico-religious conceptions. (8) (2) Describe the factors that promote the observance of customary law. (10) (3) List and define the main sources of customary law in South Africa’s legal system?(15) FEEDBACK ON ACTIVITY 1.2 Your answers should include some of the following points: (1) African customary law gives expression to the values of the community. In many instances, these values are based on conceptions of the supernatural world. In Africa, the belief in ancestral spirits and the belief in sorcery are very important. Briefly describe these beliefs and indicate how the law has been influenced by these beliefs. (2) Name the various factors, briefly indicate what they entail and, specifically, indicate how each factor promotes observance of customary law. (3) The sources should include customs and usages, legislation, judicial precedent and scholarly writings. Make sure that you have achieved the learning outcomes for this lecture by checking the outcomes listed at the start. In the next lecture we will investigate the nature of customary law. IND2601 15 3LECTURE 3 4 The nature of customary law Prescribed reading None. Recommended reading Bekker & Rautenbach C “Legal Pluralism” in Introduction to legal pluralism in South Africa (2014) ch 2, 18–27 Learning outcomes After you have studied this lecture, you should be able to differentiate between “specialised law” and “unspecialised law” indicate the similarities between these types of legal systems discuss the differences between these types of legal systems 3.1 INTRODUCTION The world’s legal systems differ in terms of their degree of specialisation. What is meant by “specialisation”? Among other things, specialisation refers to the distinction of certain functions or a definition of certain activities. According to Myburgh (1985:2), specialisation implies “the separation, differentiation, division, distinction, classification, delimitation, definition or individualisation in respect of time, activity, functions, interests, duties, knowledge and conceptions, including the isolation or abstraction of ideas and concepts”. Let’s explain some of these factors by giving you a few examples: In specialised legal systems, there is a clear division between criminal and civil cases. Each of these divisions has its own court procedure (i.e. criminal procedure in a criminal court and civil procedure in a civil court). In unspecialised legal systems, however, criminal and civil cases are tried in a single hearing, and there is no clear division between case and procedure and between case and court. From this example, we can see a distinction between criminal and civil cases, as well as between courts and procedures. We can also see a form of classification: criminal cases, criminal courts and criminal procedures – as opposed to civil cases, civil courts and civil procedures. 16  STUDY UNIT 1: The nature of customary law If we take time as another example, broadly speaking, there is a natural division between day and night. More specifically, however, time may also be divided up into very small units, such as seconds and milliseconds, and even smaller units. The fine differentiation in time is highly specialised when compared with the more unspecialised division of time into night and day. In specialised legal systems, specific moments in time are often important. For instance, in a specialised legal system, it is important that a legal action be instituted before a certain period has elapsed, otherwise the action expires. In unspecialised legal systems, however, prescription of a legal action is unknown. (In law, the term “prescription” means that the action lapses after a certain period of time. Therefore, if a person waits too long before instituting an action, it is said that the action has “prescribed”.) In specialised legal systems, the precise moment (even in seconds) is important in order to determine when rights and duties come into existence. The moment of birth, death and marriage are therefore important, as well as the moment when a contract comes into being. However, in customary law, which is an unspecialised legal system, marriage, for instance, is described as a process in which the precise moment of the ceremony is not important. In fact, in unspecialised systems, the precise moment when an event occurred is often not nearly as important as the fact that the event did actually occur. Specialisation – or the relative lack of it – also has to do with the size of the population and the extent of cultural homogeneity (uniformity): The larger the population and the larger the cultural diversity (variety) within the population, the greater the possibility of specialisation. On the grounds of the above-mentioned criteria for specialisation, we can distinguish between specialised and unspecialised legal systems. We can discern two poles, specialised and unspecialised systems, and it is between these two extremes that we determine whether a legal system is more specialised or less specialised. It should, however, be mentioned that no legal system is totally unspecialised. The indigenous legal systems of Africa are, as we have already indicated, “unspecialised” in comparison with Western legal systems. The indigenous legal systems of the Indonesians, Polynesians, Eskimo, early Greeks, Germanic tribes and Anglo-Saxons are further examples of unspecialised legal systems. In this module, however, we will concentrate only on the indigenous legal systems of the indigenous African people of Southern Africa. Legal systems are not static – they are in a state of constant change, and some are changing more rapidly than others. Customary law, because of its contact with Western legal systems, is also in a constant process of change and development. These changes and developments lead to greater specialisation. In our opinion, this will not cause the legal systems of Africa to totally lose their indigenous nature, since those who observe customary law still regard their law as meaningful. (Note that, recently, there has been debate in the public media about the “Africanisation” of the general law of the land.) As we said above, the indigenous legal systems of Southern Africa today are in a process of extensive change and development. In South Africa, Namibia and Botswana, recognition of the local legal systems is now subject to a bill of fundamental rights that will, in many respects, change customary law. We will be discussing these changes in this study guide. A comparison between specialised and unspecialised legal systems leads to certain problems with terminology. A comprehensive legal terminology and divisions of law IND2601 17  are the products of specialised legal systems that are largely lacking in unspecialised legal systems. If, however, we remember that the terminology and classification of phenomena, that is, the division of law, were developed for studying the law and legal phenomena, the specialised system may be applied to the study of any legal system. Nevertheless, some degree of adaptation may be needed in order to understand the uniqueness of each system. 3.2 SIMILARITIES BETWEEN SPECIALISED AND UNSPECIALISED LEGAL SYSTEMS The following are a few examples of existing similarities: The relations governed by law are, broadly speaking, the same for more or less all legal systems. They comprise relations between organs of state and subjects, on the one hand, and relations between groups and between individuals, on the other. The means by which the law is transferred from one generation to the next is basically the same for all legal systems. It starts with education in the context of the family, develops in the wider context of the community and, in specialised legal systems, is supported by formal instruction in schools, colleges and universities. In all legal systems, a transgression of the law and legal rules will have certain, specific consequences for the transgressors. 3.3 DIFFERENCES BETWEEN SPECIALISED AND UNSPECIALISED LEGAL SYSTEMS The differences between specialised and unspecialised legal systems will give you more insight into the nature of customary law than the few examples of similarities we have mentioned above. The following examples of differences in the spheres of public and private law will be discussed below: group versus individual orientation concrete versus abstract approach the religious element categorisation kinship polygyny lack of formalities time governmental functions 3.3.1 Group versus individual orientation In unspecialised legal systems, there is a strong emphasis on the group rather than on the individual. The individual functions entirely within the context of the group. In specialised legal systems, however, there is a strong emphasis on the individual. Indeed, in many instances, an individual may uphold his or her rights even when this is against the interests of the state or the community. This emphasis (i.e. either on the group or on the individual) is also reflected in the different systems of education. Among peoples with unspecialised legal systems, the 18  STUDY UNIT 1: The nature of customary law informal and the formal systems of education are directed towards encouraging the individual to adapt to, and become subordinate to, the interests of the group. The individual’s acceptance of his or her particular place and rank within the community is impressed upon him or her from early childhood. Everyone knows exactly what his or her role is in the community, and there is not much room for individual freedom. In contrast, communities with specialised legal systems stress the person’s individuality and achievements. These characteristics will eventually determine his or her particular adult place and role in the community. It is therefore not surprising that, in this type of legal system, there is a great deal of emphasis on the rights of the individual, and that these rights find expression in a bill of human rights. The difference between group orientation and individual orientation is also clearly reflected in the law. At this point we will mention a few examples from customary private law and customary public law. 3.3.1.1 Rights The strong individualisation of rights in modern societies, which implies, for example, that the individual – and not the group – is the owner or creditor, is almost absent in original indigenous law. In indigenous public law, the ruler, for instance, did not rule as an individual, but only as the representative of members of the ruling family, who were the true rulers. Close relatives, such as his own brothers and brothers of the father, formed a council of relatives that ruled the tribe. The ruler was also the living link with the family of ancestors that had an interest in the welfare of the community. In specialised legal systems, however, the emphasis is on the powers of the individual official. 3.3.1.2 The law of marriage In modern law, the interested parties in a marriage are practically restricted to the two spouses. The interests of the community are limited to age requirements, certain prescribed formalities, monogamy, etc. In contrast, in customary law, marriage concerns family groups. Both family groups participate not only in the matter of choice of marriage partners, but also in the preceding negotiations, the agreement, the transfer of marriage goods, and the ceremonies. Indeed, without the participation of both family groups, marriage simply cannot take place. It has to be borne in mind, however, that the parties that acquire rights and duties are, basically, the households of the bride and bridegroom. 3.3.1.3 The law of contract Although the idea of groups as parties to a contract is not totally unknown in specialised legal systems, most contracts are concluded between individuals. In customary law, the parties are mostly agnatic groups, rather than individuals. 3.3.1.4 Criminal law As far as criminal law was concerned, a whole family group could be punished for the crime of one of its members. In cases of sorcery, for instance, the whole family could be banished or even killed. Fines had to be paid by the group. In cases of corporal punishment, the transgressor was punished as an individual, although the entire group IND2601 19  would be prosecuted. Also, parents were responsible for the wrongs of their children. In specialised legal systems, however, the wrongdoer is always liable as an individual for his or her actions. 3.3.1.5 Administrative law In specialised legal systems, the administration of justice is usually entrusted to appointed officials who have exclusive power to administer justice. Although trials are generally conducted in public, the role of the public is limited to that of an audience. Unspecialised legal systems also have officials specially charged with administering justice, but the public takes an active part in the proceedings, which always take place in the open. The public freely takes part in the cross-examination and the discussion of the case and forms part of the court procedure. Further, negotiations for extrajudicial (i.e. outside the court) settlement take place between the family groups concerned, and not between individuals. 3.3.2 Concrete versus abstract approaches Unspecialised legal systems follow a more concrete and visible approach than that of specialised legal systems, which tend to be more abstract in nature. This applies, among other things, to the law of marriage, the law of obligations and to the structure and organisation of constitutional units. The abstract consent and abstract expression of intent, as characteristics of Western law, are largely replaced by apparent, observable, visible acts from which consent becomes obvious in a very concrete way. For example, in concluding a marriage in an unspecialised legal system, the actual visible transfer of both the bride and the marriage goods takes place. In the same visible and concrete manner, the bride is detached from her own group, transferred to the bridegroom’s family group and incorporated into the latter group. In many juristic acts, the oral agreement is supplemented by the concrete handing over of some object. A further example of the concrete nature of unspecialised legal systems is the importance attached to concrete evidence: the fact that a married woman spent a night in a hut with another man is considered evidence of adultery; the hide (of a cow) left in the care of another person is considered evidence that the animal died (Bekker 1989:338). Also, if a man closes the door of his wife’s hut in a certain way, he makes it known that he wishes to divorce her. Furthermore, rights to land are acquired in a visible, perceptible manner by demarcating and indicating an area, and by actually using the land and cultivating it. This is in sharp contrast to the abstract way of transferring land by means of registration in a deeds office, which is how land is transferred in specialised legal systems. Another example is that among indigenous-speaking groups, the different legal communities are very concrete in nature, both as far as the conceptions and feelings of the people and their terminology are concerned. Not only is the legal community sometimes typified as a “person”, a “cow” or some other animal, but also the agencies (organs) of the legal community are sometimes referred to as the “ears and eyes” of the chief. 3.3.3 The religious element The strong religious element of customary law is based on the belief that the law originates with the ancestors. Disregard of the law is punished by the ancestors, not so 20  STUDY UNIT 1: The nature of customary law much because it is considered “sinful”, but rather because it is regarded as disrespect, neglect and contempt of the ancestors. Reconciliation between the community and the ancestors is usually accomplished by slaughtering an animal and by having a communal meal. If important juristic acts are planned, the blessing of the ancestors is obtained by means of special rites. Furthermore, the role of extraordinary evidence, for example in the pointing out or identification of sorcerers, is well known in customary law. 3.3.4 Categorisation A sharp distinction between categories, institutions and concepts is foreign to customary law. It is often difficult to determine whether authority in a family group with many members concerns private law only, or whether it also contains elements of public law. Furthermore, the distinction between categories of transgressions is sometimes vague. It is not always possible to distinguish whether a transgression is harmful to the interests of the community or harmful to the interests of family groups. In legal language, this is referred to as a distinction between crimes and delicts. In customary law, theft of another person’s property is usually merely a delict, while stock theft is always a crime. Furthermore, there is no distinction between civil and criminal cases, and there are also no separate court procedures for these cases. 3.3.5 Kinship In many respects, kinship plays a dominant role in legal life. Apart from the position of the household as a legal unit, the wider family circle (i.e. the family group) has extensive authority over its members. Since all the members participate in the authority of the family group, this authority is firm, yet benevolent and protective. In general – but subject to certain exceptions – we could maintain that among many groups who have non-specialised legal systems, the position of women compares unfavourably with that of men. 3.3.6 Polygyny In unspecialised or less specialised legal systems, marriage is polygynous. In other words, one man can be involved in a marital union with more than one woman at a time. 3.3.7 Lack of formalities Unspecialised legal systems lack formalities. For example, as far as the betrothal agreement is concerned, there are generally no fixed rules regarding the type of articles or property that must be delivered. Cattle or, lately, money as well, are given with the betrothal gifts. In unspecialised legal systems, the administration of justice is relatively informal. Legal rules are applied with great flexibility because it is the aim of the court to effect reconciliation rather than retribution (punishment), although the element of retribution is not totally absent. There is a conscious effort to solve any dispute by reconciliation rather than by formal action. The emphasis, therefore, is on the people in the context of the community, and not on the strict application of legal rules. It is also said that the rules are there for the sake of the people, and not the people for the sake of the rules. IND2601 21  Among indigenous people, constant consultation is an important factor in legal life. For example, a case may not be taken to court before the parties concerned and their families have discussed the matter. In court, there are also court councillors who participate in the proceedings throughout by questioning, giving information and, eventually, giving their view on the matter. The court’s decision is often based on the consensus of these opinions. 3.3.8 Time In unspecialised legal systems, there is no strong emphasis on the aspect of time. The precise moment at which any given marriage took place is not as important as the fact that the marriage did take place. 3.3.9 Governmental functions Specialised legal systems distinguish clearly between the judicial, executive and legislative powers of the state. Unspecialised legal systems do not, as a rule, draw this distinction. The tribal chief is, for instance, not only the lawmaker and executive official, but also the judge-in-chief. Other specialised administrative officials are few in number. A standing army and a police force are exceptional. The possibility of defective administration of justice and misrule under unspecialised legal systems was counterbalanced by the close relationship between law and religion, the public nature of the administration of justice and the people’s intimate knowledge of the legal system. Whereas in specialised legal systems, the judge or magistrate is expected to find the law and to adjudicate (decide) accordingly, it is characteristic of unspecialised legal systems that the views of the people present in court – and not previous decisions – lead to a judgment, because the people in court interpret the public sense of justice. ACTIVITY 1.3 Answer the following questions before referring to the feedback. (1) What is meant by “specialisation”? (5) (2) In unspecialised legal systems, the emphasis is on group rights. How does this emphasis find expression in the education of children? (5) (3) Discuss indigenous law as unspecialised law, with specific reference to indigenous private law. (25) (4) Discuss indigenous law as unspecialised law, with specific reference to indigenous public law. (25) FEEDBACK ON ACTIVITY 1.3 Your answers could have included the following: (1) A definition of “specialisation” may be found in the introduction to this lecture. It should be pointed out that specialisation has to do with the size of the community and the extent of cultural uniformity. (2) Young children are taught to accept, and to subject themselves to, the interests of the group. Each individual has a certain position or rank in the community and is aware of this position from childhood. The rights, duties and interests of the group always come 22  STUDY UNIT 1: The nature of customary law first. This emphasis on the group is in contrast with the emphasis on the individual in specialised legal systems. (3) The purpose of a question like this is to test your understanding of unspecialised law by applying it to indigenous private law. When discussing indigenous law as unspecialised law, you will therefore have to substantiate your answer with examples from indigenous private law only. In other words, the question is not about comparing specialised law and unspecialised law. Furthermore, it does not require a general discussion on indigenous private law exclusively. (4) See the approach adopted in 3 above. Make sure that you have achieved the learning outcomes for this lecture by checking the outcomes listed at the start. Next we will look at the recognition of customary law in the Constitution. IND2601 23 4LECTURE 4 Recognition of customary law in the 5 Constitution Prescribed reading Bekker JC & Rautenbach C “Legal pluralism” in Introduction to legal pluralism in South Africa (2014) ch 3, 37–40 Recommended reading Himonga C et al African customary law in South Africa: post-apartheid and living law perspectives (2014) ch 4, 58–60 Learning outcomes After you have studied this lecture, you should be able to identify the provisions of the law pertaining to the recognition of customary law before 1994 identify the key provisions of the Constitution that provide for the recognition of customary law discuss the implications of sections 30 and 31 of the Constitution with regard to the recognition of customary law explain how the conflict between the principles of customary law and fundamental rights should be dealt with 4.1 INTRODUCTION Prior to the enactment of the 1996 Constitution, customary law was given uniform recognition with the promulgation of the Black Administration Act 38 of 1927. In terms of this Act, some courts had discretion to apply indigenous law in cases between indigenous African people. This discretion was extended to all courts in 1988. The most important provision of Act 38 of 1927 for the recognition of customary law was section 11. This section was later re-enacted as section 54A of the Magistrates’ Courts Act 32 of 1944. Section 54A was repealed by section 1 of the Law of Evidence Amendment Act 45 of 1988. Section 1, which still applies today, and which provides for the judicial notice of law of foreign states and of indigenous law, reads as follows: (1) 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 shall not be opposed to the principles of public 24  STUDY UNIT 1: Recognition of customary law in the constitution policy or natural justice: Provided further that it 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. (2) The provisions of subsection (1) shall not preclude any party from adducing evi- dence of the substance of a legal rule contemplated in that subsection which is in issue at the proceedings concerned. (3) In any suit or proceedings between Blacks who do not belong to the same tribe, the court shall not in the absence of any agreement between them with regard to the particular system of indigenous law other than that which is in operation at the place where the defendant or respondent resides or carries on business or is employed, or if two or more different systems are in operation at that place (not being within a tribal area), the court shall not apply any such system unless it is the law of the tribe (if any) to which the defendant or respondent belongs. (4) For the purposes of this section, ‘indigenous law’ means the Black law or customs as applied by the Black tribes in th