Customary Law
Customary Law
Customary Law
1. Introduction
1.1 Overview
Customary law is a self standing course in the Faculty of Law in LLB 2 as well as
comprising one of the six component courses in the Legal Theory major in the
Faculties of Humanities, Commerce and Science. Students who pass
Customary law as part of the Legal Theory major are exempted from the course
in the LLB curriculum.
2. Outcomes
2.1 Critical Outcomes
This course will assist students to attain the following critical outcomes:
B. Skills Outcome
At the end of course students should be able to:
Identify and understand the notion of legal pluralism and how it is given
effect to in the judgments of the courts.
To understand the concept of the judicial development of customary law in
the context of s 39(3) of the new Constitution.
To be able to apply legal principles of customary law to specific situations.
To research and write case note on a case dealing with an aspect of
customary law.
C. Values Outcomes
It is intended that students will demonstrate an appreciation of academic
integrity in acknowledging sources in research.
Ethics of disclosing all relevant law, whether favourable or not, to a given
factual situation.
Acknowledge the value of old authorities in dealing with the harmonization
of customary law principles with the values of the Bill of Rights.
3. TEACHING METHODS
The course will be presented by means of the discussions of the topics indicated
in the course outlines in the lecture periods. Students are only provided with a
synopsis covering the nature of the law, recognition and application. Students
4. COURSE CONTENT
7. Resources
1. The Law of South Africa – First Reissue, 32 Indigenous Law, Lexis Nexis
Butterworths (2004).
2. RB Mqeke Customary Law and The New Millenium, Lovedale Press (2003).
3. TW Bennett Customary Law in South Africa Juta (2004)
4. JC Bekker et al (eds) Introduction to Legal Pluralism in South Africa. Part 1
Customary Law Butterworths (2006).
5. AJ Kerr Customary Law of Immovable Property and of Succession, Grocott
& Sherry (1990).
I have included notes from the revised chapters of Customary Law and the New
Millennium. This book will be available in 2010. In the meantime I have revised
the contents of the old chapters 1, 2 and 5 which deal with the problem areas of
the course.
Test
There is one test for this course which is written in the fourth term. The test will
be out of 35 marks written during the lecture period. The test will contain
questions equivalent to that which may be found in the November examination.
The test counts 50% of the class work.
Assignment
There will be one assignment written in the third term. The length of the
assignment will not be more than 1 000 words. The students will be required to
follow the referencing conventions used in the Survival Guide. The assignment
will be out of 35 marks. Assignment and test will be 25% and tutorial will count
5%.
1.3 Main features of customary law: chapter two of Customary Law and The
New Millennium.
1.4 Place of customary law in our legal system (Mthembu, Alexkor and Bhe
cases). See also Chuma Himonga “Taking Stock of changes to customary
law in a New South Africa” in Dr G Glover (ed) Essays in Honour of AJ
Kerr LexisNexis Butterworths (2006) 215.
N.B In both Alexkor and Another v Richtersverld Community and Others and
Bhe and Others v The Magistrate Khayelitsha and Others the
Constitutional Court referred to three meanings of Customary law. On the
notion of what the court called „academic law‟ see AJ Kerr “The
Constitution, The Bill of Rights and Law of Succession” (2005)19
Speculum Juris 181 at 194 et seq.
On the relevance of sources of Customary law see, inter alia, the Alexkor case,
below, and the judgment of Albie Sachs J S v Makwanyane and Another 1995
(3) SA 391 (CC).
1.1 Custom
See the books indicated in the reading list. Read Chapter 1 Customary
Law and the New Millennium and cases noted in R.B Mqeke Basic
Approaches to problem solving in Customary law Grocotts & Sherry
(1997) pp 155 and 197.
1.3 Precedent: This refers to the judgment of the superior courts (High Court,
SCA and the Constitutional Court)
1.5 Textbooks: See Comments in this regard in both the Bhe and Alexkor
cases.
1.6 Articles published in the South African Law Journals: Recent cases and
new legislation dealing with customary law will be commented upon in the
law journals. The following journals usually carry either full length articles
or case notes on customary law: De Jure; The Journal of the Faculty of
Law University of Pretoria appears twice a year and is published by
LexisNexis Butterworths; THRHR which stands for Tydskrif vir
Hedendaagse Romeins-Hollandse Reg (Journal of Contemporary Roman-
Dutch law) also published by LexisNexis Butterworths. OBITER, The
Journal of the Faculty of law, Nelson Mandela Metropolitan University,
appears twice a year; Acta Juridica, the Journal of the Faculty of law,
University of Cape Town, appears once a year; Speculum Juris, a Joint
publication of the Nelson Mandela School of law, Fort Hare and Faculty of
law Rhodes University also appears twice a year and South African Law
Journal (SALJ).
2. Customary Courts1
These are the official courts of traditional leaders. On these see, inter alia,
Customary Law and the New Millennium Chapter 5; CRM Dlamini “The
effects of customs, religions and traditions on the right to a fair trial in
Africa” 2000 CILSA 318 at 324 et seq and Francios de Villiers Selected
South African Legislation on Customary Law and Traditional Authorities,
1
On momenclature see footnote 2 at page 11 below.
See 211 (3) of the new Constitution. Some choice of law rules were
formulated in Ex Parte Minister of Native Affairs: in re Yako v Beyi 1948 1
SA 388 (A); Maisela v Kgolane No 2000 2 SA 370 (TPD). See also
Makholiso and Others v Makholiso and Others 1997 4 SA 509 (TK).
Some of the choice of law factors identified under s 11 of the Black
Administration Act are noted in NJJ Olivier et el Indigenous law,
Butterworth (1995) pp 201 – 215. See also TW Bennett “Conflict of Laws”
in JC Bekker et al Introduction to legal Pluralism, LexisNexis Butterworths
(2006).
1. Introduction
Since the passing of the Black Administration Act2 1927 and the
regulations passed under it the procedure to be observed in connection
with the hearing of both civil and criminal matters in the traditional 3 courts
has always been in accordance with the laws and customs of the
traditional community in question. At the level of the unofficial4 courts the
procedure in connection with the notification of the date of trial and the
execution of judgment is still in accordance with the pre-colonial procedure
of using imisila yenkundla5 (court messengers). In the official Courts6
2
Act 38 of 1927. The current regulations were promulgated in G Notice R2082 of 29
December 1967. Rule 1 of the current regulations sanctions the observance of laws and
customs of the respetive tribes. The term “tribe” has been replaced in recent legislation by
the phrase traditional community. See the definition section of the Communal Land Rights
Act 11 of 2004. In Ex Parte Chairperson of the Constitutional Assembly : in Re Certification
of the Constitution of the Republic of South Africa, 1996, 1996 (4) SA 744 (CC) it was held
that traditional courts are included in S 166 (E) of the Constitution.
3
The South African Law Commission Report on traditional courts and The Judicial Function of
Traditional Leaders of 21 January 2003 refers to these Courts as Customary Courts. See p xi
This document will hereafter be referred to as the Commission Report (2003).
4
This refers to the courts of a sub headman (inkundla yenkosana (Nguni); induna (Zulu) and
kgosana (Sotho). See further RB Mqeke “Traditional and Modern Law of Procedure and
Evidence of the Cape Nguni – A Re-appraisal” (1982) 11 Speculum Juris 46 of 50 in N9.
Since the early days traditional court messengers are referred to as imisila and the summons
is known in the vernacular as Umsila wengwe (tigers tail)
5
Umsila literally means a tail. In the Eastern Cape a court messenger used to carry a tiger‟s
tail (umsila wengwe) as a badge of authority when he went to inform a defendant about the
date of trial. It would seem that what Africans thought to be a tiger was, in fact, a cheetah.
See in this connection the present writer in 1982 Speculum Juris in Note 3 above
6
Headmen and Chiefs‟ Courts. In the Commission Report 2003:43 there is a proposal for
these courts to be empowered to punish for contempt of court any person who without lawful
excuse disobeys an order given by customary court or who insults a customary court or any
of its members during a sitting of the court or who wilfully disturbs the peace or order of the
proceedings in the court (S 14)
2. Lodgement procedure
7
See Charles Brownlee “Notes by the Gaika Commissioner” GH8/23 March 19, 1863. This
was a Draft of an Ordinance to amend and declare the law relating to Natives. These were
handwritten notes which are kept at Government Archives, Cape Town. These are quoted in
full by the present writer in Customary law and the New Millennium, Lovedale Press (2003) at
26.
8
See AJ Kerr The Customary Law of Immovable Property and of Succession, Third Edition,
Grocotts & Sherry at p 82. The author states that the phrase “spoor law” came into being
because most of the cases in the nineteenth century concerned stolen stock. In Kerr‟s own
words, even in such cases, however, it is not necessary to find evidence of the “spoor” in the
sense of the imprint of a hoof. “Other satisfactory evidence, whether of previous presence of
an animal or of other goods, will suffice…” at 82
9
In criminal matters a charge will be laid at the Headman‟s or Chief‟s place. In the proposed
Traditional Courts Bill the distinction between civil and criminal matters will be delineated on
the record of proceedings.
10
See Bilitani v Kwini 1962 NAC (S) 8.
11
See Makapan v Khope 1923 AD 551 at 561
12
See Masenya v Seleka Tribal Authority And Another 1981 (1) SA S22 (T) cited by AJ Kerr
(1981) 98 SALJ 320.
3. Trial Procedure
The court procedure is court centred and the court and the
members in attendance take a leading role in the conduct of
trial. The primary aim of the traditional procedure is to obtain
reconciliation between the parties hence the use of arbitration.
3.1.2 Trial takes place in an open court and is informal. This means
that there is less emphasis on the mechanical rules of
exclusion.
13
See the present writer‟s Customary law and the New Millennium op cit at p 116 N11
14
The proposed Bill refers to Customary Courts. In this Chapter, traditional courts and
customary courts will be used interchangeably.
4 Evidence
15
See, inter alia, J.H Soga The AmaXhosa: Life and Customs Witwatersrand University Press,
(1932): 42 and S.E.K Mqhayi Ityala lamawele, Lovedale Press (1914)
16
1936 NAC (C & O) 86
17
“Catch” referred to situations where a defendant was found in sexually compromising
circumstances with the plaintiff‟s wife. See also examples given in J.C Bekker (ed)
Seymour’s Customary Law in Southern Africa, Fifth Edition, Juta & Co (1989): 371 - 372
18
Myataza v Macasa 1952 NAC (S) 28, quoted with approval in Seymour’s Customary Law
opcit at 372