Use the questions to guide you through the reading material and the videos.

If you answer all the questions posed, you will have reached the outcomes set for this module.

If you are uncertain of an answer, do not hesitate to contact the relevant lecturer during consulting
hours as well as the hours set aside for lecture discussions and where you can pose questions via
Telegram or the chat room.

1.1.1What is history?
Answer the following questions:
1. How would you define history? In other words – what is your understanding of the idea of
history?

If you are lost think about the following:

History is the continuous flow of events, activities, discoveries, social, political and
economic life of any society at any point in time.
History is shaped and influenced over time depending of how the story is told.
Look at the videos in the prescribed material. See if you can find a spot where
there is free wifi.
Listen carefully to what is said and answer the following questions: You can
do so while listening to the speakers:
2. What is the message that Chimamanda Adichie gives us?
3. What is the danger of a single story?
4. Give an example from your own life where you were influenced by a single story, only to
realise at a later stage that there may be more than one story?
5. How was this story different from the story that you were told?
6. What would be the danger of a single story relating to the development of South African
law?
7. How can the story be retold?
8. Hegel said Africa had no history and therefore no story to be told? Was he correct and
why did he say so?
9. What is the underpinning narrative of history?
10. What lessons of the history of Africa have been overlooked?
11. What happens if you destroy the history of Africa or its monuments, libraries, etc?
12. What is the danger of destroying history?
13. How was/is history used to control the people in Africa?
14. How was history distorted to suit the colonisers?
15. What was Africa's contribution to the intellectual world of the Middle Ages?
16. Why do you need to speak up? What is the danger of silence?
 17. What were the misconceptions about Africa?
18. How would these misconceptions have had an impact on the development of
law/governance structures in Africa?
19. What were these governance instruments in Africa and were they all the same?
20. What did the colonisers do with traditional governance structures?
21. What are Africa's challenges?
22. How did slavery in Africa and other parts of the world differ?
23. Is Africa poor?
24. Who colonised Africa? Why and how?
25. How did colonisation lead to the impoverishment of Africa?
26. How did the colonisers ensure labour for the mines?
27. How were the borders of Africa determined? What was the result or the implication for
law?
28. What was Africa's contribution to technology?
29. Is Africa's history written? If not, how was history told or discovered?
30. Do you think there is a need to know history? Why would you say so?
31. Write your own view down in no more than 5 sentences.

1.1.2What is legal history?

You would by now have been taught several definitions of the law. Revise again your Law
and Legal Skills definition of what the law is.
Broadly speaking, it may be said that law regulates relationships between people; between people
and the state, and between people and the environment.
The law is not a modern concept, it has been there since the earliest of times. Even the earliest
and most primitive communities had rules according to which they lived and regulated conflict.
Lawyers are not concerned only with the practical aspects of law. As cultural beings, they share in
the cultural treasures of the past. A balanced practitioners of the law (not only compilers of
contracts, testaments and deeds or interpreters of legislation) knows where the law comes from
and why certain institutions are in the law; he or she is able to criticise the law or legal institutions.
Such a practitioner does not use anecdotes or "fake news" but will be able to argue his or her case
base on facts.
By now you would also have learnt that the South African legal system consists of various
components. These components are part of our law due to South Africa's unique history of a period
before colonisation, during colonisation and post-colonisation.
The sources or foundations of South African law are to be found in:

 African customary law

 Religious legal systems such as the Hindu, Muslim and Jewish law
 Roman law and English law (as they have developed through the ages and by South
African courts)
 Constitution
  International and regional law.

Each of these legal systems has their own story - but their stories overlap too and sometime
similarities are to be found in their stories or in their legal rules and institutions. Sometimes they
differ and there are various reasons for this.
The history of law will include all the external influences that shaped South African law - that is -
what made South African law unique - the social, economic, political, philosophical, cultural factors
that effected changes in law. Law has a societal relevance - law only comes into play when there
is a need for law.
The reasons for the development of specific legal rules or the external influences that shaped the
South African law and its institutions are known as the external foundations of South African law
or EXTERNAL LEGAL HISTORY.
The history of the development of a specific legal rule or institution within law - is known
as the INTERNAL LEGAL HISTORY.
One of your modules is the Law of Marriage.

 Reflect on how the Law of Marriage has changed over the centuries - what were the
reasons for these changes?
 What types of marriages are recognised today?
 What are the reasons for their recognition or non-recognition?

A study of the development of the legal rules without referring to the context or reasons
for the changes will be referred to as a study of the Internal Legal History.
If you study the internal legal history (development of for example the Law of Marriage) within the
context of the external factors that shaped the institution of marriage - you are using the LEGAL
HISTORICAL METHOD.
[This is one of the methods to study the law - you can also use for example the legal comparative
method - where you compare different legal systems - e.g. the Constitution of South Africa with
the Constitution of Lesotho. Or you compare the Law of Marriage in terms of African customary
law with the Law of Marriage in terms of Hindu law.]
Where did the law come from?
The law did not drop from the sky – it began somewhere and developed over a period of time.
Some of our law is uncodified (that means it is not promulgated in legislation) and it is therefore
sometimes necessary to find the rules of law in the past. You won’t be able to do this if you don’t
know where to look. In an uncodified legal system as in South Africa, the roots of the law often
have to be sought in the distant past.
The development of the law is closely related to the standards of civilisation; law developed as the
standard of living changed.
Students may think that a module like this one is unnecessary because it has no practical value
and find it difficult to systematise historical facts and to study its significance. It is, however, of the
utmost importance to have a proper background of the development of the law, before a student
can be able to understand and apply these terminologies.
It is important to study the law in the context of its development as our legal systems are developing
every day.
The legal historical method is therefore the study of law in the light of its changing framework of
social, cultural and economic trends.
Do you think it is necessary to study legal history?
Yes / No / Maybe? Give reasons for your answer.

Read the following translation of Du Plessis W "Afrika en Rome: Regsgeskiedenis by die

kruispad" [African and Rome: Legal history at the cross-roads"] 1992 De Jure 289–305
Can we talk of an African history?
Sources on Roman-Dutch law and English law history are readily available. The history of African
legal history has not received much attention. Only the colonial and post-colonial periods have
been recorded as far as recognition of customary law is concerned. The influence of customary
law on the imported legal system and other legislative amendments also received scant attention
in legal curricula in the past.
The question is sometimes asked whether Africa has a history at all that is worthy of mention. In
most anthropological, archaeological and sociological works little attention was given to the law
or customs of early Africa.
If one thinks of Africa, it is important to remember the following saying:

"If you want to know who I am, if you want me to teach you what I know, forget for a
while who you are and what you know”

How would you interpret this saying?

It is said that history can only be written if written sources are available. In Africa such sources are
scarce and can only be found in Northern Africa. This does not mean, however, that Africa has
always been dark and is still dark. Oral tradition played an important role in African communities.
Criticism against this tradition is that is based on stories and the myths built around them  one
cannot rely on this information. Historians of Africa believe that if these accounts are examined
closely, it is possible to extract historical facts from them.
These facts can be corroborated with evidence from archaeological excavations, linguistics,
anthropological and ethnological research. History is an interdisciplinary subject. When the history
of Africa is studied, it is important to do as the saying goes, namely to free yourself of your own
prejudices. It is sometimes better to use the African word rather than to translate it into European
languages. History is more than accounts of wars and important persons – it includes facts about
institutions, structures, sociological, political and cultural practices. The history of Africa deals with
all people or groups of people and should not be studied only in the colonial context.
A major migration took place in Africa (as in Europe). In contrast to what some students were
taught at school, the black tribes did not arrive in Southern Africa in 1652, or in 1795 at the time of
the Fish River battles, or in 1834 at the time of the Great Trek. These tribes had been in Southern
Africa long before this time. Archaeological excavations indicate that the San and Khoikhoi
inhabited the Cape long before Van Riebeeck appeared in the Cape.
The Sotho (Batonga) settled in the south of present-day Zimbabwe in the 10th century. Another
group settled in the Northern Province (near Greefswald and Mapungubwe). The San were driven
out of these areas and a strong tribal organisation developed.
From the Cusites (people from Arabic origin) the art of processing stone was learnt. Archaeological
research also indicates that gold and copper were mined. Glass beads and signs of iron mining
were also found. The Sotho had reigned for approximately 200 years before they were defeated
by the Shonas. Until 1400 the Empire of Monomotapa (today the Zimbabwe ruins) was relatively
strong. Apparently there was a king with strong political, juridical and religious powers. In 1450 this
empire was taken over by the Roswi. There were subsequent conquerors until this region was
finally overrrun by the Zulu in 1834. Evidence of stone works disappeared after this.
A group of people lived in the surroundings of Tzaneen in 300 and people were found in Natal from
the 4th to the 5th centuries. There were large numbers of Nguni in Natal during the 16th century.
Later they split into various groups, namely the Swazi, Zulu, Pondo, Thembu and the Xhosa. By
1700, the Xhosa were living in the Kei River area. Survivors of Portuguese shipwrecks described,
for example, the black tribes they found at the Kei River by 1700. The South Sotho (consisting of
various subgroups) settled in the interior between the Drakensberg mountains and the Kalahari.
The Bakwena (a Tswana group) were already living in the North West Province during the 16th
century, and in the 17th century in the Free State.
As indicated above, historians generally regarded Africa as uncivilised in its pre-colonial phase,
probably as the African continent was one of the last to be explored by the Europeans. Iron was
mined and processed long before America and Australia even heard about it. Handaxes were
known in Africa even before they were dreamt of in Europe. From early on there had been trade
between Zimbabwe and the Arab peoples. Signs of Indian influence can be seen in the mining. It
appears that tribes in the present-day Mozambique, southern Zimbabwe and the Northern province
traded with the Chinese, Indians and Indonesians as early as the 15th century. Indian beads and
Chinese porcelain were found in archaeological excavations. In the Empire of Monomotapa
sophisticated stone structures were built. The nature of the tribal organisation was similar to that
of the Germanic tribes. One of the reasons for the long survival of Monomotapa seemed to be its
strong tribal organisation.
The law that differed from tribe to tribe was unwritten. Although a legal rule could not be changed
without reason, its application was adapted to changing economic, geographical and climatic
factors. The existence of an African history can, therefore, not be denied.

Do you think it necessary to study the history of African customary law?

Yes / No / Maybe? Give reasons for your answer.