African Customary Law 278 Study Notes

African Customary Law 278
Study Notes
2024
Chapter 1: The Phenomenon of Legal Pluralism
1. Theoretical overview:
Narrow Interpretation: State-law pluralism (weak legal pluralism or official legal

pluralism)
- Narrow interpretation: based on a “dual systems” theory of legal pluralism.

- Dual System: when European/Western law (SA: common law) and traditional
forms of law (customary law) operate in a single society and are officially
recognized by the state.
o At least two officially recognized legal systems run parallel and interact
in limited, prescribed circumstances.
- Goes hand-in-hand with two theories of law:
o Legal positivism: law can only be found in tangible sources such as
legislation, case law and old authorities, and law found in physical
sources = law cannot be based on moral values. The law as it is and
not what it ought to be.
o Legal centralism: Idea that law should be state-sanctioned, uniform for
everyone, exclusive of all other law, and administered by a single set of
state institutions.
- Narrow understanding of LP: Flows from the perception that law consists of
norms created and sanctioned by official state organs according to the basic
rule of recognition – thus, laws derived from sources other than state
institutions become ‘law’ only when the state authorizes them.
- Recognition of laws from institutions other than state institutions:
o formulation of choice of law rules to determine when which law may be
applied
o when they should be regarded as acceptable (generally when they are
not repugnant to Western perceptions of what is moral and in the public
interest)
o how they should be ascertained
o what should happen when there is a conflict with national law (common
law)
- Even though Constitution recognizes customary law as a source of SA law,
western law is sometimes still regarded as the dominant system.
Broad interpretation: Deep legal pluralism (strong, unofficial or non-state legal
pluralism)
- Regards legal pluralism in the broader sense – legal pluralism should be

considered a factual situation in a society in which various legal systems
are observed.
- Unlike state-law legal pluralism, deep legal pluralism is not founded on
unequal power relations.
- Dominance of state law is irrelevant to the continued existence of the
unofficial laws.
- Religious legal systems fall into this category – Islamic law, Jewish law, and
Hindu law.
- Constitution recognizes the existence of personal and or family law systems
under any tradition or adhered to by any person professing a particular
religion, the emphasis is on state-law pluralism.
- Courts have acknowledged the existence of deep legal pluralism in SA,
especially in the context of Islamic law.
Historical emergence of state-law pluralism in South Africa
- Originated in South Africa during the second British occupation of the Cape.
- The Europeans, through missionaries and traders, had some effect on the
traditional cultures of Southern Africa long before the first British annexation of
the Cape in 1795 – before the Dutch East India company (DEIC) set foot on
South African soil in 1652 – influence was minimal.
- During this period, no record of the recognition of customary laws or the
imposition of the European system upon the local population – therefore, no
trace of any form of state-law pluralism.
- No trace of legal pluralism during the Batavian control of the Cape (1652-
1795)
- The highest court, Road van Justitie was established in 1685.
- Lower courts were initially staffed by laymen and “inexperienced” lawyers
almost up until the end of the Batavian rule.
- No attention paid to administration of justice in the interior (interior was
inhabited by African language speakers and some groups of the Khoi and the
san) – no interest in this area, only interest In the cape because of its strategic
position
- no question of recognizing the laws observed by the African language
speakers.
- Only after the second occupation of the British (1806) that the application of
customary law was officially regulated for the first time.
- Middle of the 19th century: SA divided into various autonomous areas,
included British colonies, numerous traditional kingdoms + boer republics:
administrators of territories aspired to ‘civilize’ the local population and oust
their ‘barbaric’ laws and customs.
- Where customary law was recognized: subject to the application of a strict
repugnancy clause.
- Cape: British introduced treaty system (1833) to avoid the direct rule of the
traditional communities.
- The Cape Naive Succession Act of 1864 and the Kaffraria Native Succession
Ordinance of 1864 were the first official instruments explicitly recognizing
certain customary institutions.
- First half of 19th century: state-law pluralism introduced in Natal and
Transvaal, and the Orange Free State – legislation giving limited recognition
to customary law was promulgated.
- 1910: customary law recognized to some extent in all the areas that
constituted provinces of the Union of SA.
- No conformity in the mass of various laws which regulated customary law.
- Black Administration Act: consolidated with the colonial legislation = the first
legislative instrument entrenching state–law pluralism for South Africa
Historical emergence of deep legal pluralism in South Africa
Unofficial customary law

- The history of Africa and African Customary law: unwritten. Primary source =
Oral tradition – transferred through generations
- Pre-colonial
- Colonial: from 1652
- British rule: magistrates court + traditional courts continued to apply African
Customary law – resulted in Customary law being retained.
*read through religious comparisons
People’s Law
- Legal system that developed outside the official legal order.
- Legal order back in the day lacked legitimacy.
- There was national law but in metropolitan areas, there was peoples law – did
not have faith in the national law.
Reasons for Peoples law

- Class contradictions
- Inefficient of existing justice system
- Lack of legal resources and access to justice
- Economic factors
- Peoples law: roots in traditional customary law, developed and adapted – to
function within urban areas
- Applied by non-official institutions/courts, namely Regimental courts, family
courts and courts of ward heads - never recognized by the official legal
system
State Legal Pluralism: today and statues of “other laws”

- SA: State Law regarded as: emanating from State; authorized and supported
by highest political authority.
- SA existence of state legal pluralism = western component + African
component
- Western component: legislation
- African component – entails official customary law incorporated in legislation
or pronounced in case law
Constitution on LP:
Section 39(2) and (3)
section 211(3)
S1(1): law of evidence amendment Act 45 v 1998
Readily ascertainable & sufficient
New awareness – common and customary law viewed side by side

Constitution recognises:
- Culture + race + religion
- EQUALITY: s9 of the Constitution
Deep legal pluralism today:

- Customary law influenced by Western Law, never replaced
- 1927: customary law officially recognised; applied in officially – recognised
courts
- Colonial policies: weakened indigenous political structures
- Observance of various legal systems in legal order (official and unofficial)
- Courts: realizing that official customary law not in line with living customary
law
- Minority judgement in Bhe v Magistrate, Khayalitsha: judge points out that

official customary law must be brought in line with living custormary law
- Practical effect of deep legal pluralism: Mabena v Letsoalo: court gave effect
to living Pedi law – confirm that a woman could be the head of the family and
accept lobola
Islamic law
- Courts: increasingly toletant towards Muslim personal law
- Could not be given trouble about their religion but was prohibited from
practicing openly – with constitution there was a shift…
- Amod v Multilateral Motor Vehicle Accident Fund 1999: courts granted relief to
plaintiff by giving effect to a contract flowing from a marriage concluded i.t.o
muslim rights without recognizing it is a marriage (which is potententially
poligomous)
- Daniels v Campbell 2004:
o CC:
- Hassiem v Jacobs 2009:
o Court:
- 2003 Report of the SAL
Deep Legal Pluralism: Peoples Law

- Roots: traditional customary law – adapted to urban lifestyle
- Bv. Bakgotla’s
- People’s courts: community courts
- Report of judicial commission of 1997 = traditional courts bill: “community
courts are a fact of life”
Conclusion
- Harmonization of legal systems, not unification; getting the legal systems to
work together.
- 2 systems: westen/common + customary law = consistent with the constitution
o Pharmacuticals: one system of law – subject to the constitution
- Risk of ‘paper law’
- Framework: constitution 108 of 1996
- 1999 Law of Commission Report – harmonization.
o Gives discretion to courts
- Guidelines
- Legal certainty
2.3 Customary law Features in comparison to common law: Myburg
2.3.9
- Value and principle laden concept – not done historically
14 Marks Section A
16 Marks Longer Questions
Sources

African Customary Law 278 Study Notes

Uploaded by

Copyright:

Available Formats

African Customary Law 278 Study Notes

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

African Customary Law 278 Study Notes

Uploaded by

Copyright:

Available Formats

African Customary Law 278

Narrow Interpretation: State-law pluralism (weak legal pluralism or official legal

- Narrow interpretation: based on a “dual systems” theory of legal pluralism.

- Regards legal pluralism in the broader sense – legal pluralism should be

Historical emergence of state-law pluralism in South Africa

Historical emergence of deep legal pluralism in South Africa

Unofficial customary law

*read through religious comparisons

Reasons for Peoples law

State Legal Pluralism: today and statues of “other laws”

New awareness – common and customary law viewed side by side

Deep legal pluralism today:

- Minority judgement in Bhe v Magistrate, Khayalitsha: judge points out that

Deep Legal Pluralism: Peoples Law

You might also like

Pfad - The Proxy pFad of © 2024 Garber Painting. All rights reserved.