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    Jamneck Et Al 2017

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    mathokadineo21
    The document discusses the dual character of South African law of succession. It was influenced by both colonialism and customary law. South African law is now a mixed system comprising both Roman-Dutch law and indigenous customary laws. The law of succession consists of both the common law rules and customary law intestate succession rules.

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    Jamneck Et Al 2017

    Uploaded by

    mathokadineo21
    6 views3 pages
    The document discusses the dual character of South African law of succession. It was influenced by both colonialism and customary law. South African law is now a mixed system comprising both Roman-Dutch law and indigenous customary laws. The law of succession consists of both the common law rules and customary law intestate succession rules.

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    The document discusses the dual character of South African law of succession. It was influenced by both colonialism and customary law. South African law is now a mixed system comprising both Roman-Dutch law and indigenous customary laws. The law of succession consists of both the common law rules and customary law intestate succession rules.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    6 views3 pages

    Jamneck Et Al 2017

    Uploaded by

    mathokadineo21
    The document discusses the dual character of South African law of succession. It was influenced by both colonialism and customary law. South African law is now a mixed system comprising both Roman-Dutch law and indigenous customary laws. The law of succession consists of both the common law rules and customary law intestate succession rules.

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    1.

    3 Dual character of the law of succession

    Colonialism in its various forms had a considerable impact on the


    development of law in general and the law of succession in particular.
    There was no recognition of customary law during the early period of
    occupation at first by the Dutch (1652-1795 and 1803-1806) and later by
    Britain(1795-1803). Only after the second British occupation in 1806
    did customary law receive some form of recognition. The British
    followed a policy of non-interference with the customs and usages of
    indigenous people, provided that these customs and usages were not
    repugnant to the principles of public policy and natural justice. During
    this time the various territories' regulated the application of customary
    law by means of their own legislation.
    In 1927, the various colonial laws were finally consolidated in the
    controversial Black Administration Act that provides for t the
    management of indigenous affairs. Although this Act managed the
    affairs of Africans for a long time, it did not survive constitutional
    scrutiny and litle of the Act remains today. After many years of being
    treated as the stepchild of South African law, there is now no doubt as to
    the place of customary law in the South African legal system. It is part
    and parcel of moderm South African law, equal to (and not subordinate
    to) the common law.2
    Modern South African law is thus a mixed, pluralistic legal system.
    On the one hand, it is a conglomeration of Roman-Dutch law as
    influenced by English common law and adapted by legislation and
    court decisions. On the other hand, it consists of a number of
    indigenous laws, jointly referred to as customary law. In terms of the
    Recognition of Customary Marriages Act,' customary law is defined as
    the 'customs and usages traditionally observed among the indigenous
    African peoples' and in terms of the partly repealed Black
    Administration Act,' the term 'black' includes 'any person who is a
    member of any aboriginal race or tribe of Africa The Law of Evidence
    Amendment Acts defines indigenous law as 'the law or custom as
    applied by the Black tribes in the Republic and the South African Law
    Reform Commission* defines customary law as the 'customs and usages
    traditionally observed among indigenous African peoples of South
    Africa and which form part of the culture of those people.
    Against this background, one can say that the South African law of
    succession consists of two main branches - the common law of
    succession that comprises testamentary and intestate succession rules
    and the customary law of succession that comprises only intestate
    succession rules. Traditional textbooks on the law of succession
    distinguish between the common and customary laws of succession,
    and most universities deal with these two branches as two distinct
    separate systems. Legal literature has yet to recognise fully that both
    common law and customary law form part of modern South African law
    and that the law of succession is a dual system of law comprising two
    main branches, namely the common law and the customary law.

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