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Customary Law Semester Summary
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A complete summary of the customary law course. A summary of all the readings and important cases.
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LAWS4064A: CUSTOMARY LAWWITS UNIVERSITY
TOPIC 1: KEY CONCEPTS
READINGS:
1. DLAMINI – Towards a new legal order for a new South Africa.
2. HIMONGA & BOSCH – Application of African Customary Law under CRSA
3. DIALA – The concept of living customary law: a critique.
CONTEXT
We look at the way in which we place this kind of law in the South
African legal system.
It is important to evaluate the manner in which communities
established themselves before colonisation.
At the end of the Apartheid regime, indigenous law was recognised as
such in the interim constitution.
The name ‘indigenous law’ is used to convey the reluctancy to implicate
this legal system as subordinate to current law, as well as to aid the opt
of moving away from its colonial characterisation.
The name sets it apart from the common law and allows for the
connection of its origins to the subject people over whom it prevails.
It is common cause to state that almost all law comes from custom and
common practices. Thus, calling this system ‘customary’ is a
mischaracterisation descending it to a position below the prevailing
common law.
The main purpose of referring to it as ‘indigenous law’ is to bring this
legal system in line or on par with current law and move away from its
tainted historical characterisation.
Original indigenous law was misplaced and perceived as inferior to
prevailing law.
The distorted perception of this law was that it is oppressive in nature.
This is inaccurate with respect to its information by western colonisers
to whom it was not subjected.
A CONSTITUTIONAL-DRIVEN ANALYSIS
The placement of this legal system still has to conform to the spirit of
the Bill of Rights and Constitutional values.
,CRM DLAMINI – Towards a new legal order for a new
South Africa (1992)
Dlamini comments on the recognition of indigenous law long before the
union of SA.
Note the period in which this article was written (1992).
Dlamini posits that in order to adequately define a new constitutional
era, it was important for academics to understand the origin of the
transition – what they were moving away from (history).
It is argued that the conformity of the recognition of African customary
law to positivism led to the discounting of the system, ultimately
applying Roman-Dutch to all – including black people.
More so, the reality was that it was difficult for the judiciary to apply a
type of law to a type of people who did not understand it nor subject
themselves thereto. This led to the inevitable (yet limited) recognition
of Customary Law in certain places.
Thus, in Natal, the furthest recognition of this law was codified as the
Code of Zulu law.
On the surface, it conveyed a sentiment of recognition for the purposes
of inclusion, but this was hardly the case. The codification rarely
reflected the spirit of the customs black people subjected themselves to
and manifested as a perverted version of what the western coloniser
ignorantly believed same to be.
THE INDIRECT RULE: The underlying motive of the coloniser was the
control of black people. The supposed recognition masked a charade of
the need to facilitate better control and conformity of the black
population.
For years, the development of this legal system was stayed and distorted
by the lack of representation and understanding of the true spirit
thereof.
Even when the period of stultifying stagnancy ended in 1972, which
witnessed development of this system, it was still subjugated to a
status below the common law advancing the inferiority perception.
Section 11(1) of the Black Administration Act mirrors s1(1) of the Law of
Evidence Amendment Act. It allowed for the application of customary
law in matters between black people, only where it was applicable and
was not contrary to public policy.
The issue with this repugnancy clause was that it posed African
customary law against the backdrop of public policy, which at the time
reflected the view of a small community of white superiors. The nature
of this guised recognition was to further cleanse this legal system of
customs which were contrary to what the coloniser desired – I know
right?
A dual court system was created, allowing for the birth of special courts
for matters between black people.
The sticky reality related thereto was that it dispensed a lower quality of
justice upon black people.
, The Hoexter Commission found it unjustifiable that citizens would have
to be subjected to a dual court system, and thus special courts for black
people were abolished.
In this regard, the mandate was imposed on ordinary courts to apply
and develop customary law where necessary (s1 Law of Evidence
Amendment Act).
There are still issues therein – repugnancy.
As discussed, the requirement of conformity with public policy creates a
natural hierarchy where the common law is placed above customary law.
In this sense, the claim to a dual system of law is contaminated by the
reality that the public policy to which this legal system is confined
hangs off of the desires of the western coloniser and the destruction of
African custom which absconds the morality that the white sovereign
wish to design.
Dlamini introduces the idea of resilience.
What isn’t mentioned, however, is the cause for resilience. For
something to display resiliency, there must be a conjugation between
harm and disrespect. The nature of African customary law is that it is
the very essence of black culture and practices.: Law exists for the
government of behaviour and the moulding of a society which
lawmakers deem desirable in the context of past injustices.
I feel that it is vastly insulting – yet realistic – to call customary law
resilient because it ingenuously defines this system by the harsh history
of its destruction, perceived convolution and distortion.
APPLICATION
We must look at this legal system in its own right and step away from
the colonial lens of subordination.
APPLICATION FLOWS FROM RECOGNITION
The main recognition of this legal system comes from s211(3) of the CRSA.
The mandate is that customary law must be applied when it is relevant.
But in reality, the courts still portray a reluctancy to apply customary
law with a lean toward the prevalent common law.
Section 1 Law of Evidence Amendment Act (REPUGNANCY PROVISION):
(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 policy and natural justice:
Provided further that it shall not be lawful for any court to declare that
the custom of lobola or bogadi or other similar custom is repugnant to such principles.
, This shows that the courts are persuaded to consult indigenous law when
it applies, but in doing so, may only apply it where it is easy to ascertain
and does not oppose public policy. The issue is that it places indigenous
law on the same footing as foreign law which naturally is not a binding
source of law, further inducing the notion of the legal system being
positioned subordinately to the common law as persuasive, not binding.
Furthermore, it is cast against the backdrop of this abstract ‘public policy’
requisite. As we have discussed, the nature of public policy, historically,
has been that which the western coloniser induced for the desired
abolition of black custom that opposes general morality and societal
acceptability. We also have to look at the notion of ‘easily ascertainable’
which invokes a clear pull toward official customary law
– as known to be codified on the same merits of the white coloniser who
Note, this clause creates a contrast with the way in which the
constitution recognises indigenous law. It does not take away from the
s39(2) mandate to develop customary law but shows the disparity in the
manner in which it is portrayed.
LEGAL PLURALISM
Where two or more legal systems operate side by side.
Historically, the common law and customary law existed in a
vertical hierarch where the former was placed atop.
The constitution remedied this in theory, but practically there is still
much to be done to see the realisation of said equal power.
South Africa is a pluralist state.
LIVING AND OFFICIAL CUSTOMARY LAW
Living customary law entails the actual living custom and practices of
a community in their daily lives.
Official customary law represents the collection of codified laws
intended on giving effect to living customs and practices. These are
rigid and, seemingly, impenetrable. They are problematic because
they denote the perspective of western colonial influencers and do not
reflect the true spirit of customary law. Sources include legislation,
judicial precedent and scholarly articles.
The courts have struggled in the harmonisation of these two systems
within a system. More so however, they have both been subjected to
the constitutional dispensation.
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