CHAPTER 1: HISTORICAL OVERVIEW OF CUSTOMARY LAW
1.1 introduction
State law – mostly written in prescriptive text.
In the case of customary law, positive law (law articulated in statute and
precedent) can never be said to be determinative.
o The government did not have ability to determine complete;y the
ways in which rural people lived and evolved their system of
governance to adapt their circumstances
Changes in customary law that occurred in the formal legal sphere do
not represent the full breadth of the developments that took place in
customary law and the relations between traditional leaders and their
people.
1.2.1 Colonialism (1652-1909)
Direct rule – a policy initially applied by colonial British gov where they
sought largely to assimilate natives under English common law.
o Colonial policy originally adopted by British in their colonialization
of the Cape at the start of the 1800s.
o Sought largely to assimilate natives under English common law.
o Easier to do in Cape as settler population was higher compared to
natives. (large portion of Khoisan died by disease and conquest)
o Colony expanded into East where there were more ethnic groups
and where colonial forced has warred for almost a century.
o British needed better policy to establish control and used indirect
rule.
Indirect rule – a policy later applied by colonial British gov whereby
native administrations, courts and treasuries were established in the
Cape and Natal colonies in accordance with their understanding of
customary law to ensure the cooperation of traditional leaders and
communities and to relieve the financial burden on colonial gov.
o Colonial policy articulated by Frederick Lugard who served the
Crown
o Colonial British gov tried to understand African customary law and
legislate in accordance with it so traditional leaders and natives
would cooperate with colonial gov.
, o British implemented indirect rule in 3 parts:
Recognized traditional leaders by establishing native
administrations which traditional leaders formed a part.
Established local dispute resolutions forums as native
courts.
Established native coffers into which natives paid taxes that
were then used for native admin as the colonial gov did not
want to squander its wealth.
Terra nullius – the principle that where land has not been productively
used by people inhabiting it, it was not owned by the people who lived
on and used the land.
Lex nullius – the notion of colonists that natives were without law.
Capitalism – economic policy and system in terms of which European
countries sought to enlarge their wealth by expanding their assets and
domains to foreign lands and that was therefore one of the primary
drivers of colonialism.
Enlightenment – a cultural and intellectual movement in 1600s and
1700s that served to support broadly acceptable social knowledge and
developments with the premises of materialism and humanism as
opposed to tradition.
Policy of assimilation – a policy compelling people not originally subject
to a culture or law to embrace that culture or law as their own and
conform to it in their practice.
1.2.2 Socio-economic and political context of colonialism
Colonialism a struggle over natural and human resources and authority
as well as cultural and moral legitimacy. (civilization mission)
Process of colonization:
o Colonizers asserted their power over indigenous people and
redistributed power locally.
o Implemented authority by means of physical and legal coercion.
o Did not recognize and undermined legitimacy of traditional
leaders and institutions.
o Colonizers believed in superiority of their own culture and
disrespected local values.
Colonizers wanted to legitimize their rule hence their laws.
, Wanted to secure control of contractual relationships and financial
dealings over property.
o Property:
main asset colonizers wanted to legally possess.
2 forms: land and people (slave labor)
Colonizers dispossessed local population of their property
by relying on principle of terra nullius.
Terra nullius complimented by lex nullius as colonizers
insisted on direct rule as their legal strategy (compelled
natives to succumb to force and authority of colonizers legal
system.
This strategy offered colonizers security because any legal
dispute was governed by a system of law which they
understood and favored them.
Initial colonizers (Dutch) could not implement direct rule on a wide scale
as they were confined to the Cape and did not have enough people to
enforce this policy beyond that region.
1800 tensions between Dutch and English when English arrived, Dutch
sought refuge with English and moved further inland.
British then adopted direct rule but much more intent on including
natives in economy and culture as they believed this would civilize
natives.
British came to SA as part of global trend of imperialism.
Initially, industrialization and enlightenment led to abolishment of
slavery and British believed they had a higher standard of living and
morality.
Industrialization also gave British ability to impose their standards by
force using machinery and firearms.
Capitalism was on the rise and global economic expansion meant
pursuing wealth in foreign lands.
Capitalism:
o core element of British colonial enterprise.
o Seizure of territory.
o Inclusion of indigenous people in settler economy as laborer’s.
1.2.3 Recognition of customary law
Driven by state objectives so they could use indigenous systems and
people.
Customary law was used as instruments in hands of state.
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