African Customary Law 171 Notes:
Textbook: Introduction to Legal Pluralism, C Rautenbach
Study Unit 1: Introduction to Legal Pluralism and Customary Law:
Introduction:
> Legal pluralism:
The coexistence of multiple officially-recognised legal systems within one jurisdiction which run
parallel to each other and interact within very limited and prescribed circumstances (NARROW); in
reality, these are linked to cultural pluralism and living law, and therefore also encompasses a broad
range of unofficial legal systems (BROAD).
> Where does African Customary law fit in?
● The SA law system consists of multiple sources of law; some are written (Constitution; legislation
acts; case law; court cases; African Customary law; customs; international law; writings of
modern academic law) and some are unwritten.
● The Constitution recognises customary law as an important source of SA law; it works alongside
national law. Therefore, we need to know what customary law is, who is bound by it, why it’s
important, what are the substantive legal rules of customary law, what exactly is the connection
between customary law and culture etc.
● There are two forms of customary law:
○ Official: legislation from government; case law.
○ Living: reality; not always in line with what the legislature says; ever evolving; Jewish,
Muslim, Hindu etc (often religious systems) are not taken into account.
Theoretical Overview:
> Narrow Interpretation: state-law / official / weak pluralism:
● The ‘dual systems’ coexistence of at least two officially recognised legal systems (common law
and customary law) which run parallel to each other and exist in narrow, prescribed
circumstances; it does not adequately reflect the social reality of SA, therefore people may not
abide by it; is founded on unequal power relations; Western law dominance originates from
colonialism and is still often seen as the dominant system.
● ‘State laws’: common law; Roman-Dutch law (as influenced by English law, adapted and
developed through legislation and judicial decision; remnants of SA’s colonisation by the Dutch &
English); legislation; case law; official customary law incorporated into or contained in legislation
by the ruling government; living customary law; case law.
Jurisprudential Theories:
, ● Legal positivism: law can be found in tangible/empirical sources (e.g. legislation, case law & law
of old authorities); law can’t be based on moral values; it is what it is (i.e. only common law and
official customary law are valid).
● Legal centralism: law should be state-sanctioned; uniform, exclusive of all other law and
administered by a single of institutions; the state has a monopoly to make laws and other laws
will be subordinate, therefore unrecognised legal systems aren’t regarded as law in SA.
○ This narrow understanding flows from the perception that law consists of norms that are
created and sanctioned by official state organs in accordance with a basic rule of
recognition; laws derived from sources other than state institutions will not be considered.
○ Practical rules around when they are applicable (repugnant/not etc.), how they should be
ascertained, what should happen when there is conflict with common/national law etc.
● Officially recognised customary law: Recognition of Customary Marriages Act; Reform of
Customary Law of Succession and Related Matters Act; Black Administration Act (section 12 &
20 remain applicable) dealing with traditional courts.
■ These acts are important tools in narrow legal pluralism.
> Broad Interpretation: deep / strong / unofficial / non-state legal pluralism:
● Includes: official & unofficial legal systems (national & customary), people’s law, living customary
law, religious based legal systems (Jewish, Islamic, Hindu), international law.
○ Although the constitution allows for recognition of other systems of family, personal or
religious law, recognition remains a requirement for the existence of this law, therefore state
law is often still emphasised.
● The broad interpretation is especially relevant in a constitutional democracy; the social state of
affairs is not based on the inequality of legal systems, but reflects the reality & diversity of society
(there are as many customary legal systems as there are cultures in the country). The
recognition of a system has no effect on its existence; it’s a feature of a social field, not an
attribute of a legal system or order. Recognition merely determines a system’s status and
dominance of state law is irrelevant to the continued existence of unofficial laws.
● Unofficial Customary law:
○ Living customary law is difficult to ascertain in practice; during colonisation state law was
used to control black South Africans; colonisers aligned customary law with what conformed
to their Western values and what they believed was right.
○ Usually lived by in rural areas and applied in unofficial customary institutions, e.g. courts of
ward heads & traditional authority courts.
○ E.g: when a young man and women want to get married, lobolo can officially be organised
by senior uncles but social realities in social areas changed as men moved to urban areas
for work, therefore women began to make decisions; when problems arise, though, some
argue the failure to comply with traditions nullifies the validity of such a marriage.
> Development of legal pluralism:
,● For a long time, state law and official customary law were the only systems recognised but there
is a slow move to deep legal pluralism within the country.
● The South African Human Rights Commission and courts (esp when pertaining to marriage and
succession) started taking more cognisance of living reality/living customary law.
○ Constitution: everyone has the right to culture, speak your language etc.
○ Courts had to find a balance between ACL and state law: ACL is inherently patriarchal, and
therefore there is conflict between the systems in this regard; some customary law infringes
upon the rights of women and children.
● During colonial and apartheid times, customary law was subject to the Repugnancy Clause;
customary law was thus always unequal and subservient to western/national law.
○ Classifications and descriptions of national law were used to explain customary law, despite
the fact that the premise of customary law and dispute resolution are completely different
from Western counterparts.
○ It was very easy to abolish official customary law in terms of national law (e.g. customary
marriages aren’t accepted due to polygamy), and national law prevailed in conflict.
○ Western ideals couldn’t make sense of the sense of community & unity (ubuntu).
● Now, discretion is awarded to courts to develop customary law in line with the Constitution; and
when courts are confronted with matters pertaining to religious or living customary law etc, they
will have to ascertain what the nature of that living law is because we strive towards democracy.
> Forms of legal pluralism:
● Recognised: state law pluralism; laws are empirically traceable, reduced to writing, and it is easy
to determine their validity compared to living law (NARROW APPROACH).
● Experience: recognises all law, including unofficial/living customary law (religious, people’s law)
together with national/international law etc (DEEP LP); reflective of diversity, social reality,
cultural diversity; accompanied/perpetuated by cultural pluralism (which is recognised in the
Constitution).
○ Racially based customary law still exists as part of our culture.
○ Personal legal pluralism: Muslim marriages are allowed to occur under Muslim rights but the
official marriage wasn’t recognised under law systems (not written into legislation; have to go
officially register over and above their marriage) even though the Constitution allows for
cultural rights.
Historical Emergence of State Law & Deep Legal Pluralism:
● Historical development of deep legal pluralism:
○ Neither the Dutch nor the English wanted to be responsible or have direct control over the
indigenous (San/Khoi) or African customary people (black South Africans); they merely
wanted to further their own interest.
, ○ 1652-1795 Dutch: there is little evidence of state law pluralism with this first occupation
and we only started seeing the influence of the English during the second British
occupation, but the Cape was of strategic importance to the DEIC on the trade route.
■ The articles of capitulation stated that ‘the laws of a conquered country will remain in
force until repealed by the conqueror’, but the British never repealed Dutch law; the
Dutch employed Khoi/San people to serve them, who were therefore under Dutch
control and became their legal subjects.
○ 1795-1803 British: started seeing the influence of English law.
○ 1803-1806 Dutch: they still didn’t want to resume control of African people even though
they employed them.
○ 1806-1910 British: there was an official recognition & regulation of customary law subject
to the repugnancy clause (avoids ‘pollution’ of national law): customary law will be
applicable insofar as it is not repugnant of good morals (morals as imposed / defined by
the West; boni mores), public policy (Western policies) and the rules of natural justice.
■ Rulers could manipulate the extent of customary law’s continued recognition and
distorted customary law (e.g. customary marriages that allowed polygamy were
contrary to Western morals; traditional courts solving disputes amicably); there was
no legal uniformity.
○ 1833 British: the British formed treaties with chiefs, allowing African people to live
according to their law but still making them subject to national law; they thus avoided
direct control but still retained a degree of indirect control and manipulation as the
national law would still be superior; the treaty system (abolished 1845) was the first formal
instrument of state law pluralism.
○ Customary law, inevitably, began shifting to fit national law as the foundations/notions of
customary law were not understood by colonial rulers; the Western understanding of
justice was superimposed onto the vastly different system of customary law because they
did not understand the values of customary laws.
■ Apartheid also tried to bring customary in line with western morals; the development
and dispersion of customary law was affected, however continued growth and
development of ACL was not impeded - testament to the fact that it is living and
flexible.
● Van Breda v Jacobs
○ Mid-1900s: there were different, autonomous areas: the two Boer Republics, two English
republics and Zulu kingdoms.
○ 1910 Union of SA: dependence from the British & Dutch meant that customary law was
recognised all over SA but the Black Administration Act 38 of 1927 (which was the first
legislative instrument of state law pluralism as it was an official/state-sanctioned aspect of
customary law), consolidating colonial legislation, impacted every aspect of African
people’s lives and its effects still need to be rectified.
