LCP4804_Advanced Indigenous African Law.
1. Evaluate the operation of ubuntu as a measure of the propriety of human conduct in South
Africa before it was interrupted by colonial intervention.
The propriety of human conduct was redeemed by the evidence of ubuntu that lay at the root
of one’...
1. Evaluate the operation of ubuntu as a measure of the propriety of human conduct in South
Africa before it was interrupted by colonial intervention.
The propriety of human conduct was redeemed by the evidence of ubuntu that lay at the root
of one’s actions. In the ubuntu institutions listed above, the centrality of humanness lies at the
heart of the social activities of each individual. Each institution was redeemed by its tendency
to enhance the human condition of certain individuals or groups such as ukufakwa isondlo.
Even an individual’s liability for wrongful conduct was measured by the level of
“ubuntuness” with which it was performed. The heart of the perpetrator was examined to
establish if ubuntu was the basis for his or her actions. For example, a person who killed a
rapist to save a child was saved by the humanness of his actions. Likewise, the person who
killed a dog that targeted lambing ewes and killed newborn lambs would not have been
prosecuted. Both these actions would have been considered as praiseworthy because the
community would be rid of the perpetrators.
Colonialism put an end to this line of reasoning. The Western concept of law shifted the
centre of attention from the heart to the mind. Under the Western system, it was no longer the
humanness in the perpetrator’s heart that was examined to establish liability, but the
perpetrator’s state of mind. Was he or she at fault? became the question. If he or she were
indeed at fault, the next question would be: was the action intentional or negligent? Both
these questions are directed at the perpetrator, not at the impact of the action on humanity.
2. Trace the impact of the colonial intervention on the lives, land and the law of Africans from
1652 to the 1830’s in South Africa.
The fate of the Khoisan people with regard to the colonial dispossession of their land, the
destruction of their sovereignty and the distortion of their laws soon became the fate of all
other indigenous groups. These groups eventually found that African values were legally
invalid because they ran counter to the Western morals of public policy and natural justice.
To be valid, African customs had to be consistent with Dutch customs, not vice versa.
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3. According to your interpretation of the above extract from the judgment of Schreiner JA,
what used to be the relationship between customary law and common law in the South
African legal system?
Schreiner JA interpreted section 11(1) of the Black Administration Act (BAA), which reads:
it shall be in the discretion of the Commissioners’ Courts in all suits or proceedings between
Blacks involving questions of customs followed by Blacks, to decide such questions according
to the Black law applying to such customs except in so far [as] it shall have been repealed or
modified: provided that such Black law shall not be opposed to the principles of public policy
or natural justice ...
Hence, the judge insists that the president of the Appeal Court for Commissioners’ Courts
was given the discretion to apply customary law in proper cases that called for such special
treatment; otherwise he was mandated to apply the common law to cases involving Africans.
This means that the BAA did not give customary law the status of a law to be applied in cases
between Africans. Instead, it gave the Commissioners’ Courts the discretion to apply
customary law only in special cases where the interests of justice called for it. Therefore, the
president of the Appeal Court for Commissioners’ Courts erred in holding that such courts
were mandated to apply primarily customary law instead of common law, which was the law
of the land.
4. Study the extract from Ngcobo J’s judgment in the Bhe case and write a reasoned opinion as
to who caused black people’s poverty in South Africa and how they did it. (in study guide –
pg 4)
As the extract makes it clear, the union government promulgated the BAA as a tool to
establish a separate administration for blacks and to create instruments to ensure the
systematic impoverishment of black people. It established the office of the Governor- General
as the “supreme chief of all Africans” in the country and gave him absolute power to drive
them off their land without compensation and to resettle them on unproductive and barren
land. This administration created false geographical divisions called “white areas” from
which black people were forcibly removed. This colossal social experiment called segregation
had the desired results: it caused untold suffering for the back people and impoverished them.
5. What is the importance of the transitional period in South African history?
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For the first time in more than 350 years, South Africans experienced the participation of all
races in public affairs when formerly imprisoned and exiled leaders met with former
apartheid leaders to map out the path to a new South Africa. When the interim Constitution
took effect on 27 April 1994, customary law ceased to be a sub-system of common law and
once again was applied according to its value system. Like any other law, was subject to only
the Constitution.
6. How does one distinguish between apartheid customary law and its democratic counterpart?
Apartheid customary law is described by Schreigner JA in in Ex parte: Minister of Native
Affairs – In re Yako v Beyi 1948 (1) 388 (A). See Feedback 1.3 above where the customary
law of the democratic South Africa is described by the Constitutional Court in Alexkor v The
Richtersveld Community & Others 2004(5) SA 460 (CC) paragraphs 50–53. See learning
unit 2, lecture 2 below.
STUDY UNIT TWO
1. What does the definition in section 1 of the Recognition of Customary Marriages Act, Act
120 of 1998, mean? “Customary law means the customs and usages traditionally observed
among the indigenous African peoples of South Africa and which form part of the culture of
those people.”
It means that the customary law of a community is its living law in the sense that it must
“form part of the culture of those people”. As the culture of the Tsonga people differ from
that of the Tswana people, so do their customary laws. This has an impact on the application
of the doctrine of judicial precedent in customary law. For example, the decision in Mayelane
v Ngwenyama and another 2013 (8) BCLR 918 (CC), which is based on the Xitsonga custom
that requires the consent of the main wife before her husband can contract a further
marriage. The consent of the main wife “form(s) part of the culture of those people”. It does
not necessarily “form part of the culture of the Tswana, Zulu, Sotho, Xhosa or Khoisan
people”. But even if none of the latter cultures endow the main wife with the right to consent
to her husband’s contracting a further marriage, in terms of the equality and dignity clauses
of the Constitution as expounded in the Mayelane principle, in future no husband will be able
to contract another marriage without the consent of the main wife. Because of the Mayelane
judgment, the consent requirement is now part of customary law jurisprudence in South
Africa as a whole.
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